This paper discusses the past and contemporary legal harmonisation exercises of family law in the Nordic countries and Europe. The critique is that the harmonised ‹European family law’ only entrenches the status quo and reiterates traditional family patterns, the male norm, heteronormativity, and a public/private divide represented in the neutral guise of a liberal rights discourse. Furthermore, the critics point out that the political economy of legal harmonisation is, to a large extent, ignored. In the Nordic (...) countries, egalitarianism and broad political deliberation characterised much of the previous legal harmonisation, whereas rights discourse in its liberal sense is a novelty, more or less triggered by the European integration. This paper discusses the gendered implications of the emerging rights discourse in the Nordic countries and the linkages between family law, the labour market and social welfare. The paper argues that the harmonisation exercise cannot be regarded as one consisting only of legal norms and reasoning, but rather it should be discussed from the perspective of a political and epistemological challenge to the prevailing ‹truths’ about marriage, family and sexuality. (shrink)

In October 2008 the European Commission published its Proposal for a Consumer Rights Directive which puts forward far-reaching changes to the core of consumer contract law: Four current directives are to be replaced by a new, overarching piece of legislation and in doing so full harmonisation for the most part is to take the place of the minimum standard presently in force in the EU. Although a welcome initiative, the extent and possible effects of the Proposal have certainly brought (...) a number of issues to the fore. In January 2009, legal experts from universities, practice and the civil service met to address the points raised by the Proposal and the question of the extent to which it can indeed contribute to the modernisation and harmonisation of European consumer contract law. The papers presented at this conference analysed, criticised and suggested improvements for the Proposal and are published in this volume. (shrink)

The aim of the article is to characterise and analyse Paul Amselek’s research approach to legal hermeneutics. The text provides an outline of Amselek’s assumptions and theses about legal interpretation, considered in the broad context of hermeneutics, and in the narrower context of legal logic and argument. In point of fact, one of the methodological aims of Amselek’s philosophical reflection is to harmonise the two indicated contexts for framing interpretation — the wide context of hermeneutics, and the (...) more narrow context of legal logic and argument. Amselek refers to issues in communication theory, reaching beyond the hermeneutic concept of text interpretation and evocation of the original authorial intention. He analyses the legal text-message in its content and argument layers, he also endeavours to specify the methodological possibilities of interpreting the attitudes and motivations of subjects — participants in communication situation. He also inquires about the ethical attitudes of jurisdiction authorities, performing the interpretation of a body of law — the subjects responsible for lawmaking and the execution of law. Adopting post-Enlightenment anthropological assumptions, Amselek accepts the primacy of rationality in cognition, decision making, and activity of the human individual. However, in his considerations on interpretation he concurrently underscores the role of affective factors, motivating many choices and actions made by legal subjects. (shrink)

The main aim of this research is to analyse the peculiarities of legal regulation of metrology and the problems arising in this area. The content of the article is divided into two parts. The first part of the article analyses the concept of metrology, reveals the relation between fundamental and legal metrology and accentuates problems of metrology as well as repressive means applied in the metrological procedure. The second part analyses the European Union as well as national legislation (...) regulating the implementation of metrology in Lithuania and peculiarities of harmonisation of national law with the European Union legislation. (shrink)

Homeopathy is a non-traditional medical treatment which came to Europe a few hundred years ago and is presently attributed to the complementary and alternative medicine. Although the assessment of evidence on effectiveness of homeopathic medicinal products has been very contradictory, homeopathy in practice is the only form of alternative medicine that has received certain legal recognition. The paper focuses on the study of the legal regulation of homeopathy in the European Union and in national law. The author analyses (...) the contents of the concept of ‘homeopathic medicinal product’ and the EU legal norms on harmonisation of procedures for registry of homeopathic medicinal products in the Member States. It is concluded that the market of homeopathic medicinal products in the EU still lacks coherence and unity. (shrink)

From the viewpoint of the constitutional crisis in Europe, slow UN reforms, difficulties implementing the Kyoto Protocol and the International Criminal Court, and tensions between human rights and trade, Mireille Delmas-Marty's 'journey through the legal landscape' of the early years of the 21st century shows it to be dominated by imprecision, uncertainty and instability. The early 21st century appears to be the era of great disorder: in the silence of the market and the fracas of arms, a world overly (...) fragmented by anarchical globalisation is being unified too quickly through hegemonic integration. How, she asks, can we move beyond the relative and the universal to build order without imposing it, to accept pluralism without giving up on a common law? Neither utopian fusion nor illusory autonomy, Ordering Pluralism is her answer: both an epistemological revolution and an art, it means creating a common legal area by progressive adjustments that preserve diversity. Since an immutable world order is impossible, the imaginative forces of law must be called upon to invent a flexible process of harmonisation that leaves room for believing we can agree on - and protect - common values. 'The book is timely and relevant to the practical concerns of those who work with, and within, the legal system. We must thank Professor Delmas-Marty for her fine work.' From the foreword, Stephen Breyer, Washington, DC. (shrink)

The progress of electronic health technologies and biobanks holds enormous promise for efficient research. Evidence shows that studies based on sharing and secondary use of data/samples have the potential to significantly advance medical knowledge. However, sharing of such resources for international collaboration is hampered by the lack of clarity about ethical and legal requirements for transfer of data and samples across international borders. Here, the International Clinical Trial Center Network reports the legal and ethical requirements governing data and (...) sample exchange across four continents. The most recurring requirement is ethical approval, whereas only in specific conditions approval of national health authorities is required. Informed consent is not required in all sharing situations. However, waiver of informed consent is only allowed in certain countries/regions and under certain circumstances. The current legal and ethical landscape appears to be very complex and under constant evolution. Regulations differ between countries/regions and are often incomplete, leading to uncertainty. With this work, ICN illuminates the unmet need for a single international collaborative framework to facilitate DSE. Harmonising requirements for global DSE will reduce inefficiency and waste in research. There are many challenges to realising this ambitious vision, including inconsistent terminology and definitions, and heterogeneous and dynamic legal constraints. Here, we identify areas of agreement and significant difference as a necessary first step towards facilitating international collaboration. We propose the establishment of a working group to continue the comparison across jurisdictions, create a standardised glossary and define a set of basic principles and fundamental requirements for DSE. (shrink)

This paper explores the possibility of a standard legal language (e.g. English) for a principled evolution of law in line with technological development. In doing so, reference is made to blockchain networks and smart contracts to emphasise the discontinuity with the liberal legal tradition when it comes to decentralisation and binary code language. Methodologically, the argument is built on the underlying relation between law, semiotics and new forms of media adding to natural language; namely: code and symbols. In (...) what follows, I will concentrate on the study of factors that explain why such approach can be fruitful for the future of law and innovation. I have three reasons for selecting this topic. The first is a more pragmatic reason, based on my current research of law as a linguistic phenomenon. Secondly, the topic does also touch the matter on binary code language, rivalrous to legal alphabetic language. Lastly, the study aims at emphasizing the pivotal role of the jurist as an interpreter in a changing society accommodating diverging realms of reality. The study is structured as follows. Firstly, a quick exam of the traits of blockchain networks would provide the contextual link to establish the arguments in support of the need of a standard legal language. Secondly, a comparison between liberal legal institutions and theory of semiotics is set to perceive their functioning and ascertain their limits in the light of todays unprecedented changes. Thirdly, a summary on blockchain networks’ legal features would constitute the thrust behind the idea of a uniform legal language. Methodologically, the argument does also establish some relations with classical laws of physics and philosophy of media. Its aim is to demonstrate how the suggested legal interpretation and semiotic-based approach can contribute to overcome existing stumbling blocks including, but not limited to, the lack of cooperation at the international level as well as the gap in State norms when it comes to innovation. In this sense, the proposed strategies do not intend to replace current advances in the legal thought. In contrast, it seeks to harmonise their results providing a methodical approach that can concur to inform a new technique to address new controversial issues. In practice, the proposed method regarding the adoption of a uniform legal language would lower transactive costs in terms of normative coordination in the matter of international cooperation and in the definition of applicable law among different legal systems. Alternatively, it might contribute to the convergence of legal systems and/or their underlying concepts. Differently put, article’s contribution can be envisaged in fostering juridical consistency with regards to different forms of languages’ coexistence. (shrink)

The purpose of this article is to continue the discussion on Europe’s converging criminal justice systems. In particular, I test a hypothesis that has recently appeared in the literature, which sees the jurisprudence of the European Court of Human Rights as one of the most significant factors that encourage a harmonization process between the adversarial and inquisitorial criminal justice systems of Europe. This claim is supported by examining the Court’s jurisprudence to identify decisions that led to legislative and policy amendments (...) in the domestic legal orders of the 46 member states of the Council of Europe. This account shows how an interplay currently taking place between judicial, policy, and statutory powers is marking the end of the adversarial-inquisitorial era. Finally, the conclusion identifies the three most important impediments that are likely to hamper this harmonization process. (shrink)

The results show that the Religious Courts play an important role in harmonising Islamic law with national development policies and international legal standards, particularly in the context of protecting the rights of women and children. However, challenges exist in harmonising interpretations of Islamic law with the principles of human rights and gender equality guaranteed by international conventions such as CEDAW. This research uses a qualitative approach with a case study method to analyse the relevance of Religious Court decisions related (...) to marriage to national development policies as well as their relationship to international law. Primary data was obtained through analysis of Religious Court decisions in several regions of Indonesia in the last five years covering marital issues such as divorce, polygamy, child custody, and division of joint property. Secondary data included national policy documents, such as the RPJMN, as well as international legal instruments such as CEDAW. This research identifies the need for progressive reforms in the Religious Courts system, including capacity building of judges in understanding international law, revision of the Compilation of Islamic Law, and strengthening co-operation between relevant institutions. The innovative contribution of this research lies in its in-depth analysis of how the Religious Courts can serve as a bridge between religious law, national development policy, and Indonesia's international obligations. (shrink)

The Defensor pacis offers the possibility of solving the contradiction between formal law and material law. Marsilius of Padua proposes a reconciliation between harmonisation of law as formal positive rule and law as a material norm. If that antinomy admits conciliation, the Defensor pacis can be said to reconcile successfully two heterogeneous grounds of law, which in this case contradict each other only in appearance.

Transformations in the biological, medical and legal processes of infertility, substantial modifications in family structure and the advancement of methods and techniques of reproductive technology will affect the next step in both legal and medical terms to address the regulation of bioethics and law in Kosovo. There is a need to establish perspectives in both ethical and professional terms, since the Republic of Kosovo is in the process of drafting a Civil Code. Many of these issues have been (...) raised and addressed during the review and evaluation of family law in the context of harmonisation and inclusion of this law in the Civil Code of the Republic of Kosovo. During the several meetings of official members with different interest groups regarding family law, the need has been raised to regulate family law to be included in the Civil Code for motherhood and fatherhood in the case of reproduction with biomedical assistance, as well as for the birth contract as a donation for another person (so-called surrogate motherhood). These bioethical and legal issues indicate the urgent need for legal harmonisation of a multidimensional platform specifically based on the principles of public health and universal human rights Conclusion. These bio-ethical and legal interferences indicate the urgent need for legal harmonization of a multidimensional platform specifically designed based on the principles of public health and universal human rights. (shrink)

The present work discusses the complex nature of the term ‘gender’ in legal discourse, in the wake of the recent pushbacks that the 2011 Istanbul Convention has received from anti-feminist movements and nations that have not signed/ratified the document or have withdrawn from it. Though its original aim was to protect women’s rights, the debate has eventually surfaced deeply-rooted problems linked to gender-related vocabulary. For this reason, the study will analyse the use of the terms ‘gender’ and ‘sex’ in (...) the 1995 UN Beijing Declaration, the 1998 Rome Statute, and the 2011 Istanbul Convention, from a synchronic and diachronic perspective. It aims to provide a critical comparison of the definitions, translations, and interpretations of the term ‘gender’, in an attempt to overcome some of the issues involved in the harmonisation of EU documentation, which could certainly help guarantee fundamental rights and convince more states to sign/ratify the Convention, or at least, not allow them to use issues not related to women’s rights to not accept the document. The interpretation of gender-related violence is still ‘in progress’, and the lack of harmonisation could eventually hinder fundamental human rights instead of helping the Istanbul Convention save lives. (shrink)

Economic change, globalisation and harmonisation of European Law have brought new challenges to contract law. The contributions in this Volume by prominent legal scholars deal with current trends and perspectives in European and International Contract Law and their impact on the various domestic legal systems. The Compendium provides an analysis of new developments in formation of contract, performance and remedies, consumer contract law and the particularly controversial area of anti-discrimination law. Experts in their field examine the underlying (...) legal principles and problems arising in legal practice in Common Law and Civil Law. The essays written in English, German and French are the product of a series of lectures held in 2006 at the Centre for European Private Law at the University of Münster, Germany. The contributing authors are: John Adams, Hugh Beale, Giuditta Cordero-Moss, Barbara Dauner-Lieb, Michele Graziadei, Thomas Gutmann, Geraint Howells, Simon James, Paul Lagarde, Matthias Lehmann, Peter Møgelvang-Hansen, Salvatore Patti, Thomas Pfeiffer, John C. Reitz, Judith Rochfeld, Martin Schmidt-Kessel, Jürgen Schmidt-Räntsch, Alessandro Somma, Stefano Troiano, Christian Twigg-Flesner, Antoni Vaquer Aloy and Fryderyk Zoll. (shrink)

Background The South African legal framework requires mandatory parental/legal guardian consent for all research with children. Ethics guidelines provide some reprieve by allowing RECs to grant waivers of parental or guardianship consent in certain defined circumstances. In the first instance, consent may be provided by a proxy when parents or guardians are unavailable, for example with orphaned children. In the second instance, guidelines permit adolescent self-consent when the nature of the study justifies this approach, for example, research on (...) sensitive issues like sexual behaviour or substance use. Discussion South African guidelines set several conditions that must be met for waivers to be granted. These norms overlap with those in international guidelines. However, the ethical norms, especially related to self-consent are sometimes vague. This article critically evaluates the consent norms in the national ethics guidelines and makes recommendations for reform to ethics guidelines in a way that recognises the value of child participation in research, their evolving decision-making capacity and their best interests. Conclusion Recommendations are made to harmonise ethics guidelines and law in a way that promotes child participation in research, to ensure additional protections for adolescents when self-consent is allowed, and to withdraw procedural requirements for the community endorsement of self-consent strategies. (shrink)

Reproductive tourism is the travelling by candidate service recipients from one institution, jurisdiction, or country where treatment is not available to another institution, jurisdiction, or country where they can obtain the kind of medically assisted reproduction they desire. The more widespread this phenomenon, the louder the call for international measures to stop these movements. Three possible solutions are discussed: internal moral pluralism, coerced conformity, and international harmonisation. The position is defended that allowing reproductive tourism is a form of tolerance (...) that prevents the frontal clash between the majority who imposes its view and the minority who claim to have a moral right to some medical service. Reproductive tourism is moral pluralism realised by moving across legal borders. As such, this pragmatic solution presupposes legal diversity. (shrink)

Objective To obtain information about the similarities and differences in regulating different types of medical research in the European Union .Methods Web searches were performed from September 2009 to January 2011. Notes on pre-determined topics were systematically taken down from the web pages. The analysis relied only on documents and reports available on the web, reflecting the situation at the end of 2010.Results In several countries, regulatory legislation applied only to clinical trials on drugs and medical devices, in other states (...) various types of research were also regulated but by laws different from those concerning trials, and in many countries, some research areas were not controlled by legislation at all. In very few countries was all medical research handled similarly from a legal point of view. The number of research ethics committees in a single country varied from one to 264. Their areas of responsibility, working principles and length of time to grant research permission varied as well as the rules for obtaining informed consent from vulnerable groups. In 10 EU countries, there was no appeal mechanism after a negative decision by an REC. The RECs were not accountable to any organisation in five EU countries.Conclusions There is a need for a fundamental debate regarding whether and which kinds of changes are needed for the further harmonisation of medical research governance in the EU and how cross-country medical research could be facilitated in the future. (shrink)

BackgroundHuman genome editing technologies offer much potential benefit. However, central to any conversation relating to the application of such technologies are certain ethical, legal, and social difficulties around their application. The recent misuse, or inappropriate use, by certain Chinese actors of the application of genome editing technologies has been, of late, well noted and described. Consequently, caution is expressed by various policy experts, scientists, bioethicists, and members of the public with regard to the appropriate use of human germline genome (...) editing and its possible future effect on future generations.Main textAs concerns about the applications of heritable genome editing have grown, so too have the questions around what is to be done to curtail ‘rogue actors’. This paper explores various ways in which to regulate genomic editing that are socially beneficial, while being cognisant of legal and ethical principles and rights values. This is done by evolving regulatory frameworks across jurisdictions in an attempt to raise issues, address common principles, and set responsible standards for stewardship of the novel technology.ConclusionsIt is suggested that robust and concrete regulatory measures be introduced that are culturally and contextually sensitive, inclusive, appropriate, and trustworthy – and are based on public empowerment and human rights objectives. Doing so will ensure that we are perfectly positioned to harness and promote the benefits that novel technologies have to offer, while safeguarding public health and curtailing the ambitions of rogue actors. This it is acknowledged is no easy task, so, as a point of departure, this paper sets out a path forward by means of certain, practical recommendations – by constructing genome editing regulation in a manner that both fulfils the desire to better progress human health and that can withstand legal and ethical scrutiny.The following observations and recommendations are made: Firstly, that a solution of effective, legitimate governance should consist of a combination of national and supranational legislative regulation or ‘hard’ law, in combination with ‘soft’ ethics, firmly anchored in and underpinned by human rights values. Second, that efforts to support legal and ethical solutions should be rigorous, practical, and robust, contribute to a reaffirmation of human rights in a contextually sensitive manner, and be transnational in reach. Lastly, that greater harmonisation across jurisdictions and increased public engagement be sought. This it is proposed will address the question of how to implement a normative framework which in turn can prevent future rogue actors. (shrink)

Reflecting on the tension of which he was aware between the imperial West and the still-mysterious East, Victorian writer Rudyard Kipling penned the above phrase to express the incommensurable situation wherein the Westerner never understands the Asian, as the latter’s culture differs too greatly from his own. However, aware that East and West nevertheless cannot remain separated forever, the author ends the poem with an eventual encounter between the two.Over 100 years have passed since this poem was written, yet the (...) ambivalent encounter between East and West that it depicts still exists and is currently playing out within the field of pharmaceuticals. On one side of the divide are the many people in the industry who want to standardize global acceptance of drugs; on the other are the local authorities who want to maintain the overruling legal need not to compromise on health care at a national level. In this sense, the divergence and unity that Kipling captures is what this paper aims to discuss as it addresses how race is debated at the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use. (shrink)

The EU offers a suitable milieu for the comparison and harmonisation of healthcare across different languages, cultures, and jurisdictions, which could provide improvements in healthcare standards across the bloc. There are specific ethico-legal issues with the use of data in healthcare research that mandate a different approach from other forms of research. The use of healthcare data over a long period of time is similar to the use of tissue in biobanks. There is a low risk to subjects (...) but it is impossible to gain specific informed consent given the future possibilities for research. Large amounts of data on a subject present a finite risk of re-identification. Consequently, there is a balancing act between this risk and retaining sufficient utility of the data. Anonymising methods need to take into account the circumstances of data sharing to enable an appropriate balance in all cases. There are ethical and policy advantages to exceeding the legal requirements and thereby securing the social licence for research. This process would require the examination and comparison of data protection laws across the trading bloc to produce an ethico-legal framework compatible with the requirements of all member states. Seven EU jurisdictions are given consideration in this critique. (shrink)

This book presents the latest research on the challenges and solutions affecting the equilibrium between freedom of speech, freedom of information, information security, and the right to informational privacy. Given the complexity of the topics addressed, the book shows how old legal and ethical frameworks may need to be not only updated, but also supplemented and complemented by new conceptual solutions. Neither a conservative attitude (“more of the same”) nor a revolutionary zeal (“never seen before”) is likely to lead (...) to satisfactory solutions. Instead, more reflection and better conceptual design are needed, not least to harmonise different perspectives and legal frameworks internationally. The focus of the book is on how we may reconcile high levels of information security with robust degrees of informational privacy, also in connection with recent challenges presented by phenomena such as “big data” and security scandals, as well as new legislation initiatives, such as those concerning “the right to be forgotten” and the use of personal data in biomedical research. The book seeks to offer analyses and solutions of the new tensions, in order to build a fair, shareable, and sustainable balance in this vital area of human interactions. (shrink)

Biobanks correspond to different situations: research and technological development, medical diagnosis or therapeutic activities. Their status is not clearly defined. We aimed to investigate human biobanking in Europe, particularly in relation to organisational, economic and ethical issues in various national contexts. Data from a survey in six EU countries were collected as part of a European Research Project examining human and non-human biobanking. A total of 147 institutions concerned with biobanking of human samples and data were investigated by questionnaires and (...) interviews. Most institutions surveyed belong to the public or private non-profit-making sectors, which have a key role in biobanking. This activity is increasing in all countries because few samples are discarded and genetic research is proliferating. Collections vary in size, many being small and only a few very large. Their purpose is often research, or research and healthcare, mostly in the context of disease studies. A specific budget is very rarely allocated to biobanking and costs are not often evaluated. Samples are usually provided free of charge and gifts and exchanges are the common rule. Good practice guidelines are generally followed and quality controls are performed but quality procedures are not always clearly explained. Associated data are usually computerised. Biobankers generally favour centralisation of data rather than of samples. Legal and ethical harmonisation within Europe is considered likely to facilitate international collaboration. We propose a series of recommendations and suggestions arising from the EUROGENBANK project. (shrink)

Religion plays a vital role in the formation of conscience and therefore is very important in determining how people co-exist in a society. Nigerian citizens live in regions other than their ethnic geographical areas, but they are not recognised as people of the same destiny and subjects of equal rights. The long period of military dictatorship that truncated the country’s democracy since the civil war gave Nigerians a constitution which adopted the Sharia legal system within a purported secular state. (...) This encouraged a wide range of religious fanaticism and led to various demands for human rights, which has become a worrisome issue to concerned Nigerians. This article used secondary sources of data, such as newspaper publications and journal articles to examine the impact of religion on the state of the Nigerian nation today. The article calls for the harmonisation of Christianity and Islamic teachings in line with the secularity of the Nigerian state in order to reduce the increasing tensions in the country and make the journey to nationhood more realistic.Contribution: This article proposes that the secularity of the Nigerian state has to be maintained by political and religious leaders in order to attain purposeful nationhood and achieve sustainable and genuine development of the country. (shrink)

An increasing number of genetic tests are available as an early spin-off from human genetic research. Beyond their application in the context of medical diagnosis there are other possible domains of use: e.g. in the testing of individuals asking for life or health insurance. It is claimed that individuals with an increased genetic risk might have to pay higher premiums or, worse, might be unable to obtain insurance coverage at all. The main question discussed in this paper will be whether (...) there is a right to health and/or life insurance coverage without prior genetic testing. The legal regulations of the use of genetic tests in the insurance system are various. While some countries in principle permit the use of (some) genetic tests for the calculation of actuarial risks, others banned genetic tests for non-medical uses; still other countries have not made any explicit provisions up to now. In the face of the attempted harmonisation of legal systems, as well as an increasing commercialisation of the international market for genetic tests, which neglects national borders, providing criteria for a moral evaluation of this issue appears to be a timely and urgent task. The view defended in this paper is that a right to health insurance without genetic testing is legitimised, insofar as health insurance belongs to the provision of elementary requirements, and insofar as the latter is everybody's moral right. On the other hand, it is implausible to postulate a right to life insurance without genetic testing – as long as life insurance is understood to be a part of one's provision of supplementary requirements. (shrink)

Innovative techniques of developmental biology facilitate the artificial creation of embryo-like entities. This contribution analyses, first, whether certain artificially created embryo-like entities are ‘embryos’ within the meaning of existing statutory law definitions laid down in the Embryo Protection Act, the Stem Cell Act and the Patent Act. These definitions are non-uniform and their interpretation and application with regard to artificially created embryo-like entities is not always conclusive. Accordingly, the legal definitions of the term ‘embryo’ should be harmonised and, thereby, (...) adapted to the state of developmental biology. Any such legislative efforts need to be in conformity with the constitution, primarily with the guarantee of human dignity (Article 1(1) of the Basic Law). However, said provision cannot provide guidance to the legislature because the constitutional status of both embryos and embryo-like entities in vitro is highly disputed. It is held that this irresolvable debate is due to a fundamental lack of a widely shared experience that such entities possess a supreme unique value. This article argues that in such a situation it is, in the first instance, for the legislature (i. e. parliament) to determine the legal status of embryos and embryo-like entities in vitro. This argument is based on a particular doctrinal approach according to which the individual right to respect of one’s human dignity arising from Article 1(1) BL depends on recognition of the relevant entity as being a ‘human’ or a member of ‘humankind’ respectively. Such recognition has, hitherto, not been accomplished with a view to embryos and embryo-like entities in vitro. Against this backdrop, for the time being, the legislature may determine the legal status of embryos and embryo-like entities in vitro, lay down rules regarding their creation and particular use, and, especially, define the legal term ‘embryo’, albeit within some outer constitutional limits. The article, finally, analyses several elements of, and submits a proposal for, a new legal definition of the term ‘embryo’. (shrink)

Due to its enormous importance, Grotius’s contract doctrine has been extensively investigated by legal historians. This paper seeks to enhance scholarly understanding of this topic by looking at commentaries on De jure belli ac pacis written by German theologians and jurists in the second half of the seventeenth century. The paper focuses on comments concerning promises: the criteria for promises that are binding under natural law; the foundations of the obligation to keep promises; error and duress; and immoral promises. (...) Grotius’s contract doctrine rested on a mélange of sources, both theological and juridical, which were not always consistent. Commentators sought to harmonise them by looking at them from different perspectives: some comments were mainly based on interpretations of ius commune texts, whereas others reflected a moral theological approach. The results drew distinctions between law and moral theology that contributed to the fragmentation of Grotius’s synthesis. (shrink)

Biobanks are repositories that store human biological materials and their associated data. They are rapidly becoming part of national and international networks and give rise to unique ethico-regulatory issues. Whether consent is informed and whether this term should be used when specimens are collected for biobank research is questionable. Where risks occur, they are usually social and relate to identifiability. Public trust and confidence are important for the success of this type of research. Consensus is growing that governance of biobanks (...) should be harmonised. Controlled specimen and data access agreements are essential. The South African National Health Act and its Regulations, that provide the foundation for the legal framework with regard to human tissue and research in South Africa, are silent on the issue of biobanks and the law lags behind while science and technology advance rapidly. The use of biobank assets will lead to significant benefits in human health and should be encouraged while taking account of the associated ethical, legal and social issues and working towards a balance between these two positions. (shrink)

The Principles of European Law on Commercial Agency, Franchise and Distribution Contracts are an academic proposal of the Study Group on a European Civil Code for the European-wide regulation of the contents of these three types of agreements. The academic analysis "Franchising in European Contract Law" focuses on the harmonised Principles on Franchising. At present all member states of the EU have their own regulation on franchising. This situation might change in the light of the political process of Europeanization of (...) contract law that was initiated by the European Commission in 2001. As a result of that process the Principles on Franchising could be declared a set of rules which might be opted for by the parties to franchising contracts Europe-wide to govern their relationship. In this analysis the main obligations in franchising in PEL CAFDC are compared with those under French and Spanish law. The main conclusion of this thesis research has been that the main obligations of parties in franchising under the PEL CAFDC resemble those under French and Spanish law. Eventually, differences will arise depending on how national courts weigh the interests of the parties in each case. A second conclusion has been that a choice for the PEL CAFDC instead of for French and Spanish law could be considered a rational alternative concerning the applicable system of remedies and legal certainty. (shrink)

Official documents, such as the Word Anti-Doping Code (WADC), argue that sport can be deemed a homogenous and unitary concept. Even where different sports have varying characteristics, the homogenous view of a given sport (‘a sport’ or ‘the sport’) persists. The WADC, international and national sport associations aim to protect the spirit of (the) sport. In this picture, the intersection of sporting integrity and legal processes occupies a vital place. The article will posit that, from a legal perspective (...) sport is heterogeneous due to its governance, regulation, adjudication, and enforcement structures. International and national associations, such as sport federations and leagues, have separate normative orders. These normative orders lead to differences in ensuring sporting integrity. A plural normative environment is inherent in sport; thus, we need to deal with it. The article will conclude that although harmonising norms and interpretations related to sporting integrity through national and global institutions may be acceptable, these must be achieved by promoting good governance and human rights. (shrink)

Biobanks are repositories that store human biological materials and their associated data. They are rapidly becoming part of national and international networks and give rise to unique ethico-regulatory issues. Whether consent is informed and whether this term should be used when specimens are collected for biobank research is questionable. Where risks occur, they are usually social and relate to identifiability. Public trust and confidence are important for the success of this type of research. Consensus is growing that governance of biobanks (...) should be harmonised. Controlled specimen and data access agreements are essential. The South African National Health Act and its Regulations, that provide the foundation for the legal framework with regard to human tissue and research in South Africa, are silent on the issue of biobanks and the law lags behind while science and technology advance rapidly. The use of biobank assets will lead to significant benefits in human health and should be encouraged while taking account of the associated ethical, legal and social issues and working towards a balance between these two positions. (shrink)

How rich should the 1% be? And, most importantly, when does the distance in economic resources between the richest citizens and ‘us’, the average citizenry, become a concern for justice? This volume explores how excessive economic inequality gives the best-off considerably more political influence than average citizens, thereby violating political equality. It argues that the gap between the best-off and the worst-off should not be reduced because it is good, but rather as an inescapable instrument to protect citizens from the (...) risk of material domination. For this reason, it defends the ‘principle of proportionality’: economic inequality should not exceed a certain range or proportion to enable both the best-off and the worst-off to be co-authors of the legal, political, and socioeconomic rules that govern the ‘social’ relations in which they are involved. Further, the book discusses material domination and explains how money influences politics and what are the remedies for this phenomenon; how social justice should face and harmonise power, poverty, efficiency, individual merit, and economic liberties; and, most importantly, how to determine income and wealth limit ratios in a liberal democracy. A thoughtful investigation on the interdependencies of money and justice and their influence our socio-political systems, this volume will be of great interest to students and researchers of political theory, political philosophy, economics and development, economics theory and philosophy, and social policy. (shrink)

Trois composantes régissent notre vie en société et sont de nature à faire évoluer la règle de droit ainsi que le fonctionnement de la justice : le droit, la morale et l’éthique. Existe-t-il une hiérarchie entre ces trois normes? Quelles sont les interférences entre ces constantes qui constituent les piliers tant de la démocratie, que de l’État de droit et de la justice? Dès lors, se pose la question de la légalité face à la morale et à l’éthique. Un acte (...) pourrait-il être légal et non conforme à l’éthique, à la morale? Un acte pourrait-il être regardé comme illégal alors qu’il serait conforme à l’éthique, à la morale? Au-delà de cette réflexion d’ordre philosophique et sociétale, il est légitime de s’interroger sur la vérité judiciaire, son contenu et ses éventuelles contradictions… Il est tout aussi incontournable de rappeler que la déontologie des avocats est inscrite dans un cadre règlementaire tout en puisant sa raison d’être dans l’éthique. Nous en concluons que Droit et Justice doivent prendre en considération l’exigence éthique. Il ne saurait exister le moindre affrontement entre droit et éthique dès lors que bien qu’autonomes, ces deux normes se complètent et permettent à la société d’évoluer dans un cadre harmonisé. (shrink)

The draft Common Frame of Reference is likely to play a prominent role in the further development of European contract law. Therefore, with a view to its acceptability it is crucial to assess the draft from the point of view of social justice.The DCFR has all the characteristics of a typical European compromise. Ideological and esthetical purists will certainly be disappointed. This is not necessarily something to be worried about. A common frame of reference is not drafted, in the first (...) place (if at all), for esthetical or ideological reasons; it is meant to provide some normative guidance in the further development of European contract law. European citizens have very different interests, preferences and opinions in relation to almost all the subjects dealt with in the DCFR. A DCFR consistently based on only one conception about the right choices would inevitably have disappointed all European citizens with a different idea of social justice in European private law. Therefore, if we really want the further Europeanization of private law we will have to accept that it will probably look rather different from both the particular Member State law that each of us is familiar with and our personal ideas of social justice. The publication of the interim outline edition of the draft CFR, which is the result of a close collaboration between hundreds of legal scholars from all Member States, has brought that message home. The characterisations of the DCFR as 'a law for big business and competent consumers' or, alternatively, as a 'massive reduction of private autonomy' are both unfounded. Overall, from the point of view of social justice, the DCFR is fairly balanced. Nevertheless, there is certainly room for improvement.Even if the DCFR is going to remain only a soft law instrument it is still likely to have a considerable influence on the further development of private law in Europe and will therefore also affect, directly or indirectly, the lives of all European citizens. For this reason it is crucial that European citizens will not only be the addressees of the CFR, or of the legislative measures based thereon, but can also rightly consider themselves as its authors. After the drafting by legal experts and the rather one-sided 'stakeholders'' input that were both organised by the European Commission it is now time for the citizens' voice. Only a meaningful input from the European and national Parliaments can provide the final CFR with the regulatory legitimacy that it needs.The level of consumer protection in the DCFR is sufficiently high for it to be acceptable as the content of an optional instrument, which could be made applicable, for example, by clicking on a 'blue button'. However, as an absolute maximum beyond which the Member States would not be allowed to go in the case of full harmonisation, it is submitted, the level of protection in the DCFR is insufficient. Moreover, the DCFR draws a sharp distinction between B2C and B2B contracts. It categorically excludes from the protection that it grants to consumers all businesses, even the smallest ones that may be as vulnerable as consumers (or even more so) when it comes to a lack of information, inexperience and dependence. This sharp distinction deviates from the law in many Member States, is not required by the EC Treaty (which is relevant with a view to the CFR's role as a toolbox for revising the acquis and for drafting new acquis), and is potentially contrary to the fundamental principle of justice that any distinction between groups of people should favour the least privileged.General private law - the bulk of the model rules contained in the DCFR - cannot be said to be 'neoliberal' as the Social Justice Group feared it would. Nor is it 'socialist' as some business stake holders warned for. It strikes a balance between autonomy and solidarity that is quite similar to the ones drawn in the modern private laws (including the case law, i.e. not merely the civil codes) of the Member States. However, where the DCFR deviates from the Principles of European Contract Law (PECL) it is always in the liberal direction.Throughout the last Century general clauses, such as good faith, have played a prominent role in promoting social justice in private law in the Member States. In fact they became delegations of law-making power to the courts in order to allow them to find just and fair solutions in new cases. This tradition was codified in the PECL. However, in the DCFR the role of good faith is narrower and deliberately so. From the point of view of social justice it is important that in the final CFR the role of good faith as an undisputed legal basis for judge-made law should be restored.The catalogue of underlying values and principles, that is meant to become the preamble to the final CFR and is likely to play a crucial role in the interpretation and further development of the CFR, brings back to the foreground some fundamental values that have played a prominent role in private law making in the Member States but that have been overshadowed, on the European level, by the narrow focus on market building. Having said that, the list of values in the DCFR could be framed so as to be more balanced. In particular, the privileged position of party autonomy as the only principle that is also contained in the black-letter model rules seems unjustified. (shrink)

Official documents, such as the Word Anti-Doping Code (WADC), argue that sport can be deemed a homogenous and unitary concept. Even where different sports have varying characteristics, the homogenous view of a given sport (‘a sport’ or ‘the sport’) persists. The WADC, international and national sport associations aim to protect the spirit of (the) sport. In this picture, the intersection of sporting integrity and legal processes occupies a vital place. The article will posit that, from a legal perspective (...) sport is heterogeneous due to its governance, regulation, adjudication, and enforcement structures. International and national associations, such as sport federations and leagues, have separate normative orders. These normative orders lead to differences in ensuring sporting integrity. A plural normative environment is inherent in sport; thus, we need to deal with it. The article will conclude that although harmonising norms and interpretations related to sporting integrity through national and global institutions may be acceptable, these must be achieved by promoting good governance and human rights. (shrink)

BackgroundObtaining a research participant’s voluntary and informed consent is the bedrock of sound ethics practice. Greater inclusion of children in research has led to questions about how paediatric consent operates in practice to accord with current and emerging legal and socio-ethical issues, norms, and requirements.MethodsEmploying a qualitative thematic content analysis, we examined paediatric consent forms from major academic centres and public organisations across Canada dated from 2008–2011, which were purposively selected to reflect different types of research ethics boards, participants, (...) and studies. The studies included biobanking, longitudinal studies, and gene-environment studies. Our purpose was to explore the following six emerging issues: (1) whether the scope of parental consent allows for a child’s assent, dissent, or future consent; (2) whether the concepts of risk and benefit incorporate the child’s psychological and social perspective; (3) whether a child’s ability to withdraw is respected and to what extent withdrawal is permitted; (4) whether the return of research results includes individual results and/or incidental findings and the processes involved therein; (5) whether privacy and confidentiality concerns adequately address the child’s perspective and whether standard data and/or sample identifiability nomenclature is used; and (6) whether retention of and access to paediatric biological samples and associated medical data are addressed.ResultsThe review suggests gaps and variability in the consent forms with respect to addressing each of the six issues. Many forms did not discuss the possibility of returning research results, be they individual or general/aggregate results. Forms were also divided in terms of the scope of parental consent (specific versus broad), and none discussed a process for resolving disputes that can arise when either the parents or the child wishes to withdraw from the study.ConclusionsThe analysis provides valuable insight and evidence into how consent forms address current ethical issues. While we do not thoroughly explore the contexts and reasons behind consent form gaps and variability, we do advocate and formulate the development of best practices for drafting paediatric health research consent forms. This can greatly ameliorate current gaps and facilitate harmonised and yet contextualised approaches to paediatric health research ethics. (shrink)

The anti-counterfeiting trade agreement was originally meant to harmonise and enforce intellectual property rights provisions in existing trade agreements within a wider group of countries. This was commendable in itself, so ACTA’s failure was all the more disappointing. In this article, I wish to contribute to the post-ACTA debate by proposing a specific analysis of the ethical reasons why ACTA failed, and what we can learn from them. I argue that five kinds of objections—namely, secret negotiations, lack of consultation, vagueness (...) of formulation, negotiations outside any international body, and the creation of a new governing body outside already existing forums—had only indirect ethical implications. This takes nothing away from their seriousness but it does make them less compelling, because agreements should be evaluated, ethically, for what they are, rather than for the alleged reasons why they are being proposed. I then argue that ACTA would have caused three ethical problems: an excessive and misplaced kind of responsibility, a radical decrease in freedom of expression, and a severe reduction in information privacy. I conclude by indicating three lessons that can help us in shaping a potential ACTA 2.0. First, we should acknowledge the increasingly vital importance of the framework of implicit expectations, attitudes, and practices that can facilitate and promote morally good decisions and actions. ACTA failed to perceive that it would have undermined the very framework that it was supposed to foster, namely one promoting some of the best and most successful aspects of our information society. Second, we should realise that, in advanced information societies, any regulation affecting how people deal with information is now bound to influence the whole ‘onlife’ habitat within which they live. So enforcing IPR becomes an environmental problem. Third, since legal documents, such as ACTA, emerge from within the infosphere that they affect, we should apply to the process itself, which one day may lead to a post-ACTA treaty, the very framework and ethical values that we would like to see promoted by it. (shrink)

This article points to the highly centralized nature of the British tax system. A first section shows how all tax law derives from Parliament, the “onlie begetter” of legally enforceable instruments. It is suggested that this system is not democratically accountable at sub-national levels of government. Reforms of the Thatcher era have resulted in the privatization of many public services, leading to the stabilization of State expenditure as a proportion of GDP. However, at the same time, both tax revenue and (...) expenditure have become increasingly centralized. Public service tasks are determined and financed by central government, and local government is for the most part merely the agent through which government policy is realized. The creation of the Scottish and Welsh Assemblies does not alter this overall assessment. Given the high level of centralization, taxes are uniform throughout the country and there is no scope for meaningful regional fiscal competition. Since regional economic development in Britain is notoriously uneven, the author notes that fiscal uniformity does not lead to economic convergence. A final section is devoted to showing why this is not surprising and why fiscal harmonisation at a European level would be a source of growing, not reduced, disparities.Cet article met l’accent sur la nature hautement centralisée du système fiscal britannique. Une première section montre comment toutes les lois fiscales proviennent du Parlement, la “source unique” des instruments légaux exécutoires. Nous considérons que ce système n’est pas démocrat- iquement defendable aux niveaux subnationaux de gouvernement. Les réformes de l’ère Thatcher ont conduit à une privatisation de beaucoup de services publics, entrainant une stabilisation des dépenses de l’Etat en pourcentage du PIB. Cependant, dans le meme temps, à la fois les recettes fiscales et les dépenses sont devenues de plus en plus centralisées. Les taches du service public sont définies et financées par le gouvernement central et le gouvernement local est dans la majeure partie des cas l’agent à travers lequel la politique du gouvernement s’exerce. La creation des Assemblées Ecossaises et galloises ne modifie pas cette evaluation d’ensemble. Etant donné le niveau élevé de centralisation, les impôts sont uniformes à travers le pays et il n’y a pas de possibilité pour une concurrence fiscale régionale significative. Alors que le développement économique regional en Grande Bretagne est notoirement inégal, l’auteur remarque que l’uniformité fiscale ne conduit pas à uneconvergence économique. Une section finale est consacrée à montrer pourquoi cela n’est en rien surprenant et pourquoi l’harmonisation fiscale à un niveau européen serait une source de disparités croissantes, et non décroissantes. (shrink)

Religion plays a vital role in the formation of conscience and therefore is very important in determining how people co-exist in a society. Nigerian citizens live in regions other than their ethnic geographical areas, but they are not recognised as people of the same destiny and subjects of equal rights. The long period of military dictatorship that truncated the country's democracy since the civil war gave Nigerians a constitution which adopted the Sharia legal system within a purported secular state. (...) This encouraged a wide range of religious fanaticism and led to various demands for human rights, which has become a worrisome issue to concerned Nigerians. This article used secondary sources of data, such as newspaper publications and journal articles to examine the impact of religion on the state of the Nigerian nation today. The article calls for the harmonisation of Christianity and Islamic teachings in line with the secularity of the Nigerian state in order to reduce the increasing tensions in the country and make the journey to nationhood more realistic. CONTRIBUTION: This article proposes that the secularity of the Nigerian state has to be maintained by political and religious leaders in order to attain purposeful nationhood and achieve sustainable and genuine development of the country. (shrink)

The Lithuanian success of implementing international obligation in order to encourage the regulation of labour relations by means of collective agreements is analyzed in this article. It is emphasized that development of social partnership is too slow, coverage of regulation of labour relations by means of collective agreement also is low-level and collective agreements basically are made at the plant level. It is noticed that, because of the need to find a suitable balance between implementing the international obligation to encourage (...) regulation of labour relations by means of collective agreements, and the necessity to undermine the raison d’être of the regulation by means of collective agreements itself, as the process, where attitudes of social partners has to be harmonised at maximum, the state has limited scope to influence the process of making collective agreements. (shrink)

This work offers a new theory of what it means to be a legal person and suggests that it is best understood as a cluster property. The book explores the origins of legal personhood, the issues afflicting a traditional understanding of the concept, and the numerous debates surrounding the topic.

In order to maximize human performance, defence forces continue to explore, develop, and apply human performance enhancement (HPE) methods, ranging from pharmaceuticals to (bio)technological enhancement. This raises ethical, legal, and societal concerns and requires organizing a careful reflection and deliberation process, with relevant stakeholders. We discuss a range of ethical, legal, and societal aspects (ELSA), which people involved in the development and deployment of HPE can use for such reflection and deliberation. A realistic military scenario with proposed HPE (...) application can serve as a starting point for such an iterative and participatory process. Stakeholders can discuss this application, modify its features, and design appropriate processes around it – for instance, procedures for informed consent. We propose that organizing aspects into these three categories – ethical, legal, and societal – can help involve appropriate interlocutors at different moments: legal aspects with people in strategy or management roles, from the start of a project; ethical aspects with people in operations and medical roles, during development; and societal aspects with people in communication and personnel roles, during deployment. Notably, we developed and discussed this framework and the three aspects in close collaboration with personnel from the military. (shrink)

Robert Alexy develops his influential theory of legal reasoning exploring the nature of legal argumentation and its relation to practical reasoning. In doing so he sheds light on fundamental questions of law and rationality, which are as crucial to practising lawyers and law students as they are to scholars of legal theory.