Julia Black's book is the first authoritative study of rulemaking in one of the most important areas of economic life: financial services. The books has three main aims: first, to build a jurisprudential and linguistic analysis of rules and interpretation, drawing out the implication of theseanalyses and developing quality proposals for how rules could be used as instruments of regulation. Second, it interprets that analysis and set of proposals with an empirical study of the formation and use (...) of rules in a particular regulatory system: financial services, and third, it evaluates thenature of the rulemaking process. The author's main case study, examining the use of self-regulation in the financial services sector, complements the detailed analysis of rule formation and uses. The book will be an invaluable addition to the libararies of all administrative lawyers and anyone withan interest in the provision and regulation of financial services. (shrink)

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other. Seventeen chapters from leading international scholars cover a diverse range of topics and case studies to test the hypothesis that the best normative theories, including those regarding the (...) role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating. (shrink)

"[W]e must focus on what legalism, per se, means, and then ask why is it a good thing to have. Not less importantly, however, we must also realize that legalism can be excessive. Even if the rule of law is a good thing, too much of it may be bad. So the challenge for a theory of the rule of law is to articulate what the rule of law is, why is it good, and to what extent." "[T]he essense of (...) the ideal of the rule of law is that people ought to be governed by law. This general ideal has at least two main components. First, it requires that governments, namely, de facto political authorities, should rule, that is, guide their subjects' conduct, by law. Second, it requires that the law by which governments purport to rule should be such that it can actually guide human conduct." "The idea that governments should rule by law must be premised on the assumption that rule by law, regardless of the laws' specific content, is to be preferred to governance by other means of social control. And this immediately brings us to the second component of the rule of law, namely, that the law must be such that it can actually guide human conduct, and the further assumption that these necessary features of law embody certain virtues. In other words, unless we can first articulate what is unique about legal means of social control, and explain why those features promote certain goods, we cannot ground the idea that governments should rule by law." Discusses ways, following mainly Fuller, one can fail to make law. Notes that these are functional goods for the regulation of human behavior. They may have a connection to other things we value. We should not assume, though, that greater instantiation of these ideals is always better - sometimes ideals conflict such that more of one means less of another and "because such values, on their own grounds, set only a rough standard wherby gross deviations from it would be wrong." "Compliance with the generality-relevance principle is crucially important in safeguarding against such unjustified favoritism since it requires that the norm's subjects be those who qualify as such only on the basis of the reasons for enacting the norm in the first place." Though, we must recognize teh possibility of bad law in the sense of unjust discrimination. "It is part of the concept of law that the law purports to affect human behavior by introducing new norms and changing old ones. The concept of a norm and conduct-guidance by norms is an essential aspect of what the law is. Norms, as such, necessarily purport to provide reasons for action. A norm cannot provide a reason for action, however, unless its subjets are aware of the norm and regard it as a reason for action." Justifies some retroactivity in terms of the need for flexibility in any functioning legal system. "Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it must have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality.". (shrink)

If the Supreme Court affirms either Compassion in Dying v. State of Washington or Quill v. Vacco, state legislatures will be presented with a new and unwelcome task: regulating physician-assisted suicide. This article focuses on the states task of specific policy making in light of the due process reasoning in Compassion in Dying and the equal protection reasoning in Quill. Policy makers must try to predict whether a particular regulation would in practice achieve its intended objective. They must also (...) try to predict whether the regulation would survive constitutional review if challenged. Finally, they must consider the extent to which they could, or should, maintain two different regulatory regimes: a more permissive one for decisions to forgo life-sustaining medical treatments, and a more restrictive one for decisions to obtain a prescription for a lethal dose of medication. This last issue will be especially challenging if the equal protection analysis in Quill prevails. (shrink)

If the Supreme Court affirms either Compassion in Dying v. State of Washington or Quill v. Vacco, state legislatures will be presented with a new and unwelcome task: regulating physician-assisted suicide. This article focuses on the states task of specific policy making in light of the due process reasoning in Compassion in Dying and the equal protection reasoning in Quill. Policy makers must try to predict whether a particular regulation would in practice achieve its intended objective. They must also (...) try to predict whether the regulation would survive constitutional review if challenged. Finally, they must consider the extent to which they could, or should, maintain two different regulatory regimes: a more permissive one for decisions to forgo life-sustaining medical treatments, and a more restrictive one for decisions to obtain a prescription for a lethal dose of medication. This last issue will be especially challenging if the equal protection analysis in Quill prevails. (shrink)

Following Ballantyne, we can distinguish between descriptive and regulative epistemology. Whereas descriptive epistemology analyzes epistemic categories such as knowledge, justified belief, or evidence, regulative epistemology attempts to guide our thinking. In this paper, we argue that regulative epistemologists should focus their attention on what we call epistemic prudence. Our argument proceeds as follows: First, we lay out an objection to virtue-based regulative epistemology that is analogous to the no-guidance objection to virtue ethics. According to this objection, virtue-based regulative epistemology cannot (...) offer us useful guidance in our deliberations, because an abstract knowledge of virtue does not tell us what we should do here and now, especially in hard cases. We respond to this objection by showing that our making good epistemic decisions cannot simply be a matter of our following the right epistemic rules. In order to reliably inquire and deliberate well, we need epistemic prudence. Thus, while virtue-based regulative epistemology fails to determine how we should inquire and resolve deliberation here and now, this is also true of norm-based regulative epistemology. The upshot of this argument is that regulative epistemologists should focus their attention on understanding the nature of epistemic prudence and on understanding how we can promote its development in ourselves and others. (shrink)

In the pathbreaking essays collected here, Neumann and Kirchheimer demonstrate that the death of democracy and the rise of fascism during the first half of the twentieth century suggest crucial lessons for contemporary political and legal scholars. The volume includes writings on constitutionalism, political freedom, Nazism, sovereignty, and both Nazi and liberal law. Most important, the Frankfurt authors point to the continuing efficacy of the rule of law as an instrument for regulating and restraining state authority, as well as ominous (...) evidence of the rule of law's fragility in modern liberal democracy. (shrink)

Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular conceptions (...) of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law? (shrink)

There are some problems in the implementation of rulings of the Constitutional Court. The legislator should make more efforts for implementing the concept of the provisions of the Constitution provided in the reasoning parts of rulings of the Constitutional Court. The Statute of the Seimas should be supplemented with provisions obligating structural sub-units of the Seimas to carry out permanent and systemic analysis of reasoning parts of rulings of the Constitutional Court. It would allow timely to prepare proposals how to (...) amend still unchallenged legal regulation which, however, from the constitutional standpoint is doubtful. One should consider whether the norm of Item 4 of Paragraph 1 of Article 64 of the Law on the Constitutional Court, which allows one to challenge the compliance of a legal act with the Constitution on the grounds of the procedure for adoption regardless of any terms expired after the adoption of a law or other legal act, should be amended. It is to be presumed that the principles of legal certainty and legal security entrenched in the Constitution, as well as other constitutional provisions, imply a certain reasonable period of time within which the subjects provided for in the Constitution may apply to the Constitutional Court with a petition requesting to investigate whether a law or other legal act is not in conflict with the Constitution according to the procedure of their adoption. This period of time should not be a long one, for example, half a year or a year since the official publishing of the law; this term should be a prescriptive one–after it has finished, it would not be allowed to challenge the compliance of a law or other legal act with the Constitution according to the procedure of their adoption. In order to speed up the consideration of cases at the Constitutional Court, one would have to change the procedure of consideration of cases in this Court in essence. (shrink)

No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But I (...) ask what counts as a ‘deficit’ in the rule of law, and I argue that none of these features of legal practice necessarily amounts to a deficit. I conclude that communities fail to achieve the rule of law only because of official infidelity to law, and the failure of lawmakers to pursue the ideal (or their decision not to pursue it). The rule of law is not necessarily unattainable. (shrink)

François Jacob is known as one of the key figures in the history of molecular biology. His elaboration, together with Jacques Monod, of the operon model and the basic features of the regulation of gene expression in bacteria, as well as the concept of genetic messenger, won him the Nobel Prize in 1965. Both notions were decisive for the novel imagery of molecular genetics in which the notion of information came to stand central. From a close reading, this article (...) tries to reconstruct how the new language of molecular genetics took shape in the scientific writings of Jacob. In particular, it analyzes how the notions of regulation, information, and language came to be articulated, and how this articulation changed and underwent modulations over time. It shows that a scientific language consists of several layers and thus, as a rule, forms a hybrid structure. The time span covered reaches from the early experiments done together with Monod and Arthur Pardee between 1958 and 1960, also known as the “PaJaMo” experiment, to Jacob’s book on the history of heredity, The Logic of Life, which appeared in 1970. (shrink)

There is a perennial ambiguity in the rule-of-law preposition: it predicates that the law shall rule, but which law? This legal loophole has led to a diverse array of interpretations of the concept. Of these, two appear particularly adverse to what the rule of law should primarily be—the rulership of the law—yet still remain dominant. On the one hand, the rule of law is intended to be the vehicle to deliver above-the-law goods such as human rights or other individual entitlements (...) like property, and to forever shield them against any other force, including the law. On the other hand, the rule of law is believed to be a tool at the rulers’ disposal, who make use of the law but are not bound by it, for either legal or practical reasons. In both cases, a pre-legal setting for society allocates rulership to something but not the law, against the very essence of the ideal: an authoritative legal practice for the sake of regulating the present society. As such, the rule of law has to meet certain requirements of craftsmanship, like conditions in law-making and law-enforcement, and sources, which are to be democratically underpinned. (shrink)

One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but founded on them as well. As Hart painstakingly showed, we cannot account for the way in which we talk and think about the law - that is, as an institution which persists over time despite turnover of officials, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be (...) done in a community and so on - without supposing that it is at bottom regulated by what he called the secondary rules of recognition, change and adjudication. Given this incontrovertible demonstration that every legal system must contain rules constituting its foundation, it might seem puzzling that many philosophers have contested Hart's view. In particular, they have objected to his claim that every legal system contains a rule of recognition. More surprisingly, these critiques span different jurisprudential schools. Positivists such as Joseph Raz, as well as natural lawyers such as Ronald Dworkin and John Finnis, have been among Hart's most vocal critics. In this essay, I would like to examine the opposition to the rule of recognition. What is objectionable about Hart's doctrine? Why deny that every legal system necessarily contains a rule setting out the criteria of legal validity? And are these objections convincing? Does the rule of recognition actually exist? This essay has five parts. In Part One, I try to state Hart's doctrine of the rule of recognition with some precision. As we will see, this task is not simple, insofar as Hart's position on this crucial topic is often frustratingly unclear. I also explore in this part whether the United States Constitution, or any of its provisions, can be considered the Hartian rule of recognition for the United States legal system. In Part Two, I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. In addition to the function that Hart explicitly assigned to it, namely, the resolution of normative uncertainty within a community, I argue that the rule of recognition, and the secondary rules more generally, also account for the law's dexterity, efficiency, normativity, continuity, persistence, supremacy, independence, identity, validity, content and existence. In Part Three, I examine three important challenges to Hart's doctrine of the rule of recognition. They are: 1) Hart's rule of recognition is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems, such as in American law, are possible. In Parts Four and Five, I address these various objections. I argue that although Hart's particular account of the rule of recognition is flawed and should be rejected, a related notion can be fashioned and should be substituted in its place. The idea, roughly, is to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. (shrink)

Scholars who compare common law and civil law countries have long argued that civil law legal systems such as Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision makers. This article challenges this widely held view. Scholars have failed to recognize that evidentiary (...) rules can restrict not only the presentation of evidence at trial but also the manner of its acquisition during the pre-trial investigation. For this reason, existing scholarship overlooks a rich source of evidentiary norms in the criminal process of civil law countries such as Germany. I argue that German regulation of police interrogation—particularly its prohibition of deceptive stratagems—plays an important role in shaping the factual record on which the legal system assesses guilt or innocence. The article identifies a number of institutional factors on which this system of pre-trial evidentiary regulation depends. (shrink)

In a nationwide study of state legislative Web sites, Narro, Mayo, and Miller found that the communication tools (i.e., weblogs, electronic newsletters, online polling) that state legislators offer vary more from state to state than legislator to legislator. Taking their information into account, this article addresses regulations put on legislators’ home pages.The author interviewed Webmasters in 44 states and found that having less limitations and allowing legislators freedom to manipulate their home pages encourage them to use these home pages for (...) active communication. Although most states do not allow state legislators to use home pages as a campaign tool, some allow free flow of communication between legislators and constituents. The researcher found that legislators would use their home pages more as a communication tool if given the freedom. However, change begins with legislators, who are the policy makers. Whether they have freedom is their own choice. (shrink)

This article is dedicated to methodological questions in ethical regulation of neuroresearch. Neuroethics has emerged recently within the framework of the neuro-trend in modern technoscience; its regulatory capabilities are yet to be discovered. Sciences that study human brain and behavior orient towards existing institutions of ethical regulation, which do not consider the complexity and specificity of the emerging threats and risks. The author examines the circumstances for formation of the research ethics and points of intersection with neuroethics. Research (...) ethics is viewed as a part of bioethics, which not only assessed the potential harm for the examinees, but also the social and anthropological consequences of scientific and technological development. The author provides a “narrow” understanding of research ethics as a system of rules within the framework of particular disciplines, and as a clinical research practice. Based on the historically established ethical regulation of clinical research and the forming beneath our eyes rules of modification of human genome and artificial intelligence, the author demonstrates contradictions and trends of the separate regulatory systems, which should be taken into account to prevent risks in neuroresearch and prediction of social implications of the spread of neurotechnologies. Ethical examination became a part of a complex system of international control of clinical research, which leads to fading of the value component aimed at protection of research subjects. The author underlines two factors that form the types of harm peculiar to neuroresearch: orientation towards technological realization and vulnerability of mental sphere as a subject of research. The conclusion is made on inefficiency of application of the calculation of harm/advantage in ethical assessment of neuroresearch. Leaning on the experience of bioethics, neuroethics requires development of the own systems of rules that would become the institutions of neuroethical regulation. For preventing formalization of ethical control, it is essential to advance extensive socio-humanistic assessment of new achievements in neuroscience, as well as neuroethical education for the scientists. (shrink)

Retrospective rule-making has few supporters and many opponents. Defenders of retrospective laws generally do so on the basis that they are a necessary evil in specific or limited circumstances, for example to close tax loopholes, to deal with terrorists or to prosecute fallen tyrants. Yet the reality of retrospective rule making is far more widespread than this, and ranges from ’corrective’ legislation to ’interpretive regulations’ to judicial decision making. The search for a rational justification for retrospective rule-making necessitates a reconsideration (...) of the very nature of the rule of law and the kind of law that can rule, and will provide new insights into the nature of law and the parameters of societal order. This book examines the various ways in which laws may be seen as retrospective and analyses the problems in defining retrospectivity. In his analysis Dr Charles Sampford asserts that the definitive argument against retrospective rule-making is the expectation of individuals that, if their actions today are considered by a future court, the applicable law was discoverable at the time the action was performed. The book goes on to suggest that although the strength of this ’rule of law’ argument should prevail in general, exceptions are sometimes necessary, and that there may even be occasions when analysis of the rule of law may provide the foundation for the application of retrospective laws. (shrink)

Retrospective rule-making has few supporters and many opponents. Defenders of retrospective laws generally do so on the basis that they are a necessary evil in specific or limited circumstances, for example to close tax loopholes, to deal with terrorists or to prosecute fallen tyrants. Yet the reality of retrospective rule making is far more widespread than this, and ranges from 'corrective' legislation to 'interpretive regulations' to judicial decision making. The search for a rational justification for retrospective rule-making necessitates a reconsideration (...) of the very nature of the rule of law and the kind of law that can rule, and will provide new insights into the nature of law and the parameters of societal order.This book examines the various ways in which laws may be seen as retrospective and analyses the problems in defining retrospectivity. In his analysis Dr Charles Sampford asserts that the definitive argument against retrospective rule-making is the expectation of individuals that, if their actions today are considered by a future court, the applicable law was discoverable at the time the action was performed. The book goes on to suggest that although the strength of this 'rule of law' argument should prevail in general, exceptions are sometimes necessary, and that there may even be occasions when analysis of the rule of law may provide the foundation for the application of retrospective laws. (shrink)

The author discusses the rational argumentation of the values from a proposal defended by the legal philosopher Robert Alexy. The paper shows that discourse for Alexy is essentially a regulated activity. A model of certain rules ensure the rationality and correctness of practical discourse oriented towards resolving conflicts of value. Firstly, the types of rules responsible for the rationality of practical argumentation are described. Secondly, some open problems relating to the claim to correctness of reasoned practical discourse are (...) posed, namely problems derived from the idea of consensus and that of a single correct answer to certain practical issues that include conflicts of values and raise basic disagreements. (shrink)

The aim of this paper is to propose a novel reading of the critical legitimacy of the regulative use of reason in the Transcendental Dialectic of Kant's Critique of Pure Reason. After introducing some key terminology of the Dialectic, I analyse the shortcomings of two influential accounts of the regulative use of reason and identify their common problem in their commitment to the descriptivity of the ideas of reason. I then offer my rule‐based account of the regulative use of reason (...) by clarifying how Kant transforms reason's metaphysical inclinations into prescriptive rules of bottom‐up empirical research. Finally, I explain why such interpretation of reason is metaphysically innocent and thereby a promising approach to understand its role in Kant's scientific project. (shrink)

While Autonomous Weapons Systems have obvious military advantages, there are prima facie moral objections to using them. By way of general reply to these objections, I point out similarities between the structure of law and morality on the one hand and of automata on the other. I argue that these, plus the fact that automata can be designed to lack the biases and other failings of humans, require us to automate the formulation, administration, and enforcement of law as much as (...) possible, including the elements of law and morality that are operated by combatants in war. I suggest that, ethically speaking, deploying a legally competent robot in some legally regulated realm is not much different from deploying a more or less well-armed, vulnerable, obedient, or morally discerning soldier or general into battle, a police officer onto patrol, or a lawyer or judge into a trial. All feature automaticity in the sense of deputation to an agent we do not then directly control. Such relations are well understood and well-regulated in morality and law; so there is not much challenging philosophically in having robots be some of these agents — excepting the implications of the limits of robot technology at a given time for responsible deputation. I then consider this proposal in light of the differences between two conceptions of law. These are distinguished by whether each conception sees law as unambiguous rules inherently uncontroversial in each application; and I consider the prospects for robotizing law on each. Likewise for the prospects of robotizing moral theorizing and moral decision-making. Finally I identify certain elements of law and morality, noted by the philosopher Immanuel Kant, which robots can participate in only upon being able to set ends and emotionally invest in their attainment. One conclusion is that while affectless autonomous devices might be fit to rule us, they would not be fit to vote with us. For voting is a process for summing felt preferences, and affectless devices would have none to weigh into the sum. Since they don't care which outcomes obtain, they don't get to vote on which ones to bring about. (shrink)

In Politics III.10 and IV.4, Aristotle discusses the difference between governments that are regulated by the rule of law and those that are not. Although he concludes that the rule of law helps guard against arbitrary and injudicious government action, Aristotle is also sensitive to the fact that in a democracy it is essential for the people to remain sovereign over the law. His discussion is helpful for understanding, not only the tension between the 'rule of law' and the 'rule (...) of men', but also the complex role the rule of law plays in any modern democracy. (shrink)

Vinaya rules embody the ideal of how Buddhists should regulate their daily lives, and monastics are required to observe them, despite the fact that they were compiled nearly 2,500 years ago in India: a context dramatically different not only from Chinese Buddhism's present monastic conditions, but from its historical conditions. Against this backdrop, rules of purity were gradually formulated by Chinese masters in medieval times to supplement and adapt vinaya rules to China's cultural ethos and to specific (...) local Chinese contexts. This study explores how the traditional qinggui are applied by the Buddhist sa?gha in present-day Taiwan, and contrasts modern monastics' opinions on these rules and their relation to early Buddhist vinaya, on the one hand, against classical Chan literature and the Buddhist canon, on the other. This comparison fills a notable gap in the existing literature. (shrink)

What are rules? In this paper I develop a view of regulative rules which takes them to be a distinctive normative kind occupying a middle ground between orders and normative truths. The paradigmatic cases of regulative rules that I’m interested in are social rules like rules of etiquette and legal rules like traffic rules. On the view I’ll propose, a rule is a general normative content that is in force due to human activity: (...) enactment by an authority or acceptance by a community. Rules are unlike orders in being not necessarily communicative, not an expression’s of the giver’s will, not evaluable for sincerity, and in that they have propositional content. And they’re unlike normative truths in that they’re themselves not even truth-evaluable (though their contents are). This is because rules qua things that are in force are not like constatives which have a mind to world direction of fit, but more like performatives. Furthermore, they differ from normative truths in that their normativity is isolated from their background justification and is therefore not dependent on contributory notions like reasons coming together in a weighing explanation. As such, they occupy a middle ground between orders and normative truths, much like in H. L. A. Hart’s opinion law occupies a middle ground between “coercion” and “morality” (Hart 1961/1994). I also illustrate the virtues of this understanding of rules by showing how proper appreciation of how they differ from normative truths helps us defuse a common objection to Hart’s practice theory of rules. (shrink)

No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But I (...) ask what counts as a 'deficit' in the rule of law, and I argue that none of these features of legal practice necessarily amounts to a deficit. I conclude that communities fail to achieve the rule of law only because of official infidelity to law, and the failure of lawmakers to pursue the ideal (or their decision not to pursue it). The rule of law is not necessarily unattainable. (shrink)

Over the last decade, philosophers of science have extensively criticized the epistemic superiority of randomized controlled trials for testing safety and effectiveness of new drugs, defending instead various forms of evidential pluralism. We argue that scientific methods in regulatory decision-making cannot be assessed in epistemic terms only: there are costs involved. Drawing on the legal distinction between rules and standards, we show that drug regulation based on evidential pluralism has much higher costs than our current RCT-based system. We (...) analyze these costs and advocate for evaluating any scheme for drug regulatory tests in terms of concrete empirical benchmarks, like the error rates of regulatory decisions. (shrink)

The experience of Transcarpathia shows that the heads of district and village councils are not well aware of the legal framework for the regulation of inter-confessional conflicts. Legislation in the media is interpreted differently. A paradoxical situation has arisen: by proclaiming a course on the construction of a lawful state, we are still continuing to build relationships between believers of different denominations and trends, believers and non-believers, state authorities and religious institutions, not on the principle of the rule of (...) law - the cornerstone of the rule of law, but appealing to the mind of the crowd believers. (shrink)

News about the first baby born after a mitochondrial replacement technique (MRT; specifically maternal spindle transfer) broke on September 27, 2016 and, in a matter of hours, went global. Of special interest was the fact that the mitochondrial replacement procedure happened in Mexico. One of the scientists behind this world first was quoted as having said that he and his team went to Mexico to carry out the procedure because, in Mexico, there are no rules. In this paper, we (...) explore Mexico's rule of law in relation to mitochondrial replacement techniques and show that, in fact, certain instances of MRTs are prohibited at the federal level and others are prohibited at the state level. According to our interpretation of the law, the scientists behind this first successful MRT procedure broke federal regulations regarding assisted fertilization research. (shrink)

This paper explores the use of video news releases (VNRs) without source disclosure from legal and ethical perspectives. In light of current regulatory debates regarding VNRs, the paper first examines whether journalists' use of corporate VNRs without source disclosure violates FCC regulations. It then questions the ethics of using such VNRs by examining the current code of ethics for both the public relations practitioners creating VNRs and the news organizations airing them. The paper uses the ethical construct of transparency to (...) further examine the ethics of VNR production and exhibition without source disclosure. It finds that regardless of whether the use of VNRs without source disclosure violates current sponsorship rules, the use of such VNRs not only violates codes of ethics but also transparency, which includes values such as accountability, credibility, trust, respect, truth and honesty, reason, freedom, dignity, and duty. (shrink)

In this paper we propose a theoretical framework for analysing the history and function of ethics as a form of regulation. Ethics in the form of codes, rules and declarations, constitutes regulatory policies, and we wish to suggest analysing such policies from an organizational perspective. In many instances ethics policies are reactions to particular events involving harm of patients or research participants. As such they seem to come forward as solutions to specific problems. However, not all such events (...) that instigate the making of new policies, and policies often have other effects and are used for other purposes than what we might expect from the events preceding them: when ethics takes on the form of policy making, the relationship between problems and solutions is more complex. We suggest that an organizational perspective on ethics codes, rules and declarations can deliver a relevant framework for future studies of the implications of wanting to address ethical problems through policy making. (shrink)

: We discuss the role that transnational corporations should play in developing global governance, creating a framework of rules and regulations for the global economy. The central issue is whether TNCs should provide global rules and guarantee individual citizenship rights, or instead focus on maximizing profits. First, we describe the problems arising from the globalization process that affect the relationship between public rules and private firms. Next we consider the position of economic and management theories in relation (...) to the social responsibility of the firm. We argue that instrumental stakeholder theory and business and society research can only partially solve the global governance issue, and that more recent concepts of corporate citizenship and republican business ethics deliver theoretically and practically helpful, fresh insights. However, even these need further development, especially with regard to the legitimacy of corporate political activity. (shrink)

Many scholars assume a connection between the evolution of language and that of distinctively human group-level morality. Unfortunately, such thinkers frequently downplay a central implication of modern Darwinian theory, which precludes the possibility of innate psychological mechanisms evolving to benefit the group at the expense of the individual. Group level moral regulation is indeed central to public life in all known human communities. The production of speech acts would be impossible without this. The challenge, therefore, is to explain on (...) a Darwinian basis how life could have become subject to the rule of law. Only then will we have an appropriate social framework in which to contextualize our models of how language may have evolved. (shrink)

Abstract:We discuss the role that transnational corporations (TNCs) should play in developing global governance, creating a framework of rules and regulations for the global economy. The central issue is whether TNCs should provide global rules and guarantee individual citizenship rights, or instead focus on maximizing profits. First, we describe the problems arising from the globalization process that affect the relationship between public rules and private firms. Next we consider the position of economic and management theories in relation (...) to the social responsibility of the firm. We argue that instrumental stakeholder theory and business and society research can only partially solve the global governance issue, and that more recent concepts of corporate citizenship and republican business ethics deliver theoretically and practically helpful, fresh insights. However, even these need further development, especially with regard to the legitimacy of corporate political activity. (shrink)

No single moral theory can instruct us as to whether and to what extent we are confronted with legal loopholes, e.g. whether or not new legal rules should be added to the system in the criminal law field. This question on the primary rules of the law appears crucial for today’s debate on roboethics and still, goes beyond the expertise of robo-ethicists. On the other hand, attention should be drawn to the secondary rules of the law: The (...) unpredictability of robotic behaviour and the lack of data on the probability of events, their consequences and costs, make hard to determine the levels of risk and hence, the amount of insurance premiums and other mechanisms on which new forms of accountability for the behaviour of robots may hinge. By following Japanese thinking, the aim is to show why legally de-regulated, or special, zones for robotics, i.e. the secondary rules of the system, pave the way to understand what kind of primary rules we may want for our robots. (shrink)

The present work examines the role of persuasive lexicon in legal discourse through the analysis of emotional devices at a lexical and rhetorical level. Our preliminary premise is that emotion is deployed by experts to convey the sentiment of shared values and epistemic trust: the need to rely on the tenets of the law as fair and conducive to the common good. The corpus of our study is constituted by the conclusions in their original Spanish, and their translation into English, (...) by the Advocate General Manuel Campos on the challenge by Hungary and Poland of the regulation establishing a “conditionality regime” in the event of a rule-of-law breach in a EU Member State. To this end, we undertake a two-pronged analysis of legal persuasion to find out what emotional devices are deployed to convey the rule-of-law principles of justice, non-discrimination, equality and solidarity. At a first stage, we concentrate upon the polarity and intensity of emotion words and their categories. Emotional implicatures in the shape of legal technolects and metaphorical ontologies and the way they are deployed in each text constitutes the second part of our study. Among our conclusions are that both the original and target texts have a strong persuasive character, mainly grounded in the negative emotion of fear and the positive emotion of trust, and that there are variances in the emotional language deployed in either version due to the different mechanics of each law system and to functional differences between English and Spanish. (shrink)

Punctuated by joy, disappointments, and conflicts, research evaluation constitutes an intense, emotional moment in scientific life. Yet reviewers and research institutions often expect evaluations to be conducted objectively and dispassionately. Inspired by the scholarship describing the role of emotions in scientific practices, we argue instead, that reviewers actively define, display and manage their emotions in response to the structural organization of research evaluation. Our article examines reviewing practices used in the European Research Council’s (ERC) Starting and Consolidator grants and in (...) the Marie Skłodowska-Curie Action’s (MSCA) Individual Fellowships. These two European funding mechanisms offer different perspectives on the organization of grant evaluation. We conducted interviews with review panel members and analyzed various institutional documents. By drawing on the sociological concepts of feeling rules and emotional work, we demonstrate that reviewers define rules concerning how emotions should be experienced and expressed to ensure the proper functioning of evaluation, and that reviewers experience the need to actively regulate their emotions to comply with these rules. We present four feeling rules concerning the experience and expression of: (1) excitement for novelty during individual evaluation; (2) respect for others’ opinions and the absence of anger in review panels; (3) attentiveness and interest, which are seen as missing in online evaluations. Reviewers also expect ERC candidates to (4) avoid pride and manifest modesty during interviews. These rules demonstrate that proposal peer review is governed by emotional norms, and show the influence of organizational settings and moral requirements on research evaluation. (shrink)

Evolutionary theory predicts that humans should avoid incest because of the negative effects incest has on individual reproduction: production of defective offspring. Selection for the avoidance of close-kin mating has apparently resulted in a psychological mechanism that promotes voluntary incest avoidance. Most human societies are thought to have rules regulating incest. If incest is avoided, why are social rules constructed to regulate it? This target article suggests that incest rules do not exist primarily to regulate close-kin mating (...) but to regulate inbreeding between more distant kin and sexual relations between affinal relatives. Three evolutionary hypotheses about cousin marriage and affinal kin mating follow from this suggestion: Rules regulating mating between affinal kin are means of paternity protection. Cousin marriage is regulated because, if it occurs, it can concentrate wealth and power within families to the detriment of the powerful positions of rulers in stratified societies and the relatively equal social statuses of most men in egalitarian societies. Tests using the comparative method on a worldwide sample of 129 societies supported the three hypotheses. Two alternative anthropological hypotheses failed to be supported. (shrink)

My object is to question a recurrent claim made to the point that Thomas Reid (1710–1796) was hostile to ether theories and that this hostility had its source in his distinctive interpretation of the first of Newton's regulæ philosophandi. Against this view I will argue that Reid did not have any quarrel at all with unobservable or theoretical entities as such, and that his objections against actual theories concerning ether were scientific rather than philosophical, even when based on Newton's first (...) rule. I argue further that Reid's insistence on Newton's rule concerns, not direct observation, but rather the notion of explanation itself. (shrink)

Nowadays, neo-institutionalistic approaches are prominent in economics, political science, the science of public administration and sociology. There is a general complaint about the vagueness of the concept of institutions and the apparent disparity of phenomena falling under it. This article shows how institutional legal theory provides a typology of institutions as sets of rules and corresponding patterns of regulated behaviour that can help to avert much confusion. The typologys usefulness is tested by applying it to an array of private (...) governance structures distinguished by transaction cost economics. (shrink)

This paper defends revisionism against a challenge: that it cannot convincingly hold that many instances of killing in war are morally wrong but should nonetheless remain legally permissible. The paper argues that we should view the relationship between the morality of war and the laws of war as analogous to the relationship between fundamental principles and rules of regulation in debates about theories of justice. This yields a fresh justification for the law’s divergence from morality, which absolves revisionism (...) from the twofold charge of being at once irrelevant and incoherent. It also helps clarify persisting ambiguities concerning the contrast between war and ‘ordinary life,’ the contested notion of a ‘deep morality’ of war, and revisionism’s relationship to ideal and non-ideal theory. (shrink)

John Searle’s distinction between regulative and constitutive rules is an enduringly important contribution to our understanding of rules, of language, and of rule-based or rule-bounded institutions. It is important to add to Searle’s account, however, by pointing out the regulative function of constitutive rules. Many human activities and goals can be pursued in multiple ways, but constituting the approved or official way of doing things, as is so common in law, has the effect of making alternatives less (...) eligible, less available, or less permitted, all of which can be seen as the regulative overhang of constitutive rules. (shrink)

This article addresses several aspects of interaction between procedural and conflict rule regulation in private international law both of which are subject to unification process under the European Community law. They are interdependent of each other, and use the same or similar terms on many occasions. Problems with interpretation arise in application of these legal regulations. The European Court of Justice addresses them more or less successfully. As demonstrated in this article, the interpretation of procedural rules of (...) class='Hi'>regulation may contribute to the clarification of the conflict rules and vice versa. It can be even said that the mutual interaction of conflict rules and procedural rules through interpretation is both unavoidable and desirable. (shrink)

Since 2011, the research community had waited with bated breath as regulators contemplated for the first time bringing secondary research with nonidentifiable biospecimens under the Common Rule and dramatically tightening the criteria for waiving consent to biospecimen research. After considerable pushback from both researchers and patients and amid rumors of intractable disagreement among Common Rule agencies, the Final Rule published on the last day of President Obama's administration left out these troubling changes, and there was a collective sigh of relief. (...) Relief is appropriate, but celebration premature: researchers have little reason to avail themselves of the new broad consent option offered in the Final Rule, and the question of whether biospecimens ought to be treated as inherently identifiable has merely been postponed. (shrink)