"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

This book examines the legal principle of judicial independence in comparative perspective with the goal of advancing a better understanding of the idea of an independent judiciary more generally. From an initial survey of judicial systems in different countries, it is clear that the understanding and practice of judicial independence take a variety of forms. Scholarly literature likewise provides a range of views on what judicial independence means, with scholars often advocating a preferred conception of a model court for (...) achieving 'true judicial independence' as part of a rule of law system. This book seeks to reorient the prevailing approach to the study of judicial independence by better understanding how judicial independence operates within domestic legal systems in its institutional and legal dimensions. It asks how and why different conceptualisations of judicial independence emerge over time by comparing detailed case studies of courts in two legally pluralistic states, which share inheritances of British rule and the common law. By tracing the development of judicial independence in the legal systems of Malaysia and Pakistan from the time of independence to the present, the book offers an insightful comparison of how judicial independence took shape and developed in these countries over time. From this comparison, it suggests a number of contextual factors that can be seen to play a role in the evolution of judicial independence. The study draws upon the significant divergence observed in the case studies to propose a refined understanding of the idea of an independent judiciary, termed the 'pragmatic and context-sensitive theory', which may be seen in contradistinction to a universal approach. While judicial independence responds to the core need of judges to be perceived as an impartial third party by constructing formal and informal constraints on the judge and relationships between judges and others, its meaning in a legal system is inevitably shaped by the judicial role along with other features at the domestic level. The book concludes that the adaptive and pragmatic qualities of judicial independence supply it with relevance and legitimacy within a domestic legal system. (shrink)

In 1894, the Institut Colonial International was founded in Brussels, with the aim to engage and promote transnational exchanges between jurists, scholars, politicians, colonial administrators and experts, comparing different colonial experiences. As the Institut Colonial International’s founders had hoped, its publications promoted legal debates, discussions and the prospects of specific legislation, decrees or norms to be adapted and used in entirely different colonial systems. This paper will show that the Institut Colonial International encouraged the exchange of ideas (...) about the various colonial experiences in order to create common and universal principles. International law and domestic law, or national law concerning land register systems and land law were part of the colonial discourse as it endeavoured to create and adopt universal principles of law, trying to establish a platform of common dialogue, with common premises, concerning different colonies, different colonial experiences and ultimately different cultural, social and political contexts. (shrink)

Comparative political theory is at best an embryonic and marginalized endeavor. As practiced in most Western universities, the study of political theory generally involves a rehearsal of the canon of Western political thought from Plato to Marx. Only rarely are practitioners of political thought willing (and professionally encouraged) to transgress the canon and thereby the cultural boundaries of North America and Europe in the direction of genuine comparative investigation. Border Crossings presents an effort to remedy this situation, fully (...) launching a new era in political theory. Thirteen scholars from around the world examine the various political traditions of West, South, and East Asia and engage in a reflective cross-cultural discussion that belies the assumptions of an Asian "essence" and of an unbridgeable gulf between West and non-West. The denial of essential differences does not, however, amount to an endorsement of essential sameness. As viewed and as practiced by contributors to this ground-breaking volume, comparative political theorizing must steer a course between uniformity and radical separation--this is the path of "border crossings.". (shrink)

Democracy has been a flawed hegemony since the fall of communism. Its flexibility, its commitment to equality of representation, and its recognition of the legitimacy of opposition politics are all positive features for political institutions. But democracy has many deficiencies: it is all too easily held hostage by powerful interests; it often fails to advance social justice; and it does not cope well with a number of features of the political landscape, such as political identities, boundary disputes, and environmental crises. (...) Although democracy is valuable it fits uneasily with other political values and is in many respects less than equal to the demands it confronts. In this volume prominent political theorists and social scientists present original discussions of such central issues. Democracy's Values deals with the nature and value of democracy, particularly the tensions between it and such goods as justice, equality, efficiency, and freedom. (shrink)

Linguistic choices have different attributions beyond their literal meaning according to their contexts. This paper looks at the variations in the discourses seen in the written colonial agreements and treaties during the Malabar conquest. The study employs the archived documents of various discourses during this period as a part of power shifting from the local elites to the colonial power. It explores how power is intertwined in the linguistic choices of different communication files. The study employs a hybrid methodology of (...) forensic linguistics and legal history. The analysis progresses in two phases: i) the linguistic attributions of power in the communications between the local elites and the colonial authorities and ii) the comparative analysis of variations in the linguistic choices by the colonial authorities correlating their varying power positions over the given period. It explores the dynamics of the linguistic choices of the local elites initially as a powerful entity in communication with the colonial authorities. The analysis shows a variation in the linguistic choices of the colonial authorities that suggests how they are used to reflect the power positions on a scale from weaker to powerful along the timeline. The paper argues that the linguistic choices of the colonial communication files aided them in projecting their power to society and assisted as one of the tools for reiterating their power position in various contexts. (shrink)

Despite the importance of the co-evolution approach in various branches of research, such as strategy, organisation theory, complexity, population ecology, technology and innovation (Lewin et al., 1999; March, 1991), co-evolution has been relatively neglected in international business and ethics research (Madhok and Phene, 2001). The purpose of this article is to show how co-evolution theory provides a theoretical framework within which some issues of ethics research are addressed. Our analysis is in the context of the contrasts between business systems (...) (North, 1990), and in particular the distinction between informal systems and those systems where institutions are formalised in law. This complements the growing research on comparative corporate governance and capitalisms (Chandler and Hikino, 1990; Choi et al., 1999; Whitley, 1994). The synthesis of co-evolution and analysis of divergent institutional environments in ethics research can also complement the globalisation and MNE approaches to international business research. (shrink)

The purpose of the symposium is to address global and domestic insolvency law issues.

In Mengzi 6A4, Gaozi states that “yì 義 (propriety, rightness) is external, not internal.” In 6A5, Meng Jizi says of yì that “...it is on the external, not from the internal.” Their defenses are met with Mengzi’s resistance. What does he perceive and resist in these statements? Focusing on several key passages, I compare six promising interpretations. 6A4 and a relevant part of 2A2 can be rendered comparably sensible under each of the six. However, what Gaozi says in 6A1 clearly (...) is evidence to Mengzi that, of the six views, Gaozi holds three although he does not convey them in his statement. As for Meng Jiz’s defense of his statement, Meng Jizi cites a special occasion where one is required to act one way even though one would feel a different way. Mengzi’s response has been traditionally interpreted as boiling down to a dissenting opinion about empirical psychology, that the agent on that special occasion would in fact feel the same way as they ought to act. But on a more charitable reading, the point Mengzi makes is conceptual: Though the satisfaction of yì may not require that the feeling and the act align perfectly in this case, cases where the alignment obtains are conceptually prior. This not only refutes Meng Jizi’s statement but also enables a more elegant explanation of why the Mengzi rightly has no record of Mengzi affirming that yì is internal. I conclude that 6A5 itself uniquely favors one interpretation, as far as Meng Jizi’s position is concerned: How one feels is irrelevant to whether one satisfies yì. (shrink)

This paper investigates the phenomenon of judicial law-making in the practice of the highest courts dealing with criminal matters in Germany and Poland on the basis of 200 of their decisions. While German jurisprudence principally acknowledges the right of the judiciary to create new law, the Polish legal theory generally rejects this notion. Still, research indicates that, in practice, the differences in the frequency and intensity with which these courts pass creative rulings are not as substantial as the discrepancy in (...) the theoretical stance would suggest. Owing to circumstances, both the German Federal Court of Justice and the Polish Supreme Court are willing to create new legal norms, but the dimensions of judicial law-making presented by these bodies deviate from each other. In the research sample, the German Federal Court of Justice was more inclined to introduce legal institutions that were foreign to the statutes and rule against the will of the lawmaker explicitly stated in the preparatory works. On the other hand, the Polish Supreme Court used logical conclusions more often, but did not also refrain from passing rulings against the clear wording of the statutory law, and was just as willing to go beyond the wording of the law as was the German Federal Court of Justice. Notably, only the German apex court is willing to openly admit that it creates new legal norms, whereas the Polish Supreme Court does not concede in the reasons that its decisions are of a law-making nature, especially when it applies so-called “interpretation in the wider sense”—which is, in essence, a “concealed” way of creating new legal norms. (shrink)

This volume is issued by one of Max Planck Society’s 83 research institutes, the Max Planck Institute for Comparative Public Law and International Law, a strong reference on i...

While the role of comparative law in the courts was previously only an exception, foreign sources are now increasingly becoming a source of law in regular use in supreme and constitutional courts. There is considerable variation between the practices of courts and the role of comparative law, and methods remain controversial. In the US, the issue has been one of intense public debate and it is still one of the major dividing issues in the discussion about the role (...) of the courts. Contributing to the existing discussion of the use of comparative law in the courts, this book provides an inclusive, coherent, and practical analysis of the relevant law and jurisprudence in comparative law in the courts. It examines the consequences for court procedures and the form of judgments, as well as how foreign sources are drawn upon in private international law, European law, administrative law, and constitutional law as well as before general courts. The book also includes case studies of comparative law used in particular spheres of the law, such as tort law and consumer law. Written by practising judges and lawyers as well as leading academics, this book serves as a central reference point concerning the role of comparative law before the courts. (shrink)

In the space of two decades, social rights have emerged from the shadows and margins of human rights jurisprudence. The authors in this book provide a critical analysis of almost two thousand judgments and decisions from twenty-nine national and international jurisdictions. The breadth of the decisions is vast, from the resettlement of evictees to the regulation of private medical plans to the development of state programs to address poverty and illiteracy. The jurisprudence not only implicates our understanding of economic, (...) social, and cultural rights, but also challenges the philosophical debates that question whether these rights can and should be justiciable. (shrink)

This research note announces and briefly describes a new five-year project to prepare a census bibliography of the first ten editions of Grotus’s De iure belli ac pacis. The resulting book will be published in 2025, the 400th anniversary of ibp’s first appearance. The project is sponsored by the Deutsche Forschungsgemeinschaft and hosted by the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence (...) and Criminal Law, Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues. (shrink)

The nature and relationships between Law and State -- Law making, its sources and the role of State -- Law, legal systems, and legal families : synchronizing in the Globalized World -- Fundamental legal concepts : the distinctive features of law -- Constitutional law : the Supreme Law of the land -- Criminal law : State's authority in defining and penalizing crimes -- Torts : making people responsible & civilized -- Civil law and proceedings : public and private law -- (...) Law for doing business : the role of state and market -- Justice : the goal of political society -- The Rule of Law : foundation of modern political society -- Human rights and the state : grounds for personal and institutional relationships -- International trade : the centerpiece of growth and international relations -- Law, Globalization and international relations. (shrink)

This unique publication offers a complete history of Roman law, from its early beginnings through to its resurgence in Europe where it was widely applied until the eighteenth century. Besides a detailed overview of the sources of Roman law, the book also includes sections on private and criminal law and procedure, with special attention given to those aspects of Roman law that have particular importance to today's lawyer. The last three chapters of the book offer an overview of the history (...) of Roman law from the early Middle Ages to modern times and illustrate the way in which Roman law furnished the basis of contemporary civil law systems. In this part, special attention is given to the factors that warranted the revival and subsequent reception of Roman law as the 'common law' of Continental Europe. Combining the perspectives of legal history with those of social and political history, the book can be profitably read by students and scholars, as well as by general readers with an interest in ancient and early European legal history. The civil law tradition is the oldest legal tradition in the world today, embracing many legal systems currently in force in Continental Europe, Latin America and other parts of the world. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. Roman law is both in point of time and range of influence the first catalyst in the evolution of the civil law tradition. (shrink)

The goal of this paper is to explicate the theological and epistemological elements of John Locke's moral philosophy as presented in the ‘Essay Concerning Human Understanding’ and ‘The Reasonableness of Christianity’. Many detractors hold that Locke's moral philosophy is internally inconsistent due to his seeming commitment to both the intellectualist position that divinely instituted morality admits of pure rational demonstration and the competing voluntarist claim that we must rely for our moral knowledge upon divine revelation. In this paper I argue (...) that Locke is guilty of no such contradiction. In doing so, I attempt to accommodate Locke's position in the ‘Essay’ that moral principles are demonstrable a priori with his views on the sanctity of Christian revelation. I then consider Locke's conception of moral ideas as a species of mixed modes, or arbitrarily constructed complex ideas, and attempt to navigate the mechanism whereby human understanding can recognize these ideas as conforming to, or straying from, divinely appointed natural law. I conclude that despite Locke's failure to actually provide a full-fledged moral theory, he lays a rationally coherent groundwork for the fulfilment of such a project that accommodates a-priori rational reflection and divine revelation as complementary paths to moral understanding. (shrink)

By providing an interdisciplinary reading of advance directives regulation in international, European and domestic law, this book offers new insights into the most controversial legal issues surrounding the debate over dignity and autonomy ...

After five years of consultation, the Institute of Biology formally organized in early 1950. Its goals were twofold: first, to watch relevant legislation and provide the voice of British biologists on international issues; second, to serve the labor and community needs of British biology in both academic and industrial sectors. Years later the institute expanded to incorporate other roles: consultant accreditation, biology education, degree regulation, and history of biology.This anthology celebrates the institute's fiftieth anniversary. (...) Short papers written by members of the institute's history of biology network focus on particular decades. These are interspersed with brief recollections from select participants in institute activities. Appendixes list institute officers, symposia titles, publications, and details on the organization and events of institute branches.These authors practice history as chronology and fact‐collecting. They ask limited questions of past events. No effort is made to connect institute activities to larger issues. No effort is made to understand why these events took place, what enabled them, or how their character came to be defined. No effort is made to compare what happened here with what happened along similar lines elsewhere in British science, British labor, or the life sciences abroad. No effort is made to justify claims of impact and influence. This book is simply a celebration of activity written for insiders who are celebrating their own achievements. Although they can be proud of their accomplishments, this book fails to offer much meaningful explanation.Edited by Brian J. Ford, this book has two values for analytical historians. First, some reminiscences offer interesting suggestions for future study, such as Sam Berry's tale about proposing a Royal Society of Biology. Second, the simple collecting of facts makes this book useful for reference, though an index would have been helpful. For more than this, historians must look elsewhere. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Convention for Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Biomedicine: Convention on Human Rights and BiomedicineCouncil of EuropePreambleThe Member States of the Council of Europe, the other States and the European Community signatories hereto,Bearing in mind the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;Bearing in mind the (...) Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;Bearing in mind the European Social Charter of 18 October 1961;Bearing in mind the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 16 December 1966;Bearing in mind the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 28 January 1981;Bearing also in mind the Convention on the Rights of the Child of 20 November 1989;Considering that the aim of the Council of Europe is the achievement of a greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;Conscious of the accelerating developments in biology and medicine;Convinced of the need to respect the human being both as an individual and as a member of the human species and recognising the importance of ensuring the dignity of the human being; [End Page 277]Conscious that the misuse of biology and medicine may lead to acts endangering human dignity;Affirming that progress in biology and medicine should be used for the benefit of present and future generations;Stressing the need for international co-operation so that all humanity may enjoy the benefits of biology and medicine;Recognising the importance of promoting a public debate on the questions posed by the application of biology and medicine and the responses to be given thereto;Wishing to remind all members of society of their rights and responsibilities;Taking account of the work of the Parliamentary Assembly in this field, including Recommendation 1160 (1991) on the preparation of a Convention on bioethics;Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine;Have agreed as follows:Chapter IGeneral provisionsArticle 1. (Purpose and object)Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.Article 2. (Primacy of the human being)The interests and welfare of the human being shall prevail over the sole interest of society or science.Article 3. (Equitable access to health care)Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. [End Page 278]Article 4. (Professional standards)Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.Chapter IIConsentArticle 5. (General rule)An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.The person concerned may freely withdraw consent at any time.Article 6. (Protection of persons not able to consent)1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or... (shrink)

For critical legal scholars, the ongoing far-right assault upon the liberal status quo poses a distinct dilemma. On the one hand, the desire to condemn the far-right is overwhelming. On the other hand, such condemnations are susceptible to being appropriated as a validation of the very liberalism that critical theorists have long questioned. In seeking to transcend this dilemma, my focus is on the discourse of ‘white genocide’ — a commonplace belief amongst the far-right/white nationalists that ‘whites’, as a discrete (...) group, are facing demographic destruction as a result of deliberate policy choices. Such a belief has motivated acts of extreme violence. While libel to dismissal by experts on mainstream understandings of genocide, namely international criminal lawyers, I argue that this ‘white genocide’ discourse deserves careful scrutiny as a jurisprudential and socio-legal phenomenon that reveals key weaknesses in present modalities of liberal justification. Drawing upon an array of recent critical theories, I show how a liberalism unable to face its own decline enables the very far-right assertions it purports to oppose. Thus, given liberalism’s failure to act as a neutral arbiter, an alternative approach for those opposing the far-right is to develop a vision of politics and society that confront believers in ‘white genocide’ on a more substantive level. This, I argue, forces the far-right’s opponents to disavow liberal scepticism towards utopian transformation as well as the juridical understandings and institutions that allow this scepticism to durably persist. (shrink)

Examines interrelated topics in Medieval and Renaissance Latin literature: the status of women as writers, the status of women as rhetorical figures, and the status of women in society from the fifth to the early seventeenth century.

Judicial Deliberations compares how and why the European Court of Justice, the French Cour de cassation and the US Supreme Court offer different approaches for generating judicial accountability and control, judicial debate and deliberation, and ultimately judicial legitimacy. Examining the judicial argumentation of the United States Supreme Court and of the French Cour de cassation, the book first reorders the traditional comparative understanding of the difference between French civil law and American common law judicial decision-making. It then uses this (...) analysis to offer the first detailed comparative examination of the interpretive practice of the European Court of Justice. Lasser demonstrates that the French judicial system rests on a particularly unified institutional and ideological framework founded on explicitly republican notions of meritocracy and managerial expertise. Law-making per se may be limited to the legislature; but significant judicial normative administration is entrusted to State selected, trained, and sanctioned elites who are policed internally through hierarchical institutional structures. The American judicial system, by contrast, deploys a more participatory and democratic approach that reflects a more populist vision. Shunning the unifying, controlling, and hierarchical French structures, the American judicial system instead generates its legitimacy primarily by argumentative means. American judges engage in extensive debates that subject them to public scrutiny and control. The ECJ hovers delicately between the institutional/argumentative and republican/democratic extremes. On the one hand, the ECJ reproduces the hierarchical French discursive structure on which it was originally patterned. On the other, it transposes this structure into a transnational context of fractured political and legal assumptions. This drives the ECJ towards generating legitimacy by adopting a somewhat more transparent argumentative approach. (shrink)

The Yearbook of Private International Law series, an annual publication now published by Sellier. European Law Publishers in cooperation with the Swiss Institute of Comparative Law, provides analysis and information on private international law developments world-wide. This sixth volume looks rather "Euro-centric", due to the impressive and continuous rhythm at which the creation of a European system of PIL is progressing at the European Community level. Contributions include discussion of the proposal for a Rome II regulation (...) on conflict of laws in torts, as well as an analysis of the Avello decision, which could create a new framework for the development of PIL in Europe. Additional articles focus on the national conflict systems of some European states. An important comparative study discusses the treatment of foreign tax laws and judgments in four major European countriesâ??United Kingdom, Germany, France, and Italy. The actual and controversial issue of registered partnership is discussed from the perspective of Spanish law. Additionally, an English translation of the latest national PIL codificationâ??the recent Belgian Codeâ??is included. (shrink)

This book focuses on sovereignty referendums, which have been used throughout different historical periods of democratization, decolonization, devolution, secession and state creation. Referendums on questions of sovereignty and self-determination have been a significant element of the international political and legal landscape since the French Revolution, and have been a central element in the resolution of territorial issues from the referendum in Avignon in 1791 until today. More recent examples include Quebec, East Timor, New Caledonia, Puerto Rico and South Sudan. (...) The global aim of this book is to achieve a better empirical and legal understanding of sovereignty referendums and related problems in international and national law and politics. Accordingly, it presents readers a comprehensive study of sovereignty referendums from the perspectives of both international and constitutional law. (shrink)

"Kevin Hart and Geoffrey H. Hartman bring together essays by prominent scholars from a range of disciplines to focus on Blanchot's diverse concerns: literature, art, community, politics, ethics, spirituality, and the Holocaust."--Jacket.

Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opposition of these two views especially in the light of contract law. There is one crucial epistemic difference between the point of view of the translator and the lawyer when it comes to the interpretation of legal texts. In the translator’s view legal text is traditionally conceived as static as to its nature; something that already exists in the form of text. Traditionally, the translator (...) is interested in the text itself as it was written down in a document, i.e. the translator needs to go back to the frozen moment when a legal document was constructed and finalised. The lawyer, in contrast, is very much interested not only in the text of the legal document but also in the contextual surroundings of the text. In fact, for legal interpretation, sometimes the key-elements for the interpretation come from outside of the text itself. This paper concludes that legal translation is in many cases closer to transcreation than it is to traditionally understood translation. (shrink)

ABSTRACT The individual-community relationship has always been one of the most fundamental topics of social sciences. In sociology, this is known as the micro-macro relationship while in economics it refers to the processes, through which, individual actions lead to macroeconomic phenomena. Based on philosophical discourse and systems theory, many sociologists even use the term "emergence" in their understanding of micro-macro relationship, which refers to collective phenomena that are created by the cooperation of individuals, but cannot be reduced to individual actions. (...) "Emergence" theories attempt to explain the nature of society as a complex system by examining how individuals and their relationships lead to the creation of integrated and macro-social phenomena such as markets, educational systems, cultural beliefs, and shared social practices. As a prelude to activity, every researcher has to answer the question from the methodological point of view, how is it possible to study the behavior of social groups and how can we gain knowledge about the laws related to social groups? Anyone who deals with humanities and social sciences or any reality and phenomenon that affects human beings, inevitably deals with the reality that is emerging. In fact, emergence occurs when one level of reality emerges radically from another level. Examples of emergent levels of reality include how the mind emerges from the body; or the way society emerges from human beings. Therefore, when there is an emerging factor, different scientific disciplines should be used, because it is inevitable to talk about social affairs, psychology and neurobiology, as well as physical and even chemical. -/- INTRODUCTION Since its beginning in the 19th century, sociology has faced the fundamental question of what a social phenomena stands for? At a glance, sociologists deal with the study of social groups, collective behavior, institutions, social structures, social networks, and social dynamics, and ultimately all such phenomena are composed of individuals. Therefore, social phenomena seem to have no independent ontological status, and in this case, sociology is ultimately about reducible individuals. Different approaches about the micro-macro relationship, using the concept of "emergence", argue that although collective phenomena are created by individuals, they cannot be reduced to individual action. The term "emergence" is used to distinguish "emergent results" from " Procedural results". Results are called Procedural that can only be calculated by adding or subtracting the causes that act together. On the contrary, they are emergent outcomes that are qualitatively novel compared to the causes from which they originate. An example of such emergent results is mental characteristics that emerge from neural processes, but are not considered among the characteristics of neural processes of components - which are their origin. Philosophical debates about emergentism and reductionism focus on the mind-brain relationship, but as many philosophers have noted, they can be generalized to apply to any hierarchical set of features. The cognitive revolution reactivated a 19th century controversy between theorists of Identity and dualism. The theorists of Identity believe in reductionist materialism and elimination of metaphysics, according to which the mind is nothing more than the biological, while the dualists believe that the mind and the brain are distinct from each other. Emergence has been considered as a third way between the theories of Identity and dualism. -/- METHODOLOGY Interdisciplinarity Is fundamentally indicated by the dominance of open systems as well as social and emerging systems at different levels. Therefore, as long as we are facing a new emergentism, there will necessarily be different fields and an interdisciplinary method. The commonality of social sciences and cognitive sciences on the issue of emergence provides the possibility of interaction and exchange of concepts between these two for deeper research. Therefore, in this research, apart from the concepts of Subvenience and downward causation, we have used multiple realization and wildly disjunctive, which are used to explain the emerging concept in cognitive sciences, including neurobiology, psychology, and philosophy. For analytical and interdisciplinary approaches, after examining the concepts of subvenience, and wildly disjunctive, Individualistic and collectivist emergentism have been reviewed. And then their adequacy is criticized and evaluated in meeting strong emergence conditions. -/- FINDINGS Philosophers of the mind have been able to define the conditions of irreducibility and downward causation, which are essential for strong emergence, by using the principle of subvenience with the help of multiple realization and wildly disjunctive principles. Therefore, by definition, emergentist individualism suffers from the problem of how to explain downward causality and irreducibility, and emergentist collectivism faces the challenge of reification. The analysis of the challenges facing the two methodological approaches of individualism and collectivism leads us to three unresolved issues about the emerging phenomenon, which are realism, downward causality, and mechanism. Despite the differences in the stances of these two approaches regarding the aforementioned triple problems, individualists and collectivists both agree that some social characteristics are reducible; and some others are irreducible due to their complexity, the determination of which, depends on the case study of the mechanism of emergence of each social characteristic. -/- CONCLUSION An emergence that is consistent with reductionism is called a weak emergence. And strong emergence includes the principle of irreducibility and downward causality. According to strong emergence, the characteristics of social phenomena have downward causal power, which cannot be reduced to the causal forces. The principle of subvenience, together with multiple realization and wildly disjunctive, can provide the conditions of irreducibility and downward causality, which are essential conditions of strong emergence. Based on the philosophical analysis of two methodological approaches, individualist and collectivist, it can be concluded that emergentist individualism suffers from the problem of how to explain downward causality and irreducibility, and reification collectivism faces the challenge of reification. The analysis of the problems faced by these two approaches leads us to three unresolved issues, which are realism, downward causality, and mechanism. individualist emergentists acknowledge the existence of emergent social characteristics, but despite this, they believe that these characteristics are not real but merely analytical constructs that require explanation based on individuals and their mutual actions. But collectivists argue that emergentism yields a categorical ontology and supports social realism. They accept the dependence of social characteristics on individuals, but claim that social entities and structures are ontologically independent. Individualists and collectivists both agree that some social characteristics are reducible; and others are irreducible due to their complexity; and the only way to recognize this is to engage in empirical studies of the mechanisms and temporal processes of "emergence" that create social characteristics. -/- NOVELTY The newness of this compact article is as follows: a) Presenting an interdisciplinary approach using the analysis of philosophy of cognitive sciences, including the philosophy of mind, neurobiology and psychology to formulate the issue of social emergence; b) Criticizing individualist and collectivist methodological approaches to the issue of social emergence and explaining the sufficiency and shortcomings of both in providing weak and strong emerging conditions; c) Explaining and categorizing the challenges facing methodological approaches in explaining the phenomenon of social emergence, in three categories: realism, downward causality, and mechanism. BIBLIOGRAPHY Beckermann, A., Flohr, H., & Kim, J. (eds.) (1992). Emergence or reduction? Essays on the prospects of nonreductive physicalism. Berlin: Walter de Gruyter. Bhaskar, R. (1979). The possibility of Naturalism. New York: Routledge. Bhaskar, R., Danermark, B. & Price, L. (2018). Interdisciplinarity and wellbeing: A critical realist general theory of interdisciplinarity. London and New York: Routledge. Blau, P.M. (1981). Introduction: diverse views of social structure and their common denominator. In Blau, P.M. & Merton, R.K. (eds.), Continuity in Structural Inquiry (pp. 1–23). Beverly Hills: Sage. Blau, P.M. (1987). Microprocess and macrostructure. In K.S. Cook (ed.), Social Exchange Theory (pp. 83–100). Newbury Park, CA: Sage. Brooks, R.A., & Maes, P. (eds). (1994). Artificial life IV; proceedings of the Fourth International Workshop on the Synthesis and Simulation of Living Systems. Cambridge, Mass: MIT Press. Clark, A. (1997). Being there: Putting brain, body, and world together again. Cambridge, Mass.: MIT Press. Coleman, J. S. (1987). Microfoundations and macrosocial behavior. In: J. C. Alexander, B. Giesen, R. Munch, & Neil J. Smelser (Eds.). The Micro-Macro Link (pp. 153–73). Berkeley: University of California. Coleman, J. S. (1990). Foundations of social theory. Cambridge, MA: Harvard University Press. Elster, J. (1985). Making sense of Marx. New York: Cambridge University Press. Fodor, J.A. (1974). Special sciences (Or: The disunity of science as a working hypothesis). Synthese, 28(2), 97–115. Fodor, J.A. (1989). Making mind matter more. Philosophical Topics, 17, 59-79. Giddens, A. (1984). The constitution of society: Outline of the theory of structuration. Berkeley: University of California Press. Hempel, C.G. (1965). Aspects of scientific explanation and other essays in the philosophy of science. New York: The Free Press. Horgan, T. (1993). From supervenience to superdupervenience: meeting the demands of a material world. Mind, 102, 555-586. Humphreys, P. (1997). How properties emerge”. Philosophy of Science, 64, 1-17. Kim, J. (1999). Making sense of emergence. Philosophical Studies, 95, 3–36. Kincaid, H. (1997). Individualism and the unity of science. New York: Rowman & Littlefield. Lewis, D.K. (1986). The plurality of worlds. Oxford: Oxford University Press. Nigel, G., & Conte, R. (eds.) (1995). Artificial societies; The computer simulation of social life. London: UCL Press. O’Connor, T. (1994). Emergent properties. American Philosophical Quarterly, 31, 91-104. Popper, K.R. (1968). Conjectures and refutations: The Growth of Scientific Knowledge. New York: Harper & Row. Sawyer, R. K. (2001). Emergence in sociology: contemporary philosophy of mind and some implications for sociological theory. American Journal of Sociology, 107, 551-585. Sawyer, R. K. (2004). The mechanisms of emergence. Philosophy of the Social Sciences, 34, 260–282. Sawyer, R. K. (2005). Social emergence: societies as complex systems. Cambridge: Cambridge University Press. Sawyer, R.K. (2003). Nonreductive individualism: Part 2, Social causation. Philosophy of the Social Sciences, 33, 203–224. Winch, P. (1993). The idea of a social science and its relation to philosophy‭ (SAMT, Trans.). Tehran, Iran: SAMT. (shrink)

This paper argues for the superiority of international law’s existing ban on unilateral secession over its reform to include either a primary or remedial right to secession. I begin by defending the claim that secession is an inherently institutional concept, and that therefore we ought to employ institutional moral reasoning to defend or criticize specific proposals regarding a right to secede. I then respond to the objection that at present we lack the empirical evidence necessary to sustain any specific (...) conclusion regarding an international legal right to secession. Specifically, I argue that we ought to adopt a precautionary approach, and that such an approach justifies giving no weight to promoting political self-determination per se when considering whether to reform international law governing secession. I conclude with several reasons to think that even a remedial right to unilateral secession will detract from, not enhance, the international legal order’s ability to promote peace and human rights. (shrink)

Preface The status of sovereignty as a highly ambiguous concept is well established. Pointing out or deploring, the ambiguity of the idea has itself become a recurring motif in the literature on sovereignty. As the legal theorist and international lawyer Alf Ross put it, “there is hardly any domain in which the obscurity and confusion is as great as here.” 1 The concept of sovereignty is often seen as a downright obstacle to fruitful conceptual analysis, carried over from its (...) proper setting in history to “plague and befog contemporary thought.” 2 . . . So contested is the concept that, rather than pursuing the contestation, many political theorists think we should give up so protean a notion. Granting that the debate on the relevance of sovereignty frustratingly oscillates between claims that it will either continue to exist or that it is about to disappear, forgetting it altogether, and thereby escaping this seemingly endless argument, can easily appear as the most urgent task for political theory . The following argument makes a case that the “urgent task” is not the abandonment of the concept of sovereignty, but an understanding of its essential philosophical nature as an integrated and evolving expression of practical reason. Sovereignty is neither ambiguous nor obscure once its fundamental presuppositions are laid bare and its many philosophical and historical manifestations shown to be the product, in actuality, of a single, dialectally dynamic but integrated set of metaphysical elements. This is the first of three arguments describing the evolution of international law as a manifestation of practical reason through an application of philosophical method to the source , locus , and scope of the concept of sovereignty. It moves from a dialectic balance favoring utility to a balance dominated by legal right to a dialectic of duty to humanity and nature. All three arguments are meant to be a contribution to the new field of International Legal Philosophy as defined by Phillip Allott. 4 This field combines a sensitivity to legal practice with an effort to understand the underlying philosophical determinants of empirical choice and behavior. One purpose of international legal philosophy is to “remove” from the minds of those who study the law what Diderot defined as “the sophism of the ephemeral,” and what Allott calls “the disempowering idea that what xii Preface happens to exist now is inevitable and permanent.” 5 A core imperative is to “reunderstand what it is to be a thinking being” 6 and to rediscover the dialectic between the private and the public as it determines, and is redetermined by, legal practice. This requires a “revolution in the human mind” 7 so that we may transcend the current dependence on positivist methods and empirical fact as an end-in-itself, and try to understand the underlying and more constant and essential ideas and inherent dialectics that constitute the substructure or “metaphysics” of international law. I will approach this “revolution” with the use of R. G. Collingwood’s philosophical method 8 and the philosophy of David Hume, applied to international law as an expression of practical reason. The goal of philosophical method is the construction of a comprehensive policy argument (CPA) for a public policy or legal issue. In addition to the conventional use of empirical models and their logic of investigation in the study of policy and law, CPA requires that an underlying philosophical logic of concepts be deciphered to identify the ideas within the issue, and their definition, overlap, and systematic interdependence. Philosophical method is a means with which to interpret and understand competing systematic and complete conceptual logics, existing at the core of an issue and pertinent to policy change. Philosophical method is therefore not meant to be a replacement for the empirical investigation of a policy or legal issue, or the use of scientific method in social studies. Rather, it is a complimentary and prerequisite method that seeks to transcend the limitations of positivism and present a more complete understanding of the philosophical presuppositions of positivist ideas like power, interest, or strategic rationality. Philosophical method is meant to be used with the facts of the policy or legal issue to match an illuminating logic of concepts with a pertinent logic of investigation . Within the CPA, the use of philosophical method and the metaphysics of a policy or legal issue is assumed to be critical to the full understanding of the overlapping concepts, dialectics, and scale of forms that determine, and are determined by, the empirical context of the policy or legal topic. Specifically, instead of utilizing bits and pieces of various theoretical arguments to address narrowly focused empirical questions, as positivism prescribes, I will address the evolution of international law as practical reason in three phases. Each will be approached through a single integrated logic of philosophical concepts from a particular philosopher (i.e., David Hume, G. W. F. Hegel, Immanuel Kant). This philosophically holistic approach to the law is based on the assumption that only through the use of a single integrated argument in legal analysis can sovereignty, or any concept, be understood as a truly systematic and logical whole. A complete philosophical paradigm has a dialectic integrity and systematic logic that can more adequately describe the evolving essence of a concept like sovereignty. This approach also has the advantage of generating a number of distinct holistic descriptions of the law through the application of different philosophical systems, one at a time, to its factual structure. 9 Positivism does not seek Preface xiii holism, and rejects the idea that “theory” has such a characteristic. The essential or comprehensive substructure of any idea is therefore ignored in a method that recommends the observation of empirical problems through the use of whatever hodgepodge of theoretical elements is seen fit to frame its superstructure. This failure to deal with metaphysics has retarded both an essential understanding of international law as a species of legal system, and any holistic and dialectical conceptualization of its inherent concepts, like sovereignty. A second positivist convention expects modern theorists to create new theory rather than to refine and apply that of existing philosophy. This predisposition is driven by the positivist goal of discovery that ignores refinement as a possible purpose of philosophical analysis. Collingwood argues that philosophy must take that set of ideas already known and utilize existing systematic philosophical arguments to refine them so that they evolve closer to their essence as concepts. Considering this imperative, the idea of sovereignty can be assumed to have had valid usage for hundreds of years, over which time, the concept has evolved to mean different things, each a refinement of the definition that preceded it. Transcending positivism means that the scholar’s search is not for “new” material, but to decipher the metaphysical essence of a concept as it has been made manifest over time and context. These manifestations are rooted, and refined from, the known terms of that concept’s inherent idea(s). Rather than depending exclusively on positivism and its conventions, my work utilizes, in addition to Collingwood, the intact philosophical systems of Hume, Hegel, and Kant to trace the refinement of international law as a product of human practical reason. These paradigms, or integrated systems of logical concepts, will be applied to legal practice individually, so that each CPA can be deciphered separately. This provides a set of integrated and logically intact paradigms for the evolutionary stages of practical reason in international law. Because each argument is applied systematically, a deeper understanding of the source, locus, and scope in the development of law in general, and international law in particular, is possible where it is not with the application of various disconnected components of many theories. Each CPA based on Hume, Hegel, or Kant can then be used to describe a distinct context that its logic of concepts best illuminates; specifically, the (1) genesis, (2) contemporary dilemmas, and (3) future of the international legal system. By widening the perspective of international lawyers and policymakers, they can more easily perceive the dialectic of ideas that has created, and is refined by, the legal practice in which they participate. We also move toward Allott’s goal of “human self-perfecting.” 10 And, in addition, by providing a more complete knowledge of the origins of legal practice and its evolution, we illuminate the practical possibilities for what we might “choose to be” 11 in the future. To achieve this, the essential metaphysical elements of state sovereignty and its inherent evolutionary scale of forms will be deciphered and described. This will transform what appears to be a multitude of definitions and xiv Preface practical realizations of the concept of sovereignty into a set of interdependent manifestations of a single substructure, made of a single set of dialectic elements. The interpretation of international law through practical reason sorts and integrates a diverse and discordant literature and defines state sovereignty as a single concept evolving on a scale of forms that allows it to exhibit diverse character traits, all arising from different combinations of common and essential metaphysical elements. This approach, compared to positivist methods and legal realism, allows one to transcend current agreement that sovereignty is, at best, a narrowly focused set of empirical characteristics or, at worst, “organized hypocrisy.” 12 This method also encourages the scholar and practitioner to understand the predispositions and pitfalls of the concept of sovereignty, as well as its potential future paths, more effectively. The use of philosophical method to create policy paradigms out of preexisting philosophical systems and apply these to international law will be called Philosophical-Policy & Legal Design . This approach allows the use of preexisting and complete philosophical arguments that provide an adequate logic of concepts to chart the evolution of the idea of sovereignty along its scale of forms. An examination of the source of practical reason in human social convention with the employment of a philosophical-policy drawn from Hume’s logic of concepts about human nature will demonstrate this new approach. Why Hume? Because, up to now, without an adequate substructure we have arguments, like Brunne é’ s and Troope’s, 13 that may correctly identify international law as an “interactional” system, but cannot present any argument as to why it is, where this empirical reality comes from, or what its implications are for the future. Comparatively, Hume provides a logic of philosophical concepts that answers these concerns. First, he fulfills the requirements for a fuller understanding of the origin and evolution of law from social convention and the dependence of social convention on the human imperative for society. Second, he offers a more adequate delineation of the overlapping concepts of the law in terms of the ideas and institutions that deal with norms and justice (e.g., principle, process, practice, rule, power, interest). Third, he provides a fundamental understanding of the essential dialectics at the core of a conceptualization of the law with both unconscious and conscious human participation (i.e., passion. (shrink)

Having been supressed and denied their rights by successive Syrian governments over the years, Syrian Kurds are now asserting a de facto autonomy. Since the withdrawal of the Syrian President's forces from the ethnically Kurdish areas in the early months of the current civil war, the inhabitants have declared a self-rule government along the lines of the Kurdistan regional government in northern Iraq. For Syrian Kurds, the creation of a small autonomous region is a dream fulfilled, albeit one unrecognized by (...) the international community. Some 15% to 17% of the Syrian population is Kurdish. Whether they can achieve statehood will depend on a reading of international law and on how the international community reacts. There are certain aspects which differentiate Kurdish self-rule in Syria from its counterpart in Iraq. View HTML Send article to KindleTo send this article to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle. Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply. Find out more about the Kindle Personal Document Service.Kurdish Regional Self-rule Administration in Syria: A new Model of Statehood and its Status in International Law Compared to the Kurdistan Regional Government in IraqVolume 17, Issue 3LOQMAN RADPEY DOI: https://doi.org/10.1017/S1468109916000190Your Kindle email address Please provide your Kindle [email protected]@kindle.com Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Dropbox To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox. Kurdish Regional Self-rule Administration in Syria: A new Model of Statehood and its Status in International Law Compared to the Kurdistan Regional Government in IraqVolume 17, Issue 3LOQMAN RADPEY DOI: https://doi.org/10.1017/S1468109916000190Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Google Drive To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive. Kurdish Regional Self-rule Administration in Syria: A new Model of Statehood and its Status in International Law Compared to the Kurdistan Regional Government in IraqVolume 17, Issue 3LOQMAN RADPEY DOI: https://doi.org/10.1017/S1468109916000190Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Export citation Request permission. (shrink)

This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution. The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on "weak judicial review". Although different in their approach, the chapters all focus (...) on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their "deliberative performance" or to create constitutional juries that may be more aware of a community's constitutional morality than constitutional courts are. The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review. (shrink)

The book offers the first analysis of the influence exercised by the concept of space on the emergence and continuing operation of international law. By adopting a historical perspective and analysing work of two central early modern thinkers – Leibniz and Hobbes – it offers a significant addition to a limited range of resources on early modern history of international law. The book traces links between concepts of space, universality, human cognition, law, and international law in these (...) two early modern thinkers in a comparative fashion. Through this analysis, the book demonstrates the dependency of the contemporary international law on the Hobbesian concept of space. Although some Leibnizian elements continue to operate, they are distorted. This continuing operation of Leibnizian elements is explained by the inability of international law, which is based on the Hobbesian concept of space, to ensure universality of its normative foundation. (shrink)

Gendered language is becoming a matter of serious concern for legal drafters and policymakers because 'it is always changing as societal views change' (The University of Calgary: Office of diversity, equity and protected disclosure 2017:1). Many western countries have made considerable progress towards using inclusive legal language. However, inclusive language is not implemented in other parts of the World; the Arab World is no exception. This may be due to the violation of language rules, the decline of language, and the (...) lack of enough evidence that changing the language will change society (Brown in ABA J, 2019) and (Brown in ABA J: 24–26, 2018). In this paper, I explore the challenging socio-cultural and linguistic factors that may hinder the implementation of gender-inclusive language in Arabic and explain the current situation in two current constitutions of Egypt and Tunisia in particular. The main aim of this paper is to conduct a comparative analysis of terminology representing gender in the Egyptian (2014, amended 2019) and Tunisian (2014) Arabic-English Constitutions using corpus-based tools. The analysis shows inconsistent attempts at a more inclusive source text through using neutral terms and adding inclusive pre-modifiers to these terms. It also shows inconsistent translation of gender-specific terminology and pronominal references. Both constitutions explicitly stress the ‘eradication of violence against women’ and express parity between ‘women’ and ‘men’ in terms of ‘equal rights’ and ‘appropriate political representation’ (e.g. in the Egyptian House of Representatives (28%) and the Tunisian Assembly of People’s Representatives (26%)) (International Institute of Democracy and Electoral Assistance, IDEA 2021). Although these percentages are not far away from the representation of women in European countries such as the United Kingdom (35%) (International Institute of Democracy and Electoral Assistance, IDEA 2021), it is the reality of women’s actual roles, change they initiate and their impact in the society that counts. (shrink)

Much of contemporary British legal theory has its roots in the tradition of philosophical empiricism—the philosophical position that no theory or opinion can be accepted as valid unless verified by the test of experience. In this context normativity, both in law and morals, is understood and explained in terms of social practices observable in the world. The nineteenth-century jurist John Austin, for example, defined law in terms of a command supported by a sanction and as presupposing the habitual obedience (...) of the bulk of a community to the commands of a sovereign himself not habitually obedient to anyone else. Similarly, Hart's conception of legal obligation, although somewhat more complex, derived from the observation of people's actual practices analyzed in terms of "the internal point of view" crucial to their comprehension of and participation to these practices. It is within this framework that we must consider the distinction between is and ought as used by British positivist theories and which is so essential to positivist jurisprudence. In this respect a chief difference between the British and the Continental traditions in legal theory prevails. This paper aims to re-examine some main themes of contemporary jurisprudence and explore the extent to which contemporary theorists, both British and Continental, have succeeded in developing a theory of law that would create a workable marriage between the two traditions. (shrink)

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of law, democratic participation (...) and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

1. Aim of the guidelines2. Principles of good practice3. Circumcision for medical purposes4. Non-therapeutic circumcision 4.1. The law 4.1.1. Summary: the law 4.2. Consent and refusal 4.2.1. Children’s own consent 4.2.2. Parents’ consent 4.2.3. Summary: consent and refusal 4.3. Best interests 4.3.1. Summary: best interests 4.4. Health issues 4.5. Standards 4.6. Facilities 4.7. Charging patients 4.8. Conscientious objection5. Useful addresses.

By presenting original research into British legal history, this volume emphasises the historical shaping of the law by ideas of authority. The essays offer perspectives upon the way that ideas of authority underpinned the conceptualisation and interpretation of legal sources over time and became embedded in legal institutions. The contributors explore the basis of the authority of particular sources of law, such as legislation or court judgments, and highlight how this was affected by shifting ideas relating to concepts of (...) sovereignty, religion, political legitimacy, the nature of law, equity and judicial interpretation. The analysis also encompasses ideas of authority which influenced the development of courts, remedies and jurisdictions, international aspects of legal authority when questions of foreign law or jurisdiction arose in British courts, the wider authority of systems of legal ideas such as natural law, the authority of legal treatises, and the relationship between history, law and legal thought. (shrink)

This paper presents a comparative analysis of three American and three European corporate failures. The first part of the analysis is based on a theoretical framework including six areas of ethical climate; tone at the top; bubble economy and market pressure; fraudulent financial reporting; accountability, control, auditing, and governance; and management compensation. The second and third parts consider the analysis of these cases from fraud perspective and in terms of firm-specific characteristics and environmental context. The research analyses shed light (...) on the fact that, despite major differences between Europe and U.S. in terms of political institutions, laws and regulations as well as managerial practices, there are significant similarities between six groups. The analysis also demonstrates that, the ethical dilemma has been coupled with ineffective boards, inefficient corporate governance and control mechanisms, distorted incentive schemes, accounting irregularities, failure of auditors, dominant CEOs, dysfunctional management behavior and the lack of a sound ethical tone at the top. Significant similarities were also observed in the analysis from the fraud triangle perspective. However, there are several major differences between the six corporate failure cases particularly with regard to ownership structure, coverage in media, and legal, regulatory and governance frameworks. This research study may have several academic and practical contributions, particularly because of multidisciplinary, international features, and comparative analyses used in the paper. (shrink)

This paper presents preliminary results of a survey experiment examining the effects of international illegality on public support for proposed public policies. It adds three specific dimensions to the existing literature. First, it tests whether the effects of international illegality differ depending on the international regime whose rules are violated, testing the effects of violations of both human rights and trade regimes. Second, it tests how far the involvement of international courts vary these effects. And third, (...) it examines these questions using parallel studies with UK and US respondents to test the robustness and generalisability of the relations identified. Results confirm that, across both jurisdictions, illegality under either trade or human rights regimes, and with or without the additional involvement of an international court, have a statistically significant negative effect of public support for a policy. They further identify a greater negative effect where an international court has confirmed this illegality, although this result is statistically significant in only one case. They do not identify any statistically significant difference in the support depressing effect of illegality under the trade regime compared to the human rights regime. (shrink)

Summary Principles Timely support for patients and people close to them, and effective, sensitive communication are essential. Decisions must be based on the individual patient's circumstances and reviewed regularly. Sensitive advance discussion should always be encouraged, but not forced. Information about CPR and the chances of a successful outcome needs to be realistic. Practical matters Information about CPR policies should be displayed for patients and staff. Leaflets should be available for patients and people close to them explaining about CPR, how (...) decisions are made and their involvement in decisions. Decisions about attempting CPR must be communicated effectively to relevant health professionals. In emergencies If no advance decision has been made or is known, CPR should be attempted unless: the patient has refused CPR; the patient is clearly in the terminal phase of illness; or the burdens of the treatment outweigh the benefits. Advance decision making Competent patients should be involved in discussions about attempting CPR unless they indicate that they do not want to be. Where patients lack competence to participate, people close to them can be helpful in reflecting their views. Legal issues Patients' rights under the Human Rights Act must be taken into account in decision making. Neither patients nor relatives can demand treatment which the health care team judges to be inappropriate, but all efforts will be made to accommodate wishes and preferences. In England, Wales and Northern Ireland relatives and people close to the patient are not entitled in law to take health care decisions for the patient. In Scotland, adults may appoint a health care proxy to give consent to medical treatment. Health professionals need to be aware of the law in relation to decision making for children and young people.IntroductionWhy policies are neededCardiopulmonary resuscitation can be attempted on any person whose cardiac or respiratory functions cease. Failure of these functions is part of dying and thus …. (shrink)

It is important that from a wider scientific perspective the basics of the conceptual comprehension of impeachment entrenched in the 1992 Lithuanian Constitution be related not only to (a) the nine explicit provisions whereby impeachment relations are regulated directly (Item 5 of Article 63, Article 74, Paragraph 2 of Article 86, Item 5 of Article 88, the first sentence of Paragraph 1 of Article 89, Item 4 of Paragraph 3 of Article 105, Paragraph 3 of Article 107, Item 5 of (...) Article 108, Article 116), but also to (b) the general constitutional principles (especially, the principle of protection of the rights and freedoms of a person), as well as to (c) the precedents of preparation, arrangement, suspension or continuation of impeachment proceedings (in cases of A. Butkevičius, R. Paksas or L. Karalius) and to (d) comparative international aspects, which are perceived not only in the US Constitution, but also in the European Convention on Human Rights which is no longer compatible (and clashing as regards the issue of consequences of impeachment) with the former. According to the European Court of Human Rights (judgment of 6 January 2011 in the case Paksas v. Lithuania), the European Convention on Human Rights prohibits irreversible (termless) limitation (grounded on impeachment) of the passive electoral right to be a Member of Parliament. It is also important to perceive (three) abstract procedural grounds of application of this institute to a certain official—a gross violation of the Constitution, breach of the oath and in case it transpires that a crime has been committed (Article 74 of the Constitution), and the factual (“concrete actions”—see Item 4 of Paragraph 3 of Article 105) grounds qualified according to the former, while due to the factual grounds the “impeachment case” is instituted. The notion “impeachment case” used in Item 4 of Paragraph 3 of Article 105 of the Constitution deserves special scientific attention. This notion indirectly means that: (a) prior to the application to the Constitutional Court by the Seimas, an impeachment case is (must be) instituted, which in itself means that impeachment and initiation and consideration thereof are distinguished by peculiarity in substantive procedure; (b) the Constitutional Court neither institutes this case nor “takes it over” (considers it), but in “its own” case of constitutional justice verifies those factual and procedural grounds, which are necessary in “the other” (impeachment) case instituted in the Seimas. The essence of the institute of impeachment cannot be properly perceived in the constitutional notions of “impeachment”, “case”, “proceedings“, if these notions are assessed only in the explicit provisions of Article 74 of the Constitution, i.e. they are not related to the logic of substantive and procedural arrangement and “intertwining” of the three provisions of the Constitution (Article 74, Item 4 of Paragraph 3 of Article 105 and Paragraph 3 of Article 107) as well as to the purpose of these provisions. On the grounds of the said three provisions of the Constitution, it is possible to assume that the essence of the institute of impeachment lies in a specific official accusation (of violations of special law) against the officials who have acquired (or who hold) certain constitutional powers and of bringing such officials to constitutional liability under the procedure for specific parliamentary impeachment proceedings and constitutional justice proceedings, i.e. deprivation (discontinuation) of constitutional powers under multi-level procedure for conditionally dual proceedings, in which the parliamentary proceedings and the constitutional justice proceedings are inter-connected and supplementeach other. (shrink)

International lawyers have often been interested in the link between their discipline and the foundational issues of jurisprudential method, but little that is systematic has been written on this subject. In this book, an attempt is made to fill this gap by focusing on issues of concept-formation in legal science in general with a view to their application to the specific concerns of international law. In responding to these issues, the author argues that public international law seeks (...) to establish and institutionalise a system of authoritative judgment whereby the conditions by which a community of states can co-exist and co-operate are ensured. A state, in turn, must be understood as ultimately deriving legitimacy from the pursuit of the human dignity of the community it governs, as well as the dignity of those human beings and states affected by its actions in international relations. This argument is in line with a long and now resurgent Kantian tradition in legal and political philosophy. The book shows how this approach is reflected in accepted paradigm cases of international law, such as the United Nations Charter. It then explains how this approach can provide insights into the theoretical foundations of these accepted paradigms, including our understanding of the sources of international law, international legal personality and the design of global institutions. (shrink)