In the intellectual confusion prevailing since the demise of Marxism and “marxism”, the attempt is made to define democracy as a matter of pure procedure, explicitly avoiding and condemning any reference to substantive objectives. It can easily be shown, however, that the idea of a purely procedural “democracy” is incoherent and self-contradictory. No legal system whatsoever and no government can exist in the absence of substantive conditions which cannot be left to chance or to the workings of the “market” (...) but must be posited as objectives of political activity. The confusion results from a deficient understanding of what makes a society and an empty idea of “freedom”. The objective of politics is not happiness, an affair to be left to the individuals, but it certainly is liberty understood as participation in the governance of the polity; it is also the pursuit of the common good, defined as the sum of the prerequisites and facilitations of individual autonomy depending on collective action, and as the realization of commonly agreed collective goals. (shrink)

Under the Lithuanian legislation, current and future spouses are allowed to sign marital agreements by which their property rights and obligations are set. However, it underlines that in some cases the court may declare the whole agreement or some of its terms unenforceable. The legislator does not specify which particular terms may be declared unenforceable. Therefore, the implementation of the spouses’ right to choose the terms they want is put under doubt. As a result, it is very important to find (...) out the circumstances and the criteria that should be evaluated before a marital agreement or some of its terms are declared unenforceable. Under the Lithuanian legislation, the validity of a marital agreement is considered only at the moment it is signed. However, it is not the case in other countries. For instance, many courts of the United States in deciding on the validity of a marital agreement take into account all the circumstances and conditions both at the time a marital agreement is signed and at the time of divorce. Some courts analyse if an agreement was executed voluntarily, without any pressure or fraud, and if both parties provided fair and reasonable disclosure of the property or financial obligations as well as what were their bargaining powers and expectations. Other courts attempt to establish the effect an agreement will have on the parties after the termination of their marriage. Currently, Lithuanian courts have no practice in declaring a marital agreement unenforceable. However, due to the particularities of marital agreements and the state’s aim to defend the public interest, the means to evaluate the validity of a marital agreement become unclear. (shrink)

Abstract The rapidly growing presence of private military and security contractors (PMSCs) in armed conflict and post-conflict situations in the last decade brought corresponding incidents of serious misconduct by PMSC personnel. The two most infamous events?one involving the firm formerly known as Blackwater and the other involving Titan and CACI?engendered scrutiny of available mechanisms for criminal and civil accountability of the individuals whose misconduct caused the harm. Along a parallel track, scholars and policymakers began examining the responsibility of states and (...) international organizations for the harm that occurred. Both approaches have primarily focused on post-conduct accountability?of the individuals who caused the harm, of the state in which the harm occurred, or of the state or organization that hired the PMSC whose personnel caused the harm. Less attention, however, has been paid to the idea of pre-conduct accountability for PMSCs and their personnel. A broad understanding of ?accountability for? PMSCs and their personnel encompasses not only responsibility for harm caused by conduct, but responsibility for hiring, hosting, and monitoring these entities, as well as responsibility to the victims of the harm. This article provides a comprehensive approach for analyzing the existing international legal regime, and whether and to what extent the legal regime provides ?accountability for? PMSCs and their personnel. It does so by proposing a practical construct of three phases based on PMSC operations?Contracting, In-the-Field, and Post-Conduct?with which to assess the various bodies of international law. (shrink)

In this article I contend that the re-emergence of religion in Western liberal states is a feature of a much broader phenomenon, namely, the re-establishment of legal pluralism whereby various social actors claim to be the legitimate producers of their own law. To prove this, I first offer an account of secularization as the successful attempt of modern states to dismantle a legal-pluralist system. Based on this, I argue that the reviviscence of religions is the reviviscence of their (...) practical side: religious practices tend to be perceived by religious group members as providing guidance for conduct, one that challenges the rules of the state legal order and its monistic structure. Finally, by exploring the issue of same-sex union recognition, I defend the claim that, in a truly post-secular society, the state should allow a multiplicity of relationship-recognition models that reflect and meet different interests and needs. (shrink)

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal (...) redress if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness. (shrink)

Responses to the COVID-19 pandemic have been widely criticized for being too delayed and indecisive. As a result, the precautionary principle has been endorsed, applauded, and proposed to guide future responses to global public health emergencies. Drawing from controversial issues in response to COVID-19, especially in Vietnam, this paper critically discusses some key ethical and legal issues of employing the precautionary principle in public health emergencies. Engaging with discussions concerning this principle, especially in environmental law where the precautionary principle (...) first appeared as a guiding principle with objective content(s), this paper formulates the precautionary principle as ‘in dubio pro salus’, which is about advising, justifying and demanding states to proactively prepare for scenarios arising out of any public health emergency. It distinguishes the precautionary principle into moderate and hard versions. A moderate version largely takes a holistic approach and fulfils a series of criteria specified in this paper, while a hard version either permits restrictive measures to be deployed primarily on a hypothetic basis or expresses an instrumental mentality. The hard version should be rejected because of the ethical and legal problems it raises, including risk-risk tradeoffs, internal paradoxes, unjustified causing of fear and unreasonable presupposition. Ultimately, this paper defends the moderate version. (shrink)

Citizenship regimes are institutionalized systems of formal and informal norms that define access to membership, as well as associated rights and duties. This paper studies illegalized migration as one of the major tests to assess whether citizenship regimes are fair institutions, based on a historical analysis of legislation meant to reduce illegalized migration in the United States between 1995 and 2022. We build our empirical research starting from a simple observation: despite the great number of bills introduced to reduce illegalized (...) migration to the US, most of such initiatives fail to become law. In fact, 93.5% of all immigration initiatives did not even pass the chamber of Congress in which they were originally presented. Such a high rate of failure shows that these proposals are motivated by electoral aspirations, rather than coming from a genuine wish to help migrants or grant them citizenship. Furthermore, there is also an economic interest that justifies the maintenance of low-cost disposable immigrant labor, with no right to citizenship. Our analysis is an example of how state regulation processes seem to work to formalize, rather than alleviate or eradicate, the precarious legal statuses of illegalized migrants. We conclude that a globalized phenomenon such as citizenship requires going beyond merely institutional and formal conceptions. We need to rethink the institutional notion of citizenship, as a merely status held under the authority of a state and consider it from a cosmopolitan perspective and a multilateral basis. But as long as citizenship remains under the responsibility of states, illegalized migrants will continue to experience precarious citizenship. (shrink)

Legal structures may form barriers to, or enablers of, adoption of precision agriculture management with small autonomous agricultural robots. This article develops a conceptual regulatory framework for small autonomous agricultural robots, from a practical, self-contained engineering guide perspective, sufficient to get working research and commercial agricultural roboticists quickly and easily up and running within the law. The article examines the liability framework, or rather lack of it, for agricultural robotics in EU, and their transpositions to UK law, as a (...) case study illustrating general international legal concepts and issues. It examines how the law may provide mitigating effects on the liability regime, and how contracts can be developed between agents within it to enable smooth operation. It covers other legal aspects of operation such as the use of shared communications resources and privacy in the reuse of robot-collected data. Where there are some grey areas in current law, it argues that new proposals could be developed to reform these to promote further innovation and investment in agricultural robots. (shrink)

Under the market economy, a contract serves as the main regulatory instrument of mutual rights and obligations of private law subjects. Many different types of contracts allow people to satisfy their needs and to achieve the desired results. Most contracts are concluded subject to established common criteria, yet almost every type of contract has also its own specifics. The article examines the marriage contract with its particular features (subjects, content, etc.) and analyses its complex nature and its main purpose. The (...) institution of marriage contract is relatively poorly covered by academic research in Lithuania (academic papers on legal science provide only patchy analysis of these contracts); case law in the resolution of arguments originating from such contracts is also limited and thus not completely established. Despite controversial attitudes towards the purpose of marriage contract, the numbers of concluded prenuptial and postnuptial agreements increase from year to year, i.e. more and more individuals express their will to specify the content of property obligations and to define the legal regime of property. These contracts are usually concluded to avoid unpredictable division of property in case of divorce and to protect family members against possible future claims of third parties (creditors). Bearing in mind that legal provisions governing marriage contracts are subject to diverse interpretation, analysis of this institution appears timely and relevant. (shrink)

Whenever sovereignty is defined as a supreme, absolute, unfettered and unlimited power, there is an obvious contradiction between two ideas: that states are sovereign and that they can or should be limited. Nevertheless, while many legal texts proclaim sovereignty, there are several signs that states are indeed limited by constitutional or international law. In light of this situation, some authors claim that those texts are mere proclamations and that sovereignty is an obsolete concept, while others argue that states are (...) still sovereign and that there are no real limits, but others still try to conceive of sovereignty as limited by morality or natural law. Professor Benvenisti’s remarkable theory of sovereigns as trustees of humanity is part of a very old tradition going back to the sixteenth century where sovereignty was defined as an absolute power, which is unlimited by positive law, yet based on and limited by natural law. This Article tries to show that this concept of sovereignty has emerged because of the necessity to provide a final point of imputation to the hierarchy of norms, and that the limitation by natural law was part of the original definition. Sovereignty so defined can usefully justify not only the power of kings and lawmakers but also that of courts trying to control kings and lawmakers. (shrink)

The body of information on the Internet is becoming increasingly geographical. This is both due to the expansion of established categories of geographic information and to the simultaneous enrichment of other types of information through geographic identifiers. As this repository of geographic information expands, it is also a key site for multiple processes of commodification transforming informational resources into market goods. Understanding the dynamics driving the integration of geographic information into the digital economy requires a comprehensive political economic analysis. A (...) key component of this analysis is to explain the logics of creation and allocation of economic value from geographic information on the Internet. Addressing this need, in the present article I deploy the property regimes schema developed by Schlager and Ostrom and expand it to elucidate the differentiated commodification processes of geographic information on the Internet. Property regimes are arrangements that define rules, distribute rights, and delineate roles with respect to particular goods. These arrangements are enabled by elements such as legal frameworks, jurisdictions, type of information, and technologies of access. In this article, I explore how the legal frameworks regulating traditional categories of geographic information have been destabilized in the process of technological innovation, leading to the creation of new informational goods along with their respective property regimes, and rearticulating legal, economic, and sociotechnical relations. To illustrate this, I analyze the case of Google Street View images through their property regimes in various jurisdictions. (shrink)

Powerful, technically complex international compliance regimes have developed recently in certain professions that deal with risk: banking (the Basel II regime), accountancy (IFRS) and the actuarial profession. The need to deal with major risks has acted as a strong driver of international co-operation to create enforceable international semilegal systems, as happened earlier in such fields as international health regulations. This regulation in technical fields contrasts with the failure of an international general-purpose political and legal regime to develop. (...) We survey the new global regulatory systems in the actuarial, banking and accounting fields, with a view to showing how the need to deal reasonably with risk has resulted in an international de facto law solidly based on correct abstract principles of probability. (shrink)

Examining legal ethics within the framework of modern practice, this book identifies two important ethical issues that all lawyers confront: the difference between the role of lawyers and the role of judges in pursuing justice, and the conflicting responsibilities lawyers have to their clients and to the legal system more broadly. In addressing these issues, Legal Ethics provides an explanation of the duties and dilemmas common to practicing lawyers in modern legal systems throughout the world. The (...) authors focus their analysis on lawyers in independent practice in modern capitalist constitutional regimes, including the United States, Japan, Europe, and Latin America, as well as the emerging legal systems in China and the former Soviet bloc, to develop connections between the legal profession and political systems based on the rule of law. They find that although ethical tension is inherent in the legal practice of all these societies, the legal profession is essential to stable political institutions. (shrink)

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

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

This chapter contains section titled: The Obligation‐to‐Obey‐the‐Law What the Law Claims Matters of Form References Further Reading.

This paper seeks to establish a connection between the existence of a legal system and the ideal of the rule of law. Its point of departure is the phenomenon of a transitional regime that is attempting to restore or institute the rule of law. Lon Fuller's formulation of the canons of the rule of law as an internal morality of law is expounded as well as his notion of legal pathology as symptomatic of departure from the canons' (...) requirements. The existence of a legal system, it is argued, is a matter of degree, covariant with the degree to which the rule of law is realized. Problems inherent to the implementation of the rule of law are examined, such as the effect of the passage of time on reasonable expectations. While legal pathology is always a matter of degree, police states are shown to suffer seriously from it. Among the examples discussed are Nazi Germany and Communist East Germany, though it is granted that there are moral differences between them. Finally, a response is made to some contemporary critiques of the rule of law. (shrink)

The emergent use of service robots in more and more areas of social life raises a number of legal issues which have to be addressed in order to apply and adapt the existing legal framework to this new technology. The article provides an overview of law as a means to regulate and govern technology and discusses fundamental issues of the relationship between law and technology. It then goes on to address a number of relevant problems in the field (...) of service robotics. In particular, these issues include the organization of administrative control and the legal liability regime which applies to service robots. Also, the issue of autonomy of service robots is discussed, which cannot easily be answered under the existing, human-centered legal regime. (shrink)

Books reviewed:Jorge M. Valadez, Deliberative Democracy, Political Legitimacy, and Self‐Determination in Multicultural SocietiesJeffrey Seitzer, Comparative History and Legal Theory: Carl Schmitt in the First German DemocracyHartmut Rosa, Identität und kulturelle Praxis. Politische Philosophie nach Charles Taylor.

Transnational legal communication seeks to identify transnational legal regimes and attempts to establish channels and technics for comprehensible communication of the legal information to specified groups of recipients. It also strives to conclude about possible inconsistencies in law. The approach is based on the cooperation of scientists within the area of law and applied linguistics and the coordination of their efforts, in order to conduct research from various perspectives, share conclusions and develop more complete approaches as well (...) as achieve and mutually use more multilateral research results. It strives to reconcile legal research and linguistics research despite of their very different paradigms. The paper aims to explain the nature of legal communication and to establish its general research questions and objectives. The study is going to find an answer to the question what methods are to be used to communicate law comprehensively to its recipients and to draw conclusions on the consistency of legal regimes to be communicated. It accentuates that the solidarity necessary to achieve the objective of comprehensible and consistent law goes beyond the particular interests of individual sciences and is the foundation of the existence of the transnational legal communication community, non-depending on the place of living and the scope of practical knowledge. (shrink)

We have previously addressed the use of race in health care generally. Subsequent developments have made the issue even more pointed. Given the recent Food and Drug Administration approval of BiDil as a result of a clinical trial limited to participants identifying themselves as African-American, this Symposium could not be more timely as an effort to further advance the dialogue on the issue of race in medical research. While this dialogue has informed our own analysis, we believe our distinctive contribution (...) concerns the extent to which the law does and should constrain such use of race. Even in legal academic circles – somewhat notorious for considering problems of little practical significance – the issue has been given little thought. This piece, therefore, attempts to analyze extant legal regimes against the backdrop of medical and scientific developments. (shrink)

Presidential pardon has always existed in criminal law and continues to constitute a very important competence of the head of state in many modern day countries. In the past, the clemency given by the sovereign represented an act which showed his/her mercy upon their subjects. It was often used as a tool to show the arbitrary will of the sovereign that constituted the law, rather than the law itself. Therefore, the classical school of criminal law that appeared in the 18th (...) century and emphasized the importance of the principle of legality, opposed harshly every kind of arbitrary deciding that excluded the law at the interest of the sovereign. This school is among the only interpretations of criminal law that engages for a complete abandonment of institutes such as pardon or amnesty. The revolutionary French Penal Code of 1791, which was strongly influenced by the classical school, excluded clemency for the proved wrongs that were severely punished. However, due to imperfections of the criminal justice system, amnesty and pardon or clemency, continue to exist and to be used in modern day criminal law. They are no longer considered acts of arbitrary decisions of the sovereign, instead they should represent important instruments of criminal law, used rarely and wisely with specifically designed goals that aim to bring justice rather than deny it. However, there are many cases when these institutes have been inappropriately used in a very arrogant way which shows that the ancient regime is not yet over for some countries in which the highest institutions continue to act as old and middle age despots. This article will analyze the legal reasoning of the institution of presidential pardon. It will try to establish why the classical school was so strictly opposed to this institute making use of the studies and interpretations found in the writings of Cesare Beccaria. It will explain the philosophy of modern day institutions of amnesty and pardon and the way in which they are regulated in the legal theory and practice. The article will explain the recent developments in Macedonia in regard to the use of presidential pardon. The methods to be used consist of desk research, historical and comparative methods and analysis of legal texts, laws and judicial decisions. (shrink)

Sovereignty and the sovereign state are often seen as anachronisms; Globalization and Sovereignty challenges this view. Jean L. Cohen analyzes the new sovereignty regime emergent since the 1990s evidenced by the discourses and practice of human rights, humanitarian intervention, transformative occupation, and the UN targeted sanctions regime that blacklists alleged terrorists. Presenting a systematic theory of sovereignty and its transformation in international law and politics, Cohen argues for the continued importance of sovereign equality. She offers a theory of (...) a dualistic world order comprised of an international society of states, and a global political community in which human rights and global governance institutions affect the law, policies, and political culture of sovereign states. She advocates the constitutionalization of these institutions, within the framework of constitutional pluralism. This book will appeal to students of international political theory and law, political scientists, sociologists, legal historians, and theorists of constitutionalism. (shrink)

This essay discusses the new report, Heritable Human Genome Editing, by the National Academy of Medicine, the National Academy of Sciences, and the Royal Society. After summarizing the report, we argue that the report takes four quite bold steps away from prior reports, namely (1) rejecting an omnibus approach to heritable human genome editing (HHGE) in favor of a case‐by‐case analysis of possible uses of HHGE, accepting that HHGE is acceptable in some cases; (2) recognizing that the interest in having (...) children who are genetically related to both would‐be rearing parents is one that the regulation of HHGE should honor; (3) patterning a regulatory model for HHGE on the United Kingdom's approach to regulating mitochondrial replacement techniques; and (4) conveying skepticism that international regulation is possible while showing a strong preference for a default into national regulatory regimes for HHGE. (shrink)

This essay discusses the new report, Heritable Human Genome Editing, by the National Academy of Medicine, the National Academy of Sciences, and the Royal Society. After summarizing the report, we argue that the report takes four quite bold steps away from prior reports, namely (1) rejecting an omnibus approach to heritable human genome editing (HHGE) in favor of a case‐by‐case analysis of possible uses of HHGE, accepting that HHGE is acceptable in some cases; (2) recognizing that the interest in having (...) children who are genetically related to both would‐be rearing parents is one that the regulation of HHGE should honor; (3) patterning a regulatory model for HHGE on the United Kingdom's approach to regulating mitochondrial replacement techniques; and (4) conveying skepticism that international regulation is possible while showing a strong preference for a default into national regulatory regimes for HHGE. (shrink)

This article provides the first-ever comprehensive analysis of how the relationship between the Chinese and Hong Kong legal orders has morphed in nature since China’s resumption of sovereignty over Hong Kong in 1997. It argues that the relationship has evolved from a form of legal pluralism found in the European Union to a monist but bifurcated system—to a “dual state,” to borrow from Ernst Fraenkel’s theory. Recent events, including Beijing’s imposition of a national security law on Hong Kong (...) and its overhaul of Hong Kong’s election methods, have consolidated that evolution. The analysis herein not only enables us to make sense of the developments in the China-Hong Kong relationship, but has five wider theoretical implications. First, it suggests a way of distinguishing a dual state from a fully liberal legal system. Second, it discerns the similarities and differences between legal pluralism and dual state. Third, it connects the literature on theories of legal order and that on the dual state. Fourth, it clarifies the relationship between theories of legal order and regime types. Finally, Hong Kong’s experience reveals the challenges of and potential mechanisms for maintaining liberal values in an authoritarian regime. (shrink)

In September 2002 the President of the United States issued a new National Security Strategy. Under the impact of 9/11 the authors of this NSS argue that the United States needs to pre-emptively attack rogue states that try to develop weapons of mass destruction (WMD) and have links to terrorists who might use these WMDs against the United States or its allies. This article analyzes this so-called ?Bush doctrine? asking about its legality, justice and feasibility in the present world order. (...) Furthermore, it attempts to show which underlying tacit assumptions the authors of the NSS must make to give their argument for a right to forcible regime change plausibility. To do so the NSS is being contrasted with a realistic utopian concept of an idealized international order in which preventive defense and regime change might seem justifiable. (shrink)

This article argues that state government actors concerned about gun violence prevention should prioritize enactment of robust firearm purchaser regimes at the state level. First, the article outlines the empirical evidence base for purchaser licensing. Then, the article describes how state governments can design this policy. Next, the article assesses the likelihood that purchaser licensing legislation will continue to be upheld by federal courts. Finally, the article addresses the implications of this policy, aimed at curbing gun deaths, for equally important (...) racial justice priorities. Taken together, these various considerations indicate that purchaser licensing policies are among the most effective firearm-focused laws state governments can enact to reduce gun deaths within the existing federal legislative and legal frameworks. (shrink)

Until recently the term ‘cosmopolitanism’ was a forgotten concept in the intellectual history of the 18th and 19th centuries. The last two decades have seen a remarkable revival of interest in cosmopolitanism across a wide variety of fields. This article contends that legal developments since the 1948 Declaration of Human Rights and the rise of an ‘international human rights regime’ are at the forefront of a new cosmopolitanism. Yet there is a great deal of skepticism toward such claims (...) on the part of those who maintain that democracy and human rights are best furthered by the nation-state framework. Still others confuse legal cosmopolitanism with the spread of a uniform system of rights across different national jurisdictions.In several writings in the past, I developed the concept of ‘democratic iterations’ to argue against such skepticism as well as misunderstandings of legal cosmopolitanism. In this article, I show how democratic iterations unfold across transnational legal sites, which encompass various national jurisdictions and through which contentious dialogues on the application and interpretation of such fundamental rights as ‘freedom of religion’ in different jurisdictions can emerge. To document such processes I focus on the Leyla Sahin v. Turkey case which was adjudicated by the European Court of Human Rights in 2005. (shrink)

This article traces the metamorphoses of Norwegian reformism during the last two centuries. In the Norwegian system, the shifting political regimes have to a remarkable extent been accompanied by shifting knowledge discourses. Regardless of whether its ideological dress was liberalism or socialism, a central feature of Norwegian reformism has been its basis in different versions of social science: it has been a scientific reformism. The legal knowledge regime of the civil servants’ state was towards the end of the (...) 19th century replaced by a democratic-pedagogical knowledge regime. When the Labour Party gained control of the political centre in 1945, it did so in coalition with the new economists. Following the demise of the Labour Party state in the 1980s, some features of a new knowledge regime have become visible. (shrink)

This paper focuses on a crucial and insufficiently examined issue of the conflict between legality and legitimacy, seen as a key element in securing continuity and providing the intellectual justification of the Francoist regime. Without analyzing the tension between legality and legitimacy, it is impossible to comprehend and successfully dismantle the thesis of the regime's intellectuals, recently revitalized by revisionist historians, according to which Francoism succeeded in re-establishing historical continuity and political normalcy in Spanish society. In the context (...) of the Cold War, it was crucial for Spanish legal scholars to portray Francoism not as a bastion of anti-liberalism, but as a regime whose survival entailed an original interpretation of notions such as freedom, rule of law, sovereignty and authority. They argued that the significance of Francoism consisted not only in defeating liberalism in Spain but in offering an alternative interpretation of its main tenets. By aspiring to justify and overcome its own historical exceptionality, the Francoist regime sought to avoid the inevitability of its demise. By virtue of its failure to do so, Francoism remained outside the European political norm, to which only democratic Spain would be re-admitted. (shrink)

Though there is no international government, there are many international regimes that enact binding regulations on particular matters. They include the Basel II regime in banking, IFRS in accountancy, the FIRST computer incident response system, the WHO’s system for containing global epidemics and many others. They form in effect a very powerful international public sector based on technical expertise. Unlike the public services of nation states, they are almost free of accountability to any democratically elected body or to any (...) legal system. Although by and large they have acted for good, the dangers of long-term unaccountability are illustrated by the travesties of justice perpetrated by the International Labour Organisation Administrative Tribunal. (shrink)

The global economy’s centre of gravity is shifting. Emerging and developing countries have been contributing over 50% of the global GDP since the onset of the 21st century, which is unprecedented since the Industrial Revolution. This article offers the first analysis of the creeping convergence of the BRIC world (ie Brazil, Russia, India and China) with global legal standards in a key area of International Law: the International Tax Regime (ITR). The ITR is a legal technology fundamentally (...) designed by the League of Nations in the 1920s, when the BRICs played no relevant role. This article proposes a theory that aims to illuminate the core driving forces of the on-going trend towards global convergence in this area of International Law from both the static and dynamic dimensions. It is grounded on the logic of two-sided platforms. (shrink)

The article is concerned with the question of how legal institutions are structured with the use of constitutive, institutive, consequential, and terminative rules. To that end, the regulation of international treaties as laid down in the Vienna Convention on the Law of Treaties of 1969 is analysed. This leads to the discovery of two additional categories of rules: content rules and invalidating rules. Finally, the special status of unique legal institutions is investigated. Unique legal institutions – for (...) example, heads of state, parliaments, and supreme courts – enjoy validity in a legal system to the exclusion of the validity of any other legal institution of the same category in that system. (shrink)

The article analyses the key issues of the legal status of the sole managing body from the perspective of the valid legal regulation, the established case-law and doctrine. The first part of the article analyses the dualism of the manager’s legal status from the perspective of civil law and labour law. The analysis of the latest case-law presented herein shows that the rule of “internal” and “external” relations between the manager and the company formulated in the case-law (...) is applied differently, and the criterion of distinguishing the manager’s as the subject of the labour law and that of the civil law statuses still remains unclear. The authors of the article are of the view that due to insufficient legal regulation in force rules established by the case-law to regulate the manager’s legal status cannot ensure the required legal certainty. Thus, the reform of the manager’s legal regulation is essential. The second part of the article strives to answer the question what legal regulation models exist and what are the main criteria of quality legal regulation. The comparative analysis of the legal status regulation of the sole managing body allows to determine the main available regulation models of the manager’s legal status and to distinguish their advantages and disadvantages. The authors of the article believe that it is necessary to take regard to other states’ practices regulating the relations at issue, however, while creating such legal regulation, the evaluation of economic, cultural and social peculiarities of Lithuania is also required. In search for the most appropriate model of the manager’s legal status, attention should be drawn to the fact that in some aspects the labour law regime is too restrictive (e.g., shareholders cannot recall the manager, who is on maternal leave, and the manager at interim does not have full authority) and uncoordinated with the doctrine of the companies’ law. Moreover, quite a few questions directly related to the issues of the manager’s authority do not fall or only partially fall into the scope of the labour law. On the other hand, the problem of the manager’s legal status involves a broader scope of points of the companies’ law than the dualism of the manager’s status, and a part of these points has already been regulated by the Law on Companies (the agreement conclusion, termination, removal from the register of legal persons, terms of notice). In regard to this, a question can be raised if it not be better to regulate the issues of the manager’s legal status by the provisions of the Law on Companies and not of the Labour Code. It is proposed to create a specific legal regulation of the companies’ law, which could meet the needs of business and match up to the doctrine of the companies’ law, which is already being applied. (shrink)

The Current Legal Problems lecture series and annual volume was established around sixty years ago at the Faculty of Laws, University College London and has long been recognized as a major reference point for legal scholarship. The continuing strength of Current Legal Problems is its representation of a broad range of legal scholarship opinion, theory, methodology, and subject matter, with an emphasis upon contemporary developments of law. Contributions to the 61st volume in the series include an (...) analysis of war as crime by Professor Gerry Simpson, an assessment of the problems in building a realistic climate change regime by Professor Daniel Cole, and an exploration of the problems of character evidence by Dr Mike Redmayne. (shrink)

Under the Canadian labour laws that govern workplace safety, wage, and other work conditions, ‘family’ workers are not covered by the law under special rules for agriculture. Among other legal exclusions, the family farm exclusion contributes to a dearth of basic work, health, and safety standards in the sector, despite the commercialization and industrialization of family farming activities. Through a focus on Alberta, Canada—where farm labour rules have only applied to agriculture since 2016—this article explores the family exclusion in (...) relation to family farming experiences with work and risk, based on interviews with farm operators, their family members, and farm employees in Alberta. While some participants continued to press for exemptions for farms from labour rules under the rationale that there is intrinsic safety within families, the findings also reveal how other participants have begun questioning this rationale, despite their overall support for the family farm exemption in Alberta. Using the lens of legal geography and critical perspectives on the family, we argue that the family is a significant but under-examined dynamic in the legal regimes governing farm labour and agricultural safety and health. Together, the law and dominant narratives about family farming treat farm operations as hyper-private domains, where operators have disproportionate power to dispose of their own work and the work of others how they wish. These legal geographies of hyper-privacy contribute to the indecent work conditions that characterize farm labour systems in Alberta and other jurisdictions. (shrink)

This article evaluates the legality of Operation Iraqi Freedom, the March 2003 attack on Iraq. The author rejects assertions that Security Council Resolution 1441 (2002), standing alone, contained a mandate to employ force; on the contrary, the Resolution was only adopted on the understanding that it did not. The law of self-defense, including its ?preemptive? variant, similarly provided no legal basis for the action because the degree of Iraqi support to terrorism was insufficient and the threat of use of (...) weapons of mass destruction was not imminent. With regard to humanitarian intervention, the suffering inflicted by the Saddam Hussein's regime did not rise to a level allowing intervention. Moreover, international law does not permit forceful regime change except when authorized by the Security Council. However, the author argues that material breach of the 1991 cease-fire in Security Council Resolution 687 released the US and UK from their obligation to refrain from hostilities, thereby reactivating the use of force authorization in Security Council Resolution 678 (1990). This latter justification was the sole official legal justification offered for Operation Iraqi Freedom. (shrink)

Should society intervene to prevent the risky behavior of precocious teenagers even if it would be impermissible to intervene with adults who engage in the same risky behavior? The problem is well illustrated by the legal case of the 13-year-old Dutch girl Laura Dekker, who set out in 2009 to become the youngest person ever to sail around the world alone, succeeding in January 2012. In this paper we use her case as a point of entry for discussing the (...) fundamental question of how to demarcate childhood from adulthood. After summarizing the case, we identify a ‘demarcation dilemma’ that frames much of the public and expert debate. On the one hand, it seems morally imperative ‘to treat like alike’, which means that both children and adults should be allowed to undertake all actions for which they have the relevant competences. On the other hand, requiring proportional treatment of children and adults seems to neglect the special nature of childhood as a distinct stage in life that ends at a specific age. We introduce the notion of a ‘regime of childhood’ to deal with this problem. This regime includes several dimensions, including the limited liability for children, the supervisory responsibilities of parents, the role of age-based thresholds, and the overarching purpose of childhood as a context for developing autonomy. We argue that, all things considered, there are good reasons not to shift to a regime that offers individual children the option of qualifying for adulthood on the basis of age-neutral criteria. (shrink)

Scientific debates about the political, economic and even legal aspects of commons have circulated wherever commons are perceived to pose a challenge to the increasing commodification of people’s lives. Indeed, a wide range of commons has emerged worldwide. Emerging commons pose a challenge to the law which is now requested to provide legal tools to resist the dispossession of the common wealth. Nevertheless, commons do not embody a reality which is external or unfamiliar to the law. This paper (...) is an attempt to reframe the commons as a legal concept. In this article I argue that commons are not just a marginal element of contemporary legal systems. Rather, they embody the premises for important transformative practices and discourses and represent a subversive site in the legal order. I maintain, first, that the law of the commons is consistent with the law in force and the current legal regimes of private property and, second, that the current stage of globalization is most favourable to the establishment of a law of the commons both in the peripheries and at the core of the capitalist system. However, given the persistent dominance of the individual-based property paradigm, the legitimacy of the commons on legal grounds remains problematic. Certainly the recognition and protection of the commons challenge the legal regime of property in force and query about the possible limits that the law may impose upon property rights. It is evident that the true core of the commons discourse as a legal discourse rests upon its relation with property and depends on the notion of property that we assume as normative. The Hohfeldian idea of property as a bundle of rights offers a good starting point for articulating a legal theory of the commons under positive law. (shrink)

This volume examines the property transformations in post-communist Central Eastern Europe (CEE) and focuses on the role of restitution and privatisation in such transformations. It argues that the theorisation of 'restitution' in post-communist CEE is incomplete in the transitional justice scholarship and in the literature on correction of historical wrongs. The book also argues that, for a more complete theorisation of (post-communist) restitution, the transformations of property in post-communist societies ought to be studied in a more holistic way. The main (...) legal vehicles used for such transformations, privatisation and restitution, should not be studied separately and in abstract, but in their reciprocal relationship, and in connection to the dimension of justice which each could achieve. Finally, the book integrates 'privatisation' in a theory of post-communist transformation of property. (shrink)

Governments are particularly salient stakeholders for business ethics. They act on societal needs and social expectations, and have the political and legal powers to restrict or expand the economic freedoms of business as well as the legitimacy and often urgency to do so. We draw on two examples: the Business & Human Rights regime from a UN Global Compact perspective; and mandatory CSR reporting. Supplying integrated teaching notes and generalising on the examples, we explain how legal method (...) may help students of business ethics, organisation and management – future managers – in their analysis of governments as stakeholders and their interests that drive expectations on firms. With a focus on analysis for responding adequately to stakeholder concerns,this article contributes to the emerging literature recognising the relevance of public regulation for CSR. More specifically, we contribute to the business ethics literature by explaining how legal method complements stakeholder theory for organisational practice. (shrink)

The article analyses the legal regulation of electronic marketing in the European context. The historical and teleological perspective on past and present regulations of electronic marketing is provided. Emphasis is given on the ability of the legal rules to preserve the balance of private and entrepreneurial interests, and the desirable principles of the regulation of the socially beneficial electronic marketing. The paper concludes that the harmonization of legal regulation of electronic marketing at the European Union level is (...) limited, which causes numerous negative consequences, such as jurisdiction shopping. Some countries (e.g. Finland) follow opt-out regimes for at least some types of electronic marketing, while other countries (including Lithuania) prohibit most forms of electronic marketing without the prior consent of the customer (opt-in). Thus, further regulation and harmonization of the electronic marketing law is suggested at the regional (the EU) and national level, along with more self-regulation and a balanced approach towards future regulation. (shrink)

In order to re-make the world in its own image, neoliberal expansionism is predicated on the dominance of a particular regime of reason. The dominance of economic-juridical rationality relies in no small part on education to reproduce itself. In this sense, how and why a populace is educated in the law becomes a locus of struggle and of alternative and competing constructions of normative and political orders. Over the last decade the United Kingdom’s justice policy has become more attentive (...) to the role of citizens’ knowledge of the law in the context of a reinvigorated drive toward competition in the legal services market. Reformism in legal services thereby emerges as a strategy geared toward the economisation of the state by propagating specific types of legal knowledge. This reorientation of legal education is considered through, on the one hand, the insights of recent theories of neoliberalism and, on the other, a wider lens relating the intersection of legal education to the juridical-political realm. Finally, the paper outlines alternative strategies of community-based educational practices rooted in resistance to legal and economic orthodoxies. (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)