The book discusses the role of intellectuals in the modern world. Bauman connects this with current analyses of modernity and post-modernity. The theme of the book is that the tasks of intellectuals change from being 'legislators' to 'interpreters' with the transition from modernity to post-modernity. The book discusses the role of intellectuals in the modern world. Bauman connects this with current analyses of modernity and post-modernity. The theme of the book is that the tasks of intellectuals change from being 'legislators' (...) to 'interpreters' with the transition from modernity to post-modernity. (shrink)

My aesthetic judgements seem to make claims on you. While some popular accounts of aesthetic normativity say that the force of these claims is third-personal, I argue that it is actually second-personal. This point may sound like a bland technicality, but it points to a novel idea about what aesthetic judgements ultimately are and what they do. It suggests, in particular, that aesthetic judgements are motions in the collective legislation of the nature of aesthetic activity. This conception is recommended (...) by its ability to explain some important but otherwise recondite features of aesthetic practice and, more importantly, by allowing us to ground the normativity of aesthetic judgement in the familiar normativity of practice. It also offers a more systematic way of understanding the rivalry between the ideals of aesthetic universality and diversity. (shrink)

The tension between external forces for better ethics in organizations, represented by legislation such as the Sarbanes–Oxley Act (SOX), and the call for internal forces represented by increased educational coverage, has never been as apparent. This study examines business school faculty attitudes about recent corporate ethics lapses, including opinions about root causes, potential solutions, and ethics coverage in their courses. In assessing root causes, faculty point to a failure of systems such as legal/professional and management (external) and declining personal (...) values (internal). We also found that faculty recommend external forces as a remedy more often than increased ethics educational coverage; we contextualize this finding with recent ethics education literature. We conclude by proposing that neither legislation nor ethics education alone are complete when addressing widespread unethical corporate acts and offer a multi-faceted approach to ethics educational opportunities. (shrink)

Over the past few years, over a dozen states have proposed, and almost as many have passed, something referred to as the Pain-Capable Unborn Child Protection Act, a piece of legislation that makes abortion impermissible once fetal pain is possible and that further stipulates the fetus can feel pain at or before 20 weeks of gestation. Some very important questions immediately relevant to the abortion debate, perhaps even to the more complex issue of fetal rights, are raised by this (...) legislation, especially because it would impinge on the second-trimester abortion rights guaranteed by Roe. We first inquire whether the claim of fetal pain perception at or before 20 weeks is true and how such a claim should be substantiated. Next, we inquire whether the fetal capacity to experience pain, at whatever stage of development, reflects on the morality of abortion and whether it should be at all relevant to determining its legality. Finally, we would like to explore the implications that a commitment to a pain-related or sentience criterion of rights might have for a pro-life agenda. (shrink)

Central to the legal positivism of the nineteenth and the first half of the twentieth century was the dogma of the Ideal Legislator. Legal materials were to be interpreted as the work of an omniscient, coherent, consistent legislator. We argue that this dogma persists in the different guise of the competent speaker model, on which legal materials are the work of a competent speaker, who follows all the pertinent semantic and pragmatic rules. We will first lay out the Ideal Legislator (...) dogma as applied in legal interpretation, arguing that this dogma does not limit interpretive discretion but rather amplifies it by hiding it under the veil of an inexistent, purely instrumental rationality. We will then turn to the competent speaker model, showing that, despite its apparent neutrality, it proves to be a reincarnation of the Ideal Legislator dogma, for it, too, amplifies interpretive discretion, only it hides it under the veil of an inexistent, purely linguistic rationality. Finally, we will inquire into the different types of rationality and their relations, arguing that there is always a choice and value judgment involved in ascribing rationality to legislators, and that these choices and judgments need to be carefully inspected and normatively justified. (shrink)

This essay considers the nature of duties incumbent on legislators in virtue of the office itself. I argue that there is no duty for a legislator to enact a criminal law based on morality; there is no duty to incorporate substantive moral conditions into the criminal law; and there is therefore no duty derivable from the nature of the legislative office itself to make conditions of culpability depend on those of moral responsibility. Finally, I argue that the relation between morality (...) and the criminal law is therefore much less direct than assumed in most theories of the criminal law. (shrink)

Since the publication of Ekins’ The Nature of Legislative Intent, significant attention has been paid to common attitude models of legislative intention, that is, models that require unanimity among its group members. A common interpretation of Ekins is that these common attitudes are to be preferred over aggregated attitudes. I argue that any feasible theory of legislative attitudes will require non-trivial aggregation (ie. not based on unanimity rules alone). Two arguments are put forward in this regard: first, that non-trivial aggregation (...) better explains uncooperative legislative behaviour and second, that mathematical problems with aggregation apply to common attitudes as well since they involve trivial aggregation. These arguments generalise to theories of common attitudes other than Ekins’. (shrink)

Excerpt from Traites de Legislation Civile Et PenaleMais ce n'est pas un panegyrique que je fais. Il faut bien avouer que le soin d'arranger et de polir a peu d' attraits pour le genie de l'auteur. Tant qu'il est pousse par une force creatrice, il ne sent que le plaisir de la composition. S'agit-il de donner des formes, de rediger, de finir, il n'en sent plus que la fatigue. Que l'ouvrage soit interrompu, le mal est irreparable: le charme disparait, (...) le degout succede, et la passion eteinte ne se rallume que pour un objet nouveau.La meme disposition l'a eloigne de contribuer a la redaction que je donne au public; je n'ai pu Obtenir que rarement les eclaircissements et les secours dont j'avais besoin il lui en coutait tr0p de suspendre le cours actuel de ses idees pour revenir sur d'anciennes traces.About the PublisherForgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.comThis book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works. (shrink)

Introduction Someone comes and says something. Without really needing to think, I understand what is said, refer it without difficulty to familiar codes, ...

This paper explores the financial reporting scandals of the past decade and the resulting U.S. legislative attempts to impose ethical behavior and control the incidence of new reporting problems via the Sarbanes-Oxley legislation. We begin with a brief historical perspective followed by assertions of ethical consequences of legislation with discussions of key recent corporate scandals, the motives for the frauds, and the consequences. Ethics related provisions of the Sarbanes-Oxley Act are discussed with the potential impact of the (...) class='Hi'>legislation on the likelihood of similar future frauds and accompanying prognosis for future corporate ethical behavior. (shrink)

Ten countries have established quotas for female representation on publicly traded corporate and/or state-owned enterprise boards of directors, ranging from 33 to 50 %, with various sanctions. Fifteen other countries have introduced non-binding gender quotas in their corporate governance codes enforcing a “comply or explain” principle. Countless other countries’ leaders and policy groups are in the process of debating, developing, and approving legislation around gender quotas in boards. Taken together, gender quota legislation significantly impacts the composition of boards (...) of directors and thus the strategic direction of these publicly traded and state-owned enterprises. This article outlines an integrated model of three institutional factors that explain the establishment of board of directors gender quota legislation based on the premise that the country’s institutional environment co-evolves with gender corporate policies. We argue that these three key institutional factors are female labor market and gendered welfare state provisions, left-leaning political government coalitions, and path-dependent policy initiatives for gender equality, both in the public realm as well as in the corporate domain. We discuss implications of our conceptual model and empirical findings for theory, practice, policy, and future research. These include the adoption and penalty design of board diversity practices into corporate practices, bottom-up approaches from firm to country-level gender board initiatives, hard versus soft regulation, the leading role of Norway and its isomorphic effects, the likelihood of engaging in decoupling, the role of business leaders, and the transnational and international reaction to board diversity initiatives. (shrink)

With a new foreword by Paul Kelly 'I regard Hayek's work as a new opening of the most fundamental debate in the field of political philosophy' - Sir Karl Popper 'This promises to be the crowning work of a scholar who has devoted a lifetime to thinking about society and its values. The entire work must surely amount to an immense contribution to social and legal philosophy' - Philosophical Studies Law, Legislation and Liberty is Hayek's major statement of political (...) philosophy and one of the most ambitious yet subtle defences of a free market society ever written. A robust defence of individual liberty, it is also crucial for understanding Hayek's influential views concerning the role of the state: far from being an innocent bystander, he argues that the state has an important role to play in defending the norms and practices of an ordered and free society. His arguments had a profound influence on the policies of Thatcher in the 1980s and resonate today in visions of the 'Big Society'. First published in three separate volumes, this Routledge Classics edition makes one of his most important books available in a single volume. Essential reading for understanding the background to the recent world economic turmoil and financial crisis, it also foreshadows the subsequent heated debate about regulation and political governance if such disasters are to be avoided in the future. (shrink)

Defenders of legislative supremacy against judicial review have primarily invoked various virtues of legislative process – in particular, its deliberative qualities, the diverse perspectives and inputs it allows, and especially, its connection to a principle of democratic equality. However, I argue that such virtues have been overemphasised as justifications for legislative supremacy. Instead, I argue that insufficient attention has been paid to the form of legislation as a justification for giving legislatures the ‘final say’ on issues of fundamental rights. (...) Firstly, I argue that legal philosophy has underemphasised the extent to which legislative form, rather than legislative process, can mediate ‘majoritarian’ rule, and how this undermines the most commonplace arguments for rights-based judicial review of parliamentary legislation. Secondly, I suggest that the same formal attributes give legislation a virtue of political transparency which can be contrasted with the esotericism of constitutional jurisprudence, itself considered as a distinctive species of political domination. (shrink)

On September 22, 1998, California Governor Pete Wilson signed Senate Bill 1785 into law, dramatically affecting the entire California animal sheltering community. Dubbed the "Hayden law" by the animal protection community after the bill's sponsor, it represents the state of California's attempt to legislate a solution to both the companion animal overpopulation problem and the friction between the agencies trying to end it. The persistence of the bill's primary supporters, a Los Angeles veterinarian and a UCLA law school professor and (...) the overall lack of opposition to it helped SB 1785 sail through the California legislature. Because of the scope of the bill and the immense cost of implementation, its passage shocked many in the sheltering community. This case study highlights the consequences of legislation that was crafted based on worse case scenarios and over which there was little collaborative effort. It concludes with suggestions that might be useful to other states contemplating similar such legislation. (shrink)

Marcus Willaschek and I have argued against the widespread assumption that Kant claims the Moral Law—the supreme principle of morality—is (or must be regarded as) ‘self-legislated’. We argue that Kant instead describes the Moral Law as an _a priori_ principle of the will. We also argue that his conception of autonomy concerns not the Moral Law but substantive moral laws such as the law that requires promoting the happiness of others. In the present essay, I respond to the commentary by (...) Alyssa Bernstein and Christoph Hanisch. In response to Bernstein, I clarify the relation between our interpretation of Kant and those proposed by John Rawls and Allen Wood. In response to Hanisch, I argue, among other things, that Kant’s defense of the thesis that the Moral Law is an a priori principle of pure practical reason does not mean that practical reasoning and reasons-based action are impossible without it. It means rather that _morally good_ and _morally evil_ reasons-based action are impossible without it. (shrink)

First published in 1982. Routledge is an imprint of Taylor & Francis, an informa company.

Many democracies use geographic constituencies to elect some or all of their legislators. Furthermore, many people regard this as desirable in a noncomparative sense, thinking that local constituencies are not necessarily superior to other schemes but are nevertheless attractive when considered on their own merits. Yet, this position of noncomparative constituency localism is now under philosophical pressure as local constituencies have recently attracted severe criticism. This article examines how damaging this recent criticism is, and argues that within limits, noncomparative constituency (...) localism remains philosophically tenable despite the criticisms. The article shows that noncomparative constituency localism is compelling in the first place because geographic constituencies foster partisan voter mobilisation, and practices of constituency service help to sustain deliberation among constituents and within the legislature and promote the realisation of equal opportunity for political influence. The article further argues that it is unwarranted to criticise geographic constituencies for being biased against geographically dispersed voter groups, for causing vote-seat disproportionality, and for being vulnerable to gerrymandering. The article also discusses the criticisms that local constituencies may pose risks of inefficiency and injustice in resource allocation decisions, may lead legislators to neglect the common good, and may limit citizens’ control over the political agenda. Whilst conceding that these objections may be valid, the article argues that they do not outweigh the diverse and normatively weighty considerations speaking in favour of noncomparative constituency localism. Finally, the article’s analysis is defended against several variants of the charge that it exaggerates the benefits of geographic constituencies. (shrink)

This review essay examines the contribution of Legislated Rights (Webber et al, Cambridge 2018) to a central issue in constitutional theory: namely, how the institutional division of labour between the legislature and the judiciary with respect to the task of giving effect to constitutional rights is best understood and conceived. In doing so, the essay situates the work within contemporary scholarship and adopts a broadly comparative lens — a perspective that is mindful of key developments in constitutional law and theory (...) over the past several decades. Ultimately, it is suggested that a critical weakness of the capacity of Legislated Rights to contribute to contemporary debates about judicial review is its lack of engagement with these developments. As a result, the work’s intervention largely misses its mark. It speaks to an outdated view that does not reflect contemporary constitutional practice or scholarship. (shrink)

In this article, we sketch a new approach to law and ethics. The traditional paradigm, exemplified in the debate on liberal moralism, becomes increasingly inadequate. Its basic assumptions are that there are clear moral norms of positive or critical morality, and that making statutory norms is an effective method to have citizens conform to those norms. However, for many ethical issues that are on the legislative agenda, e.g. with respect to bioethics and anti-discrimination law, the moral norms are controversial, vague (...) or still evolving. Moreover, law proves not to be a very effective instrument. Therefore, we need a new paradigm, both for descriptive and for normative analysis. This interactive paradigm, as a normative position, can be summarised in two theses. The process of legislation on ethical issues should be structured as a process of interaction between the legislature and society or relevant sectors of society, so that the development of new moral norms and the development of new legal norms may reinforce each other. And legislation on ethical issues should be designed in such a way that it is an effective form of communication which, moreover, facilitates an ongoing moral debate and an ongoing reflection on such issues, because this is the best method to ensure that the practice remains oriented to the ideals and values the law tries to realise. (shrink)

Governments are increasingly inviting patient organizations to participate in healthcare policymaking. By inviting POs that claim to represent patients, representation comes into being. However, little is known about the circumstances under which governments accept POs as patient representatives. Based on the analysis of relevant legislation, this article investigates the criteria that self-help organizations, a special type of PO, must fulfil in order to be accepted as patient representatives by governments in Austria and Germany. Thereby, it aims to contribute to (...) the discussion on the role of governments in steering SHOs. There are different degrees of regulation. Governments in both countries not only formulate explicit criteria for SHOs with respect to patient representation but also guide SHOs representing patients through implicit criteria for associations. We discuss the findings against concepts of responsiveness, authorization, and accountability. Our findings indicate that governmental steering is not negative per se as indicated by previous research but—depending on legislative criteria—can promote transparency and democratic quality in patient representation. (shrink)

It is a widely supported claim that liberal democratic institutions should treat citizens with equal respect. I neither dispute nor champion this claim, but investigate how it could be fulfilled. I do this by asking, as a sort of litmus test, how liberal democratic institutions should treat with respect citizens holding minority convictions, and thereby dissenting from a deliberative output. The first step of my argument consists in clarifying the sense in which liberal democracies have a primary concern for the (...) respectful treatment of citizens qua self-legislating persons. Taking the second step, I address critically the common tendency in the literature to concentrate on what I have termed the ex ante legem phase, focusing solely on the structure of institutionalized decision-making processes. I submit, rather, that the principle of equal respect for persons demands more of liberal democratic institutions to enhance citizens' chances to give voice to their consciences and influence, on that ground, the formulation of the rules to which they should conform. Fulfilling this commitment requires democratic theorizing to go beyond the ex ante legem phase and regard forms of ex post legem contestation as an extension of citizens' right to political participation. Against this backdrop, I take the third and last step and argue that a promising way forward consists in the adoption of an ex post legem version of conscientious exemptionism, granting citizens a conditional moral right to request exemptions on the grounds of conscience from certain controversial legal and political provisions. (shrink)

Educational Legislation and Administration of the Colonial Governments is an unchanged, high-quality reprint of the original edition of 1899. Hansebooks is editor of the literature on different topic areas such as research and science, travel and expeditions, cooking and nutrition, medicine, and other genres. As a publisher we focus on the preservation of historical literature. Many works of historical writers and scientists are available today as antiques only. Hansebooks newly publishes these books and contributes to the preservation of literature (...) which has become rare and historical knowledge for the future. (shrink)

This chapter contains section titled: Images of Legislation Legislation in Legal Theory Analytics of the Legislative Process Interpreting and Applying Legislation A Forum of Principle? References.

In industrial societies where civil law and state institutions have become well established secular vehicles for governing the populace, it is widely assumed that the state no longer has an interest in fortifying the religious sector as a complementary source of social control. Thus, a distinction is drawn between the Islamic state that is ruled by religious law and the secular state of Western industrial societies in which religion is deemed to have lost its influence in the public sphere. This (...) dissertation argues that civil law is not religiously neutral and thus challenges a central premise of secularization theory. Introducing a new theoretical model that classifies civil law on the basis of its purpose-to protect religious liberty, engage or fortify the religious sector, or to advance universal norms-the author examines the impact of the three different types of legislation upon religious freedom and the individual autonomy of religious minorities in Sweden, an aggressively secularized industrial society. The author concludes that, viewed from the standpoint of a religious nonconformist, there is no discernible difference between living in a society that is overtly ruled by religious law (e.g., an Islamic state) and living in a "secular” society that is ruled by civil law either embedded with religious norms or designed to facilitate state appropriation of the religious sector as a complementary means of social control. In either environment, the author argues, the religious nonconformist will be forced to conform to the religious norms of the predominant religious group. (shrink)

Kant famously insisted that “the idea of the will of every rational being as a universally legislative will” is the supreme principle of morality. Recent interpreters have taken this emphasis on the self-legislation of the moral law as evidence that Kant endorsed a distinctively constructivist conception of morality according to which the moral law is a positive law, created by us. But a closer historical examination suggests otherwise. Kant developed his conception of legislation in the context of his (...) opposition to theological voluntarist accounts of morality and his engagement with conceptions of obligation found in his Wolffian predecessors. In order to defend important claims about the necessity and immediacy of moral obligation, Kant drew and refined a distinction between the legislation and authorship of the moral law in a way that precludes standard theological voluntarist theories and presents an obstacle to recent constructivist interpretations. A correct understanding of Kant's development and use of this distinction reveals that his conception of legislation leaves little room for constructivist moral anti-realism. (shrink)

Riggs v. Palmerhas become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue inRiggswas given by thecounterfactual intentionof the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More generally, (...) what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light. (shrink)

Excerpt from Traites de Legislation Civile Et PenaleMais ce n'est pas un panegyrique que je fais. Il faut bien avouer que le soin d'arranger et de polir a peu d' attraits pour le genie de l'auteur. Tant qu'il est pousse par une force creatrice, il ne sent que le plaisir de la composition. S'agit-il de donner des formes, de rediger, de finir, il n'en sent plus que la fatigue. Que l'ouvrage soit interrompu, le mal est irreparable: le charme disparait, (...) le degout succede, et la passion eteinte ne se rallume que pour un objet nouveau.La meme disposition l'a eloigne de contribuer a la redaction que je donne au public; je n'ai pu Obtenir que rarement les eclaircissements et les secours dont j'avais besoin il lui en coutait tr0p de suspendre le cours actuel de ses idees pour revenir sur d'anciennes traces.About the PublisherForgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.comThis book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works. (shrink)

Objective To obtain information about the similarities and differences in regulating different types of medical research in the European Union .Methods Web searches were performed from September 2009 to January 2011. Notes on pre-determined topics were systematically taken down from the web pages. The analysis relied only on documents and reports available on the web, reflecting the situation at the end of 2010.Results In several countries, regulatory legislation applied only to clinical trials on drugs and medical devices, in other (...) states various types of research were also regulated but by laws different from those concerning trials, and in many countries, some research areas were not controlled by legislation at all. In very few countries was all medical research handled similarly from a legal point of view. The number of research ethics committees in a single country varied from one to 264. Their areas of responsibility, working principles and length of time to grant research permission varied as well as the rules for obtaining informed consent from vulnerable groups. In 10 EU countries, there was no appeal mechanism after a negative decision by an REC. The RECs were not accountable to any organisation in five EU countries.Conclusions There is a need for a fundamental debate regarding whether and which kinds of changes are needed for the further harmonisation of medical research governance in the EU and how cross-country medical research could be facilitated in the future. (shrink)

In Rousseau’s political theory, the Legislator’s task is to draft the best possible Constitution for a given people. His goal is to maintain the public liberties and to ensure the preservation and prosperity of the State. However, the main problem is “to put law above men” – that is: above the citizens in general and the members of the executive in particular. This paper examines how the Legislator takes up the problem by educating the citizens. The process of education implies (...) the development of reasonable thinking as well as the education of desire. Reasonable thinking is achieved through the formation of the general will. Education of human desire must be understood with respect to the distinction between amour-propre and amour-de-soi. The extension of amour-de-soi to a communityof fellow citizens plays a central role in the formation of the general will and contributes to the development of solidarity among the different social classes. Education of amour-propre plays a role in the development of a national identity. It plays also a role in the political governance of individual desires by means of an administration based on a hierarchy of functions, supervised by public opinion. However, the political governance of desire is challenged by the invisible power of money, which Rousseau tried to neutralize by limiting and slowing down the monetary circulation. (shrink)

We should now be able to come to some general conclusions about the main lines of Cuvier's development as a naturalist after his departure from Normandy. We have seen that Cuvier arrived in Paris aware of the importance of physiology in classification, yet without a fully worked out idea of how such an approach could organize a whole natural order. He was freshly receptive to the ideas of the new physiology developed by Xavier Bichat.Cuvier arrived in a Paris also torn (...) by many overlapping debates on the nature of classification, and in particular that between the natural and artificial systems. The very validity of the enterprise of classification was questioned in many quarters. Cuvier's achievement on his entry into the Parisian world of science was not simply to establish himself as a highly competent anatomist: far more important, he also began to use ideas from many different specialties to change completely the notion of what was involved in natural history.124 At the same time that he himself swung away from the guiding image of the field naturalist as the ideal of the specialty, he took ideas from the new physiology to answer questions about the order of the animal world, and from comparative anatomy to resurrect extinct creation — and to come to conclusions from that creation about the history of the forms of life and the manner of their succession. He showed himself able to alter the relationships between natural history and many other fields of study in a way that implied, rightly or wrongly, his own complete mastery over such a movement. Partly he was able to do this because the ideas he borrowed were not themselves logically articulated and thus could be easily adapted and refocused for many different specific purposes. The value of the heuristic possibilities inherent in the idea of life, for example, far outweighed its inability to generate full systems of classification. Cuvier also consistently refused to consider in science matters relating to the first causes of events. Freed from the consideration of first-order phenomena, he was able to use second-order explanations across a far wider field of applicability. Personal doubts about the validity of a theology that had used science in order to bolster its own claims were combined here with the strong influence of the Kantian critique of the limits of human reason.125Cuvier's characteristic mode of procedure was that of intellectual appropriation and a bold capacity for altering the relationships between different fields of knowledge, rather than, with the exception of taxonomy, the technique of expanding their subject matter. His claims to originality came, first, from this reappropriation and reorientation and, second, from the sheer scope of his work, which aimed at nothing less than the cataloging and classification of all animate objects.126 They rested also on his acute use of his assertion of a certain relationship with the past of his subject. Very often he would present this history in such a way as to obscure his own intellectual genealogy, and often too he would give differing accounts of the priority of use of an idea in order to distract attention from the questionable exactitude of his own claims to originality. Cuvier came to Paris at precisely the time when society and institutions were most profitably malleable for a newcomer; it was also a time when many scientific disciplines had reached a stage advanced in terms of their factual content, yet relatively inadequate in conceptual organization. They were ripe for takeover by large-scale organizing ideas such as the animal economy and the subordination of characteristics. Paleontology is a particularly good example of a specialty in this particular form of underdevelopment in 1795.Cuvier paid a high price for his initial success. His electic applications of large-scale organizing ideas tended to mean that little of his own work had complete coherence at all levels. Ideas, as we have seen, that proved capable of providing a complete reform of the larger groups of the animal kingdom were incapable of producing its detailed working-out in the taxonomy of smaller groups, which had to be supplied from observed analogical correlations. Further, his physiological approach to classification involved the breakdown of strict correspondence between organs and functions, which left the way open for workers such as Geoffroy St. Hilaire gradually to tilt the balance away from the study of the correlations of hierarchies of functions, and toward morphology as the basis of the order of nature. Cuvier's brilliant appropriations from physiology from the beginning, therefore, contained the seeds of conflict with Geoffroy.Cuvier's eclectic approach made it very nearly impossible for him to present a clear idea of the ways in which the life sciences could be said to be lawful. In spite of his efforts to assimilate them to the position of the physical sciences in this respect, he was forced in the end to accord only an ambiguous status as “laws” to observational correlations. From this area of failure came much of the attempt to give his own two laws — the correlation of parts and the subordination of characteristics — predictive qualities, particularly in relation to paleontological research.It is not surprising that Cuvier's title as the “legislator” of natural history should represent more a claim than a reality. How, then, was he able to emerge as the leading French naturalist of his day? First of all must be adduced the sheer scale of his undertakings. Then comes his expertise as a practical anatomist, and the range of different topics toward which he turned his interest. His collaborators cannot be given credit for his output nor, as we have seen, for slavish adherence to his ideas. Cuvier was able to successfully claim to have dominated the underdeveloped specialties, such as paleontology, and turned them into a major heuristic input into both geology and comparative anatomy; but in other fields, such as physiology, he appropriated concepts and encouraged research but made little impact on the field himself. His attempts in 1812 to head off, or neutralize and absorb the growth of morphological studies landed him in a dangerously rigid position, which despite his encouragement of the new physiological research under the Restoration made further elaboration of his own conceptual underpinnings almost impossible.Cuvier's authority in the scientific world would in any case have been great because of his substantive achievement in taxonomy, but the rest of his work had enough ambiguities and dislocations for it to need the support of his political and social power. Cuvier's detractors seized on a vital fragment of the truth when they accused him of finding the political dimension all-important: it obscured the disjunctions in his theories and at the same time gave him the authority to make new claims for the status of the observational sciences - and for their relations of power with their surrounding specialties. Cuvier's science both thrived on and was halted by the power games of intellectual appropriation, manipulation of the past to confirm the present, and continual claims for hegemony. (shrink)

Breaking with discriminatory views and segregated education for children with disabilities, regions often referred to as Confucian Heritage Regions (CHRs) have been moving towards inclusive education. Although some of these regions have been at the centre of attention in global education recently, there is a lack of research and information about how they ‘do’ inclusive education. Considering that reinforcing legislative foundations is of foremost importance for its fulfillment, this study examines legislation on the education of children with disabilities in (...) four neighbouring CHRs: the Chinese Mainland, Japan, South Korea and China's Taiwan. The core principles that frame such legislation were analyzed and cross-compared. The findings show that despite the common Confucian heritage that is attributed to them systematically in studies of inclusive education – which is often said to influence the way disability is perceived and dealt with – the four Regions treat inclusion differently in terms of legislation. While some CHRs are clearly influenced by e.g. the USA, others are trying to design a specific perspective on inclusive education. The authors argue that the complex example of these CHRs can serve as an important template for studies on both inclusive and comparative education. The article also calls for the careful treatment of inclusive education beyond an essentialist and somewhat simplistic perspective that could reduce certain regions to a monolith. (shrink)

My analysis of the constitutional foundations of judicial review has been criticized by Paul Craig; but his objections confuse the ‘constructive’ account of legislative intent I defend with the ‘literal’ conception (reflecting the views of individual legislators) I expressly repudiate. He thinks we must choose between legislative intent, literally conceived, and common law principle. This mistake exemplifies the peculiar character of Craig's ‘common law model’ of judicial review, in which the requirements of the rule of law, on one hand, and (...) the relevant statute, on the other, exist in separate mental worlds. That model is conceptually confused, rejecting the doctrine of ultra vires that (unqualified) legislative supremacy entails, and ultimately grounded in a wholly implausible view of the relationship between common law and statute. It subordinates both statutory text and purpose to common law doctrine, treated as largely self-contained and impervious to context. It ignores the interdependence of legislative and judicial power, impeding a genuine integration of statutory command and common law principle. (shrink)

The main purpose of legal interpretation is to create conditions for the effective functioning of law and its components by clarifying their true content, which eliminates any doubts and ambiguities. The purpose of this article is: first, to analyze the provisions of current Ukrainian legislation for identifying the general approaches embodied in it and the principles for the implementation of legal interpretation activities by state power bodies; secondly: presentation on the basis of modern achievements and developments of legal science (...) of the system of measures for standardization of such activity, bringing it in line with the needs of law enforcement practice. The solution of the set tasks was carried out using the method of philosophical dialectics, a system of general scientific and special scientific methods of cognition, which are based on the principles of objectivity, comprehensiveness, complexity. Based on the analysis of the normative material, it is concluded that there is no single harmonized approach in the Ukrainian legislation on the procedure for providing clarifications of the content of normative-legal acts. The authors give arguments on the need to clarify and streamline the legal interpretation activity by state bodies and propose a number of measures to achieve this goal. Based on the conducted analysis of the normative material, the authors outline the main problematic issues of the legislative definition of the basics of legal interpretation and provide specific proposals for improving the current legislation in this area. (shrink)

Recently, new developments took place in the Dutch debate on the legislation of euthanasia. After a brief account of that debate, the article discusses a new government proposal for legislation in this field, which was submitted to the Dutch parliament in November 1991. This proposal relates not only to euthanasia but also to some other medical decisions concerning the end of life. The author concludes that, for several reasons, it is unsatisfactory.

Biobanks are important resources for improving public health and individual care. Some legal frameworks can be more or less conducive to advancing the potential benefits of biobanks. The purpose of this article is to assess biobanking legislation and practices in Spain to determine how well they fare in such a regard. We focus here on some of the primary ethical values that ground relevant legislation and that we believe are consistent with promoting biobanking benefits: the value of scientific (...) research; efficient use of scarce resources; and respect for the dignity of donors. We argue that although Spanish regulations advance these values in important ways, they also have provisions that undermine them and thus risk limiting the potential benefits of biobanks. We offer some suggestions for improvement. (shrink)

The article analyzes the system of legal regulation of the higher education in Lithuania with the purpose to determine the boundaries of exercising the discretionary powers of the executive institutions in the field of higher education. The article is made of two parts. Discretionary powers of the executive institutions in legislative field are discussed in the first part. The power of legislative discretion is described as a right to set the legal regulation by way of a subject who is granted (...) such discretionary power. Problems may arise in cases when the law granting such discretionary powers is too abstract or declarative. The main criteria in determining the boundaries of exercise of discretionary powers are the provisions of Constitution and laws, and constitutional law principles. The system of delegation of legislative powers in the field of regulation of the higher education in Lithuania is analyzed in the second part of the article. The permanent changes in administrative legal regulation of higher education and studies determined by a vast amount of subjects issuing post-legislative legal acts in this field, as well as rather tedious legal regulation which, in turn, calls for frequent changes in legal acts, raises doubts regarding a possibility to implement main principles of the studies, such as freedom of creation and scientific research or academic freedom and autonomy. (shrink)

Tackling food-related health conditions is becoming one of the most pressing issues in the policy agendas of western liberal democratic governments. In this article, I intend to illustrate what the liberal philosopher John Stuart Mill would have said about legislation on unhealthy food and I focus especially on the arguments advanced by Mill in his classic essay On Liberty. Mill is normally considered as the archetype of liberal anti-paternalism and his ideas are often invoked by those who oppose state (...) paternalism, including those who reject legislation that restricts the consumption of unhealthy food. Furthermore, his views have been applied to related policy areas such as alcohol minimum pricing and genetically modified food. My analysis proceeds as follows. First, I show that Mill’s account warrants some restrictions on food advertising and justifies various forms of food labelling. Second, I assess whether and to what extent Mill’s ‘harm principle’ justifies social and legal non-paternalistic penalties against unhealthy eaters who are guilty of other-regarding harm. Finally, I show that Mill’s account warrants taxing unhealthy foods, thus restricting the freedom of both responsible and irresponsible eaters and de facto justifying what I call ‘secondary paternalism’. (shrink)

While some descriptive and normative theories of legislation account for an extensive role of legal interpretation in legislation, others see its legislative role as marginal. Yet in contemporary constitutional democracies, where legislation is limited and guided by constitutional norms, as well as international and supranational law, legal interpretation must play some role in legislation—even if all or most of legislative activity may not be adequately described and evaluated as legal interpretation. In this chapter, I aim to (...) explore some implications of recognizing the role of legal interpretation in legislation—notably, for the conceptualization and significance of legal expertise in the legislative process, as well as for determining the moral duties of legislative representatives. First, I argue that the role of legal interpretation in legislation calls for institutional reforms in legislatures in order to ensure that legal expertise is adequately channeled into the legislative process, including agenda-setting. Second, I argue that interpreting legal norms through legislation implies specific moral duties for legislative representatives, both in their relations to one another and in their relations vis-à-vis their constituents. I show that giving legal interpretation its due in a descriptive and normative account of legislative activity does not imply an elitist understanding of legislation, and it does not compromise our conception of legislatures as loci of political and moral disagreement and democratic representation. (shrink)

Recently (2010–2011) new criminal legislation to combat illegal income and corruption was passed and publicly discussed in Lithuania. Within the list of the new legal measures, special attention should be paid to criminalisation of illicit enrichment, establishment of a model of extended property confiscation, reinforcement of responsibility for corruption-related offenses, a provision that not only property but also personal benefits may constitute a bribe. It can be seen from the explanatory letters attached to the draft laws and the political (...) debate that the new regulation is expected to achieve decisive breakthrough in the fight against corruption and illegal income. However, without any doubt as to the necessity to fight against those social evils, the author presents critical evaluation of the reform by applying the test of principles of criminal law, legal language and practical effectiveness. By making critical conclusions that the new criminal legislation deliberately lightens the prosecution’s goal of incrimination and the burden of proof, the author warns about the purposive instrumental nature of the new laws, which are balancing on the threshold of legitimacy. In the article the author reveals crucial shortcomings of the new legislation: in some aspects it lacks legal certainty, in other aspects it ignores the principles of guilt, presumption of innocence and proportionality as well as the conception of criminal law as a last resort (ultima ratio). As a result, the new legal means against illegal income and corruption leave space for applying inadequate repression beyond their intended purpose, in addition, they criminalise human conduct that is insufficiently dangerous and create preconditions for senseless criminal prosecutions and violation of human rights. (shrink)

0n a lucid, concise volume, Jeremy Waldron defends the role of legislation, presenting it as an important mode of governance. Aristotle, Locke and Kant emerge as proponents of the dignity of legislation. Waldron's arguments are of obvious importance and topicality, especially in countries that are considering the introduction of a Bill of Rights. The Dignity of Legislation is original in conception, trenchantly argued and very clearly presented, and will be of interest to a wide range of scholars (...) and thinkers. (shrink)