English law is unambiguous that legal personality, and with it all legal rights and protections, is assigned at birth. This rule is regarded as a bright line that is easily and consistently applied. The time has come, however, for the rule to be revisited. This article demonstrates that advances in fetal surgery and (anticipated) artificial wombs do not marry with traditional conceptions of birth and being alive in law. These technologies introduce the possibility of ex utero gestation, and/or (...) temporary existence ex utero, and consequently developing human beings that are novel to the law. Importantly, therefore, the concepts of birth and born alive no longer distinguish between human beings deserving of legal protection in the way originally intended. Thus, there is a need for reform, for a new approach to determining the legal significance of birth and what being legally alive actually encompasses. Investigating the law of birth is of crucial importance, because of the implications of affording or denying the subjects of new reproductive technologies rights and protections. A determination of the legal status of the subject of fetal surgery or an artificial womb will determine what can and cannot be done to each entity. Moreover, the status afforded to these entities will drastically impact on the freedoms of pregnant women. (shrink)

At present UK Law states that the unborn child only becomes a legal person invested with legal rights and full protections, like other human persons, at birth. This article critiques the present legal position of setting the threshold for legal personality at birth, showing its inconsistencies and fundamentally pragmatic basis. Against this background, it is argued that a principled approach towards unborn life is necessary, which reflects in law the reality that the unborn child is (...) a type of human person deserving protection as it develops through the continuum of human personhood – from embryonic personhood, to infant personhood and ultimately into adult personhood. Human personhood is defined as a union of a material and immaterial self, meaning that at every stage of their development they are never a “potential person,” but rather a “person with potential” even if it is not actualized through miscarriage, premature death, or disability. This moral and philosophical reasoning is what justifies protecting the sanctity of unborn life in law. The rest of the article explores and critiques the alternative static legal threshold for ascribing legal personality, at conception, implantation and viability. Having considered the practical moral, legal and philosophical problems of these alternatives; the final proposal for law reform combines all three of these thresholds in a proposal for a “dynamic” threshold for legal personality commencing at conception, which would render birth as an irrelevant threshold for moral and legal reasoning about the unborn. (shrink)

This article critically examines the legal arguments presented on behalf of Charlie Gard’s parents, Connie Yates and Chris Gard, based on a threshold test of significant harm for intervention into the decisions made jointly by holders of parental responsibility. It argues that the legal basis of the argument, from the case of Ashya King, was tenuous. It sought to introduce different categories of cases concerning children’s medical treatment when, despite the inevitable factual distinctions between individual cases, the (...) duty of the judge in all cases to determine the best interests of the child is firmly established by the case law. It argues that the focus should not have been on a threshold for intervention but on whether his parents had established that the therapy they wanted was a viable alternative therapeutic option. In the April hearing, Charlie’s parents relied on the offer of treatment from a US doctor; by July they had an independent panel of international experts supporting their case although by this time the medical evidence was that it was too late for Charlie. One of Charlie’s legacies for future disputes may be that his case highlighted the need for evidence as to whether the treatment parents want for their child is a viable alternative therapeutic option before a court can determine which therapeutic option is in the best interests of the child. (shrink)

When should doctors seek protective custody to override a parent’s refusal of potentially lifesaving treatment for their child? The answer to this question seemingly has different answers for different subspecialties of pediatrics. This paper specifically looks at different thresholds for physicians overriding parental refusals of life-sustaining treatment between neonatology, cardiology, and oncology. The threshold for mandating treatment of premature babies seems to be a survival rate of 25–50%. This is not the case when the treatment in question is open (...) heart surgery for a child with congenital heart disease. Most cardiologists would not pursue legal action when parents refuse treatment, unless the anticipated survival rate after surgery is above 90%. In pediatric oncology, there are case reports of physicians requesting and obtaining protective custody for cancer treatment when the reported mortality rates are 40–50%. Such differences might be attributed to differences in care, a reasonable prioritization of quality of life over survival, or the role uncertainty plays on prognoses, especially for the extremely young. Nonetheless, other, non-medical factors may have a significant effect on inconsistencies in care across these pediatric subspecialties and require further examinations. (shrink)

This article explores four topics raised by Eyal Zamir and Barak Medina's treatment of constrained deontology. First, it examines whether mathematical threshold functions are the proper way to think about limits on deontology, given the discontinuities of our moral judgments and the desired phenomenology of rule-following. Second, it asks whether constrained deontology is appropriate for public as well as private decision-making, taking issue with the book's conclusion that deontological options are inapplicable to public decision-making, whereas deontological constraints are applicable. (...) Third, it examines the issue of the relationship between deontology and efficiency, asking whether deontological constraints should yield in situations where everyone would expect to benefit from their suspension, either ex ante or ex post . Finally, the article concludes that constrained deontology is susceptible to political abuse because of the many degrees of freedom involved in identifying constrained actions and the point at which those constraints yield to consequentialist benefits. (shrink)

The four thoughtful commentaries on our feature article draw out interesting empirical and normative questions. The aim of our study was to examine the views of a sample of the general public about a set of cases of disputed treatment for severely impaired infants.1 We compared those views with legal determinations that treatment was or was not in the infants’ best interests, and with some published ethical frameworks for decisions. We deliberately did not draw explicit ethical conclusions from our (...) survey findings, both because of the acknowledged limitations of survey methodology, and because survey conclusions cannot, in themselves, yield answers about what the right threshold should be for providing or withholding treatment.2 In this brief response, we are going to address head-on the important ethical question raised within our survey – when life is worth living for an infant. We follow-up on the suggestion of two commentators that the presence or absence of “relational potential” might be ethically important to report in studies of the outcome of severely impaired infants,3 and to whether parental requests for treatment should be supported.4 The notion of “relational potential” was introduced by John Arras in a 1984 commentary.5 Arras was responding to the Baby Doe Regulations and a …. (shrink)

Has the time come to put to bed the concept of a harm threshold when discussing the ethics of reproductive decision making and the legal limits that should be placed upon it? In this commentary, we defend the claim that there exist good moral reasons, despite the conclusions of the non-identity problem, based on the interests of those we might create, to refrain from bringing to birth individuals whose lives are often described in the philosophical literature as ‘less (...) than worth living’. (shrink)

Minors are generally considered incompetent to provide legally binding decisions regarding their health care, and parents or guardians are empowered to make those decisions on their behalf. Parental authority is not absolute, however, and when a parent acts contrary to the best interests of a child, the state may intervene. The best interests standard is the threshold most frequently employed in challenging a parent''s refusal to provide consent for a child''s medical care. In this paper, I will argue that (...) the best interest standard provides insufficient guidance for decision-making regarding children and does not reflect the actual standard used by medical providers and courts. Rather, I will suggest that the Harm Principle provides a more appropriate threshold for state intervention than the Best Interest standard. Finally, I will suggest a series of criteria that can be used in deciding whether the state should intervene in a parent''s decision to refuse medical care on behalf of a child. (shrink)

This article considers the four eyewitness threshold for zinā’ in Islamic criminal law. In some Muslim-majority countries where zinā’ remains an offence, judiciaries have by-passed the threshold by accepting singular confessions from male fornicators or, otherwise, inferring fornication from pregnancy outside of marriage. As a result, a disproportionate number of women have been prosecuted, convicted, and even punished for zinā’. I assert that the four-eyewitness threshold allows for an alternative way to view zinā’ that can result in (...) a different set of consequences. If the threshold is taken seriously such that it becomes the only evidentiary basis upon which a zinā’ conviction can be entered, it will create an effective or de facto exemption where alleged perpetrators can never be convicted, except in the rarest cases where four independent eyewitnesses can be corralled. If adopted, this approach would provide a principled basis to reject opportunistic confessions that deflect punishment to accused female fornicators. And as an ‘internal’ solution that arises within the framework of the sharī’a, a de facto exemption approach is more likely to be perceived as legitimate when compared with proposed solutions that find their basis in international human rights legal instruments. (shrink)

Climate change has caused serious threats to global economic development and human well-being, and green finance is a new way to achieve ecological, economic, and social sustainable development, and it also has important theoretical significance and policy value. This study firstly aims to study the impact of green finance on regional carbon intensity. Then, it aims to determine the moderating effect of capital stock per capita on the relationship between green finance and carbon intensity based on moderating effect model as (...) well as to investigate the threshold effect of capital stock per capita on the relationship between green finance and carbon intensity based on threshold effect model. The main conclusions are as follows: Every 1% increase in green finance will lead to a 2% decrease in carbon intensity, and the inhibition of green finance on carbon intensity is most obvious in northeast and east China. The capital stock per capita has a significant moderating effect, which could enhance the restraining effect of green financial development on carbon intensity, and this moderating effect is most obvious in northeast China. The capital stock per capita has a threshold effect in the process of green finance development to suppress carbon intensity. The higher the capital stock per capita, the stronger the inhibition effect of green finance development on carbon intensity. Therefore, in the process of capital accumulation, attention should be paid to improve the relevant legal system and policy guarantee, optimization of financial structure, and stimulation of the capital allocation effect of green finance. Simultaneously, in order to strengthen the inhibitory effect of green finance on carbon intensity, differentiated green finance development policies should be formulated based on factor endowment structure and comparative advantages of different regions. (shrink)

The best-interests standard is a widely used ethical, legal, and social basis for policy and decision-making involving children and other incompetent persons. It is under attack, however, as self-defeating, individualistic, unknowable, vague, dangerous, and open to abuse. The author defends this standard by identifying its employment, first, as a threshold for intervention and judgment (as in child abuse and neglect rulings), second, as an ideal to establish policies or prima facie duties, and, third, as a standard of reasonableness. (...) Criticisms of the best-interests standard are reconsidered after clarifying these different meanings. (shrink)

Is it right to convict a person of a crime on the basis of purely statistical evidence? Many who have considered this question agree that it is not, posing a direct challenge to legal probabilism – the claim that the criminal standard of proof should be understood in terms of a high probability threshold. Some defenders of legal probabilism have, however, held their ground: Schoeman (1987) argues that there are no clear epistemic or moral problems with convictions (...) based on purely statistical evidence, and speculates that our aversion to such convictions may be nothing more than an irrational bias. More recently, Hedden and Colyvan (2019, section VI) describe our reluctance to convict on the basis of purely statistical evidence as an ‘intuition’, but suggest that there may be no ‘in principle’ problem with such convictions (see also Papineau, forthcoming, section 6). In this paper, I argue that there is, in some cases, an in principle problem with a conviction based upon statistical evidence alone – namely, it commits us to a precedent which, if consistently followed through, could lead to the deliberate conviction of an innocent person. I conclude with some reflections on the idea that the criminal justice system should strive to maximise the accuracy of its verdicts – and the related idea that we should each strive to maximise the accuracy of our beliefs. (shrink)

This article argues that legal proof should be tantamount to justified belief of guilt. A defendant should be found guilty just in case it is justified to believe that the defendant is guilty. My notion of justified belief implies a threshold view on which justified belief requires high credence, but mere statistical evidence does not give rise to justified belief.

In light of the recent revival of the debate on radical democracy, this paper seeks to show how a critical reappropriation of Chantal Mouffe’s theory of agonistic politics can explain the structure of a conflict-based understanding of democratic orders. In explicit convergence with Mouffe, I argue that a radical democratic project by no means needs to abandon—as many absolute democracy and multitude theorists claim—the modern political paradigm. I also show, diverging from her account, that Mouffe’s defence of a radical democratic (...) project based on pluralism and agonism would have been better served by a critical reception of Arendt’s thinking rather than that of Schmitt. The relevance of this alternative strategy—so I will argue—lies in the fact that it delivers an apt design for a politico-legal order which permits true and proper conflicts, on the one hand, while simultaneously allowing that they be dealt with democratically, on the other. (shrink)

Existing discussions of legal proof address a host of apparently disparate questions: What does it take to prove a fact beyond a reasonable doubt? Why is the reasonable doubt standard notoriously elusive, sometimes considered by courts to be impossible to define? Can the standard of proof by a preponderance of the evidence be defined in terms of probability thresholds? Why is statistical evidence often insufficient to meet the burden of proof? -/- This paper defends an account of proof that (...) addresses each of these questions. Where existing theories take a piecemeal approach to these puzzles, my theory develops an insight that unifies them—namely, the thesis that legal proof requires knowledge. Although this thesis may seem radical at first, I answer several common objections to it, and I argue that it does better than several competing accounts when it comes to making sense of our intuitions about what legal proof requires. (shrink)

In “Immigration, Jurisdiction and Exclusion”, Michael Blake develops a new line of argument to defend a state’s presumptive right to exclude would-be immigrants. His account grounds this right on the state as a legal community that must protect and fulfill human rights. Although Blake’s present argument is valid and attractive in being less arbitrary than national membership and in distinguishing different types of immigrants’ claims, I dismiss it for being unsound due to a lack of further elaboration. The reason (...) for my rejection is that there is a fundamental problem with the third premise as it stands now. Therefore, I contend that Blake’s argument cannot justify a general exclusion of well-protected would-be immigrants. However, in the final part, I will try to defend a modified version of Blake’s argument from imposed obligations by contending that a state has a presumptive right to exclude if the human rights obligations that are imposed on its residents go beyond a viable threshold. (shrink)

Purpose. The study is aimed at a philosophical analysis of the state of humanity’s readiness for technological singularity, the definition of the concept of postbiology and the investigation of ways to bring the population to a new, qualitatively higher level of existence. Theoretical basis. The author analyzes the level of public consciousness and the features of its cooperation with technological world. Due to the inability of most modern people to cope with changes effectively, the author questions humanity’s readiness for the (...) postbiological stage of evolution of our species. Based on the analysis of the ideas of authoritative futurists of our time, the author explores the prospects of Ukrainian society in the postbiological future. Originality. The author not only analyzes the challenges that humanity faces during its transition to a new type of civilization, but also explores the obstacles that hinder this process directly in the Ukrainian society. The author proves that the ideas of transhumanism and going beyond the human biology should not be postulated without a moral context. In addition, the scientific study proposes a number of projects designed to improve the educational institutions that are responsible for the intellectual and spiritual development of the individual. Conclusions. Postbiology can become both, a new qualitatively higher stage of the human species evolution and the collapse of humaneness. Along with overcoming human biology, there will be the destruction of moral guidelines, social and legal systems. In order to prevent total chaos and catastrophe, technological development must be complemented by appropriate developments of new norms that can balance society. (shrink)

A dogma accepted in many ethical, religious, and legal frameworks is that the reasons behind conscientious objection (CO) in healthcare cannot be evaluated or judged by any institution because conscience is individual and autonomous. This paper shows that this background view is mistaken: the requirement to reveal and explain the reasons for conscientious objection in healthcare is ethically justified and legally desirable. Referring to real healthcare cases and legal regulations, this paper argues that these reasons should be evaluated (...) either ex ante or ex post and defends novel conceptual claims that have not been analyzed in the debates on CO. First, a moral threshold requirement: CO is only justified if the reasons behind a refusal are of a moral nature and meet a certain threshold of moral importance. Second, this paper considers the rarely discussed conceptual similarities between CO in healthcare and the legal regulations concerning military refusals that place the burden of proof on conscientious objectors. This paper concludes that conscientious objection in healthcare can be accommodated only in some cases of destroying or killing human organisms. (shrink)

In its American context the case of baby Messenger, a preterm infant disconnected from life-support by his father and allowed to die has generated debate about neonatal treatment protocols. Limited by the legal and ethical norms of the United States, this case did not consider treatment protocols that might be available in other countries such as Denmark and Israel: threshold protocols whereby certain classes of newborns are not treated, and preemptive abortion allowing one to choose late-term abortion rather (...) than risk delivery. Each offers a viable and ethically sound avenue for dealing with the economic and social expense of anomalous newborns by aborting or not treating those most likely to burden the health care system. Objections that these protocols are antithetical to American bioethical principles are considered but rejected as each policy answers to economic justice, utility and respect for autonomy. (shrink)

According to a common conception of legal proof, satisfying a legal burden requires establishing a claim to a numerical threshold. Beyond reasonable doubt, for example, is often glossed as 90% or 95% likelihood given the evidence. Preponderance of evidence is interpreted as meaning at least 50% likelihood given the evidence. In light of problems with the common conception, I propose a new ‘relevant alternatives’ framework for legal standards of proof. Relevant alternative accounts of knowledge state that (...) a person knows a proposition when their evidence rules out all relevant error possibilities. I adapt this framework to model three legal standards of proof—the preponderance of evidence, clear and convincing evidence, and beyond reasonable doubt standards. I describe virtues of this framework. I argue that, by eschewing numerical thresholds, the relevant alternatives framework avoids problems inherent to rival models. I conclude by articulating aspects of legal normativity and practice illuminated by the relevant alternatives framework. (shrink)

This paper will ask whether the legal status presently afforded to nonhuman animals ought to influence regulatory debates concerning human cerebral organoids. The New York Courts recently refused to grant a writ of habeas corpus to Happy the Elephant as she was property rather than a legal person while at the same time accepting that she is a moral patient deserving of rights protection. An undesirable situation has therefore arisen in which the law holds a being with moral (...) status to be incapable of benefitting from legal redress due to their legal status as property.The author argues that this is something that we ought to avoid when designing the regulatory framework which will govern the use of human cerebral organoids. Yet, a difference exists in that, whereas the judges already accept Happy is a moral patient, there is presently no consensus around the moral status of organoids. This paper will consider whether human cerebral organoids have passed the moral threshold of sentience. If they have, or are close to doing so, regulators ought to consider their legal status in advance so as to ensure that adequate limitations are placed on this usage so as to avoid unethical practices. (shrink)

BackgroundThe complexity of decision-making in the paediatric context is well recognised. In the majority of cases, parents and healthcare professionals work together to decide which treatments the paediatric patient should receive. On occasions, however, parental wishes conflict with what clinicians think is best for the paediatric patient. Where persistent disagreement between clinicians and parents exists, clinicians must ascertain if they have a moral, professional, and legal obligation to overrule the parents' decision and implement their preferred option.PurposeFew decision-making frameworks to (...) assist in addressing the ethical issues that arise in clinical decision-making relate specifically to the paediatric context. Diekema's Harm Threshold Framework and the Zone of Parental Discretion Framework assist in determining whether parental decisions should or should not be overridden. This paper examines the similarities and differences between these frameworks.MethodsThe frameworks are analysed i... (shrink)

Limitarianism holds that there is an upper limit to how many resources, such as wealth and income, people can permissibly have. In this article, I examine the conceptual structure of limitarianism. I focus on the upper limit and the idea that resources above the limit are ‘excess resources’. I distinguish two possible limitarian views about such resources: (i) that excess resources have zero moral value for the holder; and (ii) that excess resources do have moral value for the holder but (...) that their claim to such resources is outweighed by other normative concerns. Moreover, I argue that, depending on the values limitarianism seeks to promote, limitarians should care about the number of people with excess resources or the total amount of excess resources (or both), that they can adopt redistributive measures and/or predistributive measures, and that some versions of limitarianism should take into account the distribution of risk among those above the riches line. (shrink)

Wszalek offers a detailed examination of the challenges involved in assisting people with language and communication impairments in the comprehension of legal language and concepts (LLC). If we settle for a minimum threshold of LLC comprehension, we are likely to observe that some people will not meet this threshold due to personal choices, such as not having practiced reading sufficiently or having avoided intellectually stimulating social interactions.

Catholic legal and doctrinal tradition defined two main cases for the canonization of saints: until very recently, sainthood was related either to martyrdom or to the heroic practice of virtues, ascertained through a well-defined judicial procedure. In 2017, Pope Francis renewed this ancient tradition by introducing a third case, consisting in the “offering of life”, namely the sacrifice of one’s life in the name of charity, intended as Christian love for the others. The “offering of life” is placed at (...) the center of an ongoing process of mediation between papal authority, the judicial praxis of the causes for canonization, and ecclesiastic law. The introduction of this new type of sainthood can be explained in light of the growing difficulty to apply the two traditional grids of behavior established by the Church in the evaluation of the life of new kinds of persons who enjoy a widespread fame of sanctity, but are not conform to the strict jurisprudential criteria of martrydrom and heroicity. Therefore, the debate surrounding the “offering of life” entails a dialectics between the necessity of a rationalized set of models, providing precise—and thus evaluable—“narrative programs” and defining a circumscribed number of canonizable human types, and the unprecedented multiplication of instances of sanctity in the contemporary world. (shrink)

Assent is an important ethical and legal requirement of paediatric research. Unfortunately, there are significant differences between the guidelines on the details of assent.

Discusses the idea that legal proof should use variable standards rather than a single fixed threshold.

We propose simple nonlinear mathematical models for the legal concept of balancing of interests. Our aim is to bridge the gap between an abstract formalisation of a balancing decision while assuring consistency and ultimately legal certainty across cases. We focus on the conflict between the rights to privacy and to the protection of personal data in Art. 7 and Art. 8 of the EU Charter of Fundamental Rights (EUCh) against the right of access to information derived from Art. (...) 11 EUCh. These competing rights are denoted by ( \(i_1\) ) _right to privacy _ and ( \(i_2\) ) _access to information_; mathematically, their indices are respectively assigned by \(u_1\in [0,1]\) and \(u_2\in [0,1]\) subject to the constraint \(u_1+u_2=1\). This constraint allows us to use one single index _u_ to resolve the conflict through balancing. The outcome will be concluded by comparing the index _u_ with a prior given threshold \(u_0\). For simplicity, we assume that the balancing depends on only selected legal criteria such as the social status of affected person, and the sphere from which the information originated, which are represented as inputs of the models, called legal parameters. Additionally, we take “time” into consideration as a legal criterion, building on the European Court of Justice’s ruling on the right to be forgotten: by considering time as a legal parameter, we model how the outcome of the balancing changes over the passage of time. To catch the dependence of the outcome _u_ by these criteria as legal parameters, data were created by a fully-qualified lawyer. By comparison to other approaches based on machine learning, especially neural networks, this approach requires significantly less data. This might come at the price of higher abstraction and simplification, but also provides for higher transparency and explainability. Two mathematical models for _u_, a time-independent model and a time-dependent model, are proposed, that are fitted by using the data. (shrink)

Ex aequo et bono compensations refer to tribunal’s compensations that cannot be determined exactly according to the rule of law, in which case the judge relies on an estimate that seems fair for the case at hand. Such cases are prone to legal uncertainty, given the subjectivity that is inherent to the concept of fairness. We show how basic principles from statistics and machine learning may be used to reduce legal uncertainty in ex aequo et bono judicial decisions. (...) For a given type of ex aequo et bono dispute, we consider two general stages in estimating the compensation. First, the stage where there is significant disagreement among judges as to which compensation is fair. In that case, we let judges rule on such disputes, while a machine tracks a certain measure of the relative differences of the granted compensations. In the second stage that measure, which expresses the degree of legal uncertainty, has dropped below a predefined threshold. From then on legal decisions on the quantity of the ex aequo et bono compensation for the considered type of dispute may be replaced by the average of previous compensations. The main consequence is that this type of dispute is, from this stage on, free of legal uncertainty. (shrink)

Exploring the peculiar nature of future generations and concluding that types of future people is the most promising object on which to project our concern for future generations the article poses two main questions: “Can future people have rights?” and, if so, “Do they in fact have any rights?” The article first explains why the non-existence of future people raises doubts whether future generations can have rights. Within the philosophical literature, the leading approach explaining how future people can, nevertheless, have (...) rights argues that they have rights as tokens of types of people. After presenting this account of the rights of future people and couching it in a jurisprudential context, this Article points out a possible deficiency in the approach’s metaphysical underpinnings. Assuming that future people can have rights the article goes on to explain that there is reason to doubt whether any such rights actually exist, which derive from the doubt whether future people will be harmed by most actions and choices in their prenatal past. According to what has come to be known as the “nonidentity argument,” actions and choices that are necessary parts of the causal chain leading up to the existence of a person cannot harm that person - had the act or choice not occurred that person would have never existed, and one is better off existing than not. Under the two prevalent theories of rights, the Will Theory and the Interest Theory, the nonidentity argument seemingly entails that future people have no rights. After exploring how this is the case, the conception of harm underlying the nonidentity argument is analyzed. Two types of interests future people may have in prenatal identity-determinative events (constitutive interests and threshold interests) are explored as possible sources of certain rights future people may have - the nonidentity argument notwithstanding. The article then elaborates and assesses the merits of these approaches. (shrink)

The question of the moral status of AI and the extent to which that status ought to be recognised by societal institutions is one that has not yet received a satisfactory answer from lawyers. This paper seeks to provide a solution to the problem by defending a moral foundation for the recognition of legal personhood for AI, requiring the status to be granted should a threshold criterion be reached. The threshold proposed will be bare, noumenal agency in (...) the Kantian sense. Agency has been identified by Alan Gewirth as the source of the rights claims of our own species and, at risk of contradiction, is a foundation that must be expanded to all agents or else we contradict the foundation of our own rights. This is something that ought to be recognised through the granting of legal personhood to all noumenal agents by any system that requires such personhood for the enforcement of rights, or else the rule restricting legal personhood cannot be seen as a valid legal norm. Having laid out the case, the paper will move on to defend this natural law conception against the narrower definition of legal personhood proposed by Bryson et al. with regards to AI. It will argue that bare agency is a sufficient, though not necessary, criterion for the ascription of legal personhood in any system that sees the status as necessary for the ascription of legal rights. The paper will conclude by analysing the proposals currently making their way through the legislatures of the UK and European Union. They will be assessed for their compatibility with the claim that a functioning legal system necessarily must recognise the legal personhood of all noumenal agents regardless of their origins, and whether they are future-proofed for the possibility that AI may meet this threshold. (shrink)

The release of over 6,000 genetically modified mosquitoes (GMM) into uninhabited Malaysian forests in 2010 was a frantic step on the part of the Malaysian government to combat the spread of dengue fever. The field trial was designed to control and reduce the dengue vector by producing offspring that die in the early developmental stage, thus decreasing the local Aedes aegypti population below the dengue transmission threshold. However, the GMM trials were discontinued in Malaysia despite being technologically feasible. The (...) lack of systematic studies in terms of cost-benefit analysis, questionable research efficacy and safety-related concerns might have contributed to the termination of the field trial. Hence, this research aims to evaluate the feasibility of GMM release in Malaysia by using a holistic approach based on an Islamic ethical-legal assessment under the maslahah-mafsadah (benefit-risk) concept. Three main strategies based on the maslahah-mafsadah concept approach have been applied: 1) an evidence-based approach, 2) an impact-based approach and, 3) a priority approach. The analysis concluded that GMM could be categorised as zanniyyah (probable). GMM is a promising alternative for dengue control, but many issues must be addressed before its widespread adoption. (shrink)

Chapter 19 of the Children’s Act No. 32 of 2005 regulates the practice of surrogate motherhood in South Africa and provides legal certainty regarding the rights of the children born as a result of surrogacy, including the rights of the different parties involved. Despite the clarity regarding the legal consequences of human reproduction by artificial fertilisation of women acting as surrogate mothers, some legal gaps and inconsistencies regarding certain medical and ethico-legal issues remain. The purpose of (...) this article is to critically examine selected provisions whose implementation is hampered by a lack of detail or clarity, compromising compliance by the different parties to the surrogate motherhood agreement. The article concludes with recommendations on how some of these issues may be addressed to provide for legal certainty and transparency. (shrink)

This paper assesses the extent to which enhancing a penalty for hate crimes is a necessity. It conducts its analysis by looking at the theoretical justifications for and against such enhancement and also the impact of hate crimes on their victims, their groups and society, in comparison to non-bias crimes. It recognizes the particularly damaging effect of hate crimes on these three levels but argues that care must be taken to ensure a high threshold framework and a clear vision (...) in terms of protected characteristics. It argues that if penalty enhancements are to be any use, victims should be empowered to access the criminal justice system whilst the right to freedom of expression must be preserved. The paper commences with a definitional and conceptual framework of hate crimes, proceeds with the theoretical argumentations for and against hate crime legislation, conducts a legislative analysis of hate crimes, using examples from around the world as well as an assessment of the approach of the European Court of Human Rights to hate crime. (shrink)

This paper aims at shedding light on an obscure point in Kant's theory of the state. It discusses whether Kant's rational theory of the state recognises the fact that certain exceptional social situations, such as the extreme poverty of some parts of the population, could request institutional state support in order to guarantee the attainment of a minimum threshold of civil independence. It has three aims: 1) to show that Kant's Doctrine of Right can offer solutions for the complex (...) relation between economics and politics in our present time; 2) to demonstrate the claim that Kant embraces a pragmatic standpoint when he tackles the social concerns of the state, and so to refute the idea that he argues for an abstract conception of politics; and 3) to suggest that a non-paternalistic theory of rights is not necessarily incompatible with the basic tenets of a welfare state. O presente artigo tenciona contribuir a esclarecer uma questão, tão complicada quanto polêmica, no âmbito da teoria kantiana do Estado de direito. Pretendo submeter à discussão se a teoria racional de Kant sobre o Estado legal sustenta ou rejeita o fato de que certas situações sociais excepcionais, como a extrema pobreza de uma parte da população, requerem o apoio institucional do Estado para garantir a consecução de um limiar mínimo de independência civil. Proponho-me os três seguintes objetivos: 1) argumentar a capacidade da doutrina kantiana do direito para propor soluções para a difícil relação entre economia e política, no tempo presente; 2) mostrar que o ponto de vista pragmático que Kant adota quando analisa as preocupações sociais do Estado recusa a ideia segundo a qual Kant sustenta uma concepção abstrata da política e 3) sugerir a tese de uma teoria não paternalista do Estado de direito sem ter que renunciar necessariamente aos princípios básicos do welfare state. (shrink)

Many recent arguments about the role of coercive sanctions in law suggest that the importance of coercion is underrated. The question has thus been where the lower threshold for coercion might be within a legal system. Very little attention, by contrast, has been paid to whether, at some upper threshold, coerciveness might itself present a problem for law, even on a positivist account. In this article I therefore interrogate the standard positivist picture from this unorthodox direction: Is (...) it true that there is no degree of coerciveness that is incompatible with a system of law? Or, in other words, have we gone far enough in circumscribing the role of coercion in our account of law? I argue that coercion of a certain kind undermines the conditions necessary for the social normative practices that ground legality on social accounts of law. Sufficiently coercive circumstances, I conclude, can diminish the law’s normativity by inhibiting the conditions necessary for the effective transmission of norms. (shrink)

Throughout the U.S., state laws require professionals who work with children to report cases of suspected child abuse to child protection services. Both practically and conceptually, however, significant problems arise from a lack of clarity regarding the threshold that has been set for reporting. Specifically, there is no consensus as to what constitutes reasonable suspicion, and little direction for how mandated reporters should gauge their legal and professional responsibilities when they harbor suspicion. In this paper we outline the (...) context of the problem, discuss the nature and scope of its conceptual underpinnings, and offer recommendations for moving towards a concrete, practical solution. (shrink)

The contemporary debate about "who is a journalist" is occurring in two distinct domains: law and professional ethics. Although the debate in these domains is focused on separate problems, participants treat the central question as essentially the same. This article suggests that the debates in law and professional ethics have to be resolved independently and that debate within those domains needs to be more nuanced. In law, it must vary depending on whether the context involves constitutional law, statutory law, or (...) the distribution of informal privileges by government officials. In professional ethics, the debate should not be oriented around a single definitional threshold but should identify tiers that take account of different communicators' unique goals, tactics, and values. (shrink)

Lennart Åqvist (1992) proposed a logical theory of legal evidence, based on the Bolding-Ekelöf of degrees of evidential strength. This paper reformulates Åqvist's model in terms of the probabilistic version of the kappa calculus. Proving its acceptability in the legal context is beyond the present scope, but the epistemological debate about Bayesian Law isclearly relevant. While the present model is a possible link to that lineof inquiry, we offer some considerations about the broader picture of thepotential of AI (...) & Law in the evidentiary context. Whereas probabilisticreasoning is well-researched in AI, calculations about the threshold ofpersuasion in litigation, whatever their value, are just the tip of theiceberg. The bulk of the modeling desiderata is arguably elsewhere, if one isto ideally make the most of AI's distinctive contribution as envisaged forlegal evidence research. (shrink)

In recent years, the significant proliferation of hate speech in several facets of the public sphere has triggered the renewal of scholarly interest in the phenomenon across disciplinary areas. Within this picture, it is often observed that hate speech may nowadays be realised in real-life communication via more implicit or indirect forms, which do not meet the legal threshold. Theoretically, the introduction of the term ‘soft hate speech’ has been aimed at capturing all these cases of implicit, covert (...) or indirect realisations of hate speech. Adopting a combination of critical perspectives from discourse and argumentation studies, the present special issue zooms in on the discursive strategies and lines of argumentation that end up subtly justifying discriminatory hatred within this remit. (shrink)

The legal regulation of standards of medical practice has two main forms. The more direct of these comprises legislation and judicial precedents concerned with the delivery of medical care. Typically this form sets out the meaning of consent to treatment, establishes negligence thresholds and imposes duties of confidentiality. The second form of regulation is entrusted to a supervisory body, established by law and given jurisdiction to enforce standards of conduct by controlling entry to the profession and through the use (...) of disciplinary powers. (shrink)

I defend the thesis that legal standards of proof are reducible to thresholds of probability. Many reject this thesis because it appears to permit finding defendants liable solely on the basis of statistical evidence. To the contrary, I argue – by combining Thomson's (1986) causal analysis of legal evidence with formal methods of causal inference – that legal standards of proof can be reduced to probabilities, but that deriving these probabilities involves more than just statistics.

Doctors’ strikes are legally permissible in the UK, with the situation differing in other countries. But are they morally permissible? Doug McConnell and Darren Mann have systematically attempted to dismiss the arguments for the moral impermissibility of doctors’ strikes and creatively attempted to provide further moral justification for them. Unfortunately for striking doctors, they fail to achieve this. Meanwhile, junior doctors’ strikes have continued in the UK through 2023 and have now extended into 2024. In this response, which focuses on (...) the UK situation and specifically junior doctors’ strikes in the National Health Service (NHS) in England, I will demonstrate a central problem with their arguments—namely that they underplay the harms caused by prolonged doctors’ strikes by ignoring the harms to patients with cancer. This weakens their conclusion that strikes are morally permissible in terms of the conditions and thresholds they set. I then provide a psychological critique of their justification for strikes in terms of the interests of the public. It follows that invoking the controversial concept of supererogatory action is ungrounded but also absurd when you consider time-critical cancer care. If those representing striking doctors wish to maintain a modicum of moral respectability, they should mitigate for patients with cancer and negotiate reasonably and with urgency. (shrink)

Given the costs of litigation high-profile court cases about withdrawing life-sustaining medical treatment for seriously ill children in England & Wales tend to be followed by discussion about how to avoid similar cases in future. Whilst two proposals, mediation and replacing the best interests standard with a harm threshold, have received broad attention, a proposal to replace the court by a specialist review committee has not been further investigated. This article analyses the effects of a putative replacement of the (...) courts by a specialist review committee using the process enacted by the futility clauses in the Texas Advance Directives Act (TADA) as a model. Under TADA life-sustaining treatment may legally be withdrawn when a review committee deems it futile and no alternative healthcare provider can be identified. The investigation finds that installing a national review committee with the power to decide whether life-sustaining treatment is futile would have reduced the number of court cases about withdrawal thereof in England & Wales to a handful over the last 3 decades. In addition to shorter procedures and costs savings, a national review committee modelled after TADA would have advantages for both clinicians and parents. Advantages for clinicians are more limited exposure to delivery of clinical care that may cause moral distress and less exposure to adverse press and social media content. Advantages for parents are that the process would establish them as ethical decision makers and offer the possibility of a transfer of the care of the child provided an alternative healthcare provider can be found. As such decisions taken by a specialist review committee may be more acceptable for parents than those of the courts. (shrink)