Law

Following Kelsen’s influential theory of law, the concept of validity has been used in the literature to refer to different properties of law (such as existence, membership, bindingness, and more), and so it is inherently ambiguous. More importantly, Kelsen’s equivalence between the existence and the validity of law prevents us from accounting satisfactorily for relevant aspects of our current legal practices, such as the phenomenon of “unlawful law.” This chapter addresses this ambiguity to argue that the most important function of (...) the concept of validity is constituting the complex ontological paradigm of modern law as an institutional-normative practice. In this sense, validity is an artificial ontological status that supervenes on that of the existence of legal norms, thus allowing law to regulate its own creation and creating the logical space for the occurrence of “unlawful law.” This function, I argue in the last part, is crucial to understanding the relationship between the ontological and epistemic dimensions of the objectivity of law. Given the necessary practice-independence of legal norms it is the epistemic accessibility of their creation that enables the law to fulfill its general action-guiding (and thus coordinating) function. (shrink)

Brian Z. Tamanaha has written extensively on realism in jurisprudence, but in his Realistic Theory of Law (2018), he uses "realism" in a commonplace way to ground a rough outline of legal history. While he refers to his method as genealogical, he does not acknowledge the complex tensions in the development of the philosophical use of that term from Nietzsche to Foucault, and the complex epistemological issues that separate them. While the book makes many interesting points, the methodological concerns outweigh (...) them in the overall assessment of the value of the work. (shrink)

The question this article addresses is how the WTO supports and deals with digital trade. The article then analyzes how existing WTO agreements have dealt with digital trade. The article also addresses recent trade agreements particularly the USMCA.

Free trade agreements are about reducing tariffs, market access in services, protection of intellectual property rights, streamlining customs procedures, trade remedy measures, and dispute settlement mechanism. Equally important if not even more important than these provisions is the designation of rules of origin. Many benefits can be lost if restrictive rules of origin are incorporated. Rules of origin are supposed to be straightforward and easy-to-follow methods used to determine origin of imported goods. The policy question that arises is how to (...) improve trade integration among Arab countries through more effective rules of origin. (shrink)

Electronic commerce is important, and perhaps, inevitable. Thus, to consider the legal implications of the growth and development of electronic commerce is essential. However, the lack of suitable dispute resolution mechanisms in cyberspace will constitute a serious obstacle to the further development of electronic commerce. Bearing this in mind, this thesis argues that when Alternative Dispute Resolution (ADR) moves to cyberspace, particularly arbitration and mediation as the main types of ADR, the form of Online Alternative Dispute Resolution (OADR) can maximize (...) the growth of e-commerce. (shrink)

The purpose of the paper is to examine free trade in Islamic law.

Jordan agreed to extensive liberalization undertakings under the General Agreement on Trade in Services (“GATS”) that would open some sectors that were previously closed or restricted to foreign suppliers and investors. It undertook horizontal commitments in cross-border movement of individuals and commercial presence covering all types of services.

The purpose of this article is to examine the feasibility and working of the conciliatory means for settlement of intellectual property disputes in Jordan. Arbitration is the principal mechanism used.

Any foreign manufacturer desiring to market its products in Jordan has several courses open to it. The foreign manufacturer could establish a branch or wholly-owned subsidiary in Jordan or enter into a licensing or joint venture agreement with a company doing business in Jordan. If it wants a less significant presence, however, it is left with the alternative of having a local commercial agent market and sells its products. -/- The purpose of this article is to study certain aspects-exclusivity and (...) termination- of commercial agency according to the Jordanian law. The article is divided into four sections. Section two explains the general rules governing commercial agency in Jordan. Section three analyzes exclusivity of commercial agents. This section introduces the WTO's General Agreement on Trade in Services (GATS), the basic instrument covering trade in services, and analyses the current commercial agencies regulation in Jordan and its relation to articles VIII and IX of GATS. Also, section two explores Jordan schedule of specific commitments under the GATS in order to shed light on the extent and limit of its obligations with regard to commercial agents. Section four discusses agency termination. Finally, the article concludes by summarizing the main. (shrink)

The book, providing a broad analysis of trade liberalization initiatives from the inception of the World Trade Organization (WTO) to 2013, is essential reading for trade lawyers, researchers, and students alike who are interested in getting a glimpse of the future directions for trade liberalization. The book attempts to ask and answer the following key question: What are the alternatives to trade liberalization in the WTO system?

Electronic commerce is important, and perhaps, inevitable. Thus to consider the legal implications of the growth and development of electronic commerce is essential. However, the lack of suitable dispute resolution mechanisms in cyberspace will constitute a serious obstacle to the further development of electronic commerce. Bearing this in mind, this paper argues that when Alternative Dispute Resolution (ADR) moves to cyberspace, particularly arbitration and mediation as the main types of ADR, the form of online alternative dispute resolution (OADR) can maximise (...) the growth of e-commerce. (shrink)

Electronic commerce is important, and perhaps, inevitable. Thus, to consider the legal implications of the growth and development of electronic commerce is essential. However, the lack of suitable dispute resolution mechanisms in cyberspace will constitute a serious obstacle to the further development of electronic commerce. Bearing this in mind, this thesis argues that when Alternative Dispute Resolution (ADR) moves to cyberspace, particularly arbitration and mediation as the main types of ADR, the form of Online Alternative Dispute Resolution (OADR) can maximize (...) the growth of e-commerce. (shrink)

The purpose of this paper is to examine income tax evasion in Jordan and set forth various cures for this problem.

The objective of this article is to examine the implications of the intellectual property provisions in the US–Jordan Free Trade Agreement (US–JO FTA) and whether they serve as a template for other Arab countries who will be concluding free trade agreements with the USA. My claim in this article is that the intellectual property part of the US–JO FTA goes beyond the World Trade Organization Agreement and cannot form the right template for the proposed US–Middle East FTA of 2013. The (...) first section provides a brief introduction to the US–JO FTA. The second section provides a critical analysis of the FTA’s protection of trademarks, copyright and patents. The third and fourth sections discuss enforcement and implementation of the intellectual property provisions of the FTA. The final section provides a conclusion regarding the intellectual property provisions of the US–JO FTA and highlights an alternative template for the proposed US–Middle East FTA. (shrink)

This article argues that law is an inherently modernist normative practice. Constructing a vision of Modernism which is at once an epistemology and an attitudinal disposition to doubt and make anew our assumptions about the world, the authors demonstrate that legal practice encounters the world through individual cases, ‘examples’. Through these examples the law is capable of both interacting with and comprehending that world, while also being forced to question the law’s own precepts and their application. In this manner, the (...) law’s generalisations and abstractions become concrete, and can indeed be upended, through fleeting, impressionistic and highly case-specific examples. This exemplarity within law explains how law is able to navigate its apparently contradictory aspirations and natures which have bedevilled legal philosophy for millennia. In reality, law exists within a series of polarities, rather than contradictions, which are navigated through the law’s encounters with examples from the extra-legal world. The authors conclude that this aspect of the law’s nature also has practical consequences, requiring the law to maintain the fora in which new and novel cases are heard, and through which law’s modernist spirit can thrive. (shrink)

This paper provides a critique of the contemporary notion of intellectual property based on the consequences of Wittgenstein's “private language argument”. The reticence commonly felt toward recent applications of patent law, e.g., sports moves, is held to expose erroneous metaphysical assumptions inherent in the spirit of current IP legislation. It is argued that the modern conception of intellectual property as a kind of natural right, stems from the mistaken internalist or Augustinian picture of language that Wittgenstein attempted to diffuse. This (...) view becomes persuasive once it is shown that a complete understanding of the argument against private language must include Wittgenstein's investigation of the role of the will in the creative process. It is argued that original thought is not born by decree of the will, but engendered by a public context of meaning and value. What marks a person as a genius is, therefore, according to Wittgenstein, not some sovereign capacity of conceptual world-making, but merely a propitious dose of intellectual courage. (shrink)

Two of the most important ideas in the philosophy of law are the “Coase Theorem” and the “Prisoner’s Dilemma.” In this paper, the authors explore the relation between these two influential models through a creative thought-experiment. Specifically, the paper presents a pure Coasean version of the Prisoner’s Dilemma, one in which property rights are well-defined and transactions costs are zero (i.e. the prisoners are allowed to openly communicate and bargain with each other), in order to test the truth value of (...) the Coase Theorem. In addition, the paper explores what effect (a) uncertainty, (b) exponential discounting, (c) and elasticity have on the behavior of the prisoners in the Coasean version of the dilemma. Lastly, the paper considers the role of the prosecutor (and third-parties generally) in the Prisoner’s Dilemma and closes with some parting thoughts about the complexity of the dilemma. The authors then conclude by identifying the conditions under which the Prisoner’s Dilemma refutes the Coase Theorem. (shrink)

The author revisits the Blue Bus Problem, a famous thought-experiment in law involving probabilistic proof, and presents simple Bayesian solutions to different versions of the blue bus problem. In addition, the author expresses his solutions in standard and visual formats, i.e. in terms of probabilities and natural frequencies.

When Neil MacCormick, in the wake of the launch of the Maastricht Treaty on European Union, went “beyond the Sovereign State” in 1993, he fundamentally challenged the heretofore dominant paradigm of legal ordering in the European context which considered law to be singular, unified and confined within sovereign nation states. The original insight of MacCormick might, however, be pushed even further, as a historical re-construction reveals that legal pluralism is not only a trademark of recent historical times, marked by the (...) European integration process, but has also been at the very core of legal evolution in Europe throughout its modern history. The introduction of modern law in Europe can be traced back to the eleventh and twelfth century Investiture Conflict between the Church and the Emperor, a conflict which solidified the existence of two parallel universes of law, one Church-based and one empire-based, both of which rested, in principle, upon mutually exclusive claims to superiority, but which nonetheless became institutionally stabilized in a manner which allowed for mutual co-existence between them. The existence of such parallel universes of law has throughout, also in the “Westphalian world”, been a central characteristic of European law. It is suggested that the current constellation between the EU and its Member States should be viewed in this light. (shrink)

This thesis seeks to engage with and give answers to the fundamental question of rights interpretation confronting the British judiciary under the Human Rights Act 1998. As a premise, it recognises that the textual openness and consequential semantic uncertainty of the requirements of the Convention rights necessitates their interpretation. In determining the approach the courts should apply, this thesis takes as its structural foundation an analysis of the current approach of the domestic courts and the European Court of Human Rights (...) to the five pivotal questions of interpretation: who has rights, the substantive nature of those rights, how rights are to be weighted and balanced in cases of conflict, whether they are rights under a will or an interest conception, and against whom the rights are held? From this basis, the thesis builds upon the existing knowledge to apply Alan Gewirth’s Principle of Generic Consistency to the current judicial position, to critique its compatibility with this principle’s requirements. Through analysis of core settled characteristics of the Convention rights, the substance of the courts’ judgements and the ECtHR’s jurisprudence, and supported by both dialectically necessary and contingent arguments, it is ultimately argued that it is, theoretically and practically, both necessary and possible for the domestic courts to be guided by the PGC in their interpretive approach. Finally, an improved understanding of the principle of human dignity will be advocated as a means through which the domestic courts can apply the PGC’s requirements. By this means, this thesis ultimately proposes an interpretive approach to the Convention rights which gives compelling guidance in answering the fundamental questions of rights interpretation and, by encouraging direct principled engagement with these questions, increases the public understanding of the fundamental nature of rights and the acceptability of the HRA and judgements under it. (shrink)

This brief essay would want to point out the soft-law as an useful device to study in deep the legal phenomenon by problematizing it into our current socio-economical reality. Then, it aims to consider this expression of special legal normativity in order to revaluate the role of interpreters in qualifying sources of Law.

This article takes as its subject matter the juridico-political space of the prisoner of war (POW) camp. It sets out to determine the nature of this space by looking at the experience of war captivity by Jewish members of the Western forces in World War II, focusing on the experience of Emmanuel Levinas, who spent 5 years in German war captivity. On the basis of a historical analysis of the conditions in which Levinas spent his time in captivity, it argues (...) that the POW camp was a space of indifference that was determined by the legal exclusion of prisoners from both war and persecution. Held behind the stage of world events, prisoners were neither able to exercise their legal agency nor released from law into a realm of extra-legal violence. Through a close reading of Levinas’s early concept of the ‘there is’ [il y a], the article seeks to establish the impact on prisoners of prolonged confinement in such a space. It sets out how prisoners’ subjectivity dissolved in the absence of meaningful relations with others and identifies the POW camp as a space in which existence was reduced to indeterminate, impersonal being. (shrink)

What does it mean to act politically? This paper contributes an answer to this question by looking at the role that necessity plays in the political theory of Carl Schmitt. It argues that necessity, whether in the form of existential danger or absolute values, does not affect the sovereign decision, which must be free from normative determinations if it is to be a decision in Schmitt’s sense at all. The paper then provides a reading of Schmitt in line with Weber’s (...) ethics of responsibility, according to which the political actor decides not arbitrarily and irresponsibly, but actively assumes responsibility for the decisions he takes. (shrink)

Carl Schmitt's notion of nomos is commonly regarded as the international equivalent to the national sovereign's decision on the exception. But can concrete spatial order alone turn a constellation of forces into an international order? This article looks at Schmitt's work The Nomos of the Earth and proposes that it is the process of bracketing war called Hegung which takes the place of the sovereign in the international order Schmitt describes. Beginning from an analysis of nomos, the ordering function of (...) the presocratic concept moira is explored. It is argued that the process of Hegung, like moira, does not just achieve the containment of war, but constitutes the condition of possibility for plural order. (shrink)

This two-part, semi-gothic literary essay seeks a provisional definition of “benevolent capital” and a working description of types of artistic and scholarly work that have no value for Capital as such. The paradox observed is that such works may actually appeal to a certain aspect of Capital, insofar as present-day capitalism has within it forms of pre-modern political economy that may actually save Capital from its mad rush toward self-immolation.

This two-part, semi-gothic literary essay seeks a provisional definition of “benevolent capital” and a working description of types of artistic and scholarly work that have no value for Capital as such. The paradox observed is that such works may actually appeal to a certain aspect of Capital, insofar as present-day capitalism has within it forms of pre-modern political economy that may actually save Capital from its mad rush toward self-immolation.

Current challenges in medical practice, research, and administration demand physicians who are familiar with bioethics, health law, and health economics. Curriculum directors at American Association of Medical Colleges-affiliated medical schools were sent confidential surveys requesting the number of required hours of the above subjects and the years in which they were taught, as well as instructor names. The number of relevant publications since 1990 for each named instructor was assessed by a PubMed search.In sum, teaching in all three subjects combined (...) comprises less than two percent of the total hours in the American medical curriculum, and most instructors have not recently published articles in the fields they teach. This suggests that medical schools should reevaluate their curricula and instructors in bioethics, health law, and health economics. (shrink)

Philanthropy is everywhere. In 2013, in the United States alone, some $330 billion was recorded in giving, from large donations by the wealthy all the way down to informal giving circles. We tend to think of philanthropy as unequivocally good, but as the contributors to this book show, philanthropy is also an exercise of power. And like all forms of power, especially in a democratic society, it deserves scrutiny. Yet it rarely has been given serious attention. This book fills that (...) gap, bringing together expert philosophers, sociologists, political scientists, historians, and legal scholars to ask fundamental and pressing questions about philanthropy’s role in democratic societies. (shrink)

Since the late twentieth-century shift from the liberal university to the neoliberal university (the latter distinguished by the managerial class installed to leverage and extract value from academic research, plus polish the brand of the franchise), the publications’ ecosystem for academics, foremost in the Arts and Humanities, has been altered beyond recognition. Notably, it has exponentially expanded while at the same time suffering maximum constriction in the form of what legal scholars have called the “great copyright robbery”.

The paper aims to explore the contour of internet regulation with a thread of Brand X , which navigates through constitutionalism, separation of powers, as well as business and economic or political implications enshrined behind it. An exemplary insight with the Korean case was adverted that could lead to the comparative perspective of internet law and regulation for the future research. The research was conducted by employing qualitative investigation, mainly relying on textual analysis and documentary examination. The outcome of research (...) generally corroborates with our assumption that i) the increasing administrative state will variegate the traditional interplay of three branches, ii) expert bureaucracy stands at the core of policy shaping because of the necessary new concept of market and policy specialization, iii) the role of US government is not only pioneering, but also influential as a regulator, but comparatively with differing national jurisdictions if not a negligible implications on the international competition or even conflict. (shrink)

Ethics and responsibility would be a vexing or awesome topic that the contemporary citizen more likely wishes to avoid giving his or her views or opinions. That is perhaps because the society transforms rapidly and turns to become more diverse from the past decades. These concepts, on the other, comes not in the ancient or middle era classics, but from the near modern context in 18th England and French land. In dealing with the nature and relationship between the two concepts, (...) another notion of morality also comes into a comparative context. Morality, if often interchangeably used with the ethics, could be seen in some differences that ethics is a dimension one step removed from action. So we used to preach our dependents or subjects to conform their conduct to the kind of moral demand, "Exert your best to the interest of nations or society," "Practice a love and humiliation with brothers, sisters and neighbors," "Never be drunken while driving," "Do not commit an adultery or do not steal other’s property," and the likes. Law, then, would be a minimal of morality which prescribes a prohibited conduct and corresponding criminal sanctions proportionally with the gravity of culpability or social harms. Those concepts might share a common element in a great extent, but could be made distinguished in some of subtleties. (shrink)

As the word demos denotes, the democracy is generally considered as the rule or governance based on the general base of people in which monarchy or oligarchy form is excluded. We have a classical view about the four forms of government, which was proposed by Platonic concepts. Most idealistic form of government, in his prongs, could be found in Crete and Sparta, which was nevertheless not a democratic form. His accolade of these two nations, which, of course, would be a (...) kind of God’s product so to be most benevolent, humanly appealing, efficient and philanthropic. This means the democratic form of government is not best, but most favored alternative to police the society. The political terms, henceforth, would supervene the concept of democracy, and, for many reasons and on historical wake, democracy is generally accepted as practically most desired form of rule or governance. While some modern scholar revealed, a mini-republic can be a niche to contest the merits of various forms of governance. We can gauge a scope of elements we value through the governance process, human intrinsic, efficiency, equality, welfare and even individual happiness. As the time is a small city community, called a polis, in Plato and Socrates, a mini republic can be well envisaged in understanding the Platonic Republic. In that case, most benevolent ruler may be superior to any other form of governance, which can be a philosopher’s Republic. The ideal ruler would behave and govern with mighty intelligence and concomitant power to rule. It is idealistic to produce maximum happiness of polis constituents. The worst contras, however, a tyranny, comes that the constituents legitimately expel their ruler by a collective vote. This extreme contrast and the way of process also could be ascertained in the ancient form of oriental monarchy. The dynasty could be legitimately revoked to restore new heritage of emperor or Kings where a kind of rebellion, as elucidated by Locke, is well justified in the name of heaven’s command. Given the size of polis or governed territory, there are separate ways to redress the evils of tyranny while the Oriental culture has not recognized the kind of formal vote methods. Any means to expel the tyranny could be embraced to rebel. For our purpose of grasp through this working paper, I would theorize on the traditional elements of public policy and democratic form of government. (shrink)