Volume 22, Issue 1-2, July - December 2019, Page 94-102.

The purpose of this paper is to explore the meaning of solidarity and its proper position in the legal frames, with particular focus on health care. Solidarity is often identified with welfare arrangements and social guarantees. In this institutional version, it tends to humiliate citizens and restrict their entrepreneurship. Moreover, administrative solidarity is unable to recognize the actual needs of the most vulnerable members of society, which should be one of its primary concerns. Solidarity, in its original meaning, understood (...) as supportive cooperation of fellow citizens, links their rights and freedoms with mutual duties and responsibilities. Hence, an alternative framework for solidarity should be provided. This framework, committed to the idea of decency, introduces the distinction between the minimum and maximum content of solidarity enforceable by legal means, which should be translated into certain health care practices. (shrink)

After an important public debate, the law of 22 April 2005 on the rights of the patient and on the end of life has been voted in, in France.1 It gives us an alternative to the Dutch euthanasia model.2 The purpose of this law is to develop palliative care , to form healthcare professionals for terminally ill patients, to make them more sensitive to such situations and, finally, also to inform public opinion and jurists. Decrees of application were published on (...) 7 February 2006.From now on, a collective and transparent procedure is compulsory when it requires limiting or interrupting …. (shrink)

Recent results from studies on animals suggest that functional germ cells may be generated from human pluripotent stem cells, giving rise to three possibilities: research with these so‐called artificial gametes, including fertilization experiments in vitro; their use in vivo for therapy for the treatment of human infertility; and their use in assisted reproductive technologies in vitro. While the legal, philosophical, and ethical questions associated with these possibilities have been already discussed intensively in other countries, the debate in Germany is (...) still at its beginning. A systematic and detailed analysis of the legal framework in Germany is provided with regard to the three possibilities, including the applicable statutory laws as well as the constitutional law. The question emerges as to whether the statutory laws as well as the constitution justify a distinction to be made between embryos of artificial and natural origin. This question is subject to philosophical analysis, discussing the distinction between person and thing, dignity and price, personality and property, and nature and technique. As a result, the criterion of naturalness alone may not be sufficient to differentiate between embryos of natural and artificial origin, and other criteria need to be identified. (shrink)

Law is known to exist only being articulated in a language and discourse, and the students’ ability to comprehend and use its meta-language is one of the main goals for English for Legal Purposes (ELP) teaching. The knowledge of terminology enables students to fit new information (linguistic, disciplinary, factual, cultural, etc.) into the framework of the legal system they are studying. The acquisition of terminology in a foreign language implies knowledge of both conceptual content and the means of (...) its verbalization. This article argues for a cognitive approach to teaching Legal English, and frame modelling as an effective method of teaching and learning legal terminology. The heterogeneous structure of legal concepts (a permanent core and dynamic periphery) suggests the possibility of framing their verbal representations. From this perspective, legal terminology is viewed as a frame structure. Depending on the instructional objective, frame modelling may be circumscribed around a specific concept or frame level. (shrink)

In the study of special languages and translation, the legal field is often insulated from other domains. This is primarily due to the extreme system dependence of the terminology of law, which results from a lack of a common legal system of reference throughout the world. The abstract nature of this human-made field and its dynamicity in view of the continuously evolving case law and constant changes in legislation make it difficult to illustrate its complex ontology through traditional (...) terminology management techniques. Therefore, this paper argues for an interdisciplinary approach to constructing the ontology of legal concepts based on structural constituents from frame semantics and comparative law. Frames allowing for the representation of interconnected knowledge segments evoked by legal concepts and the distinction between micro- and macro-dimensions in legal comparison research make it possible to capture the complex ontology of legal terminology evoked in a specific point in time and a determined legal context. The ontological knowledge structure will be exemplified by terms from German social, commercial, employment, and tax law. (shrink)

Courts have determined that adaptive management does not satisfy the Endangered Species Act's requirement to use the 'best available science'. This is due, in part, to the failure to recognise the role of non-epistemic values in science. We examine the role of values in the legal controversy over the scientific reports and adaptive management plans for endangered salmon in the Columbia River Basin. To do this, we employ philosophical concepts related to risk and uncertainty that demonstrate how non-epistemic values (...) are internal to science. We describe how, because adaptive management is a method for dealing with inductive risk, by remaining flexible, responsive and adaptive in those circumstances where the costs of making a mistake are very high, it requires special attention to ensure that it remains useful. We conclude that, because non-epistemic values will inevitably influence the 'best available science', it is critical that they are clarified in any adaptive management planning so that we can ensure the salmon conservation that the ESA mandates. Fortunately, because adaptive management is iterative in nature and includes opportunities for engagement between policymakers and scientists, it enables clarification of non-epistemic values through making standards of evidence transparent, acknowledging aims and goals and dealing with uncertainty at the institutional level. (shrink)

The past thirty years have seen a surge of empirical research into political decision making and the influence of framing effects — the phenomenon that occurs when different but equivalent presentations of a decision problem elicit different judgments or preferences. During the same period, political philosophers have become increasingly interested in democratic theory, particularly in deliberative theories of democracy. Unfortunately, the empirical and philosophical studies of democracy have largely proceeded in isolation from each other. As a result, philosophical treatments (...) of democracy have overlooked recent developments in psychology, while the empirical study of framing effects has ignored much contemporary work in political philosophy. In Framing Democracy, Jamie Terence Kelly bridges this divide by explaining the relevance of framing effects for normative theories of democracy. -/- Employing a behavioral approach, Kelly argues for rejecting the rational actor model of decision making and replacing it with an understanding of choice imported from psychology and social science. After surveying the wide array of theories that go under the name of democratic theory, he argues that a behavioral approach enables a focus on three important concerns: moral reasons for endorsing democracy, feasibility considerations governing particular theories, and implications for institutional design. Finally, Kelly assesses a number of methods for addressing framing effects, including proposals to increase the amount of political speech, mechanisms designed to insulate democratic outcomes from flawed decision making, and programs of public education. -/- The first book to develop a behavioral theory of democracy, Framing Democracy has important insights for democratic theory, the social scientific understanding of political decision making, economics, and legal theory. (shrink)

‘Framing the Refugee’ looks at the power of representation of liberal political theory with regard to refugees. In the author’s view, legal and political arbitrariness lies in the representing of refugees as lacking agency. His key point is that liberalism fails to conceive of refugees as politically capable actors, and he is thus complicit in the arbitrary neutralisation of their emancipatory potential and participatory powers. This paper emphasises the moral justifiability of that state of affairs by seeking some (...) answers to the question of why liberal political theory construes a concept of the refugee that does not contain any element of political agency. Most obviously, the author acknowledges that refugees perform a significant social role in contemporary societies and are hence active members in them. Nonetheless, they remain neglected in their political role by most political theory. What does it mean to have political agency for the author? It means to have the power of self-representation, that is, of being allowed and even enabled by a given legal system to bring about change in the political order, or at least to participate in that change. But the author also calls attention to the role of ‘theory’ in addressing this downside of the contemporary liberal democratic order. Theory becomes even more crucial at times of urgency, that is, when theorists have a moral responsibility to deepen their philosophical imagination, as Hannah Arendt so forcefully noted. The theoretical task of ‘re-framing’ the refugee entails reconfiguring political philosophy and its traditional categories of sovereignty, citizenship and nationality. The liberal inability to accommodate the political agency of many members of the political community – especially of non-nationals – is a sign of the historical contingency of the current rules of political membership. This inability makes evident the imperative of rethinking politics in ways that avoid the arbitrariness of treatment and aim instead at equality and justice. If political leaders can re-write the rules of membership to suit their own ideological agendas, the same demand should be addressed by – indeed demanded from – political and legal theorists. However, this is not as easy as it seems, according to the author. In his view, political theory is confronted with fundamental challenges, the most obvious one being that ‘theory’ is usually unequipped to defeat its own ‘topology’. Note that in saying this the author is raising a more pressing concern about arbitrary law-making: it may be that arbitrariness – especially the arbitrary treatment of aliens by the sovereign state and by liberal democracies in particular – is inscribed in the very DNA of liberalism. No matter how odd this may seem, the author advances the view that ideas, however creative of a new order, or transformative of a given status quo, never appear in "free form", and are instead deeply rooted in a structure that constrains our imagination. The challenge is thus to develop a meta-theory that reconceptualises the very way liberal political theory frames marginalised sectors of society – such as the "poor" – as a product of an international economic order that robs those sectors of their agency as the very condition of its internal functioning. We must therefore question how the very idea of the refugee is produced, because it symbolises the construction of an inside and an outside that is complicit with the arbitrary play of legal statuses involved in migration policy. The author’s main point regarding this is that certain groups are sidelined by economic, political and social systems because they are already excluded from theoretical systems to start with. Keywords: refugees, agency, political theory, migration. (shrink)

In this essay Troy Richardson works to develop a conceptual framework and set of terms by which a diplomatic reception of different forms of law can be developed in multicultural education. Taking up the trope of the door in multiculturalist discourse as a site in which a welcoming of the difference of others is organized, Richardson interrogates the complex nature of receptivity to Indigenous customary law, in particular. He argues that, within this trope, a metonymic structure operates in relation to (...) the deployment of “policy” that maintains a perspective of customary law as premodern and primitive. This structure leads to an impoverished set of terms and a lack of diplomacy toward difference. Richardson proceeds by considering the notion of extraterritoriality and the metonyms that organize Emmanuel Levinas's discourse of “doors” in conceptualizing a welcoming receptivity. The term “extraterritoriality” anticipates the law of the other as it approaches the door and implies a diplomatic moment of reception of such difference. Richardson concludes by highlighting Jacques Derrida's evaluation of Levinas's discourse of receptivity and by considering the possibilities for a diplomatic engagement with the laws of others toward a mutation in the current geopolitical moment. (shrink)

The dominant social scientific approach to studying judicial behavior treats judges as strategic actors pursuing their political preferences under institutional constraint. The intellectual roots of this rational choice approach are in American law’s long but sporadic engagement with pragmatist ideas. This article challenges that approach: a fully pragmatist account of judicial action provides a better description of the intellectual and social work of judging, and better explains how judges reach a decision in difficult cases that most affect the development of (...) law and its relationship to society. The article argues that the foundational intellectual problem for appellate judges is how to define the legal questions presented in a case. Definitions of legal questions arise from the interplay of habitual and creative action in the local social context of an appeals court. Professional and local interpretive habits and legal forms ordinarily do a great deal to define the key questions, which are not strictly determined when a case comes before a court. Unscripted small group interactions at oral arguments also figure in question definition; oral arguments are most important in the rare but legally important cases where habitual practices alone are insufficient to delimit the legal question judges must answer. Supported by extensive interviews with federal appeals judges and clerks, the article illustrates judges’ creative, interactional efforts to define an answerable question in a major asylum case decided in the Seventh Circuit Court of Appeals. Building from this case, the article describes the factors that shape judicial question definition, and describes the conditions when creative judicial action is likely to be most prominent. (shrink)

It is argued that the standard way that the criminal justice debate regarding the permissible extent of wrongful convictions is cast is fundamentally flawed. In particular, it is claimed that there is an inherent danger in focussing our attention in this debate on different ways of measuring the probabilistic likelihood of wrongful conviction and then evaluating whether these probabilities are unacceptably high. This is because such probabilistic measures are clumsy ways of capturing the level of risk involved, to the extent (...) that a defendant can be subject to an unacceptably high level of legal risk in this regard even where the relevant probabilities are very low. An alternative conception of legal risk – one that is primarily cast along modal rather than probabilistic lines – is set out which offers a much better way of framing the debate regarding what would be an acceptable level of wrongful conviction. It is further argued that with this modal conception of legal risk in play we can capture an important necessary condition that should be imposed on legal evidence, one that has application beyond the context of the criminal trial. (shrink)

The most widely repeated retributivist argument against the utilitarian theory of punishment is that utilitarianism permits punishment of the innocent. While defenders of utilitarianism have shown that a publicly announced policy of punishing the innocent is unlikely to serve utility, critics have insisted that utilitarianism morally obliges officials to deceive the public by framing the innocent. Yet philosophers and legal scholars have heretofore failed to test this claim against the writings of the theory's originators. We directly examine the (...) writings of Jeremy Bentham and other eighteenth and nineteenth century utilitarians and demonstrate that the originators of utilitarian penology clearly opposed both punishment of the innocent and deception of the public. We argue that utilitarianism originated as a legal theory that emphasized several institutional conditions for the public pursuit of utility, including security of person and property, legality, legislative supremacy, democratic accountability, publicity and transparency. These institutional conditions would preclude both systematic and ad hoc framing of the innocent. We show that the original utilitarians considered individuals incompetent to determine and pursue the public welfare, and that the contemporary conception of utilitarianism as an ethical standard governing individuals is a modern innovation. Bentham's theory of punishment did not derive from any general ethical theory. Bentham, like his chief forebears Hume, Helvetius and Beccaria, thought of public utility as a standard of value for public action, such as legislation. He assumed that private action was ruled by self-interest (i.e. private utility) so that there was little point in directing arguments about the general welfare to individual ethical actors. In assessing public action, Bentham was far less concerned about consequences than has generally been supposed and far more concerned about process. He identified utility with security of expectations and the rule of law. As a consequence, he endorsed public actions that could be seen to have emerged from a rational and well-informed debate about their consequences for the public welfare. Utility was not a definition of the good or a guide to conscience, but a standard designed for use in public, deliberative debate. Utilitarianism was not so much a philosophical theory as a rhetorical practice, understood as a transparent language of analysis and argument for use in political deliberation.We elaborate the procedural conditions presupposed by utilitarian discourse, beginning with Bentham's commitment to a conception of legality involving legislative promulgation of formal rules faithfully applied by rigidly constrained bureaucrats and judges. Next, we demonstrate Bentham's commitment to democratic representation of the public in devising legislation. Finally, we emphasize Bentham's commitment to publicity in government decisionmaking. Utilitarian policy required public scrutiny of all decisions and the information and reasons considered in making them. In sum, Bentham's utilitarianism was primarily concerned with the problem of how to design government so that it could accurately identify and faithfully pursue the public good while being openly seen to do so. It follows that Bentham's utility principle does not require him to endorse deceiving the public and framing an innocent person. (shrink)

Background: Despite procedural innovations and increasing numbers of uterus transplant attempts worldwide, the perspectives of uterus transplant (UTx) trial participants are lacking. Methods: We conducted a mixed-methods study with women with absolute uterine factor infertility (AUFI). Participants included women who had previously contacted the Cleveland Clinic regarding the Uterine Transplant Trial and met the initial eligibility criteria for participation. In-depth interviews were conducted in conjunction with FertiQoL, a validated and widely used tool to measure the impact of infertility on the (...) quality of life of infertility patients. Results: All (n = 19) rated their overall health as good; some experienced grief and social isolation. AUFI is a life-framing experience that influences acceptance by family, partners, peers, and one’s self. UTx is a means to gain control of reproductive autonomy. UTx allows family-building and the ability to play an active role in prenatal health and well-being. Establishing and maintaining a supportive relationship is a key issue of AUFI and when considering UTx. Risks of UTx are perceived relative to risks to self/child/family posed by adoption/surrogacy. Participants had no overall preference regarding living or deceased donor. Conclusions: The ways in which women with AUFI conceptualize this condition in their lives and choices around UTx and participating in a study of the procedure are multifaceted and textured. These perspectives are critical to understanding its ethical, legal, and social implications. (shrink)

The concept of vulnerability is widely used in human rights policy documents, reports, and case law focusing on the impacts of climate change on human rights. In academic discussions, the concept, however, has also sparked a discussion on its benefits and challenges for the advancement of human rights, especially concerning the principles of equality and non-discrimination. This article aims at contributing to this debate from a frame-analytical perspective. In social sciences, frame-analysis is a form of discourse analysis which focuses on (...) the consequences of different concepts for legal, political, and social discussions and norms. With the example of selected UN documents on different human rights issues in the context of climate change, the article, firstly, analyzes whether and how the concept of vulnerability is defined in the documents and why it is used in the documents. Secondly, it is elaborated to which individuals and groups the concept is applied. Thirdly, it is discussed how vulnerability is conceptualized in relation to or in distinction to the concepts of inequality and discrimination. In a further section it is analyzed what narratives are mobilized by the frame of vulnerability. The article concludes that from a discourse-analytical perspective the frame of vulnerability mobilizes problematic narratives which has gendered and racialized implications for those labeled vulnerable. (shrink)

Intersectionality is a term that arose within the black feminist intellectual tradition for the purposes of identifying interlocking systems of oppression. As a descriptive term, it refers to the ways human identity is shaped by multiple social vectors and overlapping identity categories (such as sex, race, class) that may not be readily visible in single-axis formulations of identity, but which are taken to be integral to robustly capture the multifaceted nature of human experience. As a diagnostic term, it captures the (...) confluence of power and domination on the social construction of identity in order to remedy concrete harms that result from this convergence. It is not a prescriptive methodology or closed system of analysis, but rather an open-ended hermeneutic lens through which interconnected systems of oppression can come into focus in the fight for social justice. (shrink)

Australia's Coalition Against Duck Shooting sees duck-shooting as a social problem and as an injustice with moral, legal and environmental consequences. The small animal liberationist group has succeeded in dramatically reducing the numbers of duck shooters in Victoria, which is the home of duck-shooting in Australia. The Coalition's framing work with the public via the electronic media involves three parts: a diagnosis , a prognosis and a motivational frame , all of which construct hunting as a cruel, antisocial (...) blood sport that ought to be banned. In this article, television news bulletins and feature stories from the 1993 and 1994 campaigns are analyzed to show how CADS makes and sustains its claims. In addition to 90 pages of transcripts of news commentaries and descriptive accounts of the visuals, the data include tape-recorded interviews with some of the duck liberationists involved in the campaign. (shrink)

The ‘public’ character of the kind of rule of law theorizing with which Lon Fuller was engaged is signalled especially in his attention to the very notion of being a ’legal subject’ at all. This point is central to the aim of this paper to explore the animating commitments, of substance and method alike, of a particular direction of legal theorizing: one which commences its inquiry from an assessment of conditions of personhood within a public legal frame. (...) Opening up this inquiry to resources beyond Fuller, the paper makes a novel move in its consideration of how the political theorist Hannah Arendt’s reflections on the ‘juridical person’ might aid a legal theoretical enterprise of this kind. (shrink)

This study tackles hashtags as framing devices which shape public arguments and controversies in computer-mediated communication environments. It focuses on the use of the _genocide_ hashtag on Twitter in the context of the Ukraine-Russia war. It proposes and showcases a methodology to surface how the semantic and discourse properties of the term genocide affect its framing properties as a hashtag which bears argumentative functions, directly or indirectly calling for action.

This article provides a critical analysis of ‘the legal’ in the legal determinants of health, with reference to the Lancet–O’Neill report on that topic. The analysis shows how law is framed as a fluid and porous concept, with legal measures and instruments being conceived as sociopolitical phenomena. I argue that the way that laws are grounded practically as part of a broader concept of politics and evaluated normatively for their instrumental value has important implications for the study (...) of law itself. This, in turn, has implications for how we approach the transdisciplinary ambitions that form a key part of the report’s recommendations to enhance law’s capacity to promote better, more equitable population health at local, national, international and global levels. (shrink)

In The legal determinants of health: Harnessing the power of law for global health and sustainable development, Gostin et al. provide a sustained account of how law can and should be used as an instrument of health promotion. We pick up on the themes of this report with a specific focus of the importance of abortion for women’s sexual and reproductive health and the impact that particular ways of framing abortion in law can have on the lives of (...) women and girls. In this short comment, we wish to emphasize that abortion regulations need to move beyond frameworks based on narrow understandings of harm towards more progressive agendas that take into account the social determinants of health in order to reduce barriers to care. This contribution is particularly relevant to the Commission’s criticism that those ‘[l]aws that stigmatise or discriminate against marginalized populations are especially harmful and exacerbate health disparities’. (shrink)

Globalization processes imply the self-deconstruction of the hierarchy of legal norms. Thus, legal pluralism is no longer only an issue for legal sociology, but becomes a challenge for legal practice itself. Traditionally, rule making by `private regimes' has been subjugated under the hierarchical frame of the national constitution. When this frame breaks, then the new frame of legal institutions can only be heterarchical. The origin of global non-state law as a sequence of recursive legal (...) operations is an `as if', not only a founding myth as a self-observation of law, rather the legal fiction of concrete past operations. This fiction, however, depends on social conditions outside legal institutions, on a historical configuration in which it is sufficiently plausible to assume that in earlier times, too, legal rules were applied. (shrink)

The main aim of this article is to analyze the social circulation of discourses on non-hegemonic cultural practices, in particular, on what is called “trash TV”, and how they are connected to struggles over cultural and social hierarchies. To do so, it takes a specific event as starting point: the injunction that the CNMC filed against Mediaset to adjust the contents of Sálvame Diario to the requirements of what is known as the “child protection time slot”. This paper uses constructionist (...) framing to analyze how this event was discussed by different social actors. Our analysis shows that while the CNMC and the press painted the conflict as a legal issue, Sálvame and social media users focused their discussion on the social acceptability of celebrity gossip media and their viewers. (shrink)

Death cannot be mastered through a metaphysics of efficiency that interprets all actions in terms only of cause and effect, but it can be transcended if we leave the frame open to death’s ambiguityIn the second of this two part series, I describe how in shifting our frames from one of human purpose and meaning to one of efficiency, we shift the possible answers we get to our questions about voluntary active euthanasia and physician assisted suicide . Thus, by placing (...) VAE/PAS within the frame of efficiency, we narrow our focus to the final effect in the world of cause and effect—namely death. Thus, in ensconcing euthanasia within a legal framework meant to instrumentally and efficiently control euthanasia, we are in fact narrowing our focus on death. Thus, in legalising VAE/PAS we are not just adding one choice to a panoply of other choices, we are in fact changing the nature of all choices, for each choice conditions all others. We should therefore live with the lie that VAE/PAS do not happen as opposed to living with the lie that through efficient legal control we protect patients from medical dominance.AN ANECDOTESeveral years ago an acquaintance told me about a terrible situation in which he found himself during the Vietnam war. He was Green Beret—one of the elite special forces corps of the US army. He was in an area that was officially off limits to the US. His unit came under heavy fire and a buddy was shot in several places but was still alive. His comrade was in serious pain, but what scared him the most was that he might die in the jungle, be eaten by a wild animal, or be captured by the enemy. There was no way to get him out. The wounded soldier …. (shrink)

Mediation in a legal sense is a means of alternative dispute resolution (ADR). Having evolved in the USA in the last half of 20th century the procedure is growing in popularity and proliferation all over the world. Many countries enacted particular legislation, and others included relevant articles into Civil and/or Criminal Procedure Codes. Howbeit, lawyers are to be aware of mediation and roles they may play within the process. Law school curriculum drafters face the challenge of including a new (...) up-to-date course in mediation into busy and very full academic programmes. Analysis of existing instructing practice showed that in Anglo-American law schools mediation teaching is a part of clinical legal education. As for European countries, there is a broad range of scenarios and no established experience. Recognition of communicative skills as key skills for mediators prompts the use of a CLIL approach in structuring such a course. Listening, reframing, summarising, questioning are skills to be mastered by law-students both in a foreign language and their mother tongue. Language teachers are in charge of this part of the course while law teachers can work out text contents built on the branches of law mediators deal with more often (family law, employment law, contracts, etc.). Moreover, some texts may cover mediation law in a home country and abroad. Another important factor to take into account is a career path chosen by a law-student – if s/he is going to become a mediator or a lawyer securing clients in mediation. Role plays and scenarios are an integral part of the course. Moreover, the course developed can serve as an introduction to internship in a law clinic. (shrink)

We report on the first stage of a project on the representations of gender in the coverage of the Arab Spring by Western media. We focus on designing comparable corpora to examine Arab women’s depiction in English and German news during the uprisings. The English corpus is composed of reports published by _The Guardian and The New York Times_. The German corpus consists of articles collected from _Der Spiegel, Die Welt_, _Die Zeit, Frankfurter Allgemeine Zeitung,_ and _Süddeutsche Zeitung_. The datasets (...) were processed through Sketch Engine to identify the terms collocating with _women_ in the English corpus and _Frau_ in the German one. Then, the themes reflected by these expressions in the two corpora were compared. The results show that both news media feature two types of topical frames linked to Arab women; one is associated with the uprisings while the other is related to their recurrent stereotypes in Western news discourse. Yet, there are discrepancies between their focus on related issues to each type. Other differences between the two sets of news outlets include intensity of reporting on Arab women and stressing their nationalities. These findings suggest that although Arab women’s negative stereotypes continued to feature in western news discourse during the Arab Spring, new positive images emerged and contributed to changing their depictions in global media. (shrink)

This article looks to the past to consider how government officials, health professionals, and legal authorities have historically framed racial disparities in birth and the lasting impact these explanations have had on Black birthing experiences and outcomes.

This Article takes an experimental approach to test whether the salience of the law as a system that governs an interaction affects people’s preferences. I find that when the law is made salient in an interaction people’s preferences are altered: they express more future-oriented preferences and donate less money to charity, as compared to when the law is not salient in an otherwise identical interaction. When the law is salient in an interaction people also prefer ‘products’ over experiences, but this (...) gap is only marginally significant. The findings suggest that the framing of an interaction as legal tends to evoke cultural scripts and implicit rules of behavior (“common knowledge”) that incorporate the shared assumptions in society about the law. In response, participants interpret the interaction as more rational and instrumental and express preferences accordingly. (shrink)

This book presents the definitive exposition of 'prospect theory', a compelling alternative to the classical utility theory of choice. Building on the 1982 volume, Judgement Under Uncertainty, this book brings together seminal papers on prospect theory from economists, decision theorists, and psychologists, including the work of the late Amos Tversky, whose contributions are collected here for the first time. While remaining within a rational choice framework, prospect theory delivers more accurate, empirically verified predictions in key test cases, as well as (...) helping to explain many complex, real-world puzzles. In this volume, it is brought to bear on phenomena as diverse as the principles of legal compensation, the equity premium puzzle in financial markets, and the number of hours that New York cab drivers choose to drive on rainy days. Theoretically elegant and empirically robust, this volume shows how prospect theory has matured into a new science of decision making. (shrink)

New techniques in genome editing have led to a controversial debate about the opportunities and uncertainties they present for agricultural food production and consumption. In July 2018, the Court of Justice of the European Union defined genome editing as a new process of mutagenesis, which implies that the resulting organisms count as genetically modified and are subject, in principle, to the obligations of EU Directive 2001/18/EG. This paper examines how key protagonists from academia, politics, and the economy strategically framed the (...) debate around genome editing in agriculture in Germany prior to its legal classification by the Court of Justice. It is based on an analysis of 96 official statements, including position papers, press releases, and information brochures. Our study reveals eight strategic frames used in the discourse on genome editing and uncovers the strategies used to disconnect from or connect with the previous discourse on green genetic engineering in the 1970s, 1980s and 1990s. Building on competitive framing theory, the study provides explanations for the use and emergence of counter-framing strategies and their success or failure in the debate around genome editing. (shrink)

The purpose of this paper is to offer some critical remarks on the so-called pragmatist approach to the regulation of robotics. To this end, the article mainly reviews the work of Jack Balkin and Joanna Bryson, who have taken up such ap- proach with interestingly similar outcomes. Moreover, special attention will be paid to the discussion concerning the legal fiction of ‘electronic personality’. This will help shed light on the opposition between essentialist and pragmatist methodologies. After a brief introduction (...) (1.), in 2. I introduce the main points of the methodological debate which opposes pragmatism and essentialism in the regulation of robotics and I examine how legal fictions are framed from a pragmatist, functional perspective. Since this approach entails a neat separation of ontological analysis and legal rea- soning, in 3. I discuss whether considerations on robots’ essence are actually put into brackets when the pragmatist approach is endorsed. Finally, in 4. I address the problem of the social valence of legal fictions in order to suggest a possible limit of the pragmatist approach. My conclusion (5.) is that in the specific case of regulating robotics it may be very difficult to separate ontological considerations from legal reasoning—and vice versa—both on an epistemological and social level. This calls for great caution in the recourse to anthropomorphic legal fictions. (shrink)

In this paper, we discuss the problem of the relationship between legal concepts and legal norms. We argue that one of the widespread theories of legal concepts, which we call ‘the embedding theory’, is false. The theory is based on the assumption that legal norms are central for any legal system and that each legal norm establishes an inferential link between a certain class of facts and a certain class of legal consequences. Alf (...) Ross’s embedding theory was presented in his famous paper “Tu–Tu”. According to Ross, the sole function of legal concepts is to simplify normative information. Hence, the use of legal concepts may be a matter of convenience, rather than necessity. We criticize this approach mainly by pointing to the existence of so-called second order substantive concepts, which are not reducible to any determined set of conditional sentences (inferential links). In short, second order substantive concepts play the role of general standards, and general standards are used to provide flexibility for a particular legal system. In addition, general standards are ‘value loaded’, since they serve as a frame of reference for judges applying law to particular cases. To understand such general standards as a predefined set of conditionals means to overlook their ‘open’ content, and thus their function. In our opinion, the acceptance of the embedding theory means to misinterpret the function of general standards. We also argue that Giovani Sartor’s idea of defective legal concepts doesn’t help to clarify or defend the embedding theory. (shrink)

Assisted conception can be distinguished from assisted gestation.1 These processes have tended to be grouped together under the generic term assisted reproductive technology in the bioethical literature. According to Chloe Romanis, however, it is worth distinguishing interventions such as surrogacy, uterus transplantation, and potentially artificial placenta technology, as falling under the genus assisted gestative technologies. This is because gestation carries unique ethico-legal implications as compared with conception. The proposed genus of assisted gestative technologies is a helpful first step in (...) the endeavour to distinguish between the different ethico-legal landscapes across various ‘assisted reproductive technologies.’ I am generally in favour of adopting AGT as a term which separates various forms of gestational services from other kinds of reproductive technologies. Yet, if assisted gestative technologies can be considered a genus of assisted reproductive technologies, we might consider surrogacy, UTx, and artificial placenta technology their individual species. Between these various species of AGTs, I would argue, there remains enough ethico-legal diversity to warrant independent discussion about the descriptive and normative functions of each AGT and the relationship between gestation, genetic relatedness and legal/moral parenthood. Chloe Romanis claims that legal and social issues about attribution of parenthood and the importance that might be placed on information about gestational origins affect all forms of AGTs.1 I take it ethical ambiguities arise because the relationship between who gestates, genetic relatedness to the prospective child, and claims to legal/moral parental responsibility can be disrupted or made ambivalent with the involvement of third-party support. For many of those who do not require reproductive assistance, the gestational labour, genetic relatedness and parental responsibility would traditionally …. (shrink)

The central claim of this paper is that American states’ use of so-called “triggering conditions” to regulate surrogate decision-making authority in end-of-life care leaves unresolved a number of important ethical and legal considerations regarding the scope of that authority. The paper frames the issue with a case set in a jurisdiction in which surrogate authority to withdraw life-sustaining treatment is triggered by two specific clinical conditions. The case presents a quandary insofar as the clinical facts do not satisfy the (...) triggering conditions, and yet both the appropriate surrogates and the care team agree that withdrawal of life-sustaining treatment is in the best interest of the patient. The paper surveys applicable law across the 50 states and weighs the arguments for and against the inclusion of such triggering conditions in relevant legal regimes. The paper concludes by assessing the various legal and policy options states have for regulating surrogate decision-making authority in light of the moral considerations, and notes the possibility for conflict within ethics teams arising from the potential tension between prudence, risk-aversion, and moral obligation. (shrink)

This volume illustrates both theoretically and empirically the differences between religious diversity and religious pluralism. It highlights how the factual situation of cultural and religious diversity may lead to individual, social and political choices of organized and recognized pluralism. In the process, both individual and collective identities are redefined, incessantly moving along the continuum that ranges from exclusion to inclusion. The book starts by first detailing general issues related to religious pluralism. It makes the case for keeping the empirical, the (...) normative, the regulatory and the interactive dimensions of religious pluralism analytically distinct while recognizing that, in practice, they often overlap. It also underlines the importance of seeking connections between religious pluralism and other pluralisms. Next, the book explores how religious diversity can operate to contribute to legal pluralism and examines the different types of church-state relations: eradication, monopoly, oligopoly and pluralism. The second half of the book features case studies that provide a more specific look at the general issues, from ways to map and assess the religious diversity of a whole country to a comparison between Belgian-French views of religious and philosophical diversity, from religious pluralism in Italy to the shifting approach to ethnic and religious diversity in America, and from a sociological and historical perspective of religious plurality in Japan to an exploration of Brazilian religions, old and new. The transition from religious diversity to religious pluralism is one of the most important challenges that will reshape the role of religion in contemporary society. This book provides readers with insights that will help them better understand and interpret this unprecedented transition. (shrink)

According to Chloe Romanis, it is worth distinguishing interventions such as surrogacy, uterus transplantation (UTx), and potentially artificial placenta technology, as falling under the genus assisted gestative technologies (AGTs) rather than the more general term assisted reproductive technologies (ARTs). The proposed genus of assisted gestative technologies is a helpful first step in the endeavour to distinguish between the different ethico-legal landscapes across various ‘assisted reproductive technologies.’ Yet, if assisted gestative technologies can be considered a genus of assisted reproductive technologies, (...) we might consider surrogacy, uterus transplantation (UTx), and artificial placenta technology their individual species. Between these various species of AGTs, I would argue, there remains enough ethico-legal diversity to warrant independent discussion about the descriptive and normative functions of each AGT and the relationship between gestation, genetic relatedness, and legal/moral parenthood. (shrink)

The central claim of this paper is that American states’ use of so-called “triggering conditions” to regulate surrogate decision-making authority in end-of-life care leaves unresolved a number of important ethical and legal considerations regarding the scope of that authority. The paper frames the issue with a case set in a jurisdiction in which surrogate authority to withdraw life-sustaining treatment is triggered by two specific clinical conditions. The case presents a quandary insofar as the clinical facts do not satisfy the (...) triggering conditions, and yet both the appropriate surrogates and the care team agree that withdrawal of life-sustaining treatment is in the best interest of the patient. The paper surveys applicable law across the 50 states and weighs the arguments for and against the inclusion of such triggering conditions in relevant legal regimes. The paper concludes by assessing the various legal and policy options states have for regulating surrogate decision-making authority in light of the moral considerations, and notes the possibility for conflict within ethics teams arising from the potential tension between prudence, risk-aversion, and moral obligation. (shrink)

Collectively, lawyers probably seek in vain to be sufficiently trusted, even when most individual lawyers appear to do their utmost to behave responsibly. Efforts to address lawyers' behavioural failures remain an important social policy objective and a professional obligation. In this article we argue that it is politically sensible and socially responsible for the legal profession to continue to address its misbehaving members in a more fundamental manner than just the post-facto disciplinary process. We suggest that pre-emptive (pre-offence), ethics (...) self-assessments may limit the later incidence of misbehaviour and assist in rehabilitation programs for disciplined lawyers. We report on an experimental approach to lawyers' discovering more about their innate ethics. We have trialled lawyers' responses to a series of concrete statements about their ethical priorities and developed a statistically valid 'scale' (or set of statements) to allow lawyers in an Australian context to observe and reflect upon, their differing ethical approaches. To date, no such a scale has been developed for lawyers' ethics. The results of this scale development process are sufficiently encouraging to justify further work on similar scales for different cultures and legal traditions, in the interest of producing a tailored, reliable and valid instrument for general pre-emptive use within each local profession. The proposition that awareness improves conscious decision-making is not revolutionary or particularly contentious. While raising lawyers' awareness of how they make choices may only make a modest contribution to enhancing the ethical quality of their professional behaviour, it nevertheless seems plausible that it will raise their awareness and is therefore a worthwhile exercise. (shrink)

ABSTRACTIn the process of teaching law, is necessary to address some aspects that are not framed in strictly legal knowledge and require different strategies to be approach by the professor. An exa...

This article provides a critical analysis of the manner in which prostitution and trafficking for the purposes of sexual exploitation was ‘framed’ by official discourses in order to support the reforms in England and Wales contained within the Policing and Crime Act 2009. Drawing upon the recent work of Judith Butler, emphasis will be placed on how the schema of the vulnerable prostitute was fundamental to invoking emotional affects, which justified certain political effects, especially the move towards criminalising the purchase (...) of sexual services. However, on closer analysis the article will uncover an agenda influenced by law and order/morality, immigration and a ‘fear of the enemy’. Furthermore, it will be argued that New Labour’s framing of the problematic enabled the State to avoid dealing with the more difficult, but more urgent, issues of the differential distribution of wealth, precarity and the engendering of an ethical and global responsibility for the other. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Landmark Legal Cases in BioethicsSusan Cartier Poland (bio)Only a few decades old, the interdisciplinary field of bioethics has developed surrounded by centuries of legal tradition and moral philosophy. Bioethics and the law have weaved back and forth over time influencing each field. Sometimes ethics leads the debate on problematical issues; for example, the Recombinant DNA Advisory Committee at the National Institutes of Health established regulations prior to (...) initiating human gene therapy. At other times, law takes over; Roe v. Wade, for example, has polarized and closed public discussion on abortion. Most frequently, however, scientific developments initiate discussion in both fields, as when the announcement of the birth of Dolly—the first cloned mammal—sparked President Clinton to ask the National Bioethics Advisory Commission for a report on cloning.A back-and-forth pattern also exists within the law itself, this time between legislator and judge. Legislators enact statutes, which apply universally to regulate conduct in society. Judges, on the other hand, interpret statutes and apply them to particular cases to resolve disputes between parties. Case law, as judge-made law is called, that grows in the absence of legislation becomes the common law. Legislatures can change the course of common law development by enacting more law, usually as amendments, but sometimes as repeals. A judge who sees the facts of a case or the law differently may also change the common law. And so the counterpoint between legislator and judge goes.A legal case becomes a landmark in bioethics because of its historical or precedential value to the field. Historical cases reflect judicial reasoning or rationalization that lays the conceptual foundation for a bioethical principle. Perhaps the best known example of this is the focus on the right to self-determination in Schloendorff that led to the development of informed consent. The principle of autonomy in bioethics derives its legal impetus from this line of cases.A case that acquires landmark status because of its precedential value does so for one of two reasons based on legal precedents. First, the case may be one of “first impression.” In the legal sense, that means that the particular case with its [End Page 191] facts or issues is the first one that a particular court has confronted within that court’s jurisdiction or area of decision-making authority. To be a landmark in bioethics, however, the ordinary sense of “first impression” applies. The first time that a particular bioethical topic has appeared in court for legal resolution makes a case one of “first impression” for bioethics. The case of Baby M on surrogacy contracts illustrates this.The second way in which a case can achieve landmark status based on precedents involves legal precedent and the jurisdictional basis of the court system. Under the common law system, a preceding case that involves the same or similar facts or issues as a current case must be followed by lower—i.e., less authoritative—courts in the same jurisdiction. That judicial rule of decision making is called stare decisis. It creates an institution of continuity, yet allows for change due to differences in judicial interpretation of facts and issues, which is called distinguishing the case.All courts under United States jurisdiction must follow the U.S. Supreme Court. By its sheer power of authority, the Court issues opinions that, if they concern bioethical topics, make cases landmarks in bioethics. For example, Roe v. Wade made abortion legal and set off the debate between maternal and fetal rights. Casey later refined, or to some redefined with a discussion of stare decisis, the bioethical underpinnings of Roe by framing the debate as one between maternal rights and state interests.In law, precedents concern only appellate cases. Trial courts, like that in McFall v. Shimp, handle questions of both fact and law. Appellate courts, like that in Brotherton, hear appeals from the lower trial courts and address legal issues only. Trial judges apply the law to facts, and appellate judges reason about the trial judge’s legal interpretation.Appellate court decisions are the ones most frequently published, either in print or electronically online, for citation. Consequently they are the easiest to locate and retrieve. “Reporters” as... (shrink)

The concept of law is not a theorist's invention but one that people use every day. Thus one measure of the adequacy of a theory of law is its degree of fidelity to the concept as it is understood by those who use it. That means as far as possible. There are important truisms about the law that have an evaluative cast. The theorist has either to say what would make those evaluative truisms true or to defend her choice to (...) dismiss them as false of law or not of the essence of law. Thus the legal theorist must give an account of the truth grounds of the more central evaluative truisms about law. This account is a theory of legitimacy. It will contain framing judgments that state logical relations between descriptive judgments and directly evaluative judgments. Framing judgments are not directly evaluative, nor do they entail directly evaluative judgments, but they are nonetheless moral judgments. Therefore, an adequate theory of law must make (some) moral judgments. This means that an adequate theory of law has to take a stand on certain (but not all) contested issues in political philosophy. Legal theory is thus a branch of political philosophy. Moreover, one cannot be a moral-aim functionalist about legal institutions without compromising one's positivism about legal norms. (shrink)

For a health lawyer in private practice, the substance of any discussion of managed care turns on the developments in the health care marketplace. Without a doubt, the industry is rapidly moving from one frame of reference to a radically different one. It is no surprise then, that, in consulting me, my clients want to know what is and what will be, not what should be. They want at least to survive, if not be successful, in the whirlwind of restructuring (...) that offers no clear choices, no clear outcomes, and significant legal liabilities if they do not perform effectively. What I want to address in this article is how the consolidation of medical practices and the integration of delivery structures has outpaced the legal system's ability to regulate or guide the emerging health care market. This gap leaves physicians without proper legal guidance on how to balance their duties to their patients and their contractual obligations to managed care organizations. A brief review of the case law to date highlights some of the legal and ethical issues that arise for physicians who practice in this environment. (shrink)

For a health lawyer in private practice, the substance of any discussion of managed care turns on the developments in the health care marketplace. Without a doubt, the industry is rapidly moving from one frame of reference to a radically different one. It is no surprise then, that, in consulting me, my clients want to know what is and what will be, not what should be. They want at least to survive, if not be successful, in the whirlwind of restructuring (...) that offers no clear choices, no clear outcomes, and significant legal liabilities if they do not perform effectively.What I want to address in this article is how the consolidation of medical practices and the integration of delivery structures has outpaced the legal system's ability to regulate or guide the emerging health care market. This gap leaves physicians without proper legal guidance on how to balance their duties to their patients and their contractual obligations to managed care organizations. A brief review of the case law to date highlights some of the legal and ethical issues that arise for physicians who practice in this environment. (shrink)

The use of facial recognition systems in concerts provides a perfect pretext to semiotically discuss the role of the face in contemporary culture, identifying different strategies and axiologies (systems of values). In his visionary essay Bruits (“noises”) from 1977, the French thinker Jacques Attali establishes a close connection between music and power and locates it in the site of the collective unfolding of music: the concert hall. Following this hint, the article reconstructs the current debate on facial recognition systems in (...) the music business, with a particular focus on concerts and festivals. The different positions (of musicians, authorities, and professionals) are outlined (some are openly in favor, others openly against), key moments are identified (Beyoncé’s concert in Cardiff, 2017; Jacky Cheung’s in Nanchang, 2018; Taylor Swift’s at the Rose Bowl in Pasadena, 2018; the “banfacialrecognition.com” campaign launched in 2019; the case of Barbara Hart at Brandi Carlile’s show at the Madison Square Garden, 2022) and, finally, the issue is framed within the broader debate about the face as an indexical marker of presence, identity, and humanity (the contrast between Italian philosopher Giorgio Agamben and American sociologist and design theorist Benjamin Bratton is addressed). (shrink)

A crucial element of sovereignty politics concerns the role that juridical techniques play in recursively creating images of the sovereign. This paper aims to render that dimension explicit by focusing on examples of crime-focused law and colonial rule at the Cape of Good Hope circa 1795. It attempts to show how this law helped to define a colonial sovereign via such idioms as proclamations, inquisitorial criminal procedures, and case narratives framing the atrocity and appropriate punishment for crimes. Referring to (...) primary texts of the time, the paper explores how procedures and narratives of Cape law were also deeply involved in fashioning specific images of the sovereign in whose name it claimed to operate. (shrink)

Contains an integration of methods to be used for teaching and learning of legal theory. The text examines the uses of theory in the Australian legal environment by demonstrating how certain theories are explicitly or implicitly used by the courts to frame judgements.