In the "Ethics", Abelard discusses the example of a judge who knowingly convicts an innocent defendant. He claims that this judge does rightly when he punishes the innocent man to the full extent of the law. Yet this claim seems counterintuitive, and, at first glance, contrary to Abelard’s own ethical system. Nevertheless, I argue that Abelard’s ethical system cannot be viewed as completely subjective, since the rightness of an individual act of consent is grounded in objective standards established by God. (...) Likewise, any particular civil government must derive its authority objectively from the natural and/or Christian laws, which ground its possibility and function. In this paper, I examine Abelard’s explication of the natural law, discoverable through reason, and the divine laws, knowable only through revelation, in order to explore what form an adequate civil law would have to take under which the judge could be said to have acted rightly. (shrink)

Roman Law is an important legal systematic that contains important codings of world law history. This legal system not only affected Continental Europe, but also the Near East, which was a period under its domination. Especially in the Justinian period, the law collection that emerged as a result of the legal studies starting from the East Roman capital is considered as a monumental work by many historians and jurists. Researchers who praise Corpus Juris Civilis are right. However, this selection, which (...) is one of the most effective law coding, is far from being practical. For this Leo III prepared his law book called Ecloga. Referred to as the first Christian law book, this work was later expanded with some additions. Ecloga was given its final shape during the period of Empress Irene. Irene is one of the strongest female figures in Roman history. Emperor Constantine V married his son Leo (who is from his first wife Çiçek Hatun, the Caspian Princess) to Irene. Irene was the daughter of an ordinary family. She was Athenian as origin. However, Athens was not a city as flashy as it was in ancient times. At the same time, the Athenians were against icon-breaking, which was the official ideology of the empire. It was really interesting that Irene was chosen by Constantine V as wife for his son Leo. After the death of Constantine V, Leo IV acceded to the throne without any problems. The fact that Leo IV had chronic tuberculosis prevented him from state administrations. Actually, it was Irene who filled in this gap. After the early death of Leo IV, due to the aforementioned disease, his 10-year-old son Constantine VI became officially regent. After killing her son by abacina-tion Irene became the sole owner of the throne. In the ongoing process, she abused law and religion to maintain her power. Irene’s first law supplement was on oaths. There were many references to the Holy Book in the annex of this law. It was mentioned that it is not a sin to swear in the Old Testament, but it is now forbidden to swear with the New Testament. In addi-tion, the law stipulates that the oath is the way to deny God precisely after lying. However, it was claimed that the oath tradition to the Roman society passed through the Hebrews. Un-doubtedly, Irene used the text of this law to prove that the oath of devotion of the majority of the eastern Roman army, allegedly to her son Constantine VI, was invalid. Because in the Ro-man army, fulfilling the necessary oath and loyalty to the emperor were in front of everything. It was possible for the empress to take over the throne with this proclaimed law article that the vows of the soldiers who swore in order to remain committed to Constantine VI within the army were void. It is obvious that Irene was trying to prevent a possible coup attempt within the army. The empress’ second annex to the law concerns those who married for the third time. The law was titled “About those who illegally contract to third or later marriages and about those who marry their own slaves”. In Christianity, it was allowed to marry for the sec-ond time after the death of one of the spouses. There were certain phrases that marriages to be held for the third time in the Holy Book were forbidden. It is clear that Irene had a political benefit in reminding this ban. Because her power was based on her marriage with Leo, who was the son of Constantine V from his first wife. Their rivals were the sons of Constantine V from his third marriage. Therefore, with this law, she eliminated her political rivals. (shrink)

According to estimates more than 400 biobanks currently operate across Europe. The term ‘biobank’ indicates a specific field of genetic study that has quietly developed without any significant critical reflection across European societies. Although scientists now routinely use this phrase, the wider public is still confused when the word ‘bank’ is being connected with the collection of their biological samples. There is a striking lack of knowledge of this field. In the recent Eurobarometer survey it was demonstrated that even (...) in 2010 two-thirds of the respondents had never even heard about biobanks. The term gives the impression that a systematic collection of biological samples can constitute a ‘bank’ of considerable financial worth, where the biological samples, which are insignificant in isolation but are valuable as a collection, can be preserved, analysed and put to ‘profitable use’. By studying the practices of the numerous already existing biobanks, the authors address the following questions: to what extent does the term ‘biobank’ reflect the normative concept of using biological samples for the purposes of biomedical research? Furthermore, is it in harmony with the so far agreed legal–ethical consensus in Europe or does it deliberately pull science to the territory of a new, ambiguous commercial field? In other words, do biobanks constitute a medico-legal fiction or are they substantively different from other biomedical research protocols on human tissues? (shrink)

In this paper, I analyze the ‘Da ti’ chapter of the Han Feizi 韓非子. This chapter is often read as one of the so-called Daoist Chapters of text. However, a deeper study of this chapter allows us to see that, while Daoist terminology is employed, it is done so in a way that is certainly not reminiscent of either the Zhuangzi 莊子 or the Laozi 老子. Neither, though, does it have quite the flavor of other chapters in the Han Feizi (...) where scholars have often read Han Fei s advocating a system of government based on laws promulgated by the ruler, the content of which is left solely to the ruler’s discretion. Throughout this paper, I hope to demonstrate that a reading of the ‘Da ti’ chapter allows us to understand that Han Fei is not simply advocating a system of government based on laws promulgated by the ruler, the content of which is left solely to the ruler’s discretion. This chapter can help us begin to understand that Han Fei has a much more nuanced system and that he advocates law that accords with the overarching pattern of the universe. In doing this, I will show that the idea of fa 法 (standard, law) that we see utilized by Han Fei, both in these chapters do not fall neatly into Western conceptions of law, and thus previous scholars who have worked based on these conceptions have missed important aspects of Han Fei’s thought. I also attempt to demonstrate that this interpretation of law is consistent with the way that it is used in the rest of the Han Feizi. (shrink)

In his Apology of the Church of England as well as many of his other works, John Jewel defended the orthodoxy of the Elizabethan Church on the basis of the following criteria: Scripture, the first four general councils, the writings of the Church Fathers, and the example of the primitive church.1 By emphasizing these authorities, the bishop of Salisbury also sought to impeach the Roman Church’s claim to orthodoxy by arguing that doctrines and practices which developed subsequently to the early (...) church as defined by these criteria contradict them, thereby nullifying its charge of heresy against Protestants while simultaneously indicting the papacy itself as heretical. A question that emerges from studying Jewel’s prodigious polemical works concerns the source of this means of determining orthodoxy. Answering this question requires a close analysis of the apologist’s use of sources. This article will attempt to answer this question by arguing that this criteria for defining orthodoxy derived mainly from canon law tradition that is confirmed specifically by Gratian’s Decretum. This thesis maintains that Jewel’s criteria constituted a form of the ius antiqua with which he attacked the ius novum that provided the authoritative basis for papal supremacy, and in so doing, sought to vindicate the Elizabethan Church’s place in ancient catholic tradition. (shrink)

Semiotics provides the tools for studying the process of decoding law, one of the most important tasks in the daily work of courts. The semiotic review of juridical interpretation and gap filling concludes that in juridical and semiotic methodology the same question—how a norm is interpreted—is answered from different perspectives. According to the semiotic model proposed in the current paper, juridical interpretation can be structured into three levels: intra-, inter- and supranormative sign-process. For legal theory semiotics can highlight the similarities (...) in the interpretation of norms and gaps. In gap filling the iconic, indexical and symbolic relations compensate for the missing of intranormative semiosis. The applicability of the proposed model is tested on an example of case law. Semiotic investigation of the judgements of Supreme Court of Estonia and European Court of Human Rights shows that semiotics gives a well structured picture of the juridical interpretation process. (shrink)

This article is a review and reflection of the new elements of rights and laws, applied to the principle of justice and sovereignty, but above all in the demonstration that law as a science once again allows us to conceive that as a science it evolves and must be modified according to the new conducts that the State and society require, such is the case of the constitutional recognition that this type of rights have. In the last decades, human beings (...) have evidenced that the way in which they interact with nature is causing serious consequences to the ecosystems that compose it. In the past, these consequences were not yet evident and, therefore, the environmental awareness that exists today did not exist. Therefore, it is necessary to analyze and reflect on certain conditions of this right in Ecuador. (shrink)

The Build-Operate-Transfer (BOT) model is a financing model used especially in the financing of infrastructure projects in developing countries. It is one of the most common methods used by the countries to provide non-budgetary financing. The fact that becoming popular in the world as of the 20th Century, this model started to be implemented in the Islamic countries created the need for examining the model in terms of Islamic law. No substantive studies have been conducted on this matter in Turkey. (...) In the Arab world, the first significant development in this regard was the 23rd Term meeting of Al Baraka Group organized in Mecca in November 2002. Next, the Islamic Fiqh Community, which operates under the Organization of Islamic Cooperation, organized a meeting about the BOT model in 2009. At this meeting, ten experts from different countries presented papers on the BOT model, and a final declaration was announced at the end of the meeting. After this meeting, some independent studies were carried out on the BOT model. However, it was observed that these efforts did not reach a sufficient level, and generally remained within the framework of the papers presented at the meeting. The BOT model is a model that takes place in the form of the transfer of the facility to the relevant public institution or organization free of charge at the end of the period after the depreciation and profit of the invested capital are realized. All expenses are covered by the private enterprise. The public service or activity is operated for a certain period of time by the private enterprise. It was observed that the studies on the BOT model in Turkey mainly dated back to the last quarter of the Twentieth Century. In this context, the Law No. 3996 about the BOT model was enacted on 08 June 1994 in Turkey. Today, the BOT model is actively used in many areas, and the delivery of the service begins after the projects are completed. The BOT model has three main successive stages. In the first stage, the project is completed with the financing of OGS. In the second stage, the operating right of this project would be awarded to the investor in accordance with the contract. In the third stage, the ownership of the facility would be transferred to the relevant public institution. The BOT model was discussed in terms of Islamic law, firstly in general and then in terms of the interests and convictions. The BOT model contains many interests in terms of both the state and the society. In addition, it has certain disadvantages. There are many reasons and aims in selecting the BOT model. The most important of these reasons is the continuation of the projects and the required work without imposing a burden on the public budget. Islamic law has a structure that prioritizes public interest. In this context, the state must observe the public interest in its operations. In the BOT model, the existence of public interest is particularly notable with the projects implemented in the fields of hospitals, roads, bridges, airports and etc. Islamic jurists have different opinions regarding the contracts administered in the BOT model. Some of them consider this model as a new contract that does not exist in the tradition, while others compare it to a traditional contract. The analogies of the traditional contract have been compared to leasing, payment, foundation, fief, corporate (with partnership) and exception contracts. Others, on the other hand, considered the BOT model as an atramentous contract combining several different contracts. It seems difficult to argue that the BOT model is completely similar to any of the classical fiqh contracts. However, as a result of the BOT model, it is considered an agreement with a company to conclude a contract; therefore there is a more prominent similarity to an exception contract. Nonetheless, it is not possible to say that the BOT model fully complies with the traditional exception contract. As a matter of fact, while there is no time determination in the exception contract, the time is determined in the BOT model. In the exception contract, while the material must be completely covered by the private sector, in the BOT model, issues such as the right to land and building construction are covered by the employer. In addition, the classical exception contract does not contain many contracts as in the BOT model; and it is an agreement in which the fee is presented and terminated after the order is placed. Nonetheless, the BOT contract includes three basic contracts (construction-operation-transfer) as well as many contracts related to these contracts. Finally, considering that the BOT model was a contract, the issues in the context of the basic elements that should be included in a contract were discussed in this study. In addition, situations such as ignorance, gharar and interest in terms of affecting the validity of the contract were discussed and dealt with in terms of the BOT contract. (shrink)

This article investigates some special criteria of implementation of the EU directives into the national legal order and the consequences of their non-compliance, that could arise from the EU membership obligation to the European Union law. The most important acting form for the Institutions of European Union comes after the Reform treaty of Lisbon the form of the EU directive. The law-making practice of the Institution of the European Union set out with different levels of full or partial harmonization (...) of the EU directives. Consequently, there comes the problem of the enforcement of the adopted EU directives into the domestic legal order. The article analyses the changes in European Union law after the Reform of Lisbon. The investigation begins with treatment of the general characteristic of the EU directive. After that it analyses the choice of primary legal ground for adopting of the EU directive and the consequences of its wrong choice for the legality of the EU directive. (shrink)

Advance refusals of life-sustaining treatment involve three potentially conflicting interests: those of the patient; those of the doctor; and those of the law. The state's interest in protecting life can clash with the patient's right to self determination which, in turn, can conflict with the doctor's desire to act in the patient's best interests. Against this background, we present the case of a patient who was treated (arguably) contrary to his advance refusal but in accordance with (...) English law. (shrink)

Did Plato intend the laws of the Laws to change? While most scholars agree that there is to be legal change in Magnesia, I contend that this issue has been clouded by confusing three distinct questions: (1) whether there are legal mechanisms for changing the law in Magnesia, (2) what the attitudes of Magnesian citizens towards innovation and legal change are, and (3) whether Plato thinks the law is always the ultimate political authority. Once we separate these issues and look (...) at the relevant texts more closely, we see that the Athenian Visitor is primarily concerned with supplementing the original lawgiver’s laws and that any innovation that occurs should be consistent with this lawcode. This does not settle the question about whether it is always right to act in accordance with the existing laws, though it does provide a valuable framework for understanding a central aspect of Platonic political philosophy. Thus, although Plato’s ideal places knowledge above the law, in practice the laws of Magnesia will be fixed and authoritative for those people living under them. (shrink)

This is the first part of a two-part article in which we defend the thesis of Humean Supervenience about Laws of Nature (HS). According to this thesis, two possible worlds cannot differ on what is a law of nature unless they also differ on the Humean base. The Humean base is easy to characterize intuitively, but there is no consensus on how, precisely, it should be defined. Here in Part I, we present and motivate a characterization of the Humean base (...) that, we argue, enables HS to capture what is really stake in the debate, without taking on extraneous commitments. (shrink)

In this article, the subject of Jesus and the Gospel is discussed according to the Qurʾān. This study focuses on the position of Jesus and the nature of the Gospel from the perspective of the Qurʾān about the perception of Jesus and the Gospel in the Christian belief. The issue of Jesus and the Gospel has been the subject of different understandings and discussions between Muslims and Christians from the first periods of Islamic history until today. There are serious confusions (...) around them both within the Christian world and Islamic world. Even if there are common points between the information contained in the New Testament and in the Qurʾān on these issues, this information does not agree with each other. While Jesus and the Gospel described in the Qurʾān are not independent and not detached from the historical process of divine revelation; Jesus, which was placed in a superior position in Christianity, and the Gospels written by different writers on different dates after Jesus, do not integrate with this historical process. As for the Islamic world, it can be said that the perception of Jesus and the Gospel is not directly shaped by the Qurʾān, but rather by narratives and common beliefs. In this article where concept analyses are intense, the Qurʾān, the Bible, TDV (Türkiye Religious Foundation) Encyclopaedia of Islam, dictionaries, commentary resources and studies on Jesus and the Bible were mainly referred to. According to the Qurʾān, all the messengers called rasūl and nabī are human prophets chosen by Allah and none of them are angel or superhuman. Allah is the only God and there is no god but Him. According to the Qurʾān, it is not possible for God to adopt a wife or son. Allah is not the third of the three that finds its expression in the Christian belief in the form of the trinity: The Father, the Son and the Holy Spirit (Rūḥ al-Quds). According to the Qurʾān, every understanding that deifies Jesus and carries him to a position above human is a deviation from the right path. The deification of Jesus, who was born of Mary without a father, has been a belief formed over time. It is stated in the Qurʾān that Jesus is a messenger of Allah and a word He informed Mary, like the other prophets. What is meant by the word of God is that Allah heralds Mary with a child whose name is Christ, Jesus and the son of Mary. While it is said in the Qurʾān that Jesus is the word of God, it is not meant that the word is embodied and transformed into Jesus; however, it is meant that Jesus was created and brought to life with a word that came from Allah. The fact that Jesus is the word of God can also mean that he will speak to people in the name of Allah when he is in the cradle and then with the words that were revealed to him, and he will notify the way of the Lord in his message. As his birth is a miracle, his talking to people while in the cradle is also a miracle. Allah put His words in the mouth of Jesus like as He put them in the mouth of Prophet Muḥammad, and He also revealed the Gospel to Jesus. Thus, the words of God and the messenger who speak in the name of Allah became synonymous. Because when he speaks in the name of Allah, the words coming out of his mouth are not the words of Jesus himself, but the words of God. All prophets, including Jesus, are a single ummah sent on Islam. The essence of the books they brought from Allah is one. Although there are some differences in details arising from history, culture and social conditions, there is no difference between them in terms of the basic principles, norms and decrees brought from Allah in matters of faith, worship, morality and law, and especially the principle of unification. According to the Qurʾān, the Bible is the name of the divine book that Allah sent down to Jesus who was held responsible for His message, and that confirms the previous books. Contrary to the common belief among Muslims, the Qurʾān does not abolish the Gospel sent down to Jesus, but endorses it. In fact, all the books that God sent through the prophets confirm each other in terms of their essence, as well as the basic principles and provisions they contain. Allah taught Jesus the book, the wisdom, the Torah and the Bible, and sent him to confirm the Torah. He also sent down the Qurʾān to Prophet Muḥammad as confirming the Torah and the Bible. The purpose of these books sent down by Allah is to provide guidance and light to humanity. It is emphasized in the Qurʾān that all the prophets are actually one ummah, and that God who sent them is the true Lord of the people and that worship should be done only to Him. The verse in the Qurʾān "The only religion in the sight of Allah is Islam" should be understood in this context. In this respect, the common understanding among the scholars who study in the Islamic tradition that Qurʾān abrogated the divine books sent to humanity before, which is incompatible with the Qurʾān and turned into a common belief, should be reviewed and evaluated. (shrink)

The Ottoman legal system is built on religious (sharīʿa) and customary (ʿurfī) laws. The customary law consists of the rules that are not in contrast to the sacred law. Collection of regulations (qānūnnāme) were the most effective way for the execution of the customary laws. The qānūnnāme included the sultan’s orders and edicts (farman). Ottomans regulated and evaluated the taxes through measurements of lands specific times of the year. These measurements would be recorded into the taḥrīr books (written survey of (...) immovable prop-erties). And the administrative qānūnnāme were included in these books. In the qānūnnāmes, we can find information about the taxes, and the unlawful executions of the customary actors (ahl al-ʿurf) as well as the tax regulations. The qānūnnāmes on sanjak are composed accord-ing to the economic, social, and geographical characteristics of the administrative district it is written about, and with this, they provide us information on these issues. In this article, three sanjak qānūnnāmes are taken as the central topic and Kamah, Āmid, Pojega are evaluated in terms of the execution of customary law in these districts. These qānūnnāmes include record-ings of various taxing regulations, altered and cancelled executions, amounts of taxes, and punishments. We can compare the three districts in their economic and social characteristics.Summary: The Ottoman legal system consists of sharia and customary law. Ordinary law is based on some regulations which the sultan deems necessary and is composed of laws. The Ordinary law should not contradict sharia. When the Ottomans conquered a place, they generally protected the current laws (such as Uzun Hasan's laws), except for necessary changes or cancellations. When the Ottomans conquered a place, they used to make census to determine taxes. As a result of this census, Sanjak qānūnnāmes were placed in taḥrīr books. It also involves issues such as public and criminal law, customary tax regulations, and amounts of market taxes, which are approved by the emperor. In this article, the Sanjak qānūnnāmes of different regions belonging to the period of Suleiman the Magnificent, whose dates are close to each other, were selected. The Sanjak qānūnnāmes which are studied on are Kemah sanjak of Erzurum province belonging to (937/1530) and Āmid sanjak of Diyarbekir province belonging to (947/1540) and Pojega sanjak of Budin province belonging to (950/1545). The reason for this is to be able to compare the differences or stableness in tax and practices in the mentioned date range. At the same time, attention has been paid to the effectiveness of customary practices and the parts that are linked to sharīʾa. Some of the laws of Uzun Hasan are in force in Kemah and Amid. In these two sanjaks, some of the bâc taxes and some other taxes were removed. It is seen that the complaints made by the public due to the excess of taxes are taken into consideration. For example, in Kemah, the akche of murahhasiyye paid by the villagers for Armenian priests and bishops is one of them. The taxes that are abolished include kulluk and blend tax and taxes from various business lines. The tax, which was collected by the governors of the sanjak and the castle beys under the name of custom, which was imposed by some local administrators, was cancelled by seeing bidat. When three of the sanjaks are taken together, there are cautions that unfair and unlawful tax collections made by local administrators during tax collection have been abolished and these are accepted as bidat. Kemah sanjak qānūnnāme is 13 pages in total. Kemah, which has a geographical position and military transit route, has commercial relations with cities such as Trabzon and Hasankeyf. In Kemah, there are candle mill (şemhane), creamery (bezirhane) and tavern (meyhane). Kemah is one of the places where the climate has an impact on agriculture. Kemah's economy is based on trade, agriculture, small livestock, beekeeping. In Kemah, where caravan trade is important, trade goods are of value due to its location on the transit road. The Kemah qānūnnāme also contains various taʿzīr for unjust killing, wounding, and adultery. In the city, there are some arcs have ownership in common. The fact that there are mills indicates that the rivers in Kemah are utilized. Âmid Sanjak qānūnnāme consists of two pages. The title that attracts our most attention is that there is vitality and economic activity in the market since Âmid is on the Aleppo-Mosul Silk Road. The high number of weaving looms is due to the production of cotton. Amid has dye house and saphane. Indigo and Amid's red dye sold in the market shows the importance of weaving. Pojega sanjak qānūnnāme is composed of seven pages. Among the qānūnnāmes we have mentioned, this is the most legible one. In addition to the old practices, there are some new regulations in this qānūnnāme. The pig tax is only here because of the non-Muslim population. Transit tax fees indicate trading viability. Based on the studies made on these three sanjaks, it can be said that in the qānūnnāme, the rights of the raia (reaya) were tried to be protected by the rescript of the Sultan himself. Therefore, the most remarkable things in the qānūnnāme are not allowed unfair practices of local administrators and without the need to collect taxes from the public. The dates of the qānūnnāme are close to each other and Despite geographical differences, there is no remarkable change in taxation. Although there are non-Muslim populations in all three sanjaks, it is mostly in the Pojega sanjak. The fact that the pig tax is collected only from this sanjak is evidence of this situation. The presence of meyhane in Kemah, Amid and Pojega sanjaks point to the non-Muslim population. It is also used as a place where the villagers sell their grape juice. The mill tax on Kemah and Pojega show that rivers are used in common. (shrink)

Yoo (Economic Letters 37:145–149, 1991) argues that the law of iterated expectations must be violated if the probability measure of a Choquet decision maker is non-additive. In this article, we prove the positive result that the law of iterated expectations is satisfied for Choquet decision makers whenever they update their non-additive beliefs in accordance with the Sarin and Wakker (Journal of Risk and Uncertainty 16:223–250, 1998) update rule. The formal key to this result is the act-dependence of the (...) Sarin–Wakker update rule, which does not hold for the update rules considered by Yoo (1991). (shrink)

Solnicaet alargue that “Jewish law and modern secular approaches based on professional responsibilities obligate physicians to care for all patients even those with communicable diseases”. The authors base their viewpoint on the opinion of Rabbi Eliezer Waldenberg and apply it to suggest that physicians are obligated to endanger themselves during epidemics, such as COVID-19. It is argued that Solnicaet al’s analysis of Rabbi Waldenberg’s text and their conclusion that healthcare workers are obligated to endanger themselves while treating patient who (...) suffer from contagious illness during epidemics according to Jewish law suffer from various shortcomings. Indeed, Jewish law looks favourably on healthcare workers who take a reasonable risk in treating their patients in the context of epidemics. However, it is considered a voluntary supererogatory act—not obligatory. Solnicaet almay express a legitimate ethical viewpoint. However, it does not seem to represent the mainstream approach of what Jewish law would demand as obligatory from its practitioners. (shrink)

I DEFEND THE VIEW THAT MIRACLES, CONSIDERED AS OBJECTIVE EVENTS SPECIALLY CAUSED BY GOD, CAN CONCEIVABLY OCCUR IN A WORLD WHICH BEHAVES, ALWAYS AND EVERYWHERE, COMPLETELY IN ACCORDANCE WITH THE LAWS OF NATURE. GOD, BY CREATING OR ANNIHILATING UNITS OR MASS/ENERGY AND THUS ALTERING THE MATERIAL CONDITIONS TO WHICH THE LAWS APPLY, CAN PRODUCE A MIRACLE WITHOUT VIOLATING ANY OF THE LAWS OF NATURE.

In lieu of an abstract, here is a brief excerpt of the content:The Commandment against the Law Writing and Divine Justice in Walter Benjamin’s “Critique of Violence”Tracy McNulty (bio)Pierre Legendre has shown that the Romano-canonical legal traditions that form the foundations of Western jurisprudence “are founded in a discourse which denies the essential quality of the relation of the body to writing” [“Masters of Law” 110]. It emerges historically as a repudiation of Jewish legalism and Talmud law, where the rite (...) of circumcision encodes the subject’s entry into law as an “allegiance to the absolute Writing,” or the “relationship between the human subject and the logical place of the Other” [110–11; see also “les juifs”]. In this shift, one understanding of writing is displaced by another: the material inscription of the letter, as an incommunicable limit or cut, is supplanted by the fantasy of what Legendre calls a “living writing,” a writing “in the heart” that promotes an ideal of perfect communication in which nothing is lost, in which meaning is lodged in an absolute Other who guarantees all knowledge. In his words, “we belong to a culture in which a mystically alienated human body stands in the place of the absolute book. The state has emerged from this structure.... Its basic characteristics can be set out by means of a fundamental Romano-pontifical maxim: the Emperor carries all the archives in his breast (omnia scrinia habet in pectore suo)” [“Masters of Law” 109].The ultimate theological source of this Roman maxim is Paul’s polemic against the Jewish law in the Epistle to the Romans. Paul’s polemic is structured by a distinction between two orders of law: the “law of God” and the “law of sin.” The first is associated with the intelligible “spirit” of the law, which is “written in the heart,” the second with the prescriptive “letter” of the Jewish law, which compromises or corrupts the first by binding it to a particular representation and consigning it to written form. Paul’s solution is to bypass the law, to bypass representation, and perhaps even language itself. The prescriptive “letter” of the Jewish law must be sublated by the law of the spirit, such that “we serve not under the old written code but in the new life of the Spirit” [Romans 7: 6]. Christ, as the living embodiment of the law of God, upholds the spirit of the law by “fulfilling”––and so rendering obsolete–its written form.The doctrine of Christ as the “living law” sustains what Legendre describes as a “banalisation of writing” [“Masters of Law” 111], a disregard for its material inscription that holds the letter to be nothing more than a placeholder, a flawed or incomplete representation of a meaning or truth that is itself beyond words. At the same time, it makes possible the legal and political fantasy of a living writing, located in a single body understood as the site of interpretive authority. The extraction of a meaning or truth from the intractable letter becomes the ultimate aim of the legal order and the most lofty task of its sovereign interpreter, uniquely charged with animating the dead letter. This notion permeates what Peter Goodrich describes as “the most standard protocols of legal reading,” according to [End Page 34] which “it is not the letter but the spirit that determines the meaning of the law”:The text is composed of dead letters (litera mortua); the rule is no more than a “mute judge,” a sleeping form, requiring the interposition, anima legis, of jurist or judge.... [T]he meaning of the law is internal to its living body, viva vox iuris or lex loquens, its image, interpreter, or legislator. In classical terms it is spelled out by reference to something beyond words: “to know the law is not to know the words of the law, but its force and power.” In a renaissance formulation we are similarly told that “no words, forms, niceties, or propriety of language is of any regard in the Civil Law, in comparison to truth, faithfulness and integrity. For verba menti, non verbis servire debet; words, are made as instruments to serve and express the mind, and not to command it.”[229–30]1... (shrink)

In this paper, I challenge an influential understanding of naturalization according to which work on traditional problems in the philosophy of law should be replaced with sociological or psychological explanations of how judges decide cases. W.V. Quine famously proposed the ‘naturalization of epistemology’. In a prominent series of papers and a book, Brian Leiter has raised the intriguing idea that Quine’s naturalization of epistemology is a useful model for philosophy of law. I examine Quine’s naturalization of epistemology and Leiter’s (...) suggested parallel and argue that the parallel does not hold up. Even granting Leiter’s substantive assumption that the law is indeterminate, there is no philosophical confusion or overreaching in the legal case that is parallel to the philosophical overreaching of Cartesian foundationalism in epistemology. Moreover, if we take seriously Leiter’s analogy, the upshot is almost the opposite of what Leiter suggests. The closest parallel in the legal case to Quine’s position would be the rejection of the philosophical positions that lead to the indeterminacy thesis. (shrink)

This essay examines the terms of the Judicial Oath sworn by the judges in the Athenian courts during the classical period. There is general agreement that the oath contained four basic clauses: to vote in accordance to the laws and decrees of the Athenian people, to vote about matters pertaining to the charge, to listen to both the accuser and defendant equally, and to vote or judge with one’s most fair judgment . Some scholars believe that the fourth (...) clause gave judges the right to vote according to their conscience and to ignore the law if they found it unjust. The first part of the essay shows that this clause gave judges the right to make decisions solely on the basis of their most just judgment only where the laws gave no clear guidance. It was a default clause invoked only twice in the extant orations; it was never used as justification to ignore the written laws. The second part addresses the view that the courts took political factors into account during trials. Although some trials involved leading politicians, the courts were bound by their oath to decide whether the defendant was guilty of the charge brought by the accuser. The only part of a trial where a defendant might mention his political achievements or his public largesse was at during the assessment of the penalty in a trial on a public charge. (shrink)

Almost every state has its own legal system and there is a legal system in accordance with the social norms of the state. However, although states have autonomy with their own legal systems, the legal system of each state unites under larger legal systems. From this point of view, three major legal systems can be accepted; Anglo-Saxon Legal System (English Legal System, Common Law), Continental European Legal System (Legal system of European states based on Roman law), Social (...) Legal System on which Russian Federation is based. Apart from these systems, there is also an Islamic legal system with its unique structure. The reason why the Islamic legal system is unique is that it is based on both religious and rational sources. In general, the case-based method is used in the Anglo-Saxon Legal System, and the rule-based method is used in the Continental European Legal System. Which one of these two method used by Islamic law which takes its source from Qur’an and hadith well? Or is it use both methods? Our aim in this study, in addition to analysing the operation of these two methods in Islamic law from a logical point of view, is to analyse the integration of the rule-based method into the case-based method and the case-based method with the rule-based method. With this research it is to provide a logical proposal to extend the intended use of analogy in Islamic law. As a matter of fact, we think that different branches of science should come together in order to produce new suggestions in this field. (shrink)

The outburst of the fourth Industrial Revolution had a significant impact on many aspects of life. The discovery of new technologies in medicine has resulted in innovations: organ transplants. The introduction of three-dimensional (3D) organ printing technology promises improvements to the field. Organs such as the liver, kidneys, heart and others are printed to meet the needs of the actual organs. However, the production of prototype organs to replace the original organs is associated with the issue of changing the (...) creation of Allah. Accordingly, this study will analyse the issue of changing the creation of God in three-dimensional (3D) organ printing technology according to the perspective of Islamic law. Several appropriate methodologies in Islamic law (usul fiqh) are used such as legal reasoning through maqasid shariah perspective and analogical reasoning. The result shows that three-dimensional (3D) organ printing technology falls under the permissible category of changing the creation of Allah because it can save human lives. The production of organs through 3D printing involving changes included in the category of necessity (daruri) and need (hajiy) is permissible, but the category of desirable (tahsini) requires further specifications. (shrink)

The aim of this article is to present some of the results of empirical research on the communication process at a trial conducted in Polish courts. These results will concern the participation of non-professional participants of a trial and the ways in which they deal with the communication process in the courtroom. The article presents the results of the analysis of the research material conducted in accordance with the detailed research questions and analytical categories. The analysis has (...) especially shown that: (1) the non-professional participants used some legal terminology, but the statements without legal terminology were also communicatively effective; (2) the level of activity of non-professional participants related to participation at the trial varied depending on what the activity concerned; the activity in asking questions to the presiding judges regarding legal issues and the course of the court proceedings appeared to be significant; (3) the non-professional participants’ had a real and significant problem with asking questions during the examination (the proper realization of this element of the trial); (4) the statements of the non-professional participants of a trial were very protective; they used many different “linguistic means of protection” (e.g., acts of supposition or acts of doubt) which are connected with the obligation to tell the truth, the prohibition of concealing the truth and giving false testimony during examination; (5) the non-professional participants of a trial reach for adequate argumentative acts, which are suitable for influencing the perception of specific events or persons, and they strengthen their statements by using appropriate linguistic means of persuasion. (shrink)

One of the basic denominators of Islamic jurisprudence is worship. Man's lifelong adventure of servitude gains meaning only through worship. I’tikāf is one of the acts of worship performed by human beings who want to fulfill their essential duties in this mortal world. In such a way that the servant retreats in seclusion in i’tikāf and approaches his Lord, free from worldly pleasures and desires. For such an act of worship to fulfill its purpose, it must be performed with (...) its conditions and rituals. In this study, the issues related to the worship of i’tikāf according to the Ḥanafī school are explained. The opinions of many jurists, especially the imams of the Ḥanafī sect, are included. This research, which is one of the first Turkish academic studies to examine the views of a sect on the worship of i’tikāf in a comprehensive and detailed manner, is also important because it explains the issues together with their basis in the usūl al-fiqh. Throughout the research, the fiqh sources of the Ḥanafī school were used, and the issues that the jurists agreed on were given from the source that explained the issue with its evidence and revealed its basis in the methodology. In addition, the narrations and procedural issues that are at the basis of the issues and that cause the jurists to disagree are mentioned. First, the definition of i’tikāf was made, then its ruling and its parts were explained. Then, the conditions of i’tikāf are examined and finally, the things that violate i’tikāf are analyzed. (shrink)

We ascribe the performance of intentional actions to groups. We claim, for instance, that the orchestra is playing a symphony, that a gang has robbed a bank, and so on. But what is a collective intentional action? Most accounts suggest that, for there to be a collective intentional action, at least two necessary conditions should be met. First, participants must act in accordance with, and because of, the intentions that the group perform a certain action. Second, there must (...) be common knowledge. These accounts, however, face two difficulties. On the one hand, they are uninformatively circular, for they employ in the analysis the very notion of group-action that they are trying to elucidate. On the other hand, they are too demanding, for there are cases of collective intentional action where neither of the conditions is met. The article proposes, by developing further an account put forward by Christopher Kutz, a model of collective intentional actions that overcomes these two problems. It also suggests why such a model is important for our understanding of the law. (shrink)

This paper examines a legal case arising from a workplace grievance that progressed to being heard at the UK’s Supreme Court. The case of Doogan and Wood versus Greater Glasgow and Clyde Health Board concerned two senior midwives in Scotland, both practicing Roman Catholics, who exercised their perceived rights in accordance with section 4 of the Abortion Act not to participate in the treatment of women undergoing abortions. The key question raised by this case was: “Is Greater Glasgow (...) and Clyde Health Board entitled to require the midwives to delegate, supervise and support staff in the treatment of patients undergoing termination of pregnancy?” The ethical issues concerning conscientious objection to abortion have been much debated although the academic literature is mainly concerned with the position of medical practitioners rather than what the World Health Organization terms “mid-level professionals” such as midwives. This paper examines the arguments put forward by the midwives to justify their refusal to carry out tasks they felt contravened their legal right to make a conscientious objection. We then consider professional codes, UK legislation and church legislation. While the former are given strong weighting the latter was been ignored in this case, although cases in other European countries have been prevented from escalating to such a high level by the intervention of prominent church figures. The paper concludes by stating that the question put to the courts remains as yet unanswered but offers some recommendations for future policy making and research. (shrink)

Recent developments in criminal legislation of the Republic of Lithuania among other significant novelties include the criminalization of illicit enrichment as criminal offence. Such offence presents new legal instrument for the law enforcement in dealing with individuals who acquire property in doubtful ways. The crime of illicit enrichment is rather a novelty within the context of criminal legislation. Such novelty was largely based upon the requirements of United Nations Convention against Corruption, which stipulates the implementation of such legal measure. (...) According to the article Twenty of the convention, “Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. While the convention was undoubtedly major factor for making grounds for said developments the need to widen the scope of confiscation of property and impound illegally acquired wealth were the driving forces behind the political will to support amendments to the Criminal Code. At same time the new offence of illicit enrichment presents significant challenges for the investigative bodies with the prosecution as well as the courts establishing such offences. First and foremost, the techniques of criminalization and legal wording of the offence are new and do not go well with the established principles of criminalization. Unnatural features of the corpus of the crime listed in the code (article No. 1891 of the Criminal Code of Lithuania) involve criminal act lacking attributes illegitimacy, complications regarding guilt of the accused. In addition, doubts and questions regarding the fundamental principles of criminal procedure, due process concerns, and problems of the balance of the rights of the accused with the right of the society to recover illicitly acquired wealth. The relationship of illicit enrichment to other criminal acts committed by the same accused is also of a great importance in establishing sources of such enrichment. As for the time of submission of present article, one hundred and seven interrogations on the illicit enrichment were on and lasting while only three simplified judgments and one proper court sentence were passed. The reasons for such slow implementation of the law are the ambiguities of the definition of law, as well as limitations of regulations, insufficiencies in asset declaration systems, lack of theoretical background and complete absence of court practice on such cases. Two of the existing convictions are analyzed from the point of view of establishment of guilt, the evidence set in the case, the grounds of adequacy of such convictions. The examples presented give basis to judge the adequacy of the new law an opportunity to predict the future rulings of the courts. Necessity of the improvements of the law becomes quite obvious on the basis of the analysis. Strong criticisms, various scientific suggestions on the improvements of the regulations, namely on the constitution of guilt, wording of the criminal act are presented by the author. (shrink)

Many people believe today that legislation is a tool powerful enough to shape society and to cure social diseases. Others think that legislation is useful to gain political support from special interest groups in search of privileges, at the expense of those whose cost of rejecting these actions is higher than their individual share of cost of such protection. Yet others think that legislation is the appropriate tool to implement public policy, according with their own “utopia”.To all those people, (...) both of his era and ours, Frédéric Bastiat wrote one of the most persuasive and clearest discussions on the nature and the ends that the law must pursue. In his book The Law Bastiat shows how and why pursuing ends other than justice ultimately leads to the perversion of the law and the fragmentation of society into special interest groups.De nos jours, beaucoup de gens pensent que la législation est suffisamment puissante pour modeler la société et remédier aux maux sociaux. D’autres pensent que la législation est utile pour acquérir les faveurs politiques de groupes d’intérêts spéciaux à la recherche de privilèges, au détriment de ceux pour qui le coût du rejet de telles actions est supérieur à leur part individuelle du coût d’une telle protection. D’autres encore pensent que la législation est l’outil approprié pour instaurer des politiques publiques en accord avec leur propre “utopie”.A tous ces gens, à la fois ceux de son époque et ceux de la nôtre, Frédéric Bastiat adressa une des discussions les plus convaincantes et les plus claires de la nature de la loi et des finalités que celle-ci doit poursuivre. Dans cet ouvrage, La Loi, Bastiat montre comment et pourquoi la poursuite de fins autres que la justice conduit de manière ultime à la perversion du droit et à la fragmentation de la société en des groupes d’intérêts spéciaux. (shrink)

István Hont identified a point in the history of political thought at which republicanism and commercialism became separated. According to Hont, Emmanuel Sieyès proposed that a monarchical republic should be formed. By contrast the Jacobins, in favour of a republic led by the people, rejected not only Sieyès’s political proposal, but also the economic ideology that went with it. Sieyès was in favour of a commercial republic; the Jacobins were not. This was, according to Hont, a defining moment in (...) the history of political thought. In this article, I offer a different analysis of that particular moment in the history of the commercial republic, one that instead of focusing on Sieyès and the Jacobins, looks at the thought of Girondins philosophers Nicolas de Condorcet and Sophie de Grouchy. I argue that their arguments provide sound models for a commercial republic, reconciling late 18th century republican ideals in which virtue was central, with the need for a flourishing and internationally active market economy. (shrink)

This volume explores evidentialism, a major theory of epistemic justification. It contains more than 20 papers that examine its nuances, its challenges, as well as its future directions. Written by leading and up-and-coming epistemologists, the papers cover a wide array of topics related to evidentialism. The contributors present both sides of the theory: some are advocates of evidentialism, while others are critics. This provides readers with a comprehensive, and cutting-edge, understanding of this epistemic theory. Overall, the book is organized (...) into six parts: The Nature of Evidence, Understanding Evidentialism, Problems for Evidentialism, Evidentialism and Social Epistemology, New Directions for Evidentialism, and Explanationist Evidentialism. Readers will find insightful discussion on such issues as the ontology of evidence, phenomenal dogmatism, how experiences yield evidence, the new evil demon problem, probability, norms of credibility, intellectual virtues, wisdom, epistemic justification, and more. This title provides authoritative coverage of evidentialism, from the latest developments to the most recent philosophical criticisms. It will appeal to researchers and graduate students searching for more information on this prominent epistemological theory. (shrink)

In 2017, Victoria became the first state in Australia to pass legislation permitting voluntary assisted dying. Under this law, only those people who are near the end of their lives may access voluntary assisted dying, and because many of these people require nursing care to manage the progression of their illness or their symptoms, it will invariably have an impact on nursing practice. The Victorian law includes a series of procedural steps as safeguards to ensure that the law operates as (...) intended. To support people who choose voluntary assisted dying and to practice safely within boundaries of the law, nurses must be aware of these requirements and how they operate. However, there are often gaps in nurses’ legal knowledge. This was demonstrated in an article that aimed to inform nurses about the operation of Voluntary Assisted Dying Act 2017 (Vic) but contained several errors and misstatements of the law. Our article corrects these errors and discusses how the law is intended to be applied by revisiting the fictional case of Chloe – a woman with a terminal illness who is seeking voluntary assisted dying. As the Voluntary Assisted Dying Act 2017 (Vic) also protects nurses from liability if they act in accordance with its provisions, we conclude that sound knowledge and understanding of its operation support nurses to provide the safe, comprehensive and compassionate care their patients deserve at the end of life. (shrink)

Domestic violence is one of the most serious forms of violation of basic human freedoms and rights regardless of ethnicity, gender, religion, and status. A reflection on many international statistics shows that women are the most frequent victims of domestic violence. Based on the definition of the phenomenon of domestic violence, the forms of abuse, the manner how violence is treated, the possibility of children, men, extramarital spouses, brothers, sisters, and old people living in an extended domestic community, of also (...) being victims is not excluded. Since domestic violence is not only a national problem but a worldwide problem, international organizations have worked towards the eradication of this phenomenon by sanctioning it in various international conventions. Also, the legal systems of many countries prohibit and sanction domestic violence by special laws obliging the state authorities to act in all situations when there are indications that there are direct or indirect violent acts in a family. In this paper, the authors present only the domestic violence against children as an evident problem in families, but which is often unreported. The legal frameworks of the Republic of North Macedonia and Republic of Kosovo are presented in this paper with the aim to describe the material-legal and procedural-legal treatment of domestic violence by pointing out the failure of the state authorities in implementing the laws on protection and prevention of this phenomenon. The authors take the approach of only treating the legal consequences of child abuse by parents that in both legislations is deprivation of parental rights for the violent parent. They conclude that the state authorities should intensify their work in taking control measures towards all the families where there are suspicions that the parental rights are neglected, and the child is abused. Because many cases of abuse have not been detected or reported, and in both countries a special study especially on domestic violence against children does not exist, the possibility that the number for this type of child abuse is great. (shrink)

Basic characteristic of Islamic heritage law, principally it has accepted the two-to-one ratio between the male and the female children/siblings in division of heritage. In Islamic inheritance law, the main/basic reason why the share of the male is twice the share of the female is no “value” judgments given to female/women in creation and gender in Islam, on the contrary, are real realities related with the roles and financial obligations that man and woman have undertaken, in other words, related (...) with “socio-economic structure/fact” in the family and society structure foreseen by Islam. As a matter of fact, “need principle” is based on in division and succession of heritageand a fair arrangement has been made in accordance with the rights and responsibilities of the husband and wife in Islamic Law. In some classical tafsīr books, the concept of “degree” in the verse “... Men have a degree (right) over women” (Al-Baqara 2/228) mentioning the mutual rights and responsibilities of women and men; and the expression of “lil al-dhakari mithlu haẓẓ al-unthayain” in the verse –the inheritance of man is the share of two women– (Al-Nisā 4/11) mentioning the inheritance shares of boys and girls is interpreted against the woman by disregarding the intended purpose and socio-economic contexts of these verses. As a result of this interpretation, the share of men in inheritance is twice the share of women in Islamic law is ontologically (existential/creation) based on a justification that “man is superior to woman”. In this article/study, an analyticallook atthe interpretations in some classical tafsīr books on the axis of “daraja/degree” and “lil al-dhakari mithlu haẓẓ al-unthayain” that today sheds light on the sociological-historical background of depriving the daughter from the heritage will be made. Summary: Just as there is no way to determine a person’s sex, it is not either possible by reason to have such an opportunity. - With the possibility of medical intervention nowadays - sex is determined by the discretion of the Supreme Creator rather than will. Indeed, it is mentioned in the Qur’ān: To Allah belongs the dominion of the heavens and the earth; He creates what he wills. He gives to whom He wills female [children], and He gives to whom He wills males (Al-Shūrā 42/49.)In addition to human biological sex, there is also social gender. Indeed, the term “sex” refers to being biologically female or male, while the term "gender" refers to the social and cultural identity of a woman or man, or the social roles that occur in the historical process.Accordingly, while it is not possible to determine biological sex (in normal circumstances in advance), determining gender is shaped by the cultural will of individuals and societies. As a matter of fact, gender is shaped according to the religions, customs and cultures of the societies and it shows differences according to time, culture and family structure. In this context, in the pre-Islamic Arab society, the gender of the girl or the woman was shaped by the custom of the ritual and customs. Indeed, it is a known fact that during the period of Jahiliyyah, in terms of social gender, the girl/woman has been deprived of many social and economic rights, especially heritage. The Qur’ān has brought the girls who, in the period of Jahiliyyah, were oppressed in terms of gender, deprived of many social and economical rights, treated as second class human, embarrassed of themselves and buried alive, to the same position as man. In this context, as it is in every field in the direction of social structure and social conditions of that day, also in the field of inheritance law, a number of regulations were made in the Qur’ān and the Sunnah being the main sources of Islam. The divisions of the inheritance were connected with religious and legal rules and the shares of the inheritance of the sons and daughters were determined by naṣṣ (verses and hadiths).However, in Islamic inheritance law, as a requirement of the structure of family and society accepted by Islam, in principle, “two-to-one” measures have been adopted between male and female children. As a matter of fact, in this aspect, it is mentioned in the Qur’ān: Allah instructs you concerning your children: for the male, what is equal to the share of two females (Al-Nisā 4/11.)On one hand, the principle that Islamic law brings between boys and girls; Seems to be an inequality in terms of the arrangement in which "the inheritance share of the male child is twice the share of the female child", while on the other hand, within the border of in the family foreseen by Islam, this regulation has not been seen as an injustice and inequity by Muslim societies, because in Islamic family law, a man is obliged to ensure the livelihood of the family after marriage. He is also obliged to give his wife her mahr when marrying.In Islamic inheritance law, “necessity principle” is taken as the basis of responsibility that women and man have undertaken in family and society. Therefore, even though giving nothing at all to those who are not in need and giving less to those who are in less need, giving too much to those who are in much need might seem contrary to the principle of equality, it is a necessity of the principle of justice and fairness. As a matter of fact, while "law equality, necessity in sharing" principle, law is arranged according to people's qualifications, goods and wealth sharing is divided according to the needs of people. In this context, there has been a fair division in Islamic heritage law based on the necessity, (distributive) justice and fairness principle. Indeed, the French philosopher Roger Garaudy (1913-2012), who chose /converted to Islam, evaluates the following about the proportion of male child in the Qur'an to that of female child: “When we consider that in the Arab society all the obligations of the family and of the care of the parents and of all the things that we call ‘social security’ today are put on the shoulders of the husband, the hereditary male child's share must be twice as high as the female child’s is”.As Garaudy argues, the difference in the inheritance of women and men in Islamic inheritance law is not a legal discrimination/inequality, but a form of divisiveness stemming from a need based on the role and responsibility that women and men have undertaken in the family and society. Therefore, giving nothing to those who need nothing, giving little to those who need little, and giving a lot to those who need a lot,even though may seem contradictious to the principle of equality, it becomes a necessity of equity and (distributive) justice principle. In this case, in Islamic inheritance law, the basic reason why the share of the male child is twice the share of the female child, is social and economic reasons and it is possible to rank them as follows:1) According to Islamic law, women are not obliged to make their own economic livelihoods. The woman’s economic responsibility belongs to her father or brothers before marriage, and then to her husband after marriage. 2) When a woman is married she is not responsible for herself or other family members’ livelihood. The male is obliged to make a living for himself, his wife and his children.3) While married, the male is obliged to give the wife mahr. The woman has no such responsibility.As it is understood from the above explanations, in Islamic inheritance law, the basic reason why the share of the male child is twice the share of the female child is not about the ontologically “value” based on creation and sex given to the woman (girl child) in Islam. On the contrary, it is the real facts concerning the family and society structure that Islam predicts, the roles and financial obligations that man and woman have undertaken, namely “socio-economic structure/fact”.In some commentaries in classical commentary books, the rights and responsibilities of women and men are referred to, like: the word “degree” mentioned in: …but the men have a degree over them [in responsibility and authority (Al-Baqara 2/228), and the talk about the inheritance shares of boys and girls in: for the male, what is equal to the share of two females (Al-Nisā 4/11). Eventually, the concepts “lil al-dhakari mithlu haẓẓ al-unthayain” have been associated with the gender of the woman/girl child ontologically (based on social fact) by ignoring the referent purpose and socio-economic contexts of these verses. As a result of these interpretations, it was desired that the Islamic law principle of inheritance share of male child being twice the share of female child, ontologically, should be based on a justification that “man is superior to woman”.In this study, some of the era’s dominant culture classical interpretations grounding women's inheritances share on her gender and based on the axis of the concepts of "degree" and “lil al-dhakari mithlu haẓẓ al-unthayain” in the related verses of the Qur'ān will be elaborated. (shrink)

Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, -and limited the maximum number of wives to four. Although polygyny is mubah (permissible) in Islamic law, it is not an absolute right that every man can use arbitrarily. Thus in Islamic law, the legitimacy of polygyny has been (...) attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintnance. However, the observance of these conditions that is left to the mercy of men leads to the exploitation of the right for practicing to polygyny and victimization of the first spouse. Therefore, inserting some restrictions for using this right has come to the agenda from time to time in Islamic legal history. The first legal arrangements concerning the restriction of the polygyny (taaddud al-zawjāt) in the history of Islamic law were indirectly made with the Family Law Decree of 1917 which was prepared in the last periods of the Ottoman Empire. Among the late Islamic jurists, the issue of the limitation of polygyny by public authority in Islamic law continues to be discussed. The civil laws of contemporary Muslim countries contain different regulations on the issue. In this article, the restriction of polygyny by the public authority in Islamic family law will be focused on.Summary: Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, and limited the maximum number of wives to four. Thus, relevant verses in the Qur’an (al-Nisa 4/3, 129) and the Prophet’s own practice (al-Ahzab 33/50, 51, 59 al-Tahrim 66 / 3-5) show that it is legitimate for a man to marry more than one woman (up to four) at the same time in Islamic law. Although polygyny is legally permissible (mubah) in Islamic law it is not an absolute right that every man can arbitrarily use. Thus in Islamic law, the legitimacy of polygyny has been attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintenance. On the other hand, there may be some exceptional circumstances permitting polygyny in Islamic law. For example, when female population is much more than male in the society and when a, woman is can not fulfill her family duties due to her cureless illness, polygyny is permitted in Islamic law.As it can be understood from the explanations above, polygyny in Islamic law is not a general and mandatory provision that should be applied by every man who has legal capacity to marry. On the contrary, it is an exceptional provision that is justified if there are certain conditions and justifications. According to this; polygyny is a moral and legal institution that is made up of mutual consent based on individual and social conditions and needs in Islamic law. Therefore, men do not have to marry a second woman on their current wives, as well as women have the right to say “no” to marry a married man as a second wife.When the conditions and rationales indicated in the relevant verses and doctrine are evaluated together, it can be said that in order to be able to legitimize the polygyny in Islamic law, there must be three basic conditions:(1) Observing justice among spouses, (2) Having sufficient financial power to provide maintenance for spouses, (3) Existence of individual or social need or necessity.Therefore, in order to prevent the exploitation of polygyny, which is justified under certain conditions and justifications in Islamic law, the above-mentioned conditions must be fulfilled. Otherwise, polygyny can cause some problems, unrest and injustice for individual, family and society. Hence, in the presence of certain conditions and justifications, polygyny accepted in Islamic law as a moral and legal institution aiming the elimination of individual and social arbitration.Although the legitimacy of polygyny in Islamic law depends on the existence of certain conditions and special circumstances, it is a known fact that they are not always observed in practice. It can be said that the right of polygyny is a subject of abuse in practice. Therefore, the limitation of polygyny by the public authority has come to the fore in Islamic legal history. Today, control of the public authority and inserting some restrictions of polygyny continue to be discussed among the Islamic jurists. In the past, it is possible to say that the control of the exercising of this right has been done relatively by society (social environment). However, nowadays, since the society cannot perform the control mechanism, it is brought up by the state (public authority) on behalf of the society.Among the contemporary Islamic jurists regarding the supervision or limitation of polygyny by the public authority; there are two approaches: “those who accept” and “those who do not accept” such restrictions.Islamic jurists, who accept that public authority is allowed to intervene in polygyny, grounded their views on two perspectives: The first is that the polygyny is legally permissible and the public authority has the authority to limit the permissible (mubah) in Islamic law. The second is that polygyny is restricted with the conditions in the Qur’anic verses such as “husband’s observation supervision of justice among his wives” and “having the power for ensuring the livelihood (nafaqa) of his wives” and it is more appropriate for the benefit of society and the purpose of the legislator (Shari’) to be subject to the control of the public authority whether these conditions are present or not. Islamic jurists, who do not agree that the public authority has the right to intervene in polygyny grounded their views on two perspectives as well: First, polygyny is a legitimate right mentioned in the verses in Islamic law and there is no definite proof that this can be prohibited or restricted by the public authority. Secondly, it is contrary to the verses to prohibit or limit the right that the Qur’an makes legitimate (free).Thus, it is possible to say that the opinion which accepts that the public authority has to limit polygyny is more accurate in terms today’s social conditions. Namely, polygyny is linked to two basic conditions: ”husband’s observance of justice among his wives and having the power to provide maintenance for his wives. Therefore, supervision of the public authority on checking the existence of these conditions is more appropriate for the purpose of the legislator (Shari legitimizing polygyny and social benefit.In fact, the Ottoman Family Law Decree of 1917 indirectly limited the right of the husband to marry more than one woman, giving the woman right to stipulate a condition in her marriage contract that her husband not to marry a second woman. In the 1924 Draft of Family Law Decree, which was prepared after the repeal of the Family Law Decree of 1917, but not enacted, it was proposed that the application of polygyny should be presented to the approval judge.In today’-s Muslim countries, there are three different practices: namely “completely prohibiting polygyny”, ”releasing polygyny” and “giving the court the right to monitor the existence of necessary conditions “. In countries such as Morocco, Algeria, Iraq, Syria, Indonesia, Malaysia (and Pakistan), the validity of polygyny depends on the permission and supervision of the judiciary. Some of these countries which have accepted judicial review have given the judicial control for the requirement of justice, some of them the conditions of justice and maintenance some of them for the conditions of justice, maintenance and a legitimate justification.In sum, in accordance with the provisions of the relevant verses, polygyny in Islamic law is legitimately permissible (mubah). However, the public authority has the right and authority to limit the mubah in Islamic law in the case of the elimination of damage and the necessity of the public interest. On the other hand, the public authority has the right and authority to enact the law in Islamic law by preferring one of the existing ijtihads that meet the needs of the society and conforms to the conditions of the age.According to this, when the public authority made a statutory regulation that links the use of right of polygyny to the permission of the judge, this regulation is binding on society.Therefore, in the event of such a legal arrangement, it is possible for the public authority to allow the men who comply with the conditions and not to allow the ones who are not to comply with the conditions after conducting the necessary investigation. As a matter of fact, now Family Laws of many Muslim countries now include such legal arrangements. It is also worth mentioning here that there may be a necessity for a man to marry more than one woman (up to four) at the same time in terms of social benefits, when the population of male and female in a society is excessively disproportionate. In such circumstances, it is also possible that the public authority encourages, or even mandates, the marriage of men who have fulfilled the conditions to more than one woman. (shrink)

Sunnah is considered the second of the main sources of Islam. The reports, which are considered the carrier of the sunnah, have been conveyed by narrators at different levels. The reasons for the difference between the conveying narration levels were handled mainly as a subject of research and discussion by theologians and Muʿtazila scholars as well. One of these subjects is the factors affecting the conveying of the narration and what is preventing it from being conveyed. Qāḍī Abd Al-Jābbār (d. (...) 415/1025) is one of the scholars who has a different account on this subject. He developed a philosophical perspective on the Islamic narrative case, acting in line with the rationalist sectarian approach. Accordingly, the frequency of conveying narration, whether the report is religious, its effect on the interlocutor, it's becoming ordinary. Therefore, ın this study, the factors which affect conveying of the khabar are emphasized in line with the opinions of Qāḍī Abd Al-Jābbār. In other words, the factors that ensure that a report is voiced and repeated by the members of the society and the reasons that prevent the transfer of a word are emphasized. Qāḍī Abd Al-Jābbār dealt with the factors affecting the conveying or repetition of khabar with the social, psychological and belief aspects of human and tried to exemplify. These factors have a two-way effect. Some of factors require the conveying of the khabar, while others are considered to prevent and weaken it. Although these factors are related to the psychological aspect of the person in terms of source, they differ from the process of action. The first of these factors that require the conveying of the khabar was named by Qāḍī Abd Al-Jābbār as الداعي. The second one is the factors that prevent the communication of the khabar, and it was named as الصوارف. The “dāʿi” for doing or not taking an action can be more than one and also different in strength. The action of the person towards the conveying of the khabar is directly proportional to the force of the “dāʿi”. Strong actions motivate the person to perform it more, whereas the weakest influence lead less people to perform the action. Therefore, two khabar with the same “dāʿi” should be conveyed at the same rate. Because the main factor is named “dāʿi” that provides their conveying has the same force. Accordingly, it is not correct whether one of the two khabar items that share the same situation and are in the same time period is not posted and the other is. In other words, the transfer of something is devāʿī / الدواعي and in accordance with the strength of the need within the framework of the custom / العادة law. The conveying of the khabar status depends on the tendency to post it or the issues that prevent it. Among these factors, the issues that enable the conveying of the khabar and motivate people in this regard are also expressed in terms of issues and elements that prevent people from conveying. These are closely related to the psychological situation of the person who conveyed the khabar, the ordinariness of the khabar, the need for the khabar, the distance to the time of the khabar, the religious quality of the khabar and whether there is a fear situation surrounding the conveying. According to this, if there is a “dāʿi / motive” and " devāī / motives" related to the khabar, it is conveyed but if there is any "sārif/ inhibitor" about it, it is not conveyed. The “dā’i / motive” and "sārif/ inhibitor" of the khabar do not have the same strength. Accordingly, to obtain neccecity in knowledge, the correctnes of khabar depends on the “dāʿi” in the khabar. Therefore, since the “dāʿi” owned by the “khabar from single persons / ahad khaber” are weaker than the “dāʿi” owned by the mutawatir khabar. Therefore, it cannot be expected to be transmitted at the same level. (shrink)

Legal scholars attribute a great deal of importance to the linguistic dimension behind recodification. According to them, language contributes greatly to the improvement of both the accessibility and clarity of the law. Nevertheless, little research on the linguistic aspects of codification exists within both linguistics and legal theory. Consequently, it seems worthwhile to study this linguistic dimension more in depth. To this aim, the recent legislative proposals to recodify various economic, civil and criminal codes in Belgium serve as a useful (...) case study to improve our understanding of the linguistic challenges of recodification. In this article we will look at the linguistic comments made by the Belgian Council of State, a state organ which offers technical advice to the legislator, on the relevant proposals and consider the type of linguistic comments made, and, their implementation by the legislator. On the one hand, such an analysis allows us to single out the linguistic problems accompanying the Belgian recodification and, on the other, to elaborate on them with the help of the insights provided by legal theory. In doing so, we hope for our analysis to be a useful point of reference both for research on the Belgian recodification and other legal/linguistic approaches to recodification in general. (shrink)

Police training plays a crucial role in the development of police officers. Because the training of police officers combines various educational components and is governed by organizational guidelines, police training is a complex, multifaceted topic. The current study investigates training at six European law enforcement agencies and aims to identify strengths and challenges of current training organization and practice. We interviewed a total of 16 police instructors and seven police coordinators with conceptual training tasks. A thematic analysis was conducted (...) and results organized in the two main themes evident across all six law enforcement agencies: organization of training and delivery of training. Results show that governmental structures and police executive boards are seen as the primary authorities that define the training framework in which police instructors operate. These administrative structures regulate distant and immediate resources, such as available training time, training facilities, equipment, and personnel. Within the confines of available resources and predetermined training frameworks, results indicate that police instructors thoroughly enjoy teaching, creating supportive and motivating learning environments, and applying their personal learning perspectives to training. Nonetheless, police instructors are critical of the level of training they are able to achieve with the available resources. (shrink)

It is a commonplace that one of the primary tasks of natural science is to discover the laws of nature. Those who don’t think that nature has laws will of course disagree; but of those who do, most will be in accord with Armstrong when he writes that natural science, having discovered the kinds and properties of things, should “state the laws” which those things “obey” (Armstrong What is a law 3). No Scholastic philosopher would have included the discovery (...) of the laws of nature among the aims of natural philosophy. Regularities there may be in an Aristotelian world, but the focus of inquiry is elsewhere —on natural kinds, powers, qualities, temperaments. There must have been a change of view at some point. The obvious period in which to look for that change is that period in which the notion of law came to the fore in natural philosophy: the seventeenth century. Though there has been occasional dissension, that notion has been with us ever since. Scientists are quite happy to talk about all sorts of laws, from the basic laws of conservation to “phenomenological” and statistical laws. Philosophers, on the other hand, have found them puzzling. The character attributed to laws seems to be in need of explanation, and yet no convincing explanation is at hand; indeed, as I have mentioned, some philosophers think that natural science has no laws, or at least that it doesn’t need to appeal to them to accomplish its ends. My suggestion will be that the configuration of features characteristic.. (shrink)

THE FREEHOF INSTITUTE OF PROGRESSIVE HALAKHAH The Freehof Institute of Progressive Halakhah is a creative research center devoted to studying and defining the progressive character of the halakhah in accordance with the principles and theology of Reform Judaism. It seeks to establish the ideological basis of Progressive halakhah, and its application to daily life. The Institute fosters serious studies, and helps scholars in various portions of the world to work together for a common cause. It provides an ongoing (...) forum through symposia, and publications including the quarterly newsletter, HalakhaH, published under the editorship of Walter Jacob, in the United States. The foremost halakhic scholars in the Reform, Liberal, and Progressive rabbinate along with some Conservative and Orthodox colleagues as well as university professors serve on our Academic Council. This collection of essays is the product of the symposia held in Atlanta and Pittsburgh in 1995 and 1996. This book follows the volumes DYNAMIC JEWISH LAW; Progressive Halakhah - Essence and Application (1991), RABBINIC -LAY RELATIONS IN JEWISH LAW (1993), CONVERSION TO JUDAISM IN JEWISH LAW (l994), DEATH AND EUTHANASIA INJEWISH LAW (1995) and THE FETUS AND FERTILITY IN JEWISH LAW (1995), ISRAEL AND THE DIASPORA IN JEWISH LAW (1997). It is part of a series whose subjects are diverse and the approaches taken by the authors are equally so. We wish to encourage wide ranging discussions of contemporary and historic themes. (shrink)

Traditionally many systems subjected public employees to a separate and more restrictive labour law regime than their private sector counterparts. However, these status-based restrictions were generally modified or abandoned during the 1960s and 1970s. Greater homogeneity of treatment of public and private sector workers was also subsequently reflected in employment practices in Britain and elsewhere as a product of the «marketization» of public services, a strategy which involved replacing centralized regulation by greater local determination in accordance with «business» (...) needs. More radically, the provision of some public services was removed from the public sector altogether, either by contracting out particular elements of the service or by wholesale privatization, subject to some form of regulatory regime. These changes may appear to render otiose discussion of the case for special treatment of the employment relation in public services. This article expounds the proposition that, on the contrary, public services possess distinctive qualities which necessitate regulation of the employment relationship within those services in areas beyond those covered by the general law, and aims to provide a framework within which the justification for specific additional measures can be assessed. The article also considers the further questions which need to be addressed if the framework it proposes is accepted, including, in particular, the appropriate mechanisms for imposing and enforcing regulation. (shrink)

Cultural heritage can offer tangible and intangible traces of the past. A past that shapes cultural identity, but also a past from which one sometimes wishes to detach oneself and which nevertheless needs to be remembered, even commemorated. These themes of memory, history and oblivion are examined by the philosopher Paul Ricoeur in his work La mémoire, l’histoire, l’oubli. Inspired by these ideas, this paper analyses how they are closely linked to cultural heritage. Heritage serves as a support for memory, (...) even if it can be mishandled, which in turn can affect heritage policies. Memory and heritage can be abused as a result of wounds from the past or for reasons of ideological manipulation or because of a political will to force people to remember. Furthermore, heritage, as a vehicule of memory, contributes to historical knowledge, but can remain marked by a certain form of subjectivism during the heritage and conservation operation, for which heritage professionals are responsible. Yet, the responsibility for conserving cultural heritage also implies the need to avoid any loss of heritage, and to fight against oblivion. Nonetheless, this struggle cannot become totalitarian, nor can it deprive the community of a sometimes salutary oblivion to its own identity construction. These theoretical and philosophical concepts shall be examined in the light of legal discourse, and in particular in Belgian legislation regarding cultural heritage. It is clear that the shift from monument to heritage broadens the legal scope and consequently raises the question of who gets to decide what is considered heritage according to the law, and whether there is something such as a collective human right to cultural heritage. Nonetheless, this broadening of the legislation extends the State intervention into cultural heritage, which in turn entails certain risks, as will be analysed with Belgium’s colonial heritage. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Reforming the Law of Nature: The Secularization of Political Thought, 1532–1689 by Simon P. KennedyFrancis J. BeckwithKENNEDY, Simon P. Reforming the Law of Nature: The Secularization of Political Thought, 1532–1689. Edinburgh: Edinburgh University Press, 2022. ix + 125 pp. Cloth, $110.00In this monograph Simon P. Kennedy offers an account of the desacralization of politics in the West by critically examining the works of five central figures in the (...) Protestant Reformed tradition: John Calvin (1509–64), Richard Hooker (1554–1600), Johannes Althusius (1557–1638), Thomas Hobbes (1588–1679), and John Locke (1632–1705). He dedicates a chapter to each thinker. The core of Kennedy's thesis is that desacralization is the result of a shift in the way modern thinkers like Hobbes and Locke reimagined the nature of natural law. The medieval tradition, having found its fullest expression in the work of St. Thomas Aquinas, saw natural law as one of four different types of law: eternal law (the eternal plan of creation in the mind of God), natural law (the rational creature's participation in the eternal law), human law (civil laws that are derived from the natural law), and divine law (the Old and New Testaments). According to Kennedy, the eventual desacralization of politics was set in motion with the development of arguments for natural rights that relied on a natural law that was in [End Page 553] practice severed from eternal law. But in that case, our political institutions—which are founded on the natural law—are purely human constructions and thus entirely secular.The usual story is that the Protestant Reformation constituted the decisive break with the medieval tradition and that it was the political theology of the reformers and their immediate successors that made the secularization of politics nearly inevitable. Kennedy wants to push back against that story. He argues, quite convincingly, that Calvin, Hooker, and Althusius, all Reformed Protestants, were in continuity with their medieval predecessors. Although Calvin is often depicted by his contemporary followers—especially among American Evangelicals—as hostile to the natural law tradition, Kennedy marshals an impressive case that shows that classical natural law seemed almost second nature to Calvin. My own sense is that the confusion over Calvin is the result of his contemporary readers expecting him to use the vocabulary of an Aquinas or a Duns Scotus. But not finding that vocabulary, they conclude that he rejected the natural law. Kennedy dispels that confusion by showing that Calvin in fact was fully committed to the four types of law absent the technical jargon of medieval scholasticism.Hooker and Althusius, writes Kennedy, continue in that tradition, though with a bit of a twist that some argue portends to Hobbes and Locke. Hooker and Althusius use the language of contract to account for the origin of certain aspects of political life. But Kennedy insists that it is a mistake to interpret them as proto-contractarians (as one finds in Hobbes and Locke), for they still held that the natural law participates in the eternal law, and that any agreements employed in the service of political life are under the authority of, and guided by, the natural law. One could argue, then, that these "contracts," like constitutions and treaties, are nonstatutory manifestations of the human law, which is perfectly consistent with classical natural law. So like Calvin before them, Hooker and Althusius were, as Kennedy puts it, theistic political naturalists.Hobbes and Locke are a different story. According to Kennedy, they both defended desacralized views of politics, with Hobbes being the more extreme of the two. Although I think he is correct in that assessment, I am not sure he locates the cause of the desacralization in the right place. For example, he says that because for Locke politics is artificial and not natural—that is, it is the result of a social contract to insulate members of society from the instability of a state of nature—politics is desacralized, even though God is the ultimate source of the natural law. But it is not clear how that in and of itself desacralizes politics. After all, Aquinas, the paradigm case of a classical natural lawyer, held... (shrink)

The primary aim of this paper is to defend the Lockean View—the view that a belief is epistemically justified iff it is highly probable—against a new family of objections. According to these objections, broadly speaking, the Lockean View ought to be abandoned because it is incompatible with, or difficult to square with, our judgments surrounding certain legal cases. I distinguish and explore three different versions of these objections—The Conviction Argument, the Argument from Assertion and Practical Reasoning, and the (...) Comparative Probabilities Argument—but argue that none of them are successful. I also present some very general reasons for being pessimistic about the overall strategy of using legal considerations to evaluate epistemic theories; as we will see, there are good reasons to think that many of the considerations relevant to legal theorizing are ultimately irrelevant to epistemic theorizing. (shrink)

In this paper, I argue that Berkeley was a theological voluntarist in the Siris. I define theological voluntarism as the view that the divine will has conceptual priority over the intellect, implying serious ramifications for the modal status of the laws of nature. I identify four theses that are required to call Berkeley a full-blown voluntarist and show that we find all of them in the Siris: (i) God’s indifferent, arbitrary and free will enjoys conceptual priority over his intellectual functions; (...) (ii) nature is directly guided by, and its laws are grounded in, God’s will, meaning not only that physical things have no causal powers or essences which could ground the laws of nature; but also that (iii) God creates and maintains the physical world in accordance with law-like patterns of the phenomena arbitrarily established by particular divine volitions. As a consequence, (iv) whatever we can know about the metaphysically contingent laws of nature we know through induction from our limited experience. The Siris is particularly interesting from the perspective of voluntarism underlying these views, as, due to the alleged discontinuities with the early works and its Platonic tendencies in general, it seems to be the worst candidate for such an interpretation. In what follows, my principal aim is to show how wrong this appearance is, and that the voluntarist views Berkeley put forward in the Siris concerning the divine nature, the God-world relation, the laws of nature and the proper scientific methodology link it very naturally to his earlier considerations. (shrink)

This article focuses on the applications of philosophical logic in the discipline of philosophy of religion of both ‘Eastern’ and ‘Western’ traditions, in which the problem of apparent ontological contradictions can be found. A number of philosophers have proposed using the work of those non-classical logicians who countenance the violation of the law of non-contradiction (LNC) to address this problem. I discuss (1) whether classical or non-classical account of logic is universal in applying to all true theories, and (2) whether (...) there might be extra-logical considerations which affect what is the correct account of logic for the doctrines in question. With regard to Jc Beall’s application of non-classical (FDE) logic to the doctrine of the Incarnation, I argue using the evidence from the writings of church fathers that the meaning of negation found in the core claims of the doctrine of the Incarnation should not be interpreted in accordance with Beall’s FDE account, and that this extra-logical consideration refutes Beall’s project. Moreover, the FDE’s acceptance of the possibility of statements that are both true and false is contrary to what is allowed by the definition of negation in classical logic; therefore (contrary to Beall), Beall is in fact using a different definition of negation compared with the definition used by the classical account. I develop this point in interaction with contemporary philosophy of religion literature and explain its implications and significance for this discipline. (shrink)

A dispositional property is a tendency, or potency, to manifest some characteristic behaviour in some appropriate context. The mainstream view in the twentieth century was that such properties are to be explained in terms of more fundamental non-dispositional properties, together with the laws of nature. In the last few decades, however, a rival view has become popular, according to which some properties are essentially dispositional in nature, and the laws of nature are to be explained in terms of these (...) fundamental dispositions. The supposed ability of fundamental dispositions to ground natural laws is one of the most attractive features of the dispositional essentialist position. In this paper, however, I cast doubt on the ability of dispositional essences to ground the laws of nature. In particular I argue that the dispositional essentialist position is not able to coherently respond—sympathetically or otherwise—to Cartwright's challenge that there are no true general laws of nature. (shrink)

According to history texts, philosophers searched for a unifying natural law whereby natural phenomena and numbers are related. More than 2300 years ago, Aristotle postulated that nature requires minimum energy. More than 220 years ago, Euler applied the minimum energy postulate. More than 200 years ago, Lagrange provided a mathematical “proof” of the postulate for conservative systems. The resulting Principle of Least Action served only to derive the differential equations of motion of a conservative system. Then, 170 years ago, Hamilton (...) presented what he claimed to be a “general method in dynamics.” Hamilton's resulting “Law of Varying Action” was supposed to apply to both conservative and non-conservative systems and was supposed to yield either the differential equations of motion or the integrals of those differential equations. However, no direct evaluation of the integrals of motion ever resulted from Hamilton's law of varying action. In 1975, a scant 29 years ago, following five years of controversy with engineer mechanicians, Dr. Wolfgang Yourgrau, Editor, Foundations of Physics, published my first paper based on Aristotle's postulate, without mathematical proof. That and subsequent papers present, through applications, a true “general method in dynamics.” In this essay, I present the mathematical proof that is missing from my 1975 and subsequent papers. Six fundamental integrals of analytical mechanics are derived from Aristotle's postulate. First, however, Hamilton must be revisited to show why his H function and his “force function” prevents the law of varying action from being the general method in dynamics that he claimed it to be. I have found that Hamilton’s Law of Varying Action (HLVA), as Hamilton presented it, cannot be applied to systems for which the force function is non-integrable. In 1972, Dr. B.E. Gatewood and Dr. D.P. Beres (then a graduate student) discovered that the end-point term associated with the principle of least action does not vanish. I named the new equation, “the general energy equation.” In 1973, because I was doing with it what Hamilton claimed could be done with HLVA, I simply assumed that this new equation was HLVA. I gave the new equation the misnomer HLVA. In 2001, I learned that I had made a grave mistake. I found that HLVA is at most a special case of the general energy equation. My interpretation of Aristotle's postulate permits one to by-pass the differential equations of motion completely for both conservative and non-conservative systems (no calculus of variations). (shrink)

In a community that takes rights seriously, consent features pervasively in both moral and legal discourse as a justifying reason: stated simply, where there is consent, there can be no complaint. However, without a clear appreciation of the nature of a consent-based justification, its integrity, both in principle and in practice, is liable to be compromised. This book examines the role of consent as a procedural justification, discussing the prerequisites for an adequate consent -- in particular, that an agent (...) class='Hi'>with the relevant capacity has made an unforced and informed choice, that the consent has been clearly signalled, and that the scope of the authorisation covers the act in question. It goes on to highlight both the Fallacy of Necessity (where there is no consent, there must be a wrong) and the Fallacy of Sufficiency (where there is consent, there cannot be a wrong). Finally, the extent to which the authority of law itself rests on consent is considered. If the familiarity of consent-based justification engenders confusion and contempt, the analysis in this book acts as a corrective, identifying a range of abusive or misguided practices that variously under-value or over-value consent, that fictionalise it or that are fixated by it, and that treat it too casually or too cautiously. In short, the analysis in Consent in the Law points the way towards recognising an important procedural justification for precisely what it is as well as giving it a more coherent application. (shrink)

BackgroundSince 2006, the genetic testing company 23andMe has collected biological samples, self-reported information, and consent documents for biobanking and research from more than 1,000,000 individuals, through a direct-to-consumer online genetic-testing service providing a genetic ancestry report and a genetic health report. However, on November 22, 2013, the Food and Drug Administration halted the sale of genetic health testing, on the grounds that 23andMe was not acting in accordance with federal law, by selling tests of undemonstrated reliability as predictive (...) tests for medical risk factors. Consumers could still obtain the genetic ancestry report, but they no longer had access to the genetic health report in the United States. However, this did not prevent the company from continuing its health research, with previously obtained and future samples, provided that consent had been obtained from the consumers concerned, or with health reports for individuals from other countries. Furthermore, 23andMe was granted FDA authorization on February 19, 2015, first to provide reports about Bloom syndrome carrier status, and, more recently, to provide consumers with “carrier status” information for 35 genes known to cause disease.DiscussionIn this Debate, we highlight the likelihood that the primary objective of the company was probably two-fold: promoting itself within the market for predictive testing for human genetic diseases and ancestry at a low cost to consumers, and establishing a high-value database/biobank for research and personal information).SummaryBy dint of this marketing approach, a two-sided market has been established between the consumer and the research laboratories, involving the establishment of a database/DNA biobank for scientific and financial gain. We describe here the profound ethical issues raised by this setup. (shrink)

In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.” Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general (...) principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is “perhaps better described as the law of ‘human rights in armed conflicts’”? To answer yes, I argue, amounts to a reinterpretation of IHL that drifts far from its history. This reinterpretation is what I label human rights thinking . In its origins, IHL was not designed to protect human dignity, but to reduce human suffering; it was a form of disaster relief. Human rights law, by contrast, originated as a blueprint for the kind of peacetime societies that would no longer plunge the world into what the UN Charter calls the “untold sorrow” of war. Nevertheless, law changes. Perhaps the nature of IHL has evolved over time in the direction of human rights thinking, and should evolve that way. That is the view I defend-–with some qualifications-–in the final sections of this essay. First, I explore the very different genealogies of IHL and human rights law, and explain how human rights thinking migrated into IHL. I attribute the migration to international criminal law, military occupations, and reactions to the U.S. war on terrorism. In the final sections, I explore two ways human rights thinking can be pursued in wars. One of them, I will argue, overplays and overestimates what human rights thinking can accomplish. It does so by, in effect, willing away fundamental differences between war and peace. The other is an approach that I have defended for more than three decades. It consists, at bottom, of taking a civilian’s-eye view of the disasters of war and reading the law accordingly-–recognizing, one might say, that Mother Courage and her children matter just as much to the law of war as Henry V and his band of brothers. (shrink)