This work studies the issue of political representation from the perspective of a specific legal culture, the exercise of political rights in the context of the occidental democratic system, a concept that has undergone a profound evolution to the present day. The essential aspects for an analysis of this progression are voting, decision making, and the relationship between representatives and their constituents. Overall, the phenomena making up the crisis of representation have been explained as a result of changes that (...) have affected the operation and structure of modern states constituted as representative democracies. The idea is that a well-functioning representative system comes primarily from the form of government and electoral system in which it develops. (shrink)

The seriousness of the COVID-19 pandemic requires a look into the implementation of drug registration rules for COVID-19 vaccines. Amidst the surrounding exigencies, vaccines being a biological product, require comprehensive and continuing pre and post registration rules to ensure their safety and efficacy. The study focuses on Malaysia which has rules on drug registration that have been successfully applied to vaccines. The study shows that the rules have been tailor-made to emergency situations. At the moment, special rules have been introduced (...) including to allow use of COVID-19 vaccines as unregistered product. Recognition of COVID-19 Vaccines Global Access (COVAX) facility and requirement for government sale only, are among the safety valves. The study shows that these however are temporary measures against the backdrops of possible entry of private players in the vaccination process. Therefore, regulatory responses to intellectual property (IP) related conditions underlying drug registration, and measures to ensure risk management involved in vaccine production, approval and administration are needed in the progressive rules pending further development of research in the area. (shrink)

Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the rationality of balancing and proportionality modes of legal decision-making. But although Alexy's defense of proportionality and balancing against charges by Jürgen Habermas and Justice Antonin Scalia that balancing is essentially an irrational process is sound, Alexy in the process is too quick to collapse the important differences between the process of (...) balancing competing principles and the process of interpreting a canonical written text. Although both can be and are frequently rational, rationality is not the same as external constraint, and the ability of canonical texts to provide a degree of external constraint on legal decision-making that cannot be provided by open-ended principles is a difference that should not be lost in the well-aimed efforts to demonstrate that both can be rational and both have important places in legal argumentation and decision-making. (shrink)

The present paper aims at addressing a crucial legal conflict in the information society: i.e., the conflict between security and civil rights, which calls for a “fine and ethical balance”. Our purpose is to understand, from the legal theory viewpoint, how a fine ethical balance can be conceived and what the conditions for this balance to be possible are. This requires us to enter in a four-stage examination, by asking: (1) What types of conflict may be dealt with (...) by means of balancing? (2) What is meant by balancing? Is it a metaphor that hides and dissimulates discretionary powers and subjective decisions or a rational instrument that helps us cope with conflicts between fundamental values and interests? (3) What models of balancing are available to us? Are these models irreducible to each other? What can provide us with a common understanding of different models of balancing? (4) How can the crucial issues of rational controllability, predictability, and homogeneity of legal decisions be dealt with? Our paper will try to answer those questions by trying to reconstruct the act of balancing in terms of a rational legal reasoning, which relies upon information. In fact, every judicial decision contains some information that is delivered to the legal system: that information may serve as the basis for future evaluations, decisions, and actions, and thus influence the way we recognize and hence we protect our values, interests, and rights. In this perspective, our examination will attempt to understand those questions in informational terms. This informational treatment can provide us with a more universalistic understanding of those issues and offer us a novel way to conceptually deal with them. To this aim, we will avail yourself of Luciano Floridi’s philosophy of information: notably, we believe his constructionist conception of epistemology is crucial, based on the Maker’s Knowledge approach and his solution of the upgrading problem (i.e., from information to knowledge) in terms of a network theory of account. The informational approach will help us having a better understanding of the balance between competing interests. (shrink)

In COVID’s immediate wake, the 2020 death toll from a different enemy of the public’s health — gun violence — ticked up by 15 percent in the United States from the previous year. Meanwhile, the U.S. Supreme Court issued an opinion in Caniglia v. Strom that will allow people who have recently threatened suicide — with a gun — to keep unsecured guns in their home unless police take time to obtain a search warrant to remove them.

The United Nations Convention on the Rights of Persons with Disabilities urges and requires changes to how signatories discharge their duties to people with intellectual disabilities, in the direction of their greater recognition as legal persons with expanded decision-making rights. Australian jurisdictions are currently undertaking inquiries and pilot projects that explore how these imperatives should be implemented. One of the important changes advocated is to move from guardianship models to supported or assisted models of decision-making. A driving force behind (...) these developments is a strong allegiance to the social model of disability, in the formulation of the Convention, in inquiries and pilot projects, in implementation and in the related academic literature. Many of these instances suffer from confusing and misleading statements and conceptual misinterpretations of certain elements such as legal capacity, decision-making capacity, and support for decision-making. This paper analyses some of these confusions and their possible negative implications for supported decision-making instruments and those whose interests these instruments would serve, and advises a more incremental development of existing guardianship regimes. This provides a more realistic balance between neglecting the real limits of those with mental disabilities and thereby ignoring their identity and particularity, and continuing to bring them equally and fully into society. (shrink)

Buchman et al.'s (2024) paper illuminates a pressing issue concerning the utilization of machine learning (ML) in psychiatric care, shedding light on its potential to exacerbate stigma and social d...

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

In the course of legal reasoning—whether for purposes of deciding an issue, justifying a decision, predicting how an issue will be decided, or arguing for how it should be decided—one often is required to reach conclusions based on a balance of reasons that is not straightforwardly reducible to the application of rules. Recent AI and Law work has modeled reason-balancing, both within and across cases, with set-theoretic and rule- or value-ordering approaches. This article explores a way to model (...) balancing in quantitative terms that may yield new questions, insights, and tools. (shrink)

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: ‘Is it ever appropriate to base a legal verdict on statistical evidence alone?’ Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are (...) multiple sources of incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own. (shrink)

One of the most controversial areas of animal research is the use of nonhuman primates for fundamental research. At the centre of the controversy is the question of whether the benefits of research outweigh the harms. We argue that the evaluation of harms and benefits is highly problematic. We describe some common procedures in neurological research using nonhuman primates and the difficulties in evaluating the harm involved. Even if the harm could be quantified, it is unlikely that it could be (...) meaningfully aggregated over different procedures, let alone different animals. A similar problem arises for evaluating benefits. It is not clear how benefits could be quantified, and even if they could be, values for different aspects of expected benefits cannot be simply added up. Sorting harms and benefits in three or four categories cannot avoid the charge of arbitrariness and runs the risk of imposing its structure on the moral decision. The metaphor of weighing or balancing harms and benefits is inappropriate for the moral decision about whether to use nonhuman primates for research. Arguing that the harms and benefits in this context are incommensurable, we suggest describing the moral consideration of harms and benefits as a coherent trade-off. Such a decision does not require commensurability. It must be well-informed about the suffering involved and the potential benefits, it must be consistent with the legal, regulatory and institutional framework within which it is made, and it must cohere with other judgments in relevant areas. (shrink)

Racially disparate policing, prosecution, and punishment harm individuals, families, and communities. These practices must be understood within the context of the development of the criminal legal system as a means of racialized social control. This context permits a critical examination of the way criminalization has been and is still deployed to subject poor and racialized communities to systemic injustices. This commentary frames a call for interventions to integrate a health justice approach to ensure that they advance racial and health (...) equity to promote the well-being of individuals, families, and communities. (shrink)

This article deals with the relations in the triangle state–society–business in modern Russia. It is shown against Russian historical background, that the absolutist state in this country could never be identified with the society and these relations were shaped under its strong domination. The ethics of rule-following characteristic for market economy in general did not develop in Russia. The breakdown of communist Russia and market reforms proceeding since 1992 did not change this situation significantly. The period of political alliance between (...) big business and government was followed by restoration of state dominance in somewhat modified forms. Both periods were characterized by corruption, which contrary to Putin’s slogans, increases in Russia. In the article I show the evolution of Putin administration’s policy which changed from emphasizing and improving legal institutions to selective use of legal norms depending on personal loyalty. Main forms of state exploitation of Russian business are described. The conclusion is that Russian experience of balancing state and market should be called negative. (shrink)

It is often challenging for mental health‐care providers and health organizations to perform their various roles and to meet their varied obligations. In complex mental health‐care circumstances the concurrent application of relevant ethical principles and values often leads to the emergence of completing obligations that need to be carefully weighed and balanced in the making of care‐related decisions. Although some clinical circumstances, such as those potentially triggering the duty to warn, are adequately guided by existing rules based on legal (...) precedents, there is a gap in decision‐making support in other mental health‐care domains. This article proposes that a set of targeted, decision‐making approaches be developed to assist in the handling of specific, challenging circumstances. By way of illustration, two novel approaches are introduced; that is, choosing to work within a moral relational space of optimal therapeutic engagement (at the micro level of clinical practice), and the use of a health policy development approach that instantiates deliberative engagement (at the meso and macro levels of health organization). (shrink)

Background: Medical confidentiality underpins the doctor–patient relationship and ensures privacy so that intimate information can be exchanged to improve, preserve, and protect the health of the patient. The right to information applies to the patient alone, and, only if expressly desired, can it be extended to family members. However, it must be remembered that one of the primary tenets of family medicine is precisely that patient care occurs ideally within the context of the family. There may be, then, certain occasions (...) when difficulties will arise as to the extent of the information provided to family members.Objectives: This study aimed to describe family doctors’ attitudes to confidentiality and providing patient information to relatives as well as their justifications for sharing information.Method: A descriptive postal questionnaire was self-administered by family doctors.Results: Of 227 doctors, 95.1% provided information to a patient’s family and over a third disclosed information to others without prior patient consent.Conclusions: The findings reveal that family doctors should pay more attention to their patients’ rights to information, privacy, and confidentiality, and reflect very carefully on the fine balance between this and the occasional need for the support and collaboration of family members in delivery of care. Emphasis should be placed on ethics and legal problems during undergraduate education and in-service training of doctors. (shrink)

In this paper I examine the debate between ‘protectionists’ and ‘liberationists’ concerning the appropriate role of minors in decision-making about their health care, focusing particularly on disagreements between the two sides regarding adolescents. Protectionists advocate a more traditional, paternalistic approach in which minors have relatively little input into the healthcare decision-making process, and decisions are made for them by parents or other adults, guided by a commitment to the patient's best interests. Liberationists, on the other hand, argue in favour of (...) expanded participation by minors in treatment decisions, and decision-making authority for at least some adolescents. My examination of the debate includes discussion of liberationist shifts that have taken place in the medical community as well as in legal policy and practice, and consideration of recent research on adolescent development. In the final section of the paper, I propose a moderate position that addresses both liberationist and protectionist concerns. (shrink)

In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm exists. Under both analyses, the determination of whether such conduct is permissible involves a reasonability test that balances that foreseeable harm against the good intended by the (...) actor's conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor. Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect. Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability. This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications. The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability. Keywords: Double effect, negligence, intention, foreseeability, choice, law and economics, utilitarianism, consequentialism, weighing of values. (shrink)

BackgroundThis paper investigates the content of Australian policies that address withholding or withdrawing life-sustaining treatment to analyse the guidance they provide to doctors about the allocation of resources.MethodsAll publicly available non-institutional policies on withholding and withdrawing life-sustaining treatment were identified, including codes of conduct and government and professional organization guidelines. The policies that referred to resource allocation were isolated and analysed using qualitative thematic analysis. Eight Australian policies addressed both withholding and withdrawing life-sustaining treatment and resource allocation.ResultsFour resource-related themes were (...) identified: doctors’ ethical duties to consider resource allocation; balancing ethical obligations to patient and society; fair process and transparent resource allocation; and legal guidance on distributive justice as a rationale to limit life-sustaining treatment.ConclusionOf the policies that addressed resource allocation, this review found broad agreement about the existence of doctors’ duties to consider the stewardship of scarce resources in decision-making. However, there was disparity in the guidance about how to reconcile competing duties to patient and society. There is a need to better address the difficult and confronting issue of the role of scarce resources in decisions about life-sustaining treatment. (shrink)

This paper examines the legitimacy of the US government’s argument that it must “balance liberty and security” with regard to its policy of trying enemy belligerents in military commissions rather than federal courts. I distinguish between three senses of “balance,” and argue that the policy is ambiguous between the second (internal) and third (emergency external) senses of balance. Neither line of reasoning justifies the policy, however. On the second sense, it is unjustified because it constitutes an arbitrary limitation of the (...) rights of some for the sake of the security of others. It thus violates the government’s duty to decide questions of policy in accordance with accepted legal procedures. Alternately, if the policy is intended to be an exercise of emergency powers, then it violates what I call the government’s juridical duty to serve as a guardian of justice. I offer an alternative justification for emergency measures, one that is based on the model of self-defense. I conclude that although the exercise of military commissions in times of emergency can be justified, the current exercise is illegitimate. (shrink)

Asylum legal aid lawyers are under continuous public scrutiny. On the one hand, these lawyers are portrayed as being solely motivated by profit. On the other hand, they are depicted as leftist activists frustrating the legal system. When assisting their asylum seeking clients under the state's legal aid scheme, lawyers need to balance the client's interest, the public interest in the administration of justice and their own interest in profit or survival. The current book examines this (...) class='Hi'>balancing act and explores the role of the institutional context. It does so by studying the decision making of asylum legal aid lawyers in the Netherlands and England in respect of two ethical issues: 'time vs. money' and 'hopeless cases'. This empirical research into lawyers' professional ethics in practice will appeal to scholars engaged in lawyers' ethics, policy makers and those involved in the regulation of the legal profession. Dissertation. [Subject: Politics, Human Rights Law, International Law]. (shrink)

The phenomenon of contract cheating presents, potentially, a serious threat to the quality and standards of Higher Education around the world. There have been suggestions, cited below, to tackle the problem using legal means, but we find that current laws are not fit for this purpose. In this article we present a proposal for a specific new law to target contract cheating, which could be enacted in most jurisdictions.We test our proposed new law against a number of issues that (...) would need to be considered before any legal approach could be successful; would changing the legal status of contract cheating make it less likely to happen? Could this be achieved in a specific way? If so, who should actually be prosecuted and what offence are they committing? Would it actually address the causes of contract cheating? We suggest some answers to these questions, but then also identify a number of unintended potential consequences. We therefore additionally consider whether a legal approach is possible or even desirable.We conclude that a legal approach to contract cheating is possible, and, on balance, appropriate. Using UK law as an example, we offer a specific suggestion to lawmakers, around the world, for how this might be achieved, and conclude that the most successful approach would be to focus largely on a law targeting the providers of contract cheating, in particular commercial services. (shrink)

In legal theory, it is widely claimed that decisions in hard cases are based on weighing and balancing. However no reconstructions are given of the deep structure of the complex argumentation underlying the justification of these decisions. The author develops a model for the analysis of weighing and balancing of arguments in the justification of judicial decisions that are based on teleological-evaluative considerations. The justification is reconstructed as a complex argumentation that consists of different levels of argumentation (...) and it is explained how these levels of argumentation relate to the burden of proof of a judge who gives a decision that is based on a weighing and balancing in which teleological-evaluative considerations are invoked. (shrink)

Shen et al. (2024) present a new and updated framework on the ethical, social, and legal implications of returning individual research results (IRRs) in digital phenotyping psychiatric research. Th...

The balance-of-power idea became a crucial concept in the discourse of international affairs by the mid-seventeenth century. Nonetheless, the concept of balance of power was not even explicitly referenced in the Peace of Westphalia (1648). Instead, the legal principles of status quo ante and uti possidetis reigned supreme. Even though the balance-of-power principle was not mentioned in the Peace of Westphalia, it was often referenced during the negotiations and its implicit presence or practical balance of power was evident in (...) the treaties trying to reach stability in the inter-state system. Several alliances, concluded mostly against France and Louis XIV in the second half of the seventeenth century, implied the balance of power and, more specifically, the balance of sea power. The paper argues that the balancing process became less theoretical and more pragmatic as evidenced by interactive alliance treaties that established reciprocal responsibilities and numerical equilibrium. By the Peace of Utrecht (1713), the balance of power or the balance of Europe became a leading principle and it was referenced repeatedly in the treaties in different languages. The paper traces the balance-of-power idea from the diplomatic background to the diplomatic foreground as the idea moved from natural law to positive law. (shrink)

Legal and ethical issues arise for clinicians working with female clients who are survivors of domestic violence and who have children. Statistics indicate that children of 30%-80% of such women are also abused. Disclosure by an abused woman of concurrent child abuse creates an ethical dilemma for the clinician involving adherence to mandatory reporting laws and the ethical duty to protect vs. ethical issues of confidentiality and respect for client autonomy. Potential resolution of this dilemma incorporates core tenets of (...) feminist theory. A hypothetical scenario illustrating the ethical dilemma is provided, and some practical guidelines for its resolution, although not yet empirically tested, are outlined. (shrink)

Imbalance in analytical legal theory's approach to prima facie legal phenomena : re-balancing after imbalance : an incremental addition to analytical legal theory -- Legal officials, the rule of recognition, and international law -- The hierarchical view of legal system and non-state legality -- Meta-theoretical-evaluative motivations -- An inter-institutional theory -- An inter-institutional account of non-state legality -- Pathologies of legality : novel technologies and their implications for conceptions of legality : the consequences of (...) re-socializing a descriptive-explanatory view of law. (shrink)

In an age of smartphones, Facebook and You Tube, privacy may seem to be a norm of the past. This book addresses ethical and legal questions that arise when media technologies are used to give individuals unwanted attention. Drawing from a broad range of cases within the US, UK, Australia, Europe, and elsewhere, I ask whether privacy interests can ever be weightier than society’s interest in free speech and access to information. Taking a comparative and interdisciplinary approach, and drawing (...) on the work of political theorist Jeremy Waldron concerning toleration, the book argues that we can still have a legitimate interest in controlling the extent to which information about us is disseminated. The book begins by exploring why privacy and free speech are valuable, before developing a framework for weighing these conflicting values. By taking up key cases in the US and Europe, and the debate about a ‘right to be forgotten’, I discuss the potential costs of limiting free speech, and point to legal remedies and other ways to develop new social attitudes to privacy in an age of instant information sharing. (shrink)

This paper focuses on the ethical and moral implications of findings from the authors? national survey of television news directors? policies, practices, and perceptions of good/bad news. In light of the potentially negative effects of excessive amounts of bad news on individuals and society, the authors ask whether television journalists have an ethical responsibility?beyond legal constraints and professional criteria?in the selection and presentation of bad news and good news. An earlier version of this paper, detailing the findings of the (...) survey, was presented to the Radio?TV Journalism Division of the Association for Education in Journalism and Mass Communication in August, 1986. (shrink)

As an alternative dispute resolution procedure, Domain Name Arbitration addresses not only contentions regarding the ownership of web pages, but also infringements of the Intellectual Property law such as cyber squatting or Internet piracy. In this spirit, panelists of the World Intellectual Property Organization enact law in accordance with what the involved parties provide them as burden of proof. Following this line of thought, we can assume that one party may remain unrepresented when it is not able to accomplish (...) class='Hi'>legal procedures successfully. Nevertheless, does this kind of asymmetry always function in the way that we presume? This paper sets out to study how WIPO panelists tackle knowledge asymmetries when being manifested in Domain Name Arbitration. In particular, this paper concentrates on comparing two Domain Name Arbitration processes in which knowledge asymmetries play a significant role in the panelist’s final-and legally binding- decision. This analysis also examines how specific text-internal features give us a hint of unbalanced relationships between the Complainant and the Respondent of a Domain Name Arbitration process. It endeavors, thus, to understand how lexical, rhetorical-grammatical and discursive features work within discourse and may reach to influence the communicative act itself. Following Vijay K. Bhatia’s critical discourse analysis as main theoretical framework, this paper tries to comprehend the role asymmetries play in enacting Domain Name law. (shrink)

Every modern legal system is made up of two basic kinds of norms: rules and principles. These are applied by means of two different procedures: subsumption and balancing. While rules apply by means of subsumption, balancing is the means of applying principles. Balancing has therefore become an essential methodological criterion for adjudication, especially of constitutional rights. However, balancing is at the heart of many theoretical and practical discussions. One of the most important questions is whether (...) balancing is a rational procedure for applying norms. The aim of this paper is to consider whether this is the case. To achieve this aim, this paper reflects on why the rationality of balancing is in doubt, and to what extent balancing can be rational, and how this can be possible. The weight formula proposed by Robert Alexy is analysed as a model which, in spite of its limits, tries to solve the philosophical and constitutional problems about the rationality of balancing to the greatest extent possible. (shrink)

This paper reviews the AWARE(TM) software distributed by the Electric Power Research Institute (EPRI). The program is designed to facilitate the Federal Energy Regulatory Commission (FERC) license renewal process for US hydropower installations. The discussion reviews the regulatory, legal, and social contexts that give rise to the creation and distribution of AWARE(TM). The principal legal impetus for AWARE(TM) is the Electric Consumer Protection Act (ECPA) of 1986 that directs FERC to give equal consideration to power and non-power resources (...) during relicensing. The software is reviewed in this paper from several perspectives including those of natural resource economics, systems modeling, and the social context within which FERC licensing decisions are made. We examine both the software and its underlying methodology and find significant problems with each. Because of its flaws, AWARE(TM) does little to further ECPA's equal consideration requirement. We find that the conservation and restoration impact of ECPA for US fisheries could be seriously hampered by the widespread use of AWARE(TM). (shrink)

The goal of the paper is to reply to David Duarte’s critique of the partial reducibility thesis―a claim I defended in one of my books that analogy is partly reducible to the balancing of legal principles. In the first part of the paper I sketch the framework against which the thesis was formulated, i.e. Robert Alexy’s theory of legal reasoning. In the second part I attempt to rebut Duarte’s objections, pointing out that they do not take into (...) account the Alexian background of my considerations. Finally, I suggest that some aspects of my theory of analogical reasoning are independent of its theoretical background and may be of value for any conceptualization of analogy in the law. (shrink)

This paper reviews common advertising claims by egg freezing companies and evaluates the medical evidence behind those claims. It then surveys legal standards for truth in advertising, including FTC and FDA regulations and the First Amendment right to free speech. Professional standards for medical advertising, such as guidelines published by the American Society for Reproductive Medicine, the American College of Obstetricians and Gynecologists, and the American Medical Association, are also summarized. A number of claims, many of which relate to (...) the targeting of younger women for eOC, are found to breach legal and ethical standards for truth in advertising. The ethical implications of misleading advertising claims are also discussed, and the central narrative woven by OC ads — that egg freezing is empowering to women — is examined. The paper concludes that a more balanced approach to the risks and benefits of OC is necessary to truly respect women's autonomy. Moreover, justice requires us to look beyond a medical procedure accessible only to a minority of women in order to address inequities in the workplace. (shrink)

Discusses nuances required to balance out the debate surrounding the moral and legal permissibility of using autonomous weapon systems in war fighting.

There are many lessons that bioethics can learn from the Holocaust. Forefront are the lessons from the Nuremberg trials and the formation of research ethics. An often-overlooked lesson is how the Nazi regime was able to construct a hierarchy in such a way that influenced people to act in horrendous ways. Fernandes & Ecret, writing in Conatus – Journal of Philosophy 4, no. 2, highlight the influence of hierarchy on the moral silence of nurses and physicians within the Nazi regime. (...) While we greatly enjoyed the paper, and think it is an important contribution, we find several misrepresentations of current bioethical discourse. There is not a global acceptance of euthanasia or medical aid in dying, the contemporary position in bioethics does not favor removal of conscience-based protections, and the lack of personal conscience-based protections was not the main factor in the analysis of Nazi medical hierarchy. The authors’ overall conclusion that their analysis suggests the importance of strengthening personal conscience-based objections to prevent medical hierarchy from influencing immoral behavior misses the more significant issue of institutional behavior. Instead, we argue, that the lessons from the analysis of Nazi nurses and physicians speak to the importance of protecting patients from institutional conscience-based objections that violate patient rights of access to legal medical services. This paper will respond to the misrepresentations. We highlight the growing threats to health care access from religious affiliated institutions, the threats to professional ethics and physician and nurse scope of practice. We conclude that the analysis by Fernandes & Ecret does point out an important lesson, but rather than showing the importance of individual conscience protections, it speaks to the importance of protecting patient rights. (shrink)

In section i, I sketch the main arguments to date for legal moralism, And show the ways in which they are unpersuasive. In sections ii and iii, I sketch and evaluate a seemingly compelling argument, Dependent on the concept of wrongful conduct, For the weak thesis that the immorality of conduct is a reason, But not a sufficient reason for making it illegal. Despite the apparent persuasiveness of this argument, The particular conclusions of the legal moralist, That various (...) non-Harmful immoralities ought on balance to be criminal, Do not obviously follow. Finally, Once the argument for the weak thesis is understood, Even its initial persuasiveness is undermined by considerations of legal philosophy. (shrink)

Reedition of papers in English spanning from 1986 to 2009 /// Historical background -- An imposed legacy -- Twentieth century contemporaneity -- Appendix: The philosophy of teaching legal philosophy in Hungary /// HISTORICAL BACKGROUND -- PHILOSOPHY OF LAW IN CENTRAL & EASTERN EUROPE: A SKETCH OF HISTORY [1999] 11–21 // PHILOSOPHISING ON LAW IN THE TURMOIL OF COMMUNIST TAKEOVER IN HUNGARY (TWO PORTRAITS, INTERWAR AND POSTWAR: JULIUS MOÓR & ISTVÁN LOSONCZY) [2001–2002] 23–39: Julius Moór 23 / István Losonczy 29 (...) // ON THE SURVIVAL OF ILMAR TAMMELO’S LETTER AND MANUSCRIPT ADDRESSED TO PROFESSOR MOÓR [2009] 41–44 // PROFESSIONAL DISTRESS AND SCARCITY: ALEXANDER HORVÁTH AND THE LEGACY OF NATURAL LAW IN HUNGARY [2005] 45–50 // HUNGARIAN LEGAL PHILOSOPHY IN THE 20TH CENTURY [2011] 51–72: I. The Pre-war Period [1. Bódog (Felix) Somló (1871–1920) 52] / II. The Inter-war Period [2. Gyula (Julius) Moór (1888–1950) 54 / 3. Barna Horváth (1896–1973) 55 / 4. József Szabó (1909–1992) 57 / 5. István Bibó (1911–1979) 58 / 6. Tibor Vas (1911–1983) 59 / 7. István Losonczy (1918–1980) 60] III. The Post-war Period (Communism) 61 [8. Imre Szabó (1912–1991) 62 / 9. Vilmos Peschka (1929–2006) 63 / 10. Kálmán Kulcsár (1928–2010) 65] IV. Contemporary Trends and Perspectives 66 [11. Csaba Varga (b. 1941) 66 / 12. András Sajó (b. 1949) 69 / 13. Béla Pokol (b. 1950) 70] V. Our Understanding of the Law Today 71 --- AN IMPOSED LEGACY -- LOOKING BACK [1999] 75–94: 1. On Ideologies and Marxism in general 75 / 2. Life of an Intellectual in Communism 79 / 3. On Marxism and its Socialist Cultivation in Particular 82 / 4. Legal Philosophising [4.1. Approaches to Law 87 / 4.2. Arriving at a Legal Ontology 91] 5. Conclusion 94 // LEGAL PHILOSOPHY OF THE MARXISM OF SOCIALISM: HUNGARIAN OVERVIEW IN AN INTERNATIONAL PERSPECTIVE [2003] 95–151: I. Development and Balance of Marxist Philosophising on Law in Hungary [1. Preliminaries (until 1948) 96 / 2. Stalinism (from the Soviet Occupation on) {a) Liquidation of the »Residues« 98 / b) Soviet-type Uniformisation [Gleichschaltung] 99 / c) Denial of the Past, with a Dual Effect 99 / d) »Socialist Legality«, Drawn from the Progressive Past of Western Europe 103 / e) Search for the Germs of Scholarly Evolution 103} 3. Institutionalisation Accompanied by Relaxation (from the 1960s) [a) Epigonism Becoming the Scholarly Ideal 104 / b) Stalinism in a Critical Self-perspective 105 / c) Disciples Diversified Launching their own Trends 107 / d) Comparatism 110 / e) (Re)discovery of the Western Legal Philosophy as a Competitor 112 / f) A Leading Mediatory Role within the »Socialist World Order« 114} 4. Disintegration (in the 1980s) {a) Attempt at Laying New Foundations for Marxism with Epigonism Exhausted 115 / b) Competitive Trends Becoming Exclusive 115 / c) Western Legal Philosophy Acknowledged as a Fellow-traveller within the Socialist Orbit Proper 116 / d) Hungarian Legal Theory Transforming into a National Corpus 118 / e) The Practical Promotion of Some Balance 119} 5. End-game for a Substitute State Religion (in the 1990s) 120] II. Marxist Legal Philosophising in an International Perspective [Ad 1: To the Preliminaries 122 / Ad 2: To Stalinism 124 / Ad 3: To Institutionalisation Accompanied by Relaxation {a) Late Separation from Vishinskiy’s Theory 125 / b) From Ideological Self-closure to an Apparently Scholarly Openness 127 / c) From Political Ideology to Genuine Scholarship 130 / d) International Recognition of Socialist Jurisprudence as an Independent Trend 135 / e) Together with Western Trends 137} Ad 4: To Disintegration {a) Loss of Attraction as Mere Epigonism 139 / b) Exclusivity of Competing Trends 139 / c) Fellowship with »Bourgeois« Trends 140 / d) An own Trend, Internationally Recognised 141 / e) A yet Progressive Role 142} Ad 5: To the Present state 143] III. A Temporary Balance 145 // AUTONOMY AND INSTRUMENTALITY OF LAW IN A SUPERSTRUCTURAL PERSPECTIVE [1986] 151–175: 1. The Strange Fate of Concepts 151 / I. A Relational Category 2. Basis and Superstructure: The Genuine Meaning 154 / 3. Exerting Social Influence as a Conceptual Minimum 156 / 4. Relationships within the Prevailing Totality 158 / 5. Attempts at Interpretation in Hungary 159 / 6. The Lukácsian Stand 162 / 7. Lukács’s Recognitions 168 / 8. Some Criticism 169 / II. The Law’s Understanding 171 / 9. Law Interpreted as Superstructure 171 / 10. Conclusions Drawn for the Law’s Understanding 173 // LEGAL THEORY IN TRANSITION (A PREFACE FROM HUNGARY) [2000] 177–186 // DEVELOPMENT OF THEORETICAL LEGAL THOUGHT IN HUNGARY AT THE TURN OF THE MILLENNIUM [2006] 187–215: 1. International Environment 188 / 2. The Situation in Hungary 190 / 3. Outlook I: The Historical-comparative Study of Legal Cultures and of the Lawyerly Way of Thinking 203 / 4. Outlook II: The Paradigmatic Enigma of the Transition to Rule of Law 207 / 5. Incongruity in Practice 213 / 6. Perspectives 214 --- TWENTIETH CENTURY CONTEMPORANEITY -- CHANGE OF PARADIGMS IN LEGAL RECONSTRUCTION: CARL SCHMITT AND THE TEMPTATION TO FINALLY REACH A SYNTHESIS [2002] 219–234: 1. Dangers of Intellectualism 219 / 2. Schmitt in Facts 221 / 3. Schmitt and Kelsen 222 / 4. On Bordering Conditions 226 / 5. With Kelsen in Transubstantiation 230 / 6. Polarisation as the Path of Theoretical Development 232 // KELSENIAN DOCUMENTS IN HUNGARY: CHAPTERS ON CONTACTS, INCLUDING THE GENESIS OF AUTOBIOGRAPHY [2006] 235–243: 1. Preludes 235 / 2. The Search for Moór’s Bequeath 235 / 3. Moór’s Collegiality 238 / 4. Bibó as a Disciple Translating 241 // THE »HART-PHENOMENON« [2002] 245–267: I. The Hart-miracle 246 [1. The Scene of Britain at the Time 247 / 2. The Personal Career 250 / 3. The Opus’ Career 252 / 4. Verbal Sociologism 255 / 5. Growing into the British Pattern 259] II. The Hart-phenomenon 260 [6. Origination of a Strange Orthodoxy 261 / 7. Mastering Periods of the 20th Century 263 / 8. Raising the Issue of Reception in Hungary 365] // LITERATURE? A SUBSTITUTE FOR LEGAL PHILOSOPHY? [2007] 269–287: 1. The Enigma of Law and its Study 269 / 2. “Law and Literature” 271 / 3. Varieties of “Law and Literature” 274 / 4. The German Study of Artistic Representations 280 / 5. Some Literary Reconsiderations 285 / 6. Conclusion 287 --- APPENDIX -- THE PHILOSOPHY OF TEACHING LEGAL PHILOSOPHY IN HUNGARY [2007] 291–320: I. Why and How to Philosophise in Law? 291 / II. The State of Teaching Legal Philosophy 294 / III. The Philosophy of Teaching Legal Philosophy 296 / IV. Programme at the Catholic University of Hungary 300 [1. Graduate Studies 300 {a) Basic Subjects 301 / b) Facultative Seminars 305 / c) Closing Subjects 309 / d) Written Memoranda and the Thesis 312} 2. Postgraduate Studies 313 / 3. Conclusion 317] V. Perspectives 318 /// Index of Subjects 321 / Index of Normative Materials 328 / Index of Names 329 . (shrink)

There are complex considerations when planning to disclose an attenuated psychosis syndrome diagnosis. In this review, we evaluate ethical, legal, and clinical perspectives as well as caveats related to full, non- and partial disclosure strategies, discuss societal implications, and provide clinical suggestions. Each of the disclosure strategies is associated with benefits as well as costs/considerations. Full disclosure promotes autonomy, allows for the clearest psychoeducation about additional risk factors, helps to clarify and/or correct previous diagnoses/treatments, facilitates early intervention and bolsters (...) communication between providers but there are important considerations involving heritability, comorbidity, culture, and stigma. Non-disclosure advances nonmaleficence by limiting stigma and stress, and confusion in a sensitive developmental period but is complicated by varying patient preferences and the possibility that, as new treatments without adverse effects become available, the risk with false positives no longer justifies the accompanying loss of autonomy. Partial disclosure balances ethical considerations by focusing on symptoms instead of labels, but evidence that laypersons may interpret this information as a pseudo-diagnosis and that symptoms alone also contribute to stigma limits the efficacy of this approach. In addition, there are notable societal considerations relating to disclosure involving conservatorship, the reach of insurance companies, and discrimination. We advocate a hybrid approach to disclosure and recommend future research aimed at understanding the effects of stigma on clinical course and a renewed focus on those help-seeking cases that do not transition but remain clinically relevant. (shrink)

Prior to the extensive reform of the Finnish criminal procedure in 1997, the roles of the prosecutor and the defence attorney were passive compared to the role of the judge. The main task of the prosecutor was to read the written indictment and to help the judge to find the truth. The judge could procure evidence ex officio, although it may have been detrimental to the suspect. The roles of the judge, the attorneys and the prosecutor changed dramatically when the (...) reform concerning criminal matters was enacted. The prosecutor is now an active party to the case, ensuring the implementation of criminal liability and actively promoting the progress of the proceedings. It is the duty of the prosecutor to prove the charge by procuring sufficient evidence in support of the charge and by presenting it to the court. The court itself is neutral; it does not support or assist the prosecutor. The judge cannot hear a witness ex officio if the hearing is to be detrimental to the suspect. (shrink)

Several recent studies and initiatives have emphasized the importance of a strong ethical organizational DNA (ODNA) to create and promote an effective corporate governance culture of trust, integrity and intellectual honesty. This paper highlights the drawbacks of an excessively heavy reliance on rules-based approaches that increase the cost of doing business, overshadow essential elements of good corporate governance, create a culture of dependency, and can result in legal absolutism. The paper makes the case that the way forward for effective (...) corporate governance is to strike an optimal balance between rules-based and principles-based approaches. The recent corporate scandals have demonstrated that the ethical ODNA is critical to the driving force and basis of legal and regulatory requirements. Effective governance means adhering to ethical principles, not merely complying with rules, and is a crucial guardian of a firm’s reputation and integrity. It is through an effective corporate governance program (that is, one that optimally captures and integrates the appropriate aspects of rules-based and principles-based approaches, and identifies and assesses the related risks) that an organization can reconfigure its ODNA for improved performance. Focusing on the ethical ODNA as the basis of new governance measures provides an opportunity to develop a competitive advantage as it represents a potential source of differentiation, strengthens the relationship with all stakeholders of the organization by building a culture of trust and integrity, and re-instills investor confidence. This paper employs dialectical reasoning that links the ODNA through principles-driven rules in developing a risks-based approach. A comparison from a risk assessment perspective between rules-based and principles-based approaches is presented. Although there have been few applications employing dialectical reasoning in business research, this methodology can be extremely useful in isolating ethical issues and integrating them into the business process. The risks-based approach captures the benefits of both rules-based and principles-based approaches, and incorporates trust-based principles such␣as solidarity, subsidiarity and covenantal relationships. (shrink)

This issue’s “Legal Briefing” column covers recent legal developments involving coerced treatment and involuntary confinement for contagious disease. Recent high profile court cases involving measles, tuberculosis, human immunodeficiency virus, and especially Ebola, have thrust this topic back into the bioethics and public spotlights. This has reignited debates over how best to balance individual liberty and public health. For example, the Presidential Commission for the Study of Bioethical Issues has officially requested public comments, held open hearings, and published a (...) 90-page report on “ethical considerations and implications” raised by “U.S. public policies that restrict association or movement (such as quarantine).” Broadly related articles have been published in previous issues of JCE. We categorize recent legal developments on coerced treatment and involuntary confinement into the following six categories: 1. Most Public Health Confinement Is Voluntary 2. Legal Requirements for Involuntary Confinement 3. New State Laws Authorizing Involuntary Confinement 4. Quarantine Must Be as Least Restrictive as Necessary 5. Isolation Is Justified Only as a Last Resort 6. Coerced Treatment after Persistent Noncompliance. (shrink)

This book offers a 'genealogical' explanation of law's normativity. The term 'genealogical' conveys a commitment to a non-metaphysical type of enquiry. While it explains how law, as a normative phenomenon, comes about, it does not seek to ground law's normativity in anything but the context of social interaction giving rise to it. Legal normativity is brought about on a daily basis. Whether in revolutionary circumstances or in the quotidian need for judges, lawmakers or citizens to balance law's demands with (...) those of morality or prudence, our ability to bind ourselves through law ultimately depends on our capacity to articulate a better way of living together, and to commit ourselves to it. These efforts of assessment and articulation depend, in turn, on our conception of normative agency. Assert the need to trace the truth of ethical judgments to some independent moral 'facts' conditioning their objectivity, and you will get a different understanding of what it is we are doing when we dispute law's authority in the name of moral values. Tracing the truth of moral judgements back to our own social practices not only affects the nature of disagreement; it also dramatically increases our responsibility when, as lawmakers, judges, or citizens we 'take the law into our own hands' and confront it with our moral expectations. (shrink)