This chapter contains sections titled: Historical Contexts of Cultural Appropriation in Archaeology A Typology of Cultural Appropriation in Archaeology Modes of Resolution Conclusions Acknowledgments References.

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.

This article discusses the manipulation and measurement of levels of situational self-focus, which is generally labeled ''self-awareness.'' A new scale was developed to quantify levels of public and private self-awareness. Five studies were conducted to assess the psychometric properties, reliability, and validity of the Situational Self-Awareness Scale (SSAS). The SSAS was found to have a reliable factor structure, to detect differences in public and private self-awareness produced by laboratory manipulations, and to be sensitive to changes in self-awareness within individuals over (...) time and across situations. The SSAS can be used as a manipulation check of laboratory self-awareness manipulations and as a means of assessing naturally occurring fluctuations in public and private self-awareness in order to clarify the relation between self-awareness and other variables (e.g., mood and memory). (shrink)

The Convention on Cybercrime (the Convention) adopted in the framework of the Council of Europe is the main international legislative tool in the fight against cybercrime. It is the first international treaty on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. Lithuania is among its signatory states, therefore, the provisions of the Convention have become binding on its legislator, obliging it to take all (...) necessary measures to harmonize national legal acts with the framework set out therein. The Criminal Code of the Republic of Lithuania (the CC) in force is the legal act establishing liability for criminal offences known as computer crimes and Internet crimes. Although the legislator of Lithuania had been combating cybercrimes since as early as 1994 by means of the amendments to the Soviet era Criminal Code of 1961, a significant effort was required to transpose the requirements of the Convention into the Lithuanian law, starting from the year 2007. The end result was not always as expected, leaving several serious gaps in the field of criminalization, which are thoroughly addressed in the article. In particular, this article deals with the topic of computer-related crimes and the legal approaches related to substantive criminal law of the Republic of Lithuania. The study is based on a comparative legal analysis of the Lithuanian CC and the Convention. (shrink)

This edited volume covers new ground by bringing together perspectives from symbolic legislation theory on the one hand, and from biolaw and bioethics on the other hand. Symbolic legislation has a bad name. It usually refers to instances of legislation which are ineffective and that serve other political and social goals than the goals officially stated. Recently, a more positive notion of symbolic legislation has emerged in legislative theory. From this perspective, symbolic legislation is regarded (...) as a positive alternative to the more traditional, top-down legislative approach. The legislature no longer merely issues commands backed up with severe sanctions, as in instrumental legislation. Instead, lawmakers provide open and aspirational norms that are meant to change behavior not by means of threat, but indirectly, through debate and social interaction. Since the 1990s, biomedical developments have revived discussions on symbolic legislation. One of the reasons is that biomedical legislation touches on deep-rooted, symbolic-cultural representations of the biological aspects of human life. Moreover, as it is often impossible to reach consensus on these controversial questions, legislators have sought alternative ways to develop legal frameworks. Consequently, communicative and interactive approaches to legislation are prominent within the governance of medical biotechnology. The symbolic dimensions of biolaw are often overlooked. Yet, it is clear that the symbolic is at the heart of many legal-political debates on bioethical questions. Since the rise of biomedical technologies, human body materials have acquired a scientific, medical and even commercial value. These new approaches, which radically question existing legal symbolizations of the human body, raise the question whether and how the law should continue to reflect symbolic values and meanings. Moreover, how can we decide what these symbolic values are, given the fact that we live in a pluralistic society? (shrink)

Dutch euthanasia and physician-assisted suicide stand on the eve of important legal changes. In the summer of 1999, a new government bill concerning euthanasia and physician-assisted suicide was sent to Parliament for discussion. This bill legally embodies a ground for exemption from punishment for physicians who conduct euthanasia or physician-assisted suicide and comply with certain requirements. On November 28, 2000, the Dutch parliament approved an adapted version of this bill. Since the approval by the Dutch Senate can be regarded as (...) a formality, it is expected that the bill will come into force in the course of this year (2001). In this paper we discuss these new developments. (shrink)

Recent scandals such as those involving Enron and WorldCom (USA), Nortel and Crocus (Canada), and Parmalat and Royal Ahold (EU) exposed failures in corporate governance that shook the capital markets in developed countries and put the spotlight on weak corporate governance in developing, emerging and transitional economies. Companies from developing economies with weak financial transparency and governance will find it difficult to raise capital and attract foreign investors. We investigate the challenges and evaluate the progress of corporate governance (...) in Egypt. Using historical, empirical and interview data, we review the development of stock markets and accounting and financial reporting standards. We analyse the structure of capital markets, major players in the economy, the privatisation policy, board structure and the cultural and legal environment of corporate governance. We review initiatives and impediments for improving corporate governance, including the establishment of the Egyptian Institute of Directors. The implications of this study are important for Egypt, developing countries and global investors seeking international diversification. (shrink)

Over the last years, Norway has revised its animal welfare legislation. As of January 1, 2010, the Animal Protection Act of 1974 was replaced by a new Animal Welfare Act. This paper describes the developments in the normative structures from the old to the new act, as well as the main traits of the corresponding implementation and governance system. In the Animal Protection Act, the basic animal ethics principles were to avoid suffering, treat animals well, and consider their natural (...) needs and instincts. In addition, a principle for balancing our duties towards animals with the needs and interests of humans was expressed by the formulation unnecessary suffering. These principles (only with slightly different formulations) are retained in the new act. The novelty of the new act is shown by its explicit intention to promote respect for animals and its recognition of animals’ intrinsic value. Whereas intrinsic value is only given a symbolic function, the notion of respect is intended to have practical consequences. One interpretation of respect for animals is taking the animal’s integrity—and not only welfare—into account. Another is to see the introduction of respect as a call to animal keepers to provide animals with welfare exceeding the minimum requirements. In several respects, the legal system now seems to leave more responsibility to the individual animal keeper—and to citizens in general. I argue that if the authorities really do want to promote respect for animals, they must at the same time initiate activities to achieve this. In my perspective the challenge is to provide adequate measures to achieve in practice the intended respect for animals expressed in the new act. (shrink)

This book provides international perspectives on the law of copyright in relation to three core themes - copyright and developing countries; the government and copyright; and technology and the future of copyright. The third theme includes an examination of the extent to which technology will dictate the development of the law, and a re-examination of the role of copyright in fostering innovation and creativity. As a critique, one chapter discusses how certain rights can create (...) or reinforce social inequality under copyright royalty systems. Underlying these themes is the role the law of copyright has in encouraging or impeding human flourishing. (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)

Legislative scholars have debated what factors (e.g. divided government) account for the number of important laws a legislative body passes per year. This paper presents a monopoly model for explaining legislative production. It assumes that a legislature adjusts its law production so as to maximize its utility. The model predicts that socio-economic and political changes increase the marginal benefit of law production, whereas low negotiation costs and ample legislative resources decrease the marginal cost of law production. The model is tested (...) in two ways. The first approach compares the legislatures of 42 developed and developing countries. The second analyzes Japanese lawmaking from 1949 to 1990, using an appropriate method for event count time series data. Both empirical investigations support the model's predictions for legislative production. (shrink)

As government pressure on major technology companies builds, both firms and legislators are searching for technical solutions to difficult platform governance puzzles such as hate speech and misinformation. Automated hash-matching and predictive machine learning tools – what we define here as algorithmic moderation systems – are increasingly being deployed to conduct content moderation at scale by major platforms for user-generated content such as Facebook, YouTube and Twitter. This article provides an accessible technical primer on how algorithmic moderation works; examines some (...) of the existing automated tools used by major platforms to handle copyright infringement, terrorism and toxic speech; and identifies key political and ethical issues for these systems as the reliance on them grows. Recent events suggest that algorithmic moderation has become necessary to manage growing public expectations for increased platform responsibility, safety and security on the global stage; however, as we demonstrate, these systems remain opaque, unaccountable and poorly understood. Despite the potential promise of algorithms or ‘AI’, we show that even ‘well optimized’ moderation systems could exacerbate, rather than relieve, many existing problems with content policy as enacted by platforms for three main reasons: automated moderation threatens to further increase opacity, making a famously non-transparent set of practices even more difficult to understand or audit, further complicate outstanding issues of fairness and justice in large-scale sociotechnical systems and re-obscure the fundamentally political nature of speech decisions being executed at scale. (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)

HIV-related state laws are being created transnationally though the use of omnibus model laws. In 2004, the US Agency for International Development funded the creation of one such guidance text known as the USAID/Action for West Africa Region Model Law, or N'Djamena Model Law, which led to the rapid spread of HIV/AIDS laws, including the criminalisation of HIV transmission, across much of West and Central Africa . In this article, I explicate how an epidemic of highly problematic legislation spread (...) across the region as a result of a text-mediated work process enabled through model laws. I theorise the textual genre of model laws arguing that these texts are best understood as ‘preoperative documents’ which, when activated, can lead to swift legislative reform in and beyond the field of HIV/AIDS governance. The legislative process being investigated was made visible through participant observation, archival research, textual analysis and informant interviews with national and international stakeholders . This involved ethnographic research in Canada, the USA, Switzerland, Austria, South Africa and Senegal . The untold policy processes and narratives explored in this article make evident how the work of contesting problematic HIV/AIDS model laws and newly drafted state laws involves both creating new texts and contesting the legitimacy and efficacy of others. (shrink)

The research analyzes the process of formation of the ethics committee as a new institution in the system of regulation of genetic research. The external factors of this process are the increasing digitalization of medical and research practices, as well as the special situation that is developing in the field of genomic research and the use of genetic technologies, where issues of philosophy, jurisprudence and administration have generated many fundamentally new, and sometimes unexpected contexts. The author shows the similarity (...) and difference of approaches to the inclusion of the ethics committee in the national regulatory systems of different countries and determines the prospects for further integration of the new institution into normative and administrative-regulatory and law enforcement practices. The research applies all the main methods of system analysis and structural and functional analysis, as well as the comparative legal method. At the stage of generalization of empirical material, the author turns to the means and methods of philosophical phenomenology and phenomenological sociology. The study revealed that the ethics committee may have different institutional and regulatory functions in a variety of management and legal systems. Being hybrid in nature, the ethics committee performs various functions, and in various state legal systems and traditions it can combine elements of legislative, executive and judicial power. At times, the ethics committee may go beyond the scope of both a purely administrative and exclusively legal regulator. All this indicates that the integration of this institution into the legal system and into a variety of social practices is far from being completed. (shrink)

This thesis challenges prevailing approaches to religiously-based or influenced laws , and proposes an alternative model that makes religious pluralism, gender, and moral identity central considerations. I focus my analysis around abortion as a case study in order to analyze the gendered dimensions of the issue in addition to other, more well-recognized problems with religious lawmaking. ;My overarching thesis is that the prevalent approaches to religious lawmaking in the Supreme Court's jurisprudence, as well as in liberal and communitarian moral and (...) legal theory, are inadequate. Liberal approaches tend to protect religious pluralism at the expense of the religious identity of lawmakers, whereas communitarian proposals protect the religious morality of lawmakers at the expense of respect for religious pluralism. Both approaches are also inadequate, I contend, because they are premised upon faulty conceptions of moral identity, and fail to adequately consider the potential of religious lawmaking to perpetuate inequalities based on gender as well as religion. My arguments regarding deficiencies in these approaches are reinforced with empirical evidence regarding abortion views held by American religious groups, as well as the self-descriptions of a number of lawmakers regarding the influence of religion in their decision making. ;In developing alternative ethical and legal frameworks for addressing religious lawmaking, my analysis proceeds along both theoretical and practical lines. On the theoretical level, I propose that the conceptions of the social self and role-based morality developed by the twentieth century pragmatist philosopher George Herbert Mead, as supplemented by feminist and poststructuralist perspectives, provide the basis for a preferable ethical approach to religious lawmaking. ;On the practical level, I develop a legal framework that requires government in qualified challenges to religious lawmaking to show that the law can be fully supported on the basis of publicly accessible reasons and, in some instances, also by a compelling state interest. I explain how this proposal can accommodate the interests of religious lawmakers in relying on their religious convictions in their political and legal decision making, while insuring that the citizenship rights of their constituents are not thereby harmed. (shrink)

Recent corporate scandals have put company boards in the spotlight. Legislation, codes of conduct, and guidelines have been developed to improve corporate governance. But while many prescriptions for improving corporate governance focus on the structure of boards, Dr. Richard Leblanc's research suggests that there is no direct causal relationship between board structure and corporate performance. Indeed, many recent failed corporations had exemplary board structure. Richard Leblanc discusses how to assess board effectiveness and improve it.

Recent years have featured a spate of regulatory action pertaining to the development and/or disclosure of corporate governance structures in response to financial scandals resulting in part from governance failures. During the same period, corporate governance activists and institutional investors increasingly have called for increased voluntary governance disclosure. Despite this attention, there have been relatively few comprehensive studies of governance disclosure practices and response to the regulation. In this study, we examine a sample of 50 U.S. firms and their public (...) disclosure packages from 2004. We find a high degree of variability in the presentation and reporting format choices for many elements of the governance structure. This variability includes several items for which disclosure is mandated by regulators or legislative action. In particular, smaller firms offer fewer disclosures pertaining to independence, board selection procedures, and oversight of management (including whistleblowing procedures). There are also trends associated with board characteristics: boards that are less independent offer fewer disclosures of independence and management oversight matters. Moreover, large firms provide more disclosures of independence standards, board selection procedures, audit committee matters, management control systems, other committee matters, and whistleblowing procedures but do not appear to have a strictly superior information environment when compared to smaller firms. The findings raise questions about compliance with regulatory requirements and the degree to which conflicts of interest between managers and directors are being controlled. While there have been notable improvements in the information environment of governance disclosures, there remain structural issues that may possess negative ramifications for stakeholders. (shrink)

For a variety of policy reasons, governments throughout the world are now adopting different legislative and administrative strategies that support the development of FLOSS. Some governments have actually begun to procure FLOSS, whereas others have channeled public funds to large-scale FLOSS projects. This study demonstrates both the benefits and the risks of government policy favoring FLOSS from the perspective of economics, technology, and politics, and to further analyze whether these same policy goals can be achieved through government support of FLOSS. (...) The most fundamental argument of the study is that, in lending its support to FLOSS, the difference between a government user and a business user is that the government should take into account society’s long-term interests, not merely its own interests as a consumer. (shrink)

The European model of the constitutional review of legislation, characterized by the concentration of the constitutional review power in a single constitutional court, had its origin in the Austrian Federal Constitution of 1920. This is all the more remarkable when one considers that this Constitution established at the same time a parliamentary system of government in a fairly radical form. As the author explains, this “invention” of a constitutional court is attributable to two factors. One factor is the federal (...) aspect. The Court was conceived by the framers of the Austrian Federal Constitution of 1920 as an umpire between federal legislation and the legislation of the states or Länder. In this respect it was meant as a substitute for the principle of the priority of federal law over state or Land law. This is manifest in the initial draft of the Constitution, where actions on questions of the constitutionality of legislation could only be brought by the Federal government (against the legislation of one or another of the states or Länder) and by the State or Land governments (against federal legislation). Right from the beginning, however, the Court could examine a parliamentary act ex officio when it had to apply such an act in another proceeding. It was this power of the Court that triggered the development of constitutional review. Its exercise gradually transformed the Court into a guardian of the Constitution as a whole, in particular, the fundamental rights of citizens. The author traces this development in the context of the concept of state and law that prevailed in the late nineteenth and early twentieth century. This concept included specific restrictions on constitutional review. On the basis of a different understanding of the functions of a constitution, the Court gave up these restrictions and followed the examples of the European Court of Human Rights, the German Constitutional Court and—indirectly—the American Supreme Court. (shrink)

Developments in professional practice can be related to ongoing changes in relations of power among professionals, which often lead to changes in the boundaries of practices. The differing contexts of practices also influence these changing relations among health professionals. Legislation governing professional practice also differs from country to country. In Brazil, over the past 12 years, in a climate of deep disagreement, a new law to regulate medical practice has been discussed. It was sanctioned, or made into law, but (...) with some notable changes, in July 2013. Of interest to us in this paper are the ways the proposed legislation, by setting out the boundaries and scope of medical practice, ‘interfered’ in the practices of other health professions, undermining many ‘independent’ practices that have developed over time. However, even taking into account the multiple routes through which practices are established and developed, the role of legislation that seems able to contradict and deny the historical realities of multiple, intersecting practices should be critically interrogated. In this paper, we use the theoretical resources of poststructuralist thinking to explore gaps, ambiguities, and power relations implicit in the discourses that constituted this law. We argue that although the new law can be understood as a social and political device that will interfere in the organization of other health professions’ practices, such legislation is only part of what constitutes change in a consolidated professional practice. And while it is important to understand the effects of such legislation, healthcare practices are also realized or ‘made real’ through ongoing relations of knowledge and power, including, as we will see in this case, activities of resistance. The problem, then, is to understand the practical arrangements, including legislation, traditions and routines, values and knowledge that come to shape the practices of nursing in a particular context. (shrink)

Adolescents, in many jurisdictions, have the power to consent to life saving treatment but not necessarily the power to refuse it. A recent defence of this asymmetry is Neil Manson's theory of ‘transitional paternalism’. Transitional paternalism holds that such asymmetries are by-products of sharing normative powers. However, sharing normative powers by itself does not entail an asymmetry because transitional paternalism can be implemented in two ways. Manson defends the asymmetry-generating version of transitional paternalism in the clinical context, arguing that it (...) maximizes respect for adolescent autonomy. This article offers an alternative argument in favour of the asymmetry-generating form of transitional paternalism, one that makes appeal to obligations that individuals have to develop self-governance in others. We should share normative powers asymmetrically in the clinical context for three reasons. First, the asymmetric version of transitional paternalism takes seriously duties to support adolescents’ developing autonomy, alongside other duties that adults have to young people. It does so by enabling young people to be involved in important decisions that they would otherwise be excluded from. This is of value because participation of this sort is central to the cultivation of their self-governance. Second, only the asymmetric version gives young people a voice in respect of all clinical actions, and only the asymmetric version leaves open the possibility that the coarse lines of legislation might be ‘fine-tuned’ in individual cases. Third, the asymmetric sharing of normative powers is consistent with the kind of social arrangements that best support autonomy. (shrink)

This article presents the first empirically-based and theoretically-informed investigation of the effectiveness of the ‘self-declaration model’ of legal gender recognition in Denmark, the first European state to adopt it. Drawing upon analysis of legislative materials, as well as interviews with stakeholders in the legislative process and trans and intersex legal subjects, it contends that self-declaration is not without its limitations. By conceptualising embodiment as an ontological and epistemological process of becoming, and emphasising the institutional dimensions and effects of such processes, (...) it demonstrates that self-declaration may not address the complexities of legal embodiment, particularly concerning restrictions on trans and intersex people’s access to health care. The article’s empirical findings are directed towards the policymakers and activists tasked with shaping reforms of gender recognition legislation in the UK and elsewhere. The analytical agenda it develops may be adopted, and adapted, by scholars working in this area and other regulatory contexts. (shrink)

The second half of the third/ninth and the fourth/tenth centuries are of particular importance for the development of the judiciary in the central lands of the Abbasid caliphate. At the end of the mihna period and the victory of Sunnism under al-Mutawakkil (r. 232-247/847-861), the caliphate agreed not to interfere further within the legal sphere, thus allowing the principal schools of law to complete their development toward their classical structure. In Iraq, thanks to the growing independence of the legal sphere (...) and to the political weakness of the caliphate, the qadis increased their judicial freedom. Meanwhile, the political situation in Egypt was very different. The provincial rulers and two successive dynasties, the Tulunids (254-292/868-905) and the Ikhshidids (323-358/935-969), profited from the weakness of the caliphate, and imposed their autonomy de facto. The role played by the judiciary in this process is still unclear, as is the impact of Egyptian autonomy on the development of the local judiciary. In this paper, I discuss the evolution of the relationship between the Egyptian governors and the judiciary, from the accession of Ahmad b. Tulun in 254/868 until the arrival of the Fatimids in 358/969. Several elements are taken into consideration: (1) The institutional links between political power and the judiciary: Who appointed the qadis? How were they selected? Did the government choose to rely on local scholars or did the qadis come from outside the province? (2) The financial connection between the governors and the qadis, which was not only symbolic of the delegation of power, but could also denote the submission of the judiciary to the government. (3) The daily interactions between the qadis and the governors. (4) The judicial practice of the qadis. (5) Their reputation. I study to what extent the judiciary and its control was a political issue for the Tulunids and the Ikhshidids, and how the efforts of these two dynasties to build an Egyptian autonomy had important consequences on the structure of the legal milieu. (shrink)

While Chile's partial decriminalization of abortion in 2017 was a long overdue recognition of women's sexual and reproductive rights, nearly four years later the caseload remains well below expectations. This pattern is the product of standing barriers in access to abortion‐related health services, especially at the primary care point of entry. This study seeks to identify and describe these barriers. The findings presented here were obtained through a qualitative, exploratory study based on 19 semi‐structured interviews with relevant actors identified through (...) non‐random sampling and snowballing techniques. Coding was inductive and complemented by semantic content analysis. The authors find that the key barriers in primary care to accessing legal abortion are unfamiliarity with the law, insufficient practitioner training, intersectoral discrimination, and the stigma surrounding abortion. They conclude that the government needs to exercise its constitutional mandate as guarantor of public health and act promptly to safeguard and guarantee the abortion rights of Chilean women. (shrink)

Since the mid-1980s, internal corporate investigations have become commonplace in the U. S., with an upsurge occurring as a result of the corporate scandals of 2001-02 involving Adelphi Communications Corporation, Enron, Merck & Company, Riggs Bank, and other companies accused of financial malfeasance. After an introduction, this article first presents the U. S. public policy framework (as implemented through the U. S. Sentencing Commission, the U. S. Department of Justice, and the Securities and Exchange Commission) encouraging the use of corporate (...) internal investigations and self-reporting of these results to federal authorities; second, evaluates this framework, identifying the public policy issues inhibiting companies from using corporate internal investigations and self-reporting significant results; third, proposes a policy incentive regime which attempts to ameliorate these outstanding issues; and fourth, offer policy recommendations and suggestions for further research on this topic, including increasing the maximum deduction in the Organizational Sentencing Guidelines Culpability Score available to a firm for development of an Effective Compliance and Ethics Program (from 3 to 5 points), and self-reporting the results of an internal investigation (from 5 to 7 points); evaluating the effectiveness of these enhancements in legal incentives over a period of 5-7 years after implementation; instituting a formal federal government effort to educate the American business community on the corporate reputation (and financial) benefits of an effective compliance program; and protecting attorney-client privilege and work product protection, through legislative action, to encourage company executives and directors to utilize independent, outside attorneys to conduct fair, comprehensive, and impartial internal investigations. (shrink)

Heidegger’s critique of European nihilism seeks to expose self-legislation as the governing principle of central manifestations of modernity such as science, technology, and the interpretation of art as aesthetics. Need we accept the conclusion that modern constitutional democracies are intrinsically nihilistic, insofar as they give political and legal form to the principle of collective self-legislation? An answer to this question turns on the concept of power implied in constituent and constituted power. A confrontation of the genealogies of modern (...) subjectivity proposed by Heidegger and Blumenberg suggests that there is indeed a metaphysical core to the concept of constituent power developed by various political theorists, including Schmitt and Habermas. By contrast, closer consideration of the paradoxical relation between constituent and constituted power illuminates the ambiguity of collective self-legislation, which means both enactment of a legal order by a collective self and the enactment of a collective self by a legal order. To the extent that constitutional democracies are a way of preserving rather than dissolving this ambiguity, they imply an interpretation of power and human finitude that parries the charge of nihilism. (shrink)

The European Union is strategically committed to the development of nanotechnology and its industrial exploitation. However, nanotechnology also has the potential to disrupt human health and the environment. The EU claims to be committed to the safe and responsible development of nanotechnology. In this sense, the EU has become the first governing body in the world to develop nanospecific regulations, largely due to legislative action taken by the European Parliament, which has compensated for the European Commission’s reluctance to develop special (...) regulations for nanomaterials. Nevertheless, divergences aside, political bodies in the EU assume that nanotechnology development is controllable and take for granted that both the massive industrial use of nanomaterials and a high level of environmental and health protection are compatible. However, experiences such as the European controversy over agri-food biotechnology, which somewhat delegitimized the regulatory authority of the EU over technological safety and acceptability, arguably show that controllability assumptions are contestable on the grounds of alternative socio-economic and cultural preferences and values. Recently developed inclusive governance models on safety and innovation, such as “Responsible Research and Innovation”, widely claim that a diversity of considerations and issues are integrated into R&D processes. Even so, the possibility of more radically alternative constitutions of socio-technical safety seems to be seriously limited by the current ideology of innovation and economic imperatives of the global, knowledge-based, capitalist economy. (shrink)

This article concerns the conflict between copyright and museums’ digitisation and online sharing of collections. This issue has recently become particularly important in connection with the COVID-19 pandemic. The authors outline the concept of a virtual museum and present the most important copyright provisions in EU law that may create obstacles for cultural institutions in realising virtual counterparts. To perceive copyright as the main obstacle in the process of digitisation and online sharing of collections is not unusual. (...) Hence, the article briefly presents legal framework of the European copyright applicable to such situations. The authors argue that although copyright offers a range of possibilities for museums interested in digitising their collections, at the same time it is responsible for a _chilling effect_, resulting in fear of potential infringement and liability. The authors conclude that the EU’s development of new legislation, coinciding with the need for digitisation and online sharing of cultural heritage caused by the pandemic, has favoured public interest at the expense of creators’ rights, but still lacks satisfactory legal tools for effectively allowing cultural institutions to digitise and share their collections. (shrink)

Euthanasia and assisted dying are illegal in India according to Sections 306 and 309 of the Indian Penal Code, and Article 21 of the Constitution of India. There have been a number of cases where the Indian High Courts and Indian Supreme Court issued differing verdicts concerning the right to life and the right to die. Nevertheless, on 7 March 2011, a paradigm shift happened as a result of the Indian Supreme Court's judgment on involuntary passive euthanasia in the case (...) of Aruna Shanbaug. In its judgment, the Supreme Court requested the government to prepare a law on euthanasia. Accordingly, the 241st Report of the Law Commission of India proposed a bill to permit passive euthanasia. In May 2016 the Ministry of Health and Family Welfare issued the draft bill for public comment in order to create an informed decision. The Indian people are divided on the issue of euthanasia. The majority of the scientific community welcome it, while some religious groups oppose it. Hindus, in general, express both supporting and opposing views on euthanasia, whereas, Christians and Muslims have hardened their opposition against it. The Supreme Court judgment and the Report of the Law Commission pave the way for the development of new policies pertaining to passive euthanasia by the central government of India. Once such legislation is passed, passive euthanasia may, and probably will, have an enormous impact on the cultural, political, public and medical spheres of India in the near future. (shrink)

Developing countries need to reform legislation to ensure the global supply firms in ready-made garment industry is adequately addressing obligations of social responsibility. Literature typically focuses on strategies for raising responsible standards in global buying firms within the RMG industry, but fails to focus on implementing strategies for suppliers in developing countries. This article addresses this gap by specifically focusing on the RMG industry in Bangladesh, the home of the third largest RMG supplier in the world. It (...) concentrates on analysing how and to what extent the law can assist in developing social responsibility performance of the RMG manufacturing firms in developing countries. It ultimately concludes that a new governance approach in laws can effectively increase the social responsibility practice standards of an industry where global buying firms are profit-driven and governmental agencies are either inadequate or corrupt. (shrink)

This paper provides an overview of the various dual-use concepts applied in national and international non-proliferation and anti-terrorism legislation, such as the Biological and Toxin Weapons Convention, the Chemical Weapons Convention and United Nations Security Council Resolution 1540, and national export control legislation and in relevant codes of conduct. While there is a vast literature covering dual-use concepts in particular with regard to life sciences, this is the first paper that incorporates into such discussion the United Nations Security (...) Council Resolution 1540. In addition, recent developments such as the extension of dual-use export control legislation in the area of human rights protection are also identified and reviewed. The discussion of dual-use concepts is hereby undertaken in the context of human- and/or national-security-based approaches to security. This paper discusses four main concepts of dual use as applied today in international and national law: civilian versus military, peaceful versus non-peaceful, legitimate versus illegitimate and benevolent versus malevolent. In addition, the usage of the term to describe positive technology spin-offs between civilian and military applications is also briefly addressed. Attention is also given to the roles civil society and research ethics may play in the governance of dual-use sciences and technologies. (shrink)

This article develops a conceptual framework for regulating Artificial Intelligence (AI) that encompasses all stages of modern public policy-making, from the basics to a sustainable governance. Based on a vast systematic review of the literature on Artificial Intelligence Regulation (AIR) published between 2010 and 2020, a dispersed body of knowledge loosely centred around the “framework” concept was organised, described, and pictured for better understanding. The resulting integrative framework encapsulates 21 prior depictions of the policy-making process, aiming to achieve gold-standard societal (...) values, such as fairness, freedom and long-term sustainability. This challenge of integrating the AIR literature was matched by the identification of a structural common ground among different approaches. The AIR framework results from an effort to identify and later analytically deduce synthetic, and generic tool for a country-specific, stakeholder-aware analysis of AIR matters. Theories and principles as diverse as Agile and Ethics were combined in the “AIR framework”, which provides a conceptual lens for societies to think collectively and make informed policy decisions related to what, when, and how the uses and applications of AI should be regulated. Moreover, the AIR framework serves as a theoretically sound starting point for endeavours related to AI regulation, from legislation to research and development. As we know, the (potential) impacts of AI on society are immense, and therefore the discourses, social negotiations, and applications of this technology should be guided by common grounds based on contemporary governance techniques, and social values legitimated via dialogue and scientific research. (shrink)

This chapter examines the nature of legislative deliberation and the political sources of legislative majorities as dominant themes of American constitutional thinking. Drawing on James Madison's insights based on his memorandum ‘Vices of the Political System of the U. States’, it considers how the American conception of the rule of law developed amid the republican innovations of the late eighteenth century. It looks at the constitutional crisis of the late 1780s and the underlying aspects of governance in the colonies-becoming-commonwealths of (...) Anglophone North America, with reference to Madison's arguments regarding the ‘impotence of the laws of the states’ and ‘perspicuity’ in the realms of law and politics. It also discusses Madison's innovative approach to republican constitutionalism as well as his conception of the effect of popular opinion and interest on the pursuit of public good and private rights. (shrink)

Contemporary notions of what constitutes tribal self government for Indigenous Peoples in the legal systems of the nation-states Canada, New Zealand and the United States of America have their origins in philosophies and theories developed by European nation-states generally, in relation to their colonial expansion into what is now called the Americas. This thesis examines the nature of these theories, and how they have formed the basis for legal precedent and public policy in the three nation-states. A representative analysis of (...) three contemporary issues will serve to illustrate the outcome of this legal/political history. I look at three sites. These are the British Columbia Treaty Process in Canada, the Waka Umanga legislation in New Zealand, and legal developments arising from the Indian Reorganization Act in the United States. Full sovereignty from an Indigenous Peoples worldview existed for Indigenous nations, and with it, self government. The notion of self government as a viable and contemporary public policy initiative is well grounded in law and history. It would seem that current initiatives to acknowledge this inherent right are more about preserving colonial hegemony rather then engaging in honest negotiation. Current initiatives are converging into a single public policy goal; namely the corporatisation of Indigenous Peoples legal personality and self governing capacity. What used to be distinct nation-state development now seems to be a four nation-state (CANZUS) unified plan being implemented on four different fronts. Clearly, from the legal history, self government is something fundamentally different from self-management. The advent of Legal Positivism has played a significant role in assumptions that inherent sovereignty and self government never existed under European legal systems. The framework of tribal self governance must be viewed in the context of the values of the specific People to be a true expression of an Indigenous Nation exercising self government. This fundamental distinction can be traced back to the legal history. The foundational laws regarding interactions with Indigenous Peoples were developed under theories of natural law. The contemporary state practice is conducted under positivist law, with a nod toward developing human rights standards. Only through continued advocacy for the legal recognition of inherent rights will the nation-states be challenged on their self management agenda. (shrink)

Control of the market microstructure theory of corporate governance perspective on the traditional theory of the firm as a deepening of the study, the use of information economics and game theory tools to the mainstream economic analysis framework for the development, the market for corporate control transactions, configuring and tuning the details of the process accurately describes the shares of companies in the separation of ownership and control of internal control case shareholders, tender offers, takeover bids and other governance mechanisms (...) different from the actual control and operation of, the existence of incomplete information and transaction costs under control conditions to analyze market transactions , from the perspective of market microstructure control to clarify the shareholders of the managers to implement effective control mechanisms, policies and conditions. Share control over the behavior of financial market issues, equity market and environmental factors control the interaction between the control and equity issues in the legal protection and market control policy design issues will be the future theoretical research in this field focus. Corporate governance theory based on corporate control market microstructure focuses on trading, allocating and adjusting process of the corporate control market, applying the information economic approach and game instrument to expand the mainstream economic analysis framework. It accurately describes the factual operation of different corporation control and governance mechanism such as corporation owner's internal control, tender offer, takeover bid and negotiating transfer, deepening the traditional firm theory. Moreover it analyzes the corporate control market transactions on the case of incomplete information and positive transaction cost, examines the effective mechanism, strategies and condition by which the owner control and monitor the management based on corporate control market microstructure perspective. Those are the future research topics in this field that behavior finance, interaction with environments and legislation protect and regulation policy designations. (shrink)

Artificial intelligence (AI) will drastically change the healthcare system. Radiology is one speciality that is most affected as AI algorithms are increasingly used in diagnostic imaging. AI‐enhanced health technologies will, inter alia, increase workflow efficiency, improve diagnostic accuracy, reduce healthcare‐related costs, and help alleviate medical personnel shortages in under‐resourced settings. However, the development of AI‐enhanced technologies in healthcare is fraught with legal, ethical, and human rights concerns. Currently, the use of AI in South African healthcare is not governed by sui (...) generis legislation or ethical guidance focused exclusively and specifically on AI, although various provisions and principles from law and ethics find application. This article outlines these normative principles and explains their relationship with the extant legal obligations and regulatory framework as applied to the use of AI in radiology services in South Africa. The article concludes with three key recommendations for radiology practitioners using AI in South Africa. These are the need for: vigilant monitoring of AI use in practice, reforms to the liability framework, and appropriate guidance from local regulators and the Health Professions Council of South Africa on the ethical use of AI. (shrink)

In recent years there has been increased recognition of the importance of high standards in ethics, governance and the integrity of research. This paper is a case study of the University of Bristol's approach to address these important activities in a Higher Education Institution. It will highlight the importance of working closely with the academic research community to ensure maximum engagement, leading to a sustained culture change that recognizes faculty and departmental specific needs. A key tool to ensuring high standards (...) of research integrity and compliance with the legislative framework is the development of a supportive quality assurance programme. (shrink)

Comparative welfare state research is directed mainly toward the development of welfare states in advanced democracies, although the majority of people live outside the OECD and often face graver social risks arising from poverty and starvation. To secure a minimum standard of living, nearly all countries have introduced social programs to protect their citizens. Yet the timing of when governments take on the responsibility of providing social protection varies decisively across the world. Using data for 177 territories and independent states (...) over the period from 1820 to 2013, we illustrate how social security legislation has emerged throughout the world. Although we find that the patterns and pathways vary strongly between different regions, the evidence shows that the proliferation of social protection is a transnational event: regional diffusion and membership in the International Labour Organization matter irrespective of the regional and temporal context. (shrink)

This instalment is a reworking of the paper I gave at the meeting in Oxford in 2002 to a very small audience who I thank heartily for their patience and comments. I tried there to muse upon some ideas precipitated by reading two books by Jeremy Waldron, a legal philosopher whose work I find succeeds in being interesting and accessible without sacrificing technical content. I first came across his work whilst working on my PhD and was fascinated by his approach (...) and learning — even when I did not understand or agree with him. In one paper he made a point that struck a very important chord with me in relation to questions of participation within development:Philosophers who talk about rights should pay much more attention than they do to the processes by which decisions are taken in a community under circumstances of disagreement. Theories of rights need to be complemented by theories of authority, whose function it is to determine how decisions are to be taken when the members of a community disagree about what decision is right.I would like to suggest that within the Development Industry it is not only philosophers who need to pay more attention to these issues, but also development professionals who work with issues of governance as well as participation at the grass roots. This is not an obvious linkage, I admit, but one which I hope thisdiary entry will make clear.I will try to show that acknowledging disagreement within the legislative and judicial fields might actually be a positive move. And, as Waldron also indicates, that there is something dynamic and positive about the participation of people in processes. I will examine some current thinking on participation in development projects and ask whether current practices may be hindering the 'freedom to disagree'. I conclude that the failure to address some aspects of development practice relating to power and the possibility of disagreement is an issue. I highlight some factors which inhibit participation and suggest they flow from failures to develop strategies that foster local participation in contexts where local people often lack the formal' knowledge they need if they are to negotiate successfully with what James C Scott has called 'institutional privilege.'. (shrink)

This instalment is a reworking of the paper I gave at the meeting in Oxford in 2002 to a very small audience who I thank heartily for their patience and comments. I tried there to muse upon some ideas precipitated by reading two books by Jeremy Waldron, a legal philosopher whose work I find succeeds in being interesting and accessible without sacrificing technical content. I first came across his work whilst working on my PhD and was fascinated by his approach (...) and learning — even when I did not understand or agree with him. In one paper he made a point that struck a very important chord with me in relation to questions of participation within development:Philosophers who talk about rights should pay much more attention than they do to the processes by which decisions are taken in a community under circumstances of disagreement. Theories of rights need to be complemented by theories of authority, whose function it is to determine how decisions are to be taken when the members of a community disagree about what decision is right.I would like to suggest that within the Development Industry it is not only philosophers who need to pay more attention to these issues, but also development professionals who work with issues of governance as well as participation at the grass roots. This is not an obvious linkage, I admit, but one which I hope thisdiary entry will make clear.I will try to show that acknowledging disagreement within the legislative and judicial fields might actually be a positive move. And, as Waldron also indicates, that there is something dynamic and positive about the participation of people in processes. I will examine some current thinking on participation in development projects and ask whether current practices may be hindering the 'freedom to disagree'. I conclude that the failure to address some aspects of development practice relating to power and the possibility of disagreement is an issue. I highlight some factors which inhibit participation and suggest they flow from failures to develop strategies that foster local participation in contexts where local people often lack the formal' knowledge they need if they are to negotiate successfully with what James C Scott has called 'institutional privilege.'. (shrink)

While Corporate Social Responsibility (CSR) is often seen to involve voluntary and deliberative approaches such as certification, governments have recently stepped into the picture through national legislation. France’s Law on Duty of Vigilance adopted in 2017 is a landmark case of such legislation. Years of voluntary CSR certification schemes led by Civil Society were replaced by a new philosophy of fighting for mandatory CSR controlled by a judge. We depict the change of mindset and the related change of (...) roles inside the coalition of Civil Society actors represents a Machiavellian Moment. The combination of collective civil society actors’ roles (namely nongovernmental organizations and labor unions) as Machiavellian _Virtue_ with disruptive events as Machiavellian _Fortuna_ made the law’s adoption possible. Based on this case study, we provide an analysis of civil society roles in the development of CSR-related legislation. (shrink)

Business ethics can be regarded as a field dealing with corporate _self-regulation_ as it relates to the treatment of stakeholders. However, a concern for corporate stakeholders need not take a corporate-centric perspective, as shown by recent efforts (especially Singer in Bus Ethics Q 25(1):65–92, 2015) to situate corporate conduct within Rawls’ political theory. Although Rawls was largely mute on the subject himself, his theory has implications for business ethics and corporate governance more specifically. Given an understanding of a “Rawlsian society” (...) as a whole—where corporations as associations are a part—this paper addresses how a Rawlsian perspective would safeguard against corporate harms in society. We argue that a Rawlsian society would primarily regulate corporate conduct through exogenous constraints in the form of legislation. To the extent that business ethics is concerned with endogenous constraints in the form of corporate-centric self-regulation regarding _stakeholders_, to adopt a Rawlsian perspective is to assume instead a society-centric perspective and to impose exogenous constraints on corporate conduct in the form of legislation for the benefit of _citizens_. In the context of Rawls’ political liberalism, normative concerns in business are accounted for through legislation and the system of background justice. In a clear departure from Singer (Bus Ethics Q 25(1):65–92, 2015, Bus Ethics J Rev 6(3):11–17, 2018a), we further develop our argument to propose that Rawls' theory can be interpreted as providing a rule for corporate governance. The rule—which is imposed exogenously for the good of society—states: After choosing the corporate constraint mechanism (exogenous vs. endogenous) that best promotes the Liberty Principle, choose the corporate control regime (shareholder vs. stakeholder) that maximizes economic efficiency. (shrink)

Since the end of the Cold War, two parallel developments took place in global governance: fragmentation in social/environmental legislations across countries, and an increasing uniformity (or 'globalisation') of economic/financial legislations. In the liberal democratic context of global governance, both of these developments are embodied in partnerships for sustainable development. Studying these partnerships in the context of private environmental governance and tracing the origin of the concept in business and law, can reveal the implications of 'privatisation of governance' on sovereignty, authority, (...) and global governance. Focusing on partnerships in the United Nations context, this paper examines the private environmental governance institutions in their historical economic context. (shrink)

Among the political changes brought about by the First World War was the formation of new countries, including Latvia. This in turn resulted in a strong need for the first national legislative acts and thus a substantial amount of effort to develop Latvian legal terminology which dates back to the beginning of the 19th century. The purpose of the paper is to study the development of Latvian terminology of marriage in the 20th century through analysis of the relevant body of (...) laws. The paper focuses on marriage-related terms extracted from the major legislative acts governing the institution of marriage in the 20th century. The present study adopts the qualitative research approach which constitutes data collection and data analysis. For the purposes of a comprehensive and efficient analysis of the extracted legal terms, marriage terms are divided into the following five thematic groups: 1) engagement; 2) entering into marriage; 3) nullity of marriage; 4) dissolution of marriage ; and 5) consequences of dissolution or nullity of marriage. The paper suggests that the core of the Latvian terminology of marriage has remained stable, as entering into marriage is a solid procedure where two interested parties give notice to a public or religious institution in order to officially register their relationship. Similarly, both parties often feel the need to terminate this relationship just as officially. This stability of fundamental processes contributes to terminological continuity. (shrink)

Our study considers the governance, ethics and operational challenges associated with the acquisition, manipulation and commodification of ‘big data’ in the financial services sector. To the best of our knowledge, there are no published studies describing empirical research undertaken within companies in this sector to understand how they are responding to such challenges: our field-based research is a significant initial contribution in this respect. We describe the results of a micro-ethnographic study undertaken in a small-to-medium-sized company developing disruptive, technology-related (...) platforms and services in the banking and retail sectors based on big data and associated analytics: these are used to derive commercially valuable insights from personal customer data in exchange for cash back and targeted rewards. The company was found to employ a multi-level innovation governance approach, underpinned by an ethical strategy based on a principle of mutual benefit. Opt-in and informed consent for using data for specific purposes was supported by principles of data minimisation and anonymisation, with unrestricted use of secondary, anonymised and aggregated data to develop insights. Governance, which included contextual data protection legislation, payment-card industry data usage standards and internal corporate controls, presented as bespoke organisational practices relating to data security and privacy. These in total set the governance and ethics frame for big data innovation at the company within which it has had to be both adaptive and responsive under conditions of normative and regulatory uncertainty. (shrink)

The purpose of the study is to assess changes in Russian legislation and legislative initiatives related to cryptocurrencies and digital financial assets. The article focuses on the possible economic consequences of using cryptocurrency for Russian business; determining the degree of impact of transactions with digital assets on the country's economy in connection with the introduction of the Federal Law of the Russian Federation regarding cryptocurrency. The scientific novelty lies in the development and theoretical justification of the legal principles of (...) regulation of cryptocurrency and its place in the domestic legal system, the need to improve the legislation of the Russian Federation in relation to cryptocurrency is substantiated. As a result, the existing legal framework governing the circulation of cryptocurrencies and digital assets in Russia was analyzed, measures of responsibility for failure to report on transactions with cryptocurrencies were identified, and the need to eliminate disagreements on the legalization of cryptocurrencies in the country was substantiated. (shrink)

The article examines the place and role of the conception of the so-called educational services in the Russian legislation, which is one of the topical ideological problems of modern Russian educational policy. The author argues that the discussion of this issue in Russian society, in scientific publications and media as well as in government structure does not have a purely theoretical content but includes the most important practice-oriented aspects and raises the issues of the goals of education, of the (...) essence of the evolving system of educational relations, and, moreover, of the nature of the social system that has developed in Russia in general. According to the author, the conception of services is largely based on the desire to exclude the human factor from education, and it contradicts the specificity of educational relations, which implies the influence of a person on a person, the formation of a person by a person. The main content of the article is the analysis of alternative bills aimed at partial or complete exclusion of the conception of educational services from the legislation. The article analyzes the history of the issue, the arguments of supporters and opponents of the conception of educational services, as well as the parliamentary struggle and its results. The author substantiates that the discussed amendments to the Federal Law On Education in the Russian Federation is at best a half-way solution to the problem, and the work to improve federal legislation in this direction should be continued. (shrink)