У статті висвітлюються та досліджуються процеси становлення й розвитку законодавства про створення й діяльність політичних партій у сучасній Україні. Автор аналізує чинне законодавство України та формулює необхідність його вдосконалення, зауважуючи, що головною запорукою успіху законотворчої діяльності держави в царині розбудови законодавства щодо політичних партій є активна участь громадян у суспільно-політичному житті країни, залучення громадськості до обговорення стану й перспектив розвитку законодавства, принаймні того, що безпосередньо регулює реалізацію громадянських прав і свобод.

Contemporary legal philosophers commonly understand the normative force of law in terms of practical reason. They sharply disagree, however, on how exactly it translates into practical reason. Notably, some have argued that the directives of an authority that meets certain prerequisites of legitimacy generate reasons for action that exclude some otherwise applicable reasons, while others have insisted that such directives can only give rise to reasons that compete with opposing ones in terms of their weight . Does the weighing (...) model provide a normative framework within which law could adequately facilitate correct decision-making? At first glance, the answer appears to be ‘yes’: there seems to be nothing about law-following values—such as coordination reasons, the desirability of social order, deferential expertise, etc.—which prevents them from being factored into our decision-making in terms of normative weight that tips the balance in favor of compliance with law inasmuch as it is worthwhile to comply with it. This impression, however, turns out to be incorrect when, drawing on a body of empirical work in psychology, I observe that many of the practical difficulties law typically addresses are difficulties that have part of their root in biases to which we are systematically susceptible in the settings of our daily activity. I argue that the frequent presence of those biases in contexts of activity which law regulates, and the pivotal role law has in counteracting them, emphatically militate against the weighing model and call for its rejection. (shrink)

This article develops a historico-critical analysis of uncertainty and accuracy in measurement through a case-study of the adjustment of the fundamental physical constants, in order to investigate the sceptical “problem of unknowability” undermining realist accounts of measurement. Every scientific result must include a “measurement uncertainty”, but uncertainty cannot be be eval- uated against the unknown, and therefore cannot be taken as an assessment of “accuracy”, defined in the metrological vocabulary as the closeness to the truth. The way scientists use and (...) interpret uncertainty in the adjustment activity illustrates how they try to overcome this predicament. I iden- tify two operative roles of measurement uncertainty, in the comparison and in the combination of measurement results. This duality implies a tension between selection and combination when aggregating results, leading to a crucial question: should the evaluation of uncertainties favour safety over precision? I present contrasting answers and identify a specific account of physicists who implicitly try to conciliate realism with the problem of unknowability. I argue that this invites us to reconsider accuracy from a dynamical standpoint, as the gradual achievement of scientific progress through error correction. Finally, I present two interpretations of measurement uncertainty, objective and epistemic, which I criticize and suggest improvements to. (shrink)

This paper is in two parts. Part 1 examines the phenomenon of making space as a process involving one or other kind of legal decision-making, for example when a state authority authorizes the creation of a new highway along a certain route or the creation of a new park in a certain location. In cases such as this a new abstract spatial entity comes into existence – the route, the area set aside for the park – followed only later (...) by concordant changes in physical reality. In Part 2 we show that features identified in studying this phenomenon of legal spacemaking can be detected in other spheres of human activity, for example in planning (where spacemaking is projected into the future), and in reasoning about history (where spacemaking is projected back through time). We shall see that these features display themselves in especially complex ways in our everyday use of language, and we conclude by examining the implications of this complexity for attempts to create an artificial intelligence that would enjoy a mastery of language that would be equivalent to that of human beings. (shrink)

The article analyses the regulation for premature termination of the Parliament in Latvia. The introductory part of the article provides a short characteristic of the Constitution of Latvia - the Satversme adopted in 1922, and outlines the basic principles of legal regulation of the Parliament, i.e. the Saeima. Further chapters of the article analyse historic development of the premature termination of the Parliament. On 15 February, 1922, when the Satversme was adopted, only one mechanism for the premature termination of (...) the Parliament was established there: dissolution of the Saeima. However, relatively recently, in 2009, after a prolonged public discussion another mechanism for the premature termination of the activity of the Saeima was established, which was the recall.1 Both models of the termination of the activities of the Parliament are analysed in the article by specifying the principal differences between them. Along with the analysis of the provisions of the Constitution and theory, the practice of dissolution of the Saeima is characterised as well, because in 2011 the Parliament (the Saeima) was dissolved in a constitutional way for the first and so far the only time in the history of Latvia and extraordinary elections were held. (shrink)

Global firms need to decide on the correspondence between their corporate ethics and the globalization of their activities. When firms go global, they face ethical complexities as they operate in different legal and cultural environments that may impact the admissibility and appropriateness of their approach to institutionalize and implement corporate ethics. Global firms may have good reasons to establish global codes of ethics that are to be obeyed by all employees worldwide. However, developing and implementing such codes can be (...) rather difficult due to various, and partly competing, conditions in the countries of operation. In this article, two legal disputes are analyzed to illustrate some of the difficulties that may emerge when firms globalize their codes of ethics. I argue that these conflicts can be mitigated when firms carefully design their codes and the processes of code implementation. (shrink)

What is the value of fictions, metaphors, figures and scenarios in adjudication? This book develops three models to help answer that question: inquiry, artefacts and imagination. -/- Legal language, it is argued, contains artefacts – forms that signal their own artifice and call upon us to do things with them. To imagine, in turn, is to enter a distinctive epistemic frame where we temporarily suspend certain epistemic norms and commitments and participate actively along a spectrum of affective, sensory and (...) kinesic involvement. -/- The book argues that artefacts and related processes of imagination are valuable insofar as they enable inquiry in adjudication, ie the social (interactive and collective) process of making insight into what values, vulnerabilities and interests might be at stake in a case and in similar cases in the future. -/- Artefacts of Legal Inquiry is structured in two parts, with the first offering an account of the three models of inquiry, artefacts and imagination, and the second examining four case studies (fictions, metaphors, figures and scenarios). -/- Drawing on a broad range of theoretical traditions – including philosophy of imagination and emotion, the theory and history of rhetoric, and the cognitive humanities – this book offers an interdisciplinary defence of the importance of artefactual language and imagination in adjudication. (shrink)

This year's volume of collected papers in the Current Legal Problems series provides in-depth analyses some important developments which have taken place in recent months. Public law has witnessed much activity both in the courts and in Parliament during the last twelve months and this is reflected in three essays which examine different aspects of human rights, equality, and the right to privacy. In the wake of the Royal Commission on Criminal Justice, two lengthy essays deal with evidence (...) in police investigations and the concept of due process and pre-trial criminal justice. (shrink)

The aim of the paper is to present the diachronic changes taking place in legal languages and discuss whether the translators, who for some reason use as an equivalent an obsolete term, may produce a target text which is communicatively ineffective. The research methods applied encompass: the parametric approach to the interlingual comparison of legal terminology for translation purposes, the analysis of pertinent literature on translation and translation errors, the analysis of comparable texts for the purpose of observing (...) diachronic changes in terminology. The diachronic change in terminology most frequently is the result of the amendments of legislation or repealing one act and replacing it with a new one. The terminological changes are especially frequent when the change in the political system occurs and the need appears to adjust the legal system to the new political ideology and principles. For that reason, the authors have analysed in detail three Polish acts on copyright enacted under three different political regimes that is to say (i) after the First World War when Poland regained independence after 123 years of occupation (Act of 29 March 1926 on Copyrights [Ustawa z dnia 29 marca 1926 r. o prawie autorskiem]), (ii) under the communist rule in Poland that lasted from 1945 until 1989 (Act of 10 July 1952 on Copyrights [Ustawa z dnia 10 lipca 1952 r. o prawie autorskim]), and finally (iii) after the collapse of communism in Poland and the period of transition into the democratic and free market society (Act on Copyrights and Related Rights of 4 February 1994 [Ustawa o prawie autorskim i prawach pokrewnych z dnia 4 lutego 1994 roku]). Apart from the main Polish corpus of above-mentioned acts, the authors have also provided examples from some other languages to confirm that the diachronic changes take place everywhere and miscommunication problems resulting from using an obsolete term in translation may occur in any pair of languages. In the last part of the paper the problem of the scale of miscommunication resulting from the usage of obsolete terminology in the target text is discussed. (shrink)

In this Article we offer a new conceptualization of industrial citizenship, which is sensitive to gender and migration status. Our conceptualization builds on the theoretical distinction between active and passive citizenship and the analyses of active industrial citizenship. We suggest that active industrial citizenship should be detached from the old and influential tradition of trade unionism that is connected with the public/private divide. Our proposed conceptualization leads to attaching value to activities related to ethics of care and to the pursuit (...) of legal status, which should be seen as forms of activism. The discussion focuses on organizing domestic workers. We argue that this new conceptualization of active industrial citizenship leads to the recognition of domestic workers as active industrial citizens, rather than passive victims of abuse. It also transforms the way we view organizational forms within the labor market, making it possible to appreciate on an equal basis membership in trade unions and participation in NGOs and other civil society organizations, thereby building cooperation as well as taking part in other aspects of public life. We ground our argument on theoretical literature as well as a qualitative study, a series of interviews with key trade union and NGO actors with expertise in organizing and supporting domestic workers in Israel and the United Kingdom. (shrink)

Formal models of argumentation have been investigated in several areas, from multi-agent systems and artificial intelligence (AI) to decision making, philosophy and law. In artificial intelligence, logic-based models have been the standard for the representation of argumentative reasoning. More recently, the standard logic-based models have been shown equivalent to standard connectionist models. This has created a new line of research where (i) neural networks can be used as a parallel computational model for argumentation and (ii) neural networks can be used (...) to combine argumentation, quantitative reasoning and statistical learning. At the same time, non-standard logic models of argumentation started to emerge. In this paper, we propose a connectionist cognitive model of argumentation that accounts for both standard and non-standard forms of argumentation. The model is shown to be an adequate framework for dealing with standard and non-standard argumentation, including joint-attacks, argument support, ordered attacks, disjunctive attacks, meta-level attacks, self-defeating attacks, argument accrual and uncertainty. We show that the neural cognitive approach offers an adequate way of modelling all of these different aspects of argumentation. We have applied the framework to the modelling of a public prosecution charging decision as part of a real legal decision making case study containing many of the above aspects of argumentation. The results show that the model can be a useful tool in the analysis of legal decision making, including the analysis of what-if questions and the analysis of alternative conclusions. The approach opens up two new perspectives in the short-term: the use of neural networks for computing prevailing arguments efficiently through the propagation in parallel of neuronal activations, and the use of the same networks to evolve the structure of the argumentation network through learning (e.g. to learn the strength of arguments from data). (shrink)

The Republic of Macedonia has been a part of the Bologna process since 2003. The Ministry of Education, law and policy makers and higher education institutions have actively engaged with its main concepts. In parallel with this, since the adoption of the law on higher education in 2008 and the reform of the Accreditation and Evaluation Board, there have been numerous changes and amendments culminating in the fast-tracked adoption of a new law at the beginning of 2015. Some of its (...) solutions created a huge debate among the academic community, other intellectuals and students themselves, resulting in the postponement of that law and a kind of legal vacuum. In such turbulent circumstances, individual higher education institutions had to consider how and to what extent to adopt and develop relevant standards and guidelines, comply with the legal framework and promote good practice. The aim of this paper is to present how these three aspects, Bologna standards and guidelines for Quality Assurance, a national legal framework and an institutional approach are being reflected, merged and implemented at a relatively young higher education institution. It questions the impact of these three elements on each other and how one institution’s drive for improvement is affected. This is done through a qualitative analysis of the three-fold perspectives. The conclusions and recommendations are expected to be of use to policy makers in the country and region as they evaluate how international trends and good practice fit into the socio-economic and political conditions of RM and similar countries. At the same time, it can demonstrate how far institutional quality assurance and progress can be implemented and recognized in the country itself and by some international stakeholders. It can also prove that the South East European University is a national leader in this field as RM has no functioning QA evaluation system, while SEEU has managed to create a well structured and operating one, based on international and institutional experiences. (shrink)

The essence of the ethical issues pertinent to business activities is the harm or benefit that occurs as part of a company's resource transformation process. A typology is developed that sorts ethical issues according to three variables: (1) the nature of the harm, (2) the nature of those harmed and (3) the transformation stage where the harm occurs. Propositions are formulated that would enable analysts and practitioners to predict the degree of legal condemnation of, and stakeholder retaliation to, harms (...) generated by questionable moral reasoning. An organizational harm analysis is then constructed as a decision making tool that could supplement cost/benefit analysis. (shrink)

Problems with religion have always been and remain one of the most important in the context of organization of state and public life.And today for Ukraine the issues of guaranteeing, full protection, protection of the right to freedom of conscience, religion, activities of religious organizations, including religious minorities are very relevant.This is due, above all, to those historical scales, the processes that have taken place during the last decade in all spheres of social life, including in the spiritual, religious-ideological plane (...) of it. (shrink)

In lieu of an abstract, here is a brief excerpt of the content: Kant's Tribunal of Reason: Legal Metaphor and Normativity in the Critique of Pure Reason. Cambridge: Cambridge University Press, 2020. Pp. 208. Hardback, $105.00. -/- Even those with a passing knowledge of Kant's system will recognize his sustained use of legal metaphor and his appeal to lawfulness as a beacon of philosophical progress. He famously begins one of the most important (and impermeable) sections of the Critique (...) of Pure Reason with the juridical distinction between quid juris (what is the law) and quid facti (what is the fact) (A 84/B 116), insisting—against the empiricists—that the critique of our cognitive faculty must speak to the former and requires a Transcendental Deduction of the categories. In her book, Sofie Møller delves into the historical context and philosophical significance of such legal metaphors to reveal that their roots spread to the deepest foundations of Kant's project. In doing so, she contends that we should understand "philosophical systematicity as legal systematicity" (15). According to Møller, to accept this reading of Kant is to acknowledge that the legal system provides not just one helpful type of metaphor to be appreciated alongside many others, but the only proper symbol of the abstract nature of reason itself (173).For those interested in Kant's engagement with the natural-rights theory that prevailed during his lifetime, or in his familiarity with the concrete legal practices of eighteenth-century European courts, Møller's book proves to be thoroughly researched and informative. As the first English-language book-length study providing a comprehensive account of the legal aspects influencing Kant's system, it should serve as a valuable catchall resource. There are limits to its accessibility, however, as familiarity with basic legal distinctions—e.g. between civil and criminal codes—is assumed, and Latin terms and phrases often go untranslated. At times, this makes for a difficult intersection between the arduousness of Kant's own prose and the equally technical legal terminology that is meant to explain it. However, this barrier is mitigated by Møller's own interpretive work, which cautions that we should not let indeterminate legal terminology fix too much in our reading of Kant's texts, especially when considering the Transcendental Deduction and its reliance on the quid juris/quid facti distinction. As she concludes at the end of chapter 3, the procedure of legal deduction that Kant invokes "could be an investigation, an exposition, a thorough consideration, a review, explanation, description, account, dispute or procedure" (64). Thus, despite Kant's historically demonstrable familiarity with legal-deduction writings, on their own, they "do not present a sufficiently uniform argument structure to settle the question of the structures of the two versions of the transcendental deduction" (64). This observation serves both as a general warning as well as a criticism of Dieter Henrich's approach to Kant's system, which popularized attention to legal metaphor in Kant scholarship in the twentieth century. For Møller, little philosophical insight is won through Henrich's approach, since it "places too much weight on the importance of an origin" (60), taking its cue from a particular type of legal deduction whose assumption is unsupported, and which cannot be accurately projected onto Kant's text. As Møller argues, "The validity of the categories is not only grounded in their origin in pure apperception but in their being the necessary structures in the synthesis which creates objects of experience, which is an act of pure apperception" (60). Møller's suggestion, instead, is to read the Deduction as adopting the twofold structure of "judicial imputation," which does a more faithful job of capturing the structuring activity that Kant accords to the understanding. With the latter reading, emphasis shifts from whether the categories' application to objects of experience is valid because of their a priori origin, to the spontaneous activity of the judging subject as the originator of experience (75). Part of what is unique about this approach is that it does not read the... (shrink)

When legal theorists ask questions about legal interpretation—such as what it fundamentally is, what it aims at, or how it should work—they often do so in ways closely tethered to existing legal practice. For example: they try to understand how an activity legal actors (purportedly) already engage in should be done better, such as how judges can better learn about the content of the law. In this paper, I discuss a certain kind of “conceptual ethics” (...) approach to thinking about legal interpretation, which is less tethered to existing legal practice (or the existing meaning of core pieces of legal terminology). The approach I explore asks questions about legal interpretation in a way that is tethered to what legal (or “legal-ish”) concepts people should deploy, as part of arguments on behalf of engaging in legal (or “legal-ish”) practices different from our current ones. In exploring this approach, I aim to help us better understand the landscape of philosophical issues about legal interpretation, including parts of it that I think have been underexplored. (shrink)

The paper purports to provide an analytical treatment of the truth and legal interpretation issue. In the first part, it lays down a conceptual apparatus meant to capture the main aspects of the legal interpretation phenomenon, with particular attention paid to the several kinds of linguistic outputs resulting from interpretive activities. In the second part, it recalls three different notions of truth, focussing, so far as systemic truth is concerned, on the difference between deductive and rhetorical normative systems. (...) In the third, and last, part, it shows in which ways the phenomenon of legal interpretation encompasses truth-apt entities, leaving the choice between austere and liberal alethic pluralism to the reader. A few, final remarks address the formalism/scepticism problem. (shrink)

The main argument of this paper is that the legal regulation of lobbying is an important factor for disciplining/curbing the undue (illicit) influence of different interest groups on the political-making process, especially in countries with post-communist and nonconsolidated democracies such as Albania. In three decades of political and economic transition from a one-party communist system to a democratic one and towards a market economy, the democratization of Albania has faced various problems, which have often led to a loss of (...) public confidence in the political class and apathy of citizens towards the political system. In many cases, this has come as a result of the perception or even the disclosure by the media and the public of corruption scandals, political clientelism, or undue influences in the decision-making processes in Albania. Surely, it can be said that political scandals of trading or exercising illicit influences on public officials can affect, as numerous cases have shown, every democratic political system in the world. However, they are more likely to occur in new democracies (post-communist) countries that face weak state structures and a legal environment that is not yet well consolidated and where a culture of informality exists alongside written rules and laws. For this purpose, that of disciplining and controlling the influences that specific interests exert on the decision-making process of governments, legislatures, or other regulatory agencies, a good part of European countries have considered undertaking legal regulatory initiatives for lobbying activity in their environments. (shrink)

Islam is not only a religious system that boils down to dogma and worship, but is a set of principles and norms that underpin the organization and activities of the authorities and regulate the behavior of Muslims. The status of a Muslim consists of two interconnected components: his rights and responsibilities as a believer and as a subject of civil relations. A special and main feature of Muslim law, as a part of Islam, is the interaction of religious and secular, (...) rational and irrational, spiritual and material, mainly as a system of legal norms, which is an important element of the Islamic way of life. (shrink)

One observes regulation at every biological level. Organisms, cells, and biochemical processes operate efficiently, normally wasting neither material nor energy, and adjusting their functions to external influences. Nature evidently has evolved mechanisms specifically dedicated to regulation at many levels. What is the molecular basis of this control?In the 1950s these molecular control mechanisms began to be explored seriously. The discoveries of feedback inhibition of enzyme activity were important because they gave an initial example of how regulation is achieved (...) at the molecular level. We showed that certain enzymes are composed of two parts, one for catalysis and another distinct part present only to regulate this catalysis. Catalytic activity can be either stimulated or inhibited when a small molecule in the environment combines with the enzyme's regulatory site. In particular, a final product of a metabolic pathway generates a feedback loop which automatically limits its own excessive production, by combining with the regulatory site of an early enzyme in that pathway. Later studies showed that catalytic and regulatory structures of some enzymes could be separated physically.The discovery of regulatory sites and their interaction with molecules unrelated to their substrates was the basis for the generalized allosteric concept. This concept extends the regulatory site idea to a wide variety of processes such as control of gene expression, hormone action, and cellular growth. (shrink)

The principle of solidarity is one of the fundamental legal principles applied in the field of health care regulation. This article analyses EU and Lithuanian legal acts, judicial practice, the doctrine of law and foreign scientific resources in order to reveal the content of solidarity principle and to discuss its role in the legal regulation of health care both at EU and national levels. The article is divided into three parts. The first part of the paper examines (...) the correlation between the right to health established in the EU Charter of Fundamental Rights (the Charter) and the principle of solidarity as the fundamental value upon which the EU is ‘founded’ and which it seeks to ‘preserve and develop’, as the preamble to the Charter states. It is noticed that the principle of solidarity is one of the principles which characterize the European law on social protection. In the summary of the findings of the article, the author states that this principle can be considered as a tool to achieve a greater social cohesion within the EU Member States in defining and implementing all policies and activities in order to ensure a high level of human physical, mental and social health protection through, first of all, a reduction of health care inequalities. For that it is necessary to tackle the factors which determine health care inequalities among the EU Member States. (shrink)

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

In lieu of an abstract, here is a brief excerpt of the content:Legal CommentaryGreg Vijayendran, PartnerThe issues arising for consideration in this case are:a). the nature of the investigator-subject relationship that gives rise to an ethical duty to disclose incidental findings;b). whether the research team in this case (including the principal investigator and co-investigator) has a duty to disclose the incidental finding observed to the research volunteer; andc). whether the research team has a further ethical duty to ensure that (...) the MRI scans are clinically evaluated to identify potential health problems.The starting point is to define “incidental findings” for clarity and precision. A good working definition of the same is “a finding concerning an individual research participant that has potential health or reproductive importance and that is discovered in the course of conducting research but is beyond the aims of the study”.1With regard to incidental findings, Miller, Mello and Joffe in an insightful article2 observe:… there is little ethical guidance available to steer such efforts, and practices appear to vary widely. Although several articles have catalogued the ethical dilemmas surrounding incidental findings, with the exception of seminal work by Henry Richardson and Leah Belsky on the more general topic of researchers’ obligations to provide ancillary clinical care to research subjects, systematic ethical analysis of the incidental findings problem is lacking.In this case scenario, there is no concurrent, overlapping physician-patient relationship (even if the research subjects were recruited from patients at the hospital’s memory clinic) that might provide an alternative [End Page 274] source of obligations relating to incidental findings. No representations have been made by the research team to the patient-volunteers. The patient-volunteers did not opt to be kept in the know as to incidental findings. Neither did they express a preference not to be informed of such findings. Had they done so, such a choice would presumably absolve the research team from keeping the patient-volunteers informed. From an autonomy perspective, there is no compelling reason why such a choice by a patient-volunteer should not be honoured.One view of the first issue outlined above is that the relationship between a research investigator and a research subject is founded in contract. On that premise, investigators have no default obligations, only what is expressed or implied in the terms of the “contracts” for recruiting volunteers. The relevant documents and data to be analysed would be the “contracts” executed by the parties and the informed consent form as well as interactions and iterations between investigators and patient-volunteers. Of particular significance would be representations made by the investigators that could form part of the terms of the contract. Apart from express terms, there would also be some rare implied terms — for example, an implied term of good faith although this has only been recognised in certain sui generis categories of contracts (for example, insurance contracts). Adopting this perspective strips away any fiduciary or professional aspects of the relationship and reduces the relationship to nothing more than a contractual one. Such a view relies on the legal relationship as a springboard for the ethical duties although this perspective would be reductive because very few implied duties are presumed. Unless incidental findings fall within the terms of the contract, investigators are under no obligation to respond to them. In the final analysis, the main objection to this contractual perspective is that it conflates legal duties with ethical duties when these two distinct types of obligations which investigators and a research team have to elucidate.An alternative approach involves a focus on professional relationships. Concepts of incidental findings and ancillary care presume some sort of professional relationship pursuant to which the findings are analysed as incidental or the care is determined as ancillary. “Professionals” refer to persons who are usually distinguished by their specialised knowledge and training as well as by their commitment to provide important services to patients, clients or consumers.3 Professional relationships are often, but not always, characterised by a service role, sometimes involving a fiduciary relationship.Although researchers cannot be viewed as having a service role vis-à-vis individual subjects, it is reasonable [End Page 275] to regard research as a professional activity. Researchers possess... (shrink)

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of consent and (...) informed consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

In this article, we try to trace the relationship between semiotics and theory of legal reasoning using Peirce’s idea that all reasoning must be necessarily in signs: every act of reasoning/argumentation is a sign process, leading to “the growth of knowledge. The broad scope and universal character of Peirce’s sign theory of reasoning allows us to look for new conciliatory paradigms, which must be presented in terms of possible synthesis between the traditional approaches to argumentation. These traditional approaches are (...) strongly affected by either the dialectical (logical) perspective or the rhetorical perspective on argumentation, while Peirce’s approach tends to reconcile the rhetorical and methodological aspects of reasoning. This reconcilation is best illustrated by Peircean analysis of argument’s logical and rhetorical structure; while the diagrammatic (iconic) analysis of arguments is performed in the system of Existential Graphs (which is Peirce’s major methodological system, designed for the expressions of propositions in point of their relational structure). Obviously, Peirce’s original division of argument parts offered only the characterisation of the sign activity (involved in the process of reasoning), and thus left much to be desired in terms of practical explication. (shrink)

The application of the latest technologies in biology and medicine has brought them to a qualitatively new level of possibilities. Worldwide, biobanking is actively developing through the creation of biobanks of various types and purposes, whose resources are used to solve therapeutic or scientific problems. Legal science remains an open question concerning the boundary that runs between the right to data protection and the scope of disclosure of data needed for medical purposes. In this article, the author considers peculiarities (...) of data processing in the context of biobanking activity on the example of Austria and its national legislation. In addition, the article reveals features of the approaches of the European Court of Human Rights (ECtHR) and the Council of Europe to the issue of biobanking in general, its characteristics in the context of data, and legal regulation of this phenomenon in the national law of states. The author devoted an important part of the study to the role of Austria’s experience in the context of data processing for scientific purposes and the development of biobanking for a number of other European states. The aim of the article is to analyze the Austrian legislation on data processing for scientific research and biobanking, the attitude of the Council of Europe to this phenomenon, and the practice of the ECtHR, as well as to consider the impact of the current world situation on these activities. The leading method of research used in the article is the formal-legal method. The article analyzes the Austrian law in the context of data processing in medical research, the relationship of the specifics of personal data protection, and the need to disclose them for scientific purposes. The author pays special attention to the influence of Austrian law on the legislation of other countries, which is reflected in the conclusions to the article. In addition, based on an analysis of the application of the Austrian experience to the legislation of Poland and Ukraine, the author points out the necessary changes that should be made in the laws of these countries. (shrink)

COVID-19 pandemic occurred as an unexpected experience affecting all countries around the globe. In addition to the obvious health, economic and political effects, the COVID-19 pandemic triggered immense changes in the social spheres. People and institutions were forced to adjust to the new circumstances, change habits and move most or all of their activity online. In the completely virtual world, pandemic became a fertile ground for the bloom of the conspiracy theories already existing, but struggling for the global attention. (...) The aim of the paper is to present three main conspiracy theories rapidly gaining popularity during the pandemic (the QAnon, anti-vaccination movements and anti-5G movements) and to analyse how they developed since the pandemic had been announced. In particular, the rising activity of the representatives of the movements will be analysed, as well as its acceleration in connection with pandemic and the resulting influence on social and political life. Finally, the paper will try examine whether the rapid development of conspiracy theories within societies has had any relations to the level of trust towards government-made decisions. The thesis being verified hereto is that pandemic accelerated the development of conspiracy theories due to the diminishing level of trust towards governments operating in the most difficult period in recent history. There are variety of reasons for the belief in conspiracy theories and they depend on the specificity of the theory and specificity of group of people it originates from. In general, it can be noted that all kind of conspiracies are developed by either (1) people who actually believe in them and are sharing them with good intentions (to warn other about the dangers hidden behind certain actions or institutions) or (2) malignant individuals whose aim is to discord or discredit an opponent or critic or, alternatively, distract attention from misconduct or lack of competence. (shrink)

Nowadays, on national and international levels, the law has been increasingly considering local and traditional communities’ role for achieving conservation. In Brazil, for instance, one can see how recent legal rules promote benefits for those local groups who practice low environmental impact activities. Nevertheless, regarding traditional fishing communities that live on the coastal zone, a region where many protected areas have been created lately in Brazil, the positive social effects of those measures are often undermined by the economic and (...) political pressure they suffer. This becomes particularly clear when the problem is seen under the different grades of citizenship people face in Brazil: that is, considering how people can be over-included in the legal system to have mainly access to its benefits, while others are under-included to be mainly dependent on it. It seems that Brazilian coastal fishing communities fall into the latter case, and that would explain how they are subject to many different types of restrictions and responsibilities due to the new legal instruments that are being developed to protect such areas, sometimes causing, for instance, a pressure to remove them from their homes. Conservation in this context, then, is to be understood beyond legal texts and, especially, under the evaluation of the social conditions these populations are submitted to. Therefore, this paper sketches the legal development of Brazilian marine protected areas, points out some examples of conflicts involving traditional fishing communities affected by conservation policies, and conceptualizes the relations of over- and under-inclusion they can be considered as part of. (shrink)

This paper discusses the legal aspects of the activities of transnational corporations. The relevance of the subject matter is determined by the significant impact exerted by transnational corporations on the world economy in general and on the economic situation of the country in which such corporations are registered as a subject of legal form of ownership in particular. Quality functioning of transnational corporations is an effective factor for the formation of sustainable development. This study reveals and determines the (...) relationship between the scale of activity of transnational corporations and their legal status within the framework of both single countries and entire economic communities, the individual subjects of law of which are transnational corporations. The practical significance of this study lies in the possibility of identifying and stating key aspects that play a significant role in assessing the practical activities of transnational corporations in the context of existing legal law with the ability to use the identified patterns in specific legal practice. The results of this study can be of significant practical importance for employees in the field of legal support for the activities of transnational-scale corporations, who are faced with the need to deeply analyse the legal aspects of the activities of these organisations and provide management of such structures with timely, highquality legal recommendations regarding the correction of the activities of these organisations in the context of the existing legal field. (shrink)

There is legal uncertainty and academic disagreement as to the legal status of biological material that has become separated from the person. This article sets out the two criteria upon which the assessment of the legal status of ‘separated biological material’ ought to be made. It is suggested here that any argument concerning the legal status of separated biological material needs to (i) assess which ownership entitlements in the material the law ought recognize and (ii) assess (...) which set of legal rules ought to be used to protect these ownership entitlements. There are also limits to the way these two criteria ought to operate. First, the considerations that are necessary to justify an ownership entitlement in a body part vary between different types of ownership entitlements. Second, whether there is a necessary connection between recognizing an ownership entitlement and protecting the entitlement in a particular way also varies in terms of the type of ownership entitlement in question. By isolating these two criteria, and identifying the limits to their operation, this article prescribes an analytical framework through which the law and academic commentary can be viewed. (shrink)

This article presents the analysis of the characteristics of labor well-being in Colombian micro and small enterprises, this was developed through a documentary review from the model of Hoyos (2010), it is a qualitative research, where 42 investigations were collected, which were consulted in databases such as: Science Direct, Refseek, Redalyc, Scielo, Google Scholar and Dialnet, in addition to exploring the repositories of Colombian universities such as: UNAD, Uniminuto, ECCI, Usanbuenaventura, EAFIT, Unipiloto, UGranada, UTecnológica, UJavieriana, UAndes, UCatólica, UNIR, among others, (...) of which, 13 were adjusted with the categories: Practices of Labor Well-being, Theories of Labor Well-being, Needs in Collaborators and Sociodemographic Data, then descriptive synoptic sheets were constructed and then an analysis by category matrix was made, finally, a data analysis was carried out with the ATLAS.ti tool, which allows discerning the object of study through semantic networks. In this order, it is found that activities related to communication, incentives and motivation are part of the activities used as work welfare practices; as for the theoretical positions of well-being at work, the most supported is the one given by the WHO (2010), which is also defined from satisfaction and quality of life; Among the most outstanding needs to develop welfare programs is dissatisfaction in communication with colleagues and managers, ignorance of the responsibilities in their position, among others, on the other hand, there is evidence of a disregard to establish sociodemographic profiles, that is, companies do not consider it when planning or implementing workplace welfare actions. It concludes the need to build labor welfare policies and practices sensitive to the cultural and economic context for Colombian companies, this means recognizing the importance of adaptive and pragmatic approaches in microenterprises and the integration of more structured and theoretical approaches in small enterprises. (shrink)

Based on ethnographic and linguistic analyses, this article describes the discourse-related practices and interactional role behaviours of an experienced lawyer who assumed a pivotal role in the negotiation of a Mergers-and-Acquisitions type transaction vis-a-vis a number of other legal and financial professionals. Set in an international business context, all communication took place in English and for the most part via email. Complex discursive processes facilitated close interdisciplinary engagement and, more particularly, required that a single individual assume a key interactional (...) role to oversee and advance the negotiation activities. This pivotal role entailed the strategic use of language and discourse to negotiate, account for, and justify the various stages of the negotiation. In addition to textual analyses of the negotiated contract and attendant emails, interviews were conducted with the principal lawyer and her senior partner in order to examine the textual findings grounded in the organisational context of a law firm and produce an ontology of this negotiation process. These research findings could be used to assist novice lawyers and business professionals to understand some of the discourse strategies and interactional roles that are often so critical for commercial contract negotiation activities. (shrink)

This Article presents a theory whereby criminal punishments are routinely distributed in proportion to the weight of the evidence mounted against the defendant. According to this theory, the law relaxes the stringent decision threshold in criminal trials—beyond a reasonable doubt—by creating easy-to-prove evidentiary offenses. These offenses, in turn, are associated with less severe sanctions, thus creating a de-facto proportional liability regime. Against that backdrop, the Article examines the legal duty to report criminal activity to the authorities. As the (...) analysis shows, while legal scholars analyzing such duties have focused on the paradigmatic case in which an innocent bystander, friend or family member is unwittingly exposed to information about a crime, in practice these duties are rarely used in such cases. Rather, reporting duties are used to prosecute suspected accomplices whose involvement in the commission of the actual crime is difficult to prove beyond a reasonable doubt. Thus, offenses imposing a reporting duty on criminal activity turn out to be part of the general framework of accomplice liability, and are used to apply less severe sanctions in cases of evidentiary uncertainty. (shrink)

Global Prescriptions scrutinizes the movement to export a U.S.-oriented version of the " rule of law," found in the activities of philanthropic foundations, the World Bank, the U.S. Agency for International Development, and several other developmental organizations. Yves Dezalay and Bryant G. Garth have brought together a group of scholars from a variety of disciplines--anthropology, economics, history, law, political science, and sociology--to create tools for understanding this movement. Comprised of two sections, the volume first develops theoretical perspectives key to an (...) understanding of the production and impact of new "global legal prescriptions." The second part shifts attention to the national importation of these legal orthodoxies. The scholars provide a diverse set of sophisticated approaches, both to the circumstances promoting the production of these prescriptions and to the limitations of the prescriptions in the different national settings. Thus, Global Prescriptions provides a unique treatment for readers interested in globalization generally or the potential spread of the "rule of law" in particular. This volume will intrigue scholars and students interested in a political science, economics, history, anthropology, law, and sociology. Contributors are Jeremy Adelman, Robert Boyer, Elizabeth Heger Boyle, Miguel Angel Centeno, Heinz Klug, Larissa Adler Lomnitz, John W. Meyer, Setsuo Miyazawa, Hiroshi Otsuka, Rodrigo Salazar, Kathryn Sikkink, Anne-Marie Slaughter, and Catalina Smulovitz. Yves Dezalay is Director of Research, National Center for Scientific Research, Paris. Bryant G. Garth is Director of the American Bar Foundation. (shrink)

The Australian state of Victoria legalised voluntary assisted dying in June 2019. Like most jurisdictions with legalised VAD, the Victorian law constructs physicians as the only legal providers of VAD. Physicians with conscientious objection to VAD are not compelled to participate in the practice, requiring colleagues who are willing to participate to transact the process for eligible applicants. Physicians who provide VAD because of their active, moral and purposeful support for the law are known as conscientious participants. Conscientious participation (...) has received scant attention in the bioethics literature. Patient access to VAD is contingent on the development of a sufficient corpus of conscientious participants in permissive jurisdictions. This article reports the findings of a small empirical study into how some Victorian physicians with no in-principle opposition towards the legalisation of VAD, are ethically orientating themselves towards the law, in the first 8 months of the law’s operation. It finds that in-principle-supportive physicians employ bioethical principles to justify their position but struggle to reconcile that approach with the broader medical profession’s opposition. This study is part of the first tranche of empirical research emerging from Australia since the legalisation of VAD in that country for the first time in over 20 years. (shrink)

Freedom of association for trade union has been generally accepted as part of basic human rights in Islam. Freedom of association, which include the right to join and participate in trade union activities, can be susceptible to disputes between employers and employees as well as trade unions. Islam provides freedom of association in labour relations and also mechanisms to settle disputes pertaining to such freedom. Conciliation (sulh) and arbitration (tahkim) are both used methods in the inception of Islam, which have (...) similarities with the modern sense. We shall discuss in this article the right to dispute resolution between employers and trade unions in the context of freedom of association in labour relations as based on Shari’ah law and using modern legal systems of Islamic countries such as Iran, Malaysia and Saudi Arabia as examples. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Active Euthanasia and Assisted SuicidePat Milmoe McCarrick (bio)Although the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in its 1983 report, Deciding to Forego Life-Sustaining Treatment, described the words and terms "euthanasia," "right to die," and "death with dignity" as slogans or code words—"empty rhetoric," (I, p. 24), the literature reviewed for this Scope Note continues to use these terms. Therefore, to (...) discuss the termination of a patient's life by a physician at the patient's request, the phrase active euthanasia is used, and the supplying of a means by a physician whereby a patient can end his or her life is referred to as assisted suicide.Euthanasia, either as the "good death" from classical Greek or "mercy killing" to end unbearable suffering in the dying, has long been a topic of interest in western civilization (III, Brody 1989). In recent years, public awareness of this discussion about control over the time of one's death has been informed by a series of well-publicized events. They include the November 1991 rejection by a vote of 54 percent to 46 percent of the Washington state Initiative 119, which would have allowed the option of requesting one's physician to "aid-in-dying" for adult patients in a "medically terminal condition" (V, Gross 1991); two medical journal articles describing physician's actions in helping bring death to two patients (V, Anonymous 1988; V, Quill 1991); Dr. Jack Kevorkian's assistance in the suicide of three women (V, Belkin 1990; V, Wilkerson 1991); and the best seller status of a how-to book on committing suicide with opiates obtained from a physician (III, Humphry 1991).For the most part, material included in the annotated bibliography in Scope Note 18 has been chosen from works published in the four years since "It's Over, Debbie" (V, Anonymous 1988) appeared in early January 1988 in the Journal of the American Medical Association.Dr. Edmund D. Pellegrino (V, 1991, pp. 3118-19) presented opposing views about active voluntary euthanasia as follows:Those who favor voluntary euthanasia argue that it is a beneficent and compassionate act; it respects autonomy by preserving the patient's control of the manner, method, [End Page 79] and timing of death; it takes the matter outside the reach of "medical power" (accessed in this Scope Note's bibliography at V, Fletcher 1973; V, Nowell-Smith 1989) and scrupulosity; and it prevents the injustice that allows some patients to choose death by refusal of life-support measures, while denying others the right to do so by active euthanasia....The opponents of active euthanasia argue that it undermines the value of, and respect for, all human life (V, Kass 1989; V, Coyle 1990; V, Singer 1990). They fear that guidelines cannot avoid sliding down the "slippery slope" to involuntary euthanasia and selective devaluation of the lives of the most vulnerable among us.... If euthanasia is legal, it is predicted that patients will feel subtle pressure to conform so as to relieve the economic and emotional burdens they impose on family and friends.Euthanasia, its opponents further argue, is socially destructive: it undermines trust in physicians, desensitizes society to killing, and imperils the ground already gained in legitimating passive euthanasia(IV, Wolf 1989).Physicians were not particularly involved with a patient's death until after World War II when participation grew in proportion to the growth of technology. Since the complex, life-sustaining equipment that could forestall death was located in a hospital, death itself became almost completely medicalized (V, Dagi 1991). For terminally ill persons who would like to die a painless death, either by their own hand or with assistance, physicians have almost a monopoly on obtaining strong drugs for distribution to patients (V, Abrams 1990).Active euthanasia for human beings is not legalized anywhere in the world (V, VonDrehle 1991). It is classified as homicide or murder in all fifty states and in Great Britain, Canada, Australia, and the Phillippines (V, Nerland 1989). Twentysix states in the United States prohibit assisted suicide by statute (V, Rosenblum 1990).In 1969 in the Netherlands, a physician named Jan Hendrik van... (shrink)

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

In lieu of an abstract, here is a brief excerpt of the content:The Blossoming of Bioethics at NIHEzekiel J. Emanuel (bio)The establishment of the Department of Clinical Bioethics at the Warren G. Magnuson Clinical Center of the National Institutes of Health (NIH) has coincided with a burgeoning of interest and activity related to bioethical issues at NIH. The department has precipitated a reexamination and revitalization of existing bioethics activities in the Clinical Center and has launched new programs especially in (...) the areas of education and research. In addition, the department contributes to the work of others throughout NIH who address bioethical issues.The Organizational Location of the Department of Clinical BioethicsBefore describing the history and current activities of the Department of Clinical Bioethics, I will say something about it administrative location. Comprehension of the department’s organizational location is essential to understanding its history, role, and function. Prior to interviewing for the position of chair of the department, I did not—and, if truth be told, still do not fully—understand the details of the organizational structure of NIH. I therefore assume that many other bioethicists outside of the Institutes, especially those who do not regularly receive NIH funding, may not fully grasp its organizational intricacies.The Department of Clinical Bioethics is a department within the Warren G. Magnuson Clinical Center, which is NIH’s “hospital.” Hospital is in quotes because all of the patients at the Clinical Center must be enrolled in a research protocol and, therefore, are research subjects. The Clinical Center is where NIH’s clinical researchers admit their research subjects or see them in the out-patient setting. The Department of Clinical Bioethics reports directly to the Director of the Clinical Center, John I. Gallin, M.D., and receives its finances, space, and other resources from the Clinical Center.In this way, the department is part of NIH’s intramural (“inside”) program. People employed by NIH conduct intramural research, training, and other initiatives. The extramural program, which receives approximately 87 percent of NIH’s budget, funds research at institutions outside NIH. The extramural program awards grants and contracts for research, training, and conferences conducted [End Page 455] by investigators who are not affiliated with NIH. The National Human Genome Research Institute’s ELSI (Ethical, Legal, and Social Implications) program, for example, is part of NIH’s extramural program. As part of the NIH intramural program, the Department of Clinical Bioethics is not empowered to fund independent initiatives of people outside of NIH through grants and contracts. However, the department can collaborate with bioethicists and others on research, educational, and other programs outside of NIH and has some funds to support these collaborations.In addition, it is important for bioethicists to understand that NIH is a collection of 24 institutes and centers. Although there is coordination and collaboration between the institutes and centers, each is funded separately, and each has its own scope, programs, administrative structures, research agendas, training priorities, boards of advisors, and so forth. In this sense, NIH is more like a university that has many distinct schools, each with its own dean, faculty, budget, and fund raising office, than one that is tightly integrated and centrally-administered. Within NIH’s diffuse administrative structure, the Department of Clinical Bioethics is located within one of the centers (the Clinical Center) and has defined authority and responsibility only for bioethics within that center; in addition, because the Clinical Center’s mission is to support clinical research at other institutes, the department’ mission includes supporting the work of those institutes as well. Intellectual exchanges and relationships with other institutes and centers are neither pre-ordained nor administratively established; such relationships must be developed case-by-case, topic-by-topic, and initiative-by-initiative.The History and the Development of the Department of Clinical BioethicsThe Department of Clinical Bioethics was launched in late 1996. Although the department’s creation marked a major commitment to bioethics by the Clinical Center, and especially by its director, Dr. Gallin, it was formed on a pre-existing foundation of bioethics activities at NIH. 1In 1977, John Fletcher, Ph.D., was appointed by then Director Mortimer Lipsett as the bioethicist at the Clinical Center; his official title was Assistant for Bioethics... (shrink)

The COVID-19 pandemic led to significant changes of the usual procedures in the clinical trials conduct, as well as to modifications of the relevant study documentation, which also affected regular quality assurance activities ensuring the safety of clinical trial participants, compliance with good clinical practice, and the integrity and validity of the clinical trial data collected during the COVID-19 pandemic. The paper deals with the ethical guidelines and legal regulations that govern the conduct of clinical trials and discusses the (...) ethical implications that arose from the forced adjustments of routine processes and procedures in the clinical trial conduct during the COVID-19 public health emergency. The paper also reflects on the ethical consequences of conducting clinical trials during the public health emergency, as well as on means of performing quality assurance activities and a regular oversight of clinical research. (shrink)

The proposed article provides an overview of European and North American states’ legislation, which regulates the procedure for pre-clinical research, clinical trials and state registration of medicinal products, as well as responsibility for its violation, analysis of the problems and prospects of adaptation of the national legislation to European legal space, particularly in the field of criminal and legal regulation of relations in the sphere of pre-clinical trials, clinical trials and state registration of medicine. The emphasis is put (...) on the matter that inclusion of Article 321-2 into the Criminal Code of Ukraine leads to a false concurrence with other provisions of the Code. The author proposes to introduce recent EU legislation (Acquis Communautaire) on legal regulation of clinical trials and circulation of medicine into the law of Ukraine, clarify terminology related to Fundamentals of Ukrainian Legislation on Health Protection and the Special Part of criminal law, introduce criminal liability for legal entities that will provide effective control over negative effects of research centers’ activity. It is suggested to develop legislative proposals to improve the provisions of the Criminal Code of Ukraine, which provide legal protection of relations arising in connection with pre-clinical research, clinical trials and state registration of medicinal products. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Natural Law and Thomistic Juridical Realism: Prospects for a Dialogue with Contemporary Legal Theory by Petar PopovicPius Pietrzyk O.P.Natural Law and Thomistic Juridical Realism: Prospects for a Dialogue with Contemporary Legal Theory. By Petar Popovic. Foreword by F. Russell Hittinger. Washington, D.C.: The Catholic University of America Press, 2022. Pp. xv + 307. $75.00 (hardcover). ISBN: 978-0-8132-3550-9.About a decade ago the former Cardinal Archbishop of Chicago, (...) H. E. Francis Cardinal George, one of the great theologian bishops of the American episcopate, issued a letter on a piece of pending legislation in the state of Illinois. The focus of the letter was on the teaching of the natural law, and why adherence to the natural law required opposition to the proposed legislation. In response, a well-known law professor at a prestigious secular [End Page 710] law school in the state wrote a public response for an online political website. The focus of his argument was to criticize the notion of natural law according to his understanding of the teaching of St. Thomas Aquinas. It is not necessary to describe the details of his argument, other than to say it tended to understand natural law as mere naturalism that evinced a fairly glaring misreading of the Angelic Doctor. That is, the secular legal scholar argued, in essence, that since the activity in question was observable by animals in nature, that it was therefore part of the natural law, and could be defended as a right. To this, a Thomistic sed contra is perhaps the most fitting response.As this story makes clear, there is a great ignorance of what constitutes the natural law in the secular consciousness, even among the most respected of secular legal scholars, to say nothing of the application of the natural law to the juridic world of law and politics. Perhaps the last hurrah of natural law, at least in the American public consciousness, was then Sen. Joseph Biden’s famous grilling of Supreme Court nominee Clarence Thomas on the subject in 1991. Since then, legal positivism has become nearly universal, divorcing legal norms from any realistic understanding of a common human nature. It has become the dominant ideology in America’s legal academies, even if some adherents of natural law remain in positions of authority in the judicial system.Although it has faded from the world of secular law in the United States, the tradition of natural law has retained a firm hold in Catholic thought, especially by that religious order dedicated to the teachings of its most brilliant adherent, St. Thomas. Not only Thomistic natural law, but proponents of the so-called new natural law continue to provide a vibrant source of debate and insight into the understanding of the natural law in evaluating the goodness of human action. Pope John Paul II’s famous encyclical Veritatis Splendor represents the magisterial commitment to the natural law approach in moral thinking, even if some might believe that commitment has weakened in recent years.To a lesser degree, there has remained a strong current of natural law thinking within the currents of legal philosophy in canon law, even if the precise connection between natural law and its juridic instantiation has not always been the focus. Among recent ecclesiastical legal theorists, arguably the most influential proponent of a robust natural law approach to legal philosophy was the Spanish canonist Javier Hervada Xiberta, and especially his Introducción crítica al derecho natural, currently in its tenth Spanish edition. A disciple of Jose Maria Escriva’s Opus Dei movement, Hervada was a long-serving and internationally respected dean of the School of Law in Navarre. Through his teaching and the various journals he founded, he insisted on the link between law and justice—lex and ius. Hervada was firmly convinced of the realism of law: law is nothing less than the ipsa res iusta. That notion of ius was not simply an idea, but recognized a real relationship of debt and obligation between persons. [End Page 711]In this, Hervada saw himself as the proponent not of some novel theory, but merely of one... (shrink)

Hòa Hảo Buddhism belongs to that traditional lay and frugal buddhism encouraging practicing at home (tu tại gia) while being engaged with the world (nhập thế). It appeared in Southern Vietnam at the end of the 1930’s. Obviously, colonial contest and economic depression have played the part of a powerful catalyst in the spread by a young charismatic and reformist character of this millenarianism. Then, during three decades of postcolonial and cold wars (1945–1975), this New Religious movement hardly expressed its (...) Buddhist ethic of social statements in order to lend moral support and material protection to the local peasantry. Eventually, at the end of the war, this autonomous Buddhist community finally tried to morph again into a legal religion at a time when the Vietnamese Communist Party had to urgently impose a new sovereign socialist republic (1976). In other words, the new regime had to reunify the Nation and build a new secular state. In the southern part of the country, the replacement of a former liberal regime (Republic of Vietnam) by a socialist republic (called formerly a Democratic Republic in Northern Vietnam) completely changed the nature of the State-Church relations. Therefore, many religious groups’ agencies suffered a drastic blow as these groups were subordinated to the Patriotic Front and its mass organizations. Nevertheless, in 1991, the reorientation of the religious policy officially reaffirmed the religions’ social utility. Since then, new debates emerged to define the nature of the social actions of religious groups and then to delineate the legal sphere of their activities in this secular state. This essay intends to question how the two notions of being engaged with the world (nhập thế) and that of the secular state (nhà nước trung lập thế tục) interacted during these last decades. To tackle this pivotal issue, we focused on the specific implementation of Hòa Hảo social activism, from 1940’s until now, to underline how this activism evolved under different political regimes and how a new culture of social service has been promoted since the Hòa Hảo official church was recognized in 1999 and achieved years later. It questions more generally how religious groups can negotiate with the state for the emergence of a civil society or, at least, for the acceptance of their own tribute to the prosperity of the Nation. (shrink)

In the decades after the Second World War, learned society publishers struggled to cope with the expanding output of scientific research and the increased involvement of commercial publishers in the business of publishing research journals. Could learned society journals survive economically in the postwar world, against this competition? Or was the emergence of a sales-based commercial model of publishing – in contrast to the traditional model of subsidized journal publishing – an opportunity to transform the often-fragile finances of learned societies? (...) But there was also an existential threat: if commercial firms could successfully publish scientific journals, were learned society publishers no longer needed? This paper investigates how British learned society publishers adjusted to the new economic realities of the postwar world, through an investigation of the activities organized by the Royal Society of London and the Nuffield Foundation, culminating in the 1963 report Self-Help for Learned Journals. It reveals the postwar decades as the time when scientific research became something to be commodified and sold to libraries, rather than circulated as part of a scholarly mission. It will be essential reading for all those campaigning to transition academic publishing – including learned society publishing – away from the sales-based model once again. (shrink)

Part philosophical meditation, part cultural critique, The Body in Pain is a profoundly original study that has already stirred excitement in a wide range of intellectual circles. The book is an analysis of physical suffering and its relation to the numerous vocabularies and cultural forces--literary, political, philosophical, medical, religious--that confront it.Elaine Scarry bases her study on a wide range of sources: literature and art, medical case histories, documents on torture compiled by Amnesty International, legal transcripts of personal injury trials, (...) and military and strategic writings by such figures as Clausewitz, Churchill, Liddell Hart, and Kissinger, She weaves these into her discussion with an eloquence, humanity, and insight that recall the writings of Hannah Arendt and Jean-Paul Sartre.Scarry begins with the fact of pain's inexpressibility. Not only is physical pain enormously difficult to describe in words--confronted with it, Virginia Woolf once noted, "language runs dry"--it also actively destroys language, reducing sufferers in the most extreme instances to an inarticulate state of cries and moans. Scarry analyzes the political ramifications of deliberately inflicted pain, specifically in the cases of torture and warfare, and shows how to be fictive. From these actions of "unmaking" Scarry turns finally to the actions of "making"--the examples of artistic and cultural creation that work against pain and the debased uses that are made of it. Challenging and inventive, The Body in Pain is landmark work that promises to spark widespread debate. (shrink)

Private law and regulation are constantly involved in the evaluation of conflicts of interest, judging some of them salutary, with others requiring adjustment. Focusing on the question of conflicts of interest allows us to clarify our vision of when such adjustment is appropriate and, more specifically, when the law should supply an infrastructure for cooperative behavior. Thus, the prism of conflicts of interest provides a lens through which to view basic legal problems that turn on whether individual actors will (...) be deemed responsible to some joint interest or whether they will be at liberty to pursue their individual interests despite the adverse effects of such activity on others. This article proposes a conflicts of interest perspective for examining contract law and its immediate surroundings. It suggests a map of conflicts of interest along three axes: the remedial axis; the axis of positive duties to avoid conflicts; and the axis of the transition from independence to loyalty. Applying the map to contract doctrine, the article examines a number of contract doctrines including: remedies for breach of contract; modification; conditions; good faith in performance; and formation. The article goes on to apply the map of conflicts to two complex fact situations: corporate acquisitions and corporate bankruptcies. The analysis underscores the fact that conflicts of interest rules do not simply protect existing interests, but also contribute to the very constitution of those interests. Recognizing the constitutive role of legal rules raises questions about our ability to determine interests ex ante and thus calls for a more nuanced approach to gauging the incentive effects of a legal regime. (shrink)

In legal methodology (usul al-fiqh), the problem of the defining istiḥsān and the legitimacy of its definition is among the critical discussion topics. To overcome the rigorism of law, istiḥsān was used by the founder scholars of Ḥanafī school of law and Malik b. Anas - however this use received various objections. Although the Mālikī scholars also used istiḥsān strong criticisms of istiḥsān have been directed on the Ḥanafīs. After the severe criticism of Muḥammad b. Idrīs al-Shāfiʿī, the Ḥanafī (...) scholars carried out various intellectual activities to define istiḥsān and to prove that it is legitimate. This process -which started especially with Abū’l-Ḥasan al-Karkhī and Abū Bakr al-Jaṣṣāṣ, revealed a rich accumulation with the contribution of the legal theorists in other school of laws. It is known that al-Karkhī's definition of istiḥsān has become widespread among the legal theorists, and the legitimacy of istiḥsān in the works of legal theory was based on his definition. Al-Karkhī's considerations on the legaliticamy of using istiḥsān can be traced in his student al-Jaṣṣāṣ, in the following centuries, Abū Zayd al-Dabūsī, Abū l-‘Usr al-Bazdawī and al-Sarakhsī’s works. Al-Jaṣṣāṣ' explanations on the legitimacy of istiḥsān begin with the criticism of Imam al-Shāfiʿī's against istiḥsān. He provides the proof of legitimacy for istiḥsān in divided two sub-headings. Al-Jaṣṣāṣ, who deals with istiḥsān in two parts as word and meaning, argues that there is no disagreement about the use of istiḥsān and that all mujtahids accept istiḥsān, and even al-Shāfiʿī, who opposes to the use of istiḥsān, employs istiḥsān in this sense. The type of istiḥsān on which there is a deabte is the istiḥsān used in relation to its meaning. Al-Jaṣṣāṣ states that this use is a qiyas operation; he justifies his point of view by referring to the works of Muḥammad b. Hasan al-Shaybānī. Indeed, when we look at how al-Shaybānī explained the istiḥsān’s examples in his works, it is seen that there are two conflicting juristic analogy (qiyas) made in many examples. Moreover, al-Shaybānī openly considered some types of istiḥsān part of qiyas by stating that some examples “can be included in this type of istiḥsān” Ḥanafī scholars wanted to break the hostile atmosphere toward istiḥsān by defining and evaluating the istiḥsān in a way that their opponents could accept. The definition of Istiḥsān “to abandon the judgment given to similar ones due to stronger evidence.” has been generally accepted. In this definition, istiḥsān is defined by associating with qiyas, and referred to an istihsan that is presented as the more substantial evidence, and qiyas is the weaker evidence. Although it is appropriate to define istiḥsān in relation to qiyas, the claim that in the definition istiḥsān is put in stronger place than qiyas might casuse to some the contradictions- in particular when the example’s of al-Shaybānī are taken into consideration. Because in most cases, when qiyas conflicts with istiḥsān, istiḥsān is taken. But in an opposite case, qiyas might be taken. Apart from these, there are examples of the types of istiḥsān that al-Karkhī has classified in the works of al-Shaybānī, but sometimes there are also strange situations such as taking the qiyas by istiḥsān. This also means that the term is not sufficiently defined. The negative attitude towards istiḥsān in some Shāfiʿī circles and the criticisms against the legitimacy of istiḥsān continued in the works of the fiqh method. Istiḥsān is defined as making a judgment without evidence by Shāfiʿī circles. Therefore, they did not accept the abandonment of qiyas, which is a sharī proof, because of istiḥsān, which is a non-sharī notable proof. Based on the examples given by the users of istiḥsān, Ibn Ḥazm, one of the Ẓāhirītes, claims that istiḥsān opens the door to arbitrariness. According to him, a situation that is accepted as istiḥsān according to Ḥanafīs can be taken as istiḥsān according to Mālikīs. This creates an apparent contradiction. There are some valid points in the assessment of Ibn Ḥazm. Because while it is seen that the istiḥsān of Mālikīs is criticized in al-Shaybānī's book named al-Ḥujjah, it can be also found that the istiḥsān of Ḥanafīs is charged in the works of Abū’l-Walīd al-Bājī, one of the Mālikīs. The criticism toward istiḥsān was continued by Shāfiʿīs such as Abū Isḥāq al-Shīrāzī, Imam al-Haramayn al-Juwaynī and Abū Ḥāmid al-Ghazālī. While al-Juwaynī sees istiḥsān as a method based on the lust of the soul, not istinbat/legal deduction, al-Ghazālī understands istiḥsān as a personal comment. The main reason for the negative attitude towards istiḥsān is that the content based on the definitions, has been neglected most of the time. However, when we look at the works of al-Shaybānī, it can be seen that there is a proof of istiḥsān contrary to what is believed-and that this can be sometimes a work, sometimes a necessity, sometimes another comparison, or sometimes a custom. (shrink)

In this essay I examine the criminal defense file. I argue that being a largely neglected “object” of the legal field, upon a close examination, the file discloses its intriguing materiality as what is predicated on the structure of the fold that allows for the objective, virtual, and narrative spheres to overlap in a specific act-object, which, with Gilles Deleuze, I call objectile. A subsequent phenomenological analysis of the legal file as objectile shows how its constitutive features help (...) the attorney shape ordinary matters into plentiful matters, turning the file into a locally designed sign system. Once exposed, this system reveals its relations to the legal system at large, with individual activities, institutional practices, and legal procedures all being a part of a complex manifold that is law. (shrink)