It is sometimes suggested that victims of unjust harm should take priority over victims of other forms of harm. We explore four arguments for this view: that victims of unjust harm experience greater suffering; that prioritizing victims of unjust harm would help prevent unjust harm in the future; that it is good for perpetrators that their victims be prioritized; and that it is impersonally better that victims of unjust harm are prioritized. We argue that the first three arguments fail but (...) that the fourth argument succeeds. Moral agents have a reason to prioritize victims of wrongdoing because this secures the impersonal value of corrective justice. However, this reason can be activated differently for different agents depending on how they are situated relative to the wrongdoing, and it may be outweighed by other factors, such as the extent of the harm that could be alleviated. (shrink)

The fundamental requirement of Anglo-American criminal law is that crime must consist of the concurrence of a guilty mind—a mens rea—with a guilty act—an actus reus. And yet, the criminal law is shot through with discordant lumps of strict liability—crimes for which no mens rea is required. Ignoring the conventional normative objections to this aberration, I distinguish two different types of strict criminal liability: the type that arose at common law and the type associated with the public welfare (...) offenses that are the product of twentieth and twenty-first century legislation. Using famous cases as exemplars, I analyze the two types of strict liability, and then examine the purposes served and incentives created by subjecting individuals to strict liability. I conclude that common law strict liability is rational in that it advances the purposes of the criminal law, while the public welfare offenses are at best pointless and at worst counterproductive. I suggest that in this respect the common law contains more wisdom than the results of the legislative process. (shrink)

This paper examines the legal conception of political parties. It does so by unearthing the history and ontology of the common law relating to political parties in international perspective. The flexibility of the unincorporated association, in which parties are understood through the private law of contract as networks of internal rules or agreements, rather than as legal entities, has proven to be a mask. In the common laws imagination, the ideal party is a ground-up organization animated by its (...) membership. But the law mandates no such thing, and in its statutory and constitutional conception intra-party democracy may be sublimated as parties need be no more than an electoral persona or brand. (shrink)

This book tackles the relationship between the common law of judicial review, the written constitution and public international law.

A fully revised edition of Brudner's classic account of the foundational structures and rationale of private law. Brudner proposes a radical unification of formalist and functionalist understandings of the law. In doing so, he rethinks the foundations of tort, contract, property and unjust enrichment as a unity of private and public law.

The 2006 trial of Suman Sood put criminal abortion on the public agenda for the first time in 25 years in NSW. Response to the case highlights tenacious myths about abortion law in Australia; namely that the common law “is an ass” that allows for abortion only by way of a lack of application of the law. By briefly explaining the history of abortion in Australia, I argue that the Sood case does not represent a general failure of (...) the common law to allow abortion, nor does it support the popular myth that abortion is “technically” illegal, or that doctors who perform abortions have historically been the target of the criminal law in Australia. I show that contrary to myths promoted particularly around the 1998 Western Australian reforms, abortion has long been lawful in Australia, and the common law has merit compared to other regulatory regimes. Hence, arguments for alternative abortion regimes should not depend on myths which are shown to be unrepresentative of the political and legal situation in Australia. (shrink)

Water has a dual role in the Sundarbans area of southwestern Bangladesh. Hydrologic processes are vital to the ecological functioning and cultural identity of the mangrove ecosystem. But at the same time, large scale water development creates external forces that threaten the Sundarbans environment. Water is managed to a limited degree as a common property resource, both in the Sundarbans and in larger regions. It is also managed as private property, a public good, a state-controlled resource, an open (...) access resource, and a natural hazard. And to a large degree, it is not managed at all. By focussing on water, we begin to understand the linkages between the Sundarbans area and larger regional contexts; and between common property resource systems and the broader array of institutional, political, and property relations. Section one of this paper provides an overview of the role of water in the Sundarbans, including modern human modifications of deltaic hydrology. Section two surveys water management issues and institutions at six geographical scales: the International Basin; 2) India and Bangladesh; 3) Greater Bengal; 4) Bangladesh; 5) southwestern Bangladesh; and 6) Khulna district. The conclusion stresses the role that the political geography of water will play both within and outside the Sundarbans ecosystem. (shrink)

The accelerating adoption of electronic health record systems will have profound impacts on clinical care. It will also have far-reaching implications for public health research and surveillance, which in turn could lead to changes in public policy, statutes, and regulations. The public health benefits of EHR use can be significant. However, researchers and analysts who rely on EHR data must proceed with caution and understand the potential limitations of EHRs.Much has been written about the risk of EHR (...) privacy breaches. This paper focuses on a different set of concerns, those relating to data quality. Unlike clinical trial data, EHR data is not recorded primarily to meet the needs of researchers. Because of clinicians’ workloads, poor user-interface design, and other factors, EHR data is surprisingly likely to be erroneous, miscoded, fragmented, and incomplete. Although EHRs eliminate the problem of cryptic handwriting, other kinds of errors are more common with EHRs than with paper records. (shrink)

The relationship between Canadian administrative law and the Canadian Charter of Rights and Freedoms is complex and still unfolding. If a decision touches a Charter right, frontline decision-makers and reviewing courts alike determine the requirements of legality using the Charter, administrative law principles, or some combination of the two. There is an emerging consensus that the Charter does not replace the common law, but rather embodies and supplements fundamental legal principles contained within it.This chapter sets out various ways in (...) which judicial review at common law has influenced understandings of the Charter, as well as the manner in which the Charter has influenced review of administrative decisions when a Charter right is clearly at stake. The influence runs in both directions, and has significant implications for judicial review of both the procedure and substance of administrative action. In the realm of procedure, the courts rely on the common law doctrine of procedural fairness to interpret the principles of fundamental justice set out in s. 7 of the Charter. However, when courts review the substance rather than the procedural aspects of a decision that engages a Charter right, they tend to review the decision using the analytical framework developed in R. v. Oakes for testing the validity of legislation. Taken together, these general features of the relationship between Charter jurisprudence and administrative law suggest that each is porous and open-textured to the other. Put another way, the relationship between the Charter and administrative law exhibits a cross-fertilization of principles and approaches which inform judicial review of administrative action. (shrink)

This article charts the rise of a new, and increasingly influential, theory of public law: common law constitutionalism. The theory can best be seen as a response to a ‘crisis’ within contemporary public law thought produced by an array of different pressures: Thatcherite reformation of the state; the growing prominence (and potential politicization) of judicial review; constitutionalization of the EU; and trends towards globalization. The core of argument underlying the theory is elucidated by means of an analysis (...) of the work of a number of leading public law scholars. The essence of the theory is the reconfiguration of public law as a species of constitutional politics centred on the common law court. The theory constitutes, it is suggested, an attempt to turn inwards, in the face of change, towards the familiar form of the common law, reinvigorated as a burgeoning site of normativity. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is (...) that policymaking is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

The use of rights based arguments to justify claims that donor offspring should have access to information identifying their gamete donor has become increasingly widespread. In this paper, I do not intend to revisit the debate about the validity of such rights. Rather, the purpose is to examine the way that such alleged rights have been implemented by those legislatures that have allowed access to identifying information. I will argue that serious inconsistencies exist between the claim that donor offspring have (...) a right to know the identity of their gamete donor and the way such a right is currently met in practice. I hope to show that in systems where non‐anonymous donation is practised, an understanding of the proclaimed right of donor offspring to know their genetic identity is one composed of two different rights – the right to know the circumstances of their conception and the right to information identifying the gamete donor – can provide important insights into this important area of public policy. (shrink)

This paper examines the ‘doctrine of reportage’—a particular application of the Reynolds qualified privilege defence to defamation recognized by the House of Lords in Reynolds v Times Newspapers Ltd. The doctrine of reportage provides protection for the neutral reporting (republication) of defamatory allegations made by others in the context of a dispute or controversy of public interest. It is argued in this paper, however, that this emerging defence is doctrinally distinct from the privilege recognized in Reynolds and that its (...) jurisprudential basis needs to be reconsidered. Moreover, the development of the defence under the guise of Reynolds privilege has led to confusion, both by courts and by commentators, as to its potential breadth. It is suggested that the public interest justifications underpinning the reportage defence need to be explicitly re-examined by the courts in order to define its proper scope. Following an examination of these public interest justifications, it is argued that a broad interpretation of the defence should be rejected. (shrink)

The legal doctrine of ‘common purpose’ in South African criminal law considers all parties liable who have been in implicit or explicit agreement to commit an unlawful act, and associated with each other for that purpose, even if the consequential act has been carried out by one of them. It relieves the prosecution of proving the causal link between the conduct of an individual member of a group acting in common purpose, and the ultimate consequence caused by the (...) action of the group as a whole. The National Prosecuting Authority’s controversial and vociferously challenged decision to charge 270 demonstrators at Lonmin Platinum Mine in Marikana with the murders of 34 colleagues under the ‘common purpose’ doctrine, implying liability by association or agreement, raises the question as to the constitution and characteristics of the crowd and of the public, respectively. This article outlines the history of the application of the common purpose rule in South Africa, to then examine ‘common purpose’ within the philosophical parameters of group psychology and collective intentionality. It argues for methodological individualism within a psychoanalytic theorisation of group dynamics, and a non-summative approach to collective intentionality, in addressing some problems in the conceptualisation of group formation. (shrink)

This article draws analogies between the making of norms by contract, often seen as typical of private law, and by subordinate law-making, often seen as a typically public function and for public bodies. These analogies are set in the context of those rules which govern the relations between universities and their students, as the same types of rule may find their source in a range of legal sources: prescription, royal charter, parliamentary legislation or contract. Of these different sources, (...) the common law courts long accepted that chartered corporations, created by exercise of royal prerogative, were entitled to make subordinate legislation (known as byelaws) for the furthering of their purposes for both members and non-members, despite this law-making being extra-parliamentary. This article suggests how this power to make byelaws in chartered corporations may apply to chartered universities, noting the difficulties arising from the allegedly eleemosynary nature of these bodies and from the possible coexistence of statutory powers. It then examines the way in which the contract between a student and a university arises, and how this contract may form the legal basis of student rules, whether these rules are conceived as terms of the contract itself or as expressions of a unilateral power in the university arising from the contract. A subsequent article will compare the review of student rules on the grounds of public law principle and of contractual regulation. (shrink)

BackgroundThe COVID-19 pandemic has presented extraordinary challenges to worldwide healthcare systems, however, prevalence remains low in some countries. While the challenges of conducting research in high-prevalence countries are well published, there is a paucity from low COVID-19 countries.MethodsA PRISMA guided systematic review was conducted using the databases Ovid-Medline, Embase, Scopus and Web of Science to identify relevant articles discussing ethical issues relating to research in low prevalence COVID-19 countries.ResultsThe search yielded 133 original articles of which only 2 fit the inclusion (...) criteria and aim, with neither specific to low prevalence. Most of the available literature focused on clinical management and resource allocation related to high prevalence countries. These results will be discussed under the ethical dimensions of equity, individual liberty, privacy and confidentiality, proportionality, public protection, provision of care, reciprocity, stewardship and trust..ConclusionsA systematic review failed to identify articles relating to COVID-19 research ethics, specific to low prevalence countries. It shows that there is a significant gap in the literature that warrants further investigation. Common ethical principles were used to present a distinct set of challenges experienced by a country with a low prevalence of COVID-19. This unique perspective of some of the common ethical problems surrounding research, may help guide further discussion and guide research in similar countries. (shrink)

Climate change harmfully affects social and natural systems. These outcomes adversely affect the human and natural systems, resulting in adopting related-response measures whose implementation yields similar outcomes, especially when poorly designed. Climate-related projects, actions, and policies cause harmful environmental impacts, even though the United Nations Convention on Climate Change and its subsequent instruments urge parties, when dealing with climate change, to employ methods that preserve the quality of the environment. Few studies have established the effects of these environmentally, economically, culturally, (...) and socially unsound mechanisms on public participation, although research usually proves that ecological and environmental citizenship can enhance climate action. The study also highlights gaps in the common understanding of public participation in climate action. This reflection analyses the relationships between public participation and climate response measures and concludes that uncertainty related to response measures could affect the perception of climate action by the public. The reflection, therefore, shows that many international environmental law legal instruments, policies, and scholarships attempt to address the issue. (shrink)

In the Laws, Plato argues that the legislator should attempt to persuade people to voluntarily obey the laws. This persuasion is accomplished through use of legislative preludes. Preludes (also called preambles) are short arguments written into the legal code, which precede laws and give reasons to follow them. In this paper, I argue that Plato’s use of persuasive preludes shows that he endorses the core features of a public reason theory of political justification. Many philosophers argue that Plato’s political (...) philosophy is deeply at odds with contemporary liberal political philosophy. While Plato certainly does not affirm (and even rejects) some of the main features of liberalism, if it could be shown that he endorses some account of public reason (which is a liberal idea to its core), this would suggest that there is more in common between Plato and liberalism than many philosophers think. Furthermore, if combined with the work of philosophers, like C.C.W. Taylor, this could form a cumulative case against those who argue that there is little in common between Plato’s political philosophy and liberalism. In short, by showing that Plato endorses the core features of public reason, I endeavor to show that there is more in common between Plato and liberalism than is often thought. (shrink)

This article contributes to philosophical reflections on public health law by drawing on virtue jurisprudence, which rests on the straightforward observation that a political community and its laws will inevitably shape the character of its officials and subjects, and that an excellent character is indispensable to fulfilment. Thus, the law is properly set to encourage virtue and discourage vice. This opens a new perspective onto the ultimate purpose of public health law that is human flourishing. The means of (...) pursuing this end is to entrust public health powers to officials to virtuously serve the common good, of which population health is one of its most important constituents, within the bounds of the law of the land. This article calls for the adoption of a Prudent Public Health Official standard into the law, in order to cultivate prudent, just, courageous and temperate characters in officialdom. Interestingly, this standard already chimes with certain pre-existing core principles of public health judicial doctrine in the USA, the European Union and the UK. (shrink)

Abstract. Revelations in the United States of secret legal opinions by the Department of Justice, dramatically altering the conventional interpretations of laws governing torture, interrogation, and surveillance, have made the issue of "secret law" newly prominent. The dangers of secret law from the perspective of democratic accountability are clear, and need no elaboration. But distaste for secret law goes beyond questions of democracy. Since Plato, and continuing through such non-democratic thinkers as Bodin and Hobbes, secret law has been seen as (...) a mark of tyranny, inconsistent with the notion of law itself. This raises both theoretical and practical questions. The theoretical questions involve the consistency of secret law with positivist legal theory. In principle, while a legal system as a whole could not be secret, publicity need not be part of the validity criteria for particular laws. The practical questions arise from the fact that secret laws, and secret governmental operations, are a common and often well-accepted aspect of governmental power. This paper argues that the flaw of secret law goes beyond accountability and beyond efficiency to the role that law plays, and can only play, in situating subjects' understanding of themselves in relation to the state. Secret law, as such, is inconsistent with this fundamental claim of the law to orient us in moral and political space, and undermines the claim to legitimacy of the state's rulers. (shrink)

Normal 0 false false false MicrosoftInternetExplorer4 st1:*{behavior:url(#ieooui) } /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} In order to see whether there is a common European model that gives a place to religion in the public sphere two issues have to be taken into account: first, if there is a theory of secularization that accurately describes the current situation of European societies (...) and second if, there is a European model on Church – State relationship. The first part is dedicated to the different accounts on secularization that may be applied to European countries: the classical Weber theory that view secularization as an “iron law” of any society, the institutional secularization, secularization as the decline and adequacy of religious practice, the continuation of the classical theory in the 60’s and beyond, the criticism of this theory and the particular argument of the increase of fundamentalist religious movements. The attempts to formulate new theories on secularization based on other assumptions than the classical one are also presented. The increased presence of religion in private life does not mean a decrease of religion in the public space but rather a new definition of it. Despite the different intensity of belief in national terms, some trends like “believing without belonging” are common, meaning that secularization could have a single meaning in Europe, apart from other continents. The second part starts with presenting the three types of Church - State relationship at the national level. All these have in common the fact that the state is neutral towards religious subjects, a religious subsection is singled out within the public sphere and the state has the right to intervene in this area only as an arbiter. There is already a European law on religion and this statement is supported by examples from the Lisbon Treaty, The Charter of Fundamental Rights, different Directives and decisions of the European Court of Justice. Common rules on religion agreed at the European level helps better to understand why there is a common European model on religions, different from the national models. After taking into account the two aspects described above, a common European model on religion in the public sphere emerges as a necessary conclusion. (shrink)

In the past twenty years Joseph Raz has consolidated his reputation as one of the most acute, inventive, and energetic scholars currently at work in analytic moral and political theory. This new collection of essays forms a representative selection of his most significant contributions to a number of important debates, including the extent of political duty and obligation, and the issue of self-determination. He also examines aspects of the common (and ancient) theme of the relations between law and morality. (...) This volume of essays, available in one volume for the first time, will be essential to legal philosophers and political theorists. (shrink)

Legal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter IHRL) and international criminal law (hereafter ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, the predominant approach to constructing the link is substantive. This overlap is normatively justified in similar terms by reference to a subset of moral human rights. In this paper, I offer an alternative to the substantive approach. After identifying (...) two flaws in the substantive approach (the problem of threshold and the problem of ethical neutrality), I defend what I call a structural account by focusing on duty‐holders. I start by reconstructing two structural characteristics common to IHRL and ICL qua international legal regimes: who has the authority to address violations of IHRL and ICL, and who can be liable for those violations. I then infer that public authority (functionally construed) constitutes the common structural core of IHRL and ICL. I rely on the extraterritorial application of IHRL and on the collective dimension of ICL violations to further support the argument. I finally offer an argument explaining the normative point of those structural features. I hold that IHRL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects. (shrink)

Since its publication in early 2008, the DCFR has triggered an intensive discussion throughout Europe. The contributions combined in the present volume stand out as they add a Law & Economics perspective to the ongoing debate. A workshop held at the Law and Economics Faculty of the University of Bonn in November 2008 aimed at stimulating the debate on the economic implications of the principles and rules enshrined in the DCFR. An essential part of the papers presented at the Bonn (...) workshop are now being published. The topics addressed range from general issues such as the policies of anti-discrimination and consumer protection to analyses of specific legal areas, like the law of remedies, the law of service contracts and the law of torts or delict. (shrink)

Among the Muslims the most common sect is Ḥanafī. It is mentioned in the Ḥanafī sect that there are a line of students who transfer the principles of the sect from generation to generation. In order for the Islamic conquests that started simultaneously in the Eastern and Western lands to be permanent, people were sent to teach Islamic morality, worship and fiqh that encompass daily life. From the 2nd century (A.H.) the sectarianization process that started in the centers such (...) as Kufa, Medina and Damascus has naturally spread to the geography of the West. Many jurists who were educated in the madrasas in the East transferred this education to the newly conquered lands in the West, thus contributing to the fact that sectarianization began in the East and West at the same time. During this period, the views of many mujtahids, including Abū Ḥanīfa and his students, began to enter this geography again through his students. In this article, the most important person who introduced the Ḥanafī sect in the Andalusian region and transferred Abu Ḥanifa's ijtihads, ʿAbdallāh Ibn Farrūkh's life, his scientific personality, his contributions to the spread of the sect and the reasons for the Ḥanafī sect to find supporters in the region will be followed by a short course and the history of the sect will be tried to uncover in the history of Andalusia.Summary: Among the Muslims the most common sect is Ḥanafī. It is not a coincidence that the Ḥanafī sect spread more than other sects and found supporters. Abū Ḥanīfa (d. 150/767) is the most senior among the imams of four leading sects. He experienced about commercial and everyday life, had loyal students. This is because he discussed with his students before deciding on a ruling.Islamic conquests in the east and west started at the same time. Experts teaching Islamic morality were sent to conquered places. In this way, both morality and Islamic law, which encompasses worship and daily life, were also taught. Since the implementation of justice was considered as the main duty of the state, legal affairs were dynamic and systematically organized. For this purpose, both in the Medina and the newly conquered lands, various issues such as, management, use, distribution, non-muslim marriage, trade and so on emerged. These issues were carried out with the "kadi" establishment, which is like today's ministry of justice.In the Hijri 2nd century, Fiqh schools produced practical solutions to matters of process and worship in centers such as, Iraq, Medina and Damascus. These schools completed the sectarianization process after a century. Many Islamic jurists who took madrasah education in the east taught these training in the west. They pioneered the development of this sectarianization process both in the east and the west at the same time.The Islamic jurisprudence solved the problems that emerged with the conquest process that began in Andalusia, primarily through the independent jurisprudence, kadi and muftis in the region. After 710 A.C., the Ḥanafī sect reached Andalusia. After the death of Abū Ḥanīfa, Abu Yusuf became the chief justice. Later, the views of Abū Ḥanīfa gained importance. Abu Yusuf appointed the judges who knew the Ḥanafī sect. Abū Ḥanīfa's students, like a gold mine, embraced the views of their teachers. These jurisprudences were adopted by the supporters. Imam Muhammad was the first to write the case law of Abū Ḥanīfa. The views and thoughts of Abū Ḥanīfa, which were published by Imam Muhammad, spread throughout Iraq, Damascus, Iran and Khorasan. Later these thoughts reached North Africa that was under the control of Aghlabid (A.C. 800-909).In the same era, ʿAbdallāh b. Farrūkh passed to the way 6500 km to learn western sciences. The purpose of Farrūkh is to write the views of his teacher, Abū Ḥanīfa. In this way, he returned to Andalusia by writing ten thousand subjects. Beginning from 767 A.C., Ḥanafī sect gradually began to form in this region. He served as a judge voluntarily, although he did not serve as the official judge. Therefore, it contributed greatly to the spread of this sect in the west. The Mālikī sect, which due to from the animosity of Umayyad (A.C. 661-750) and Abbasids (A.C. 750-1258), came to the forefront. Abdullah b. Ferrûh was not as famous as the other disciples of Abū Ḥanīfa.Although Ḥanafīism spread in the west, it was in the foreground in the eastern geographies. Scholars such as Qadi Ayyad (d. 544/1149), Ibn Farḥūn (d. 799/1397), Muhammad Abū Zahra (d. 1974) and Hintātī state that this sect was effective for a short time in the west. On the other hand, Maqdisī (d. 380/999) states that Ḥanafī existed in Andalusia until the second half of the third century A.C. and was at least as widespread as Mālikīism. Orientalist Lévi Provençal (d. 1956) says that Ḥanafī sect did not reach to Andalusia. However, it can be understood from the above statements that this view is not real. In addition, according to the student hierarchy described in the article, it is understood that the Ḥanafī sect maintained its existence in this region for a while. In Andalusia, the views of the sect from the 8th to the 13th centuries known, recognized and followed by experts and the public. Because this sect was not official, its books were not in demand. For this reason, the basic works belonging to the sect were not reproduced.It is not true that the Ḥanafī sect never came to Andalusia or did not stay for a long time. ʿAbdallāh b. Farrūkh, who studied at Abū Ḥanīfa for 5 years, introduced Ḥanafī sect in Andalusia. Then his students continued this teaching. In this study, the life, mastery and students of ʿAbdallāh b. Farrūkh, who made important contributions for the first time in teaching Ḥanafīsm's to Andalusia, have been brought together. This information is summarized in terms of Ḥanafīsm's entry into Andalusia, the reasons for acceptance in social life and the duration of the sect in the region. (shrink)

Law, we are told, is a system of rules, created by men to govern human behaviour. Students of law, introduced to legal systems, become familiar with varied sources of law – legislative, judicial and executive in character. There are undoubtedly prescriptive human rules that govern men set up by public authorities that are advertised as being for the common good. These appear as visible, socially constructed systems in different jurisdictions and even as international systems across jurisdictions. But is (...) this all there is to law? Is law merely a human construct subject to flux, different according to time and place? Or must law, in its fullest sense, be seen as an activity that needs to be interpreted aright, binds the human conscience and is answerable to certain universal and timeless demands? Is there any natural moral law common to all men, universal and timeless? (shrink)

For the first time, the revised Common Rule specifies that public health surveillance activities are not research. This article reviews the historical development of the public health surveillance exclusion and implications for other foundational public health practices.

“Public health practice” consists of activities and Programs managed by public health agencies to promote health and prevent disease, injury, and disability. Some of these activities might be deemed to fit within the broad definition of “research” under federal regulations, known as the Common Rule, designed to protect human research subjects. The Common Rule defines research as “a systeniatic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” Public health (...) activities that might under some circumstances be considered research include disease reporting, review of medical records, surveys, interviews, focus groups, specimen collection, and laboratory testing.There are questions about the extent to which the Common Rule applies or was intended to apply to public health practice: and it has been suggested in any case that Common Rule regulation of public health practice may not be socially optimal for both practical and principled reasons. (shrink)

“Public health practice” consists of activities and Programs managed by public health agencies to promote health and prevent disease, injury, and disability. Some of these activities might be deemed to fit within the broad definition of “research” under federal regulations, known as the Common Rule, designed to protect human research subjects. The Common Rule defines research as “a systeniatic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” Public health (...) activities that might under some circumstances be considered research include disease reporting, review of medical records, surveys, interviews, focus groups, specimen collection, and laboratory testing.There are questions about the extent to which the Common Rule applies or was intended to apply to public health practice: and it has been suggested in any case that Common Rule regulation of public health practice may not be socially optimal for both practical and principled reasons. (shrink)

This incisive book deals with the use of the criminal law to enforce morality, in particular sexual morality, a subject of particular interest and importance since the publication of the Wolfenden Report in 1957. Professor Hart first considers John Stuart Mill's famous declaration: "The only purpose for which power can be rightfully exercised over any member of a civilized community is to prevent harm to others." During the last hundred years this doctrine has twice been sharply challenged by two great (...) lawyers: Sir James Fitzjames Stephen, the great Victorian judge and historian of the common law, and Lord Devlin, who both argue that the use of the criminal law to enforce morality is justified. The author examines their arguments in some detail, and sets out to demonstrate that they fail to recognize distinction of vital importance for legal and political theory, and that they espouse a conception of the function of legal punishment that few would now share. (shrink)

Bentham belongs to a long tradition of reflection on law according to which the nature of law can best be understood in terms of its distinctive contribution to the solution of certain deep and pervasive problems of collective action or collective rationality. I propose to take a critical look at Bentham's unique and penetrating contribution to this tradition. For this purpose I will rely on the interpretation of the main lines of Bentham's jurisprudence and its philosophical motivations which I have (...) developed inBentham and the Common Law Tradition. will not attempt further to defend it here. I wish, rather, to reflect on themes and arguments which this interpretation of Bentham's jurisprudence has uncovered. (shrink)

Punishment and democracy appear to exacerbate each other’s worst features. The institutions and moral intuitions used to punish those that break the law can hollow out civic participation, distort the electorate, and undermine core democratic values. Likewise, many have argued the decentralized character of democracy is a key, albeit indirect, cause of increasingly punitive public policies that are divorced from any reasonable penological purpose. Given the effects of electoral politics, many have called for the separation, or general insulation, of (...) state punishment from public influence. However, recent empirical work on punitive attitudes and institutional design has begun to chip away at this common sense. This article contextualizes and qualifies the various mechanisms of policy feedback and public opinion formation thought by political theorists to undermine democratic participation in penal institutions and makes a normative case that insulating the public from penal law actively sustains injustice. (shrink)

This unique publication offers a complete history of Roman law, from its early beginnings through to its resurgence in Europe where it was widely applied until the eighteenth century. Besides a detailed overview of the sources of Roman law, the book also includes sections on private and criminal law and procedure, with special attention given to those aspects of Roman law that have particular importance to today's lawyer. The last three chapters of the book offer an overview of the history (...) of Roman law from the early Middle Ages to modern times and illustrate the way in which Roman law furnished the basis of contemporary civil law systems. In this part, special attention is given to the factors that warranted the revival and subsequent reception of Roman law as the 'common law' of Continental Europe. Combining the perspectives of legal history with those of social and political history, the book can be profitably read by students and scholars, as well as by general readers with an interest in ancient and early European legal history. The civil law tradition is the oldest legal tradition in the world today, embracing many legal systems currently in force in Continental Europe, Latin America and other parts of the world. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. Roman law is both in point of time and range of influence the first catalyst in the evolution of the civil law tradition. (shrink)

In his seminal work, Emotional Intelligence, Daniel Goleman suggests that the common view of human intelligence is far too narrow and that emotions play a much greater role in thought, decision-making and individual success than is commonly acknowledged. The importance of emotion to human experience cannot be denied, yet the relationship between law and emotion is one that has largely been ignored until recent years. However, the last two decades have seen a rapidly expanding interest among scholars of all (...) disciplines into the way in which law and the emotions interact, including the law's response to emotion and the extent to which emotions pervade the practice of the law. In The Emotional Dynamics of Law and Legal Discourse a group of leading scholars from both sides of the Atlantic explore these issues across key areas of private law, public law, criminal justice and dispute resolution, illustrating how emotion infuses all areas of legal thought. The collection argues for a more positive view of the role of emotion in the context of legal discourse and demonstrates ways in which the law could, in the words of Goleman, become more emotionally intelligent. (shrink)

What are the principles of association that citizens devoted to different ethical and religious ideals or peoples living under different regimes can find reason to acknowledge together? Defining the common ground which reasonable people can share, despite their profound disagreements, has been the distinctive concern of John Rawls’ political philosophy since A Theory of Justice. Rawls’ second book, Political Liberalism, recast his theory of justice as fairness in a form no longer tied to a Kantian view of the moral (...) life as a whole. “Political liberalism” revolves around the idea of “public reason”, the shared point of view which free and equal citizens assume when, abstracting from their opposing comprehensive doctrines, they decide constitutional essentials and matters of basic justice in the light of a principle of reciprocity. “The Idea of Public Reason Revisited,” originally published in 1997, forms the second part of the present volume. This essay offers perhaps Rawls’ final statement of his ideal of a just society. Yet its role in this book is to provide the background for an account of the just coexistence of diverse societies. “The Law of Peoples” was the title of the Oxford Amnesty Lecture that Rawls delivered in 1993. Refined and expanded, the theory he then proposed is given here its first full-scale exposition, and my remarks focus on this part of his book. (shrink)

This book brings together the most authoritative articles on Law and Economics and the interaction between the two disciplines as well as the use of economic tools to analyse legal problems. Aimed at students experiencing the subject for the first time, the selections are interlaced with a wealth of features including explanatory introductions and exercises. Key features of the reader include: - The accessibility of the material: the articles should be understandable to those with only a limited background in economics (...) and law. - The book’s focus on the most important and basic – foundational – issues in law and economics. - An exposition of the opposition between the different legal systems that exist in the world including common law, civil law and public law. - Debates viewed from the perspective of the scholars from a range of backgrounds are presented as well as all the key figures in economics and in law. The book should prove to be an essential resource to all students studying this burgeoning field and represents an exciting introduction to one of the key disciplines which has grown up in the social sciences in recent times. (shrink)

A medical information commons is a networked data environment utilized for research and clinical applications. At three deliberations across the U.S., we engaged 75 adults in two-day facilitated discussions on the ethical and social issues inherent to sharing data with an MIC. Deliberants made recommendations regarding opt-in consent, transparent data policies, public representation on MIC governing boards, and strict data security and privacy protection. Community engagement is critical to earning the public's trust.

One understanding of health conceives of it as a state of freedom from pathology, achieved by an individual, through the mediation of a doctor. On this view, improvements in health flow from the application of science to specific ills of the body, and access to medical care is the chief determinant of health. This “medicalized” view of health underlies the current debate over medical care payment reform. This is the dominant way of talking about health.An alternative is the view of (...) health commonly associated with the practice of public health. On this view, health is an attribute of communities in social and physical environments. Health takes its shape in large numbers—in morbidity and mortality statistics—and, ideally, includes not just a high level of well-being for some, but also its even distribution throughout a society. Improvements in health are seen to arise from healthful changes in the environment. (shrink)

Offensive street speech--racist and sexist remarks that can make its targets feel both psychologically and physically threatened--is surprisingly common in our society. Many argue that this speech is so detestable that it should be banned under law. But is this an area covered by the First Amendment right to free speech? Or should it be banned? In this elegantly written book, Laura Beth Nielsen pursues the answers by probing the legal consciousness of ordinary citizens. Using a combination of field (...) observations and in-depth, semistructured interviews, she surveys one hundred men and women, some of whom are routine targets of offensive speech, about how such speech affects their lives. Drawing on these interviews as well as an interdisciplinary body of scholarship, Nielsen argues that racist and sexist speech creates, reproduces, and reinforces existing systems of hierarchy in public places. The law works to normalize and justify offensive public interactions, she concludes, offering, in essence, a "license to harass." Nielsen relates the results of her interviews to statistical surveys that measure the impact of offensive speech on the public. Rather than arguing whether law is the appropriate remedy for offensive speech, she allows that the benefits to democracy, to community, and to society of allowing such speech may very well outweigh the burdens imposed. Nonetheless, these burdens, and the stories of the people who bear them, should not remain invisible and outside the debate. (shrink)

Bedbugs are tiny, wingless insects which feed on mammal blood and leave behind painful, itchy sores. Although they can live in other settings, they are most commonly found in warm, dark places inhabited by humans, like beds. After being absent in the United States for over 60 years, thanks to powerful pesticides, bed bugs, have returned in force and are present in every state and nearly every city. For reasons not entirely understood, bed bugs have developed resistance to traditional pesticides (...) such as Permethrin and are therefore difficult to control. Although commonly believed to be associated with dirty housekeeping and associated with substandard housing, bed bugs are equally likely to be present in five-star hotels as they are in homeless shelters. (shrink)

This dissertation is concerned with the viability of the idea of liberal public reason. This idea belongs to the realm of contemporary political philosophy and is a term which seems to have few direct correlates in the history of philosophy, though it has a few namesakes and several analogues. "Public Reason'' may be contrasted obviously with "private reason"- a concept as dubious no doubt as that of the idea of a private language. But this contrast is not what (...) is here meant. Here the concept of public reason may be thought of as an account of the moral practical reasoning appropriate to democratic citizenship in the public sphere. This account of the moral practical reason" particular to the role of government officials and of citizens is made through delimiting those moral concepts suitable for public deliberation and through the imposition of duties to reason from a "public" point of view rather than self interest. Naturally, this idea of public reason is analogous to many previous theories on the nature of right. Some of the more obvious examples are the use of the natural law by jurists of the Roman Republic such as Cicero, the idea of the "common good'' which is to be found in political theorists of the late medieval republics of Italy, or the use of natural rights language by the founders of the American Constitution... (shrink)

No one questions the importance of protecting human subjects of research, but over the past few years dissatisfaction has surfaced with the manner in which the protection is conferred by the federal regulatory system referred to as “The Common Rule. ” Some of the criticism surfaces in print. Some bubbles out anecdotally in conversations among researchers, with complaints about the review process being virtually inevitable whenever the topic arises. Like those in other disciplines that differ more or less dramatically (...) from the world of clinical medical research around which the Common Rule was conceptualized, public health researchers, particularly those working in official public health agencies, have experienced some tension and difficulty in adapting to the rules. The Centers For Disease Control and Prevention has adopted guidelines that require Common Rule review for “research” but not “practice” activities. (shrink)

One understanding of health conceives of it as a state of freedom from pathology, achieved by an individual, through the mediation of a doctor. On this view, improvements in health flow from the application of science to specific ills of the body, and access to medical care is the chief determinant of health. This “medicalized” view of health underlies the current debate over medical care payment reform. This is the dominant way of talking about health.An alternative is the view of (...) health commonly associated with the practice of public health. On this view, health is an attribute of communities in social and physical environments. Health takes its shape in large numbers—in morbidity and mortality statistics—and, ideally, includes not just a high level of well-being for some, but also its even distribution throughout a society. Improvements in health are seen to arise from healthful changes in the environment. (shrink)

Purpose The purpose of this article is to assess the operation of the UK’s Public Interest Disclosure Act 1998 (PIDA 1998) during its first 10 years and to consider its implications for the whistleblowing process. Method The article sets the legislation into context by discussing the common law background. It then gives detailed consideration to the statutory provisions and how they have been interpreted by the courts and tribunals. Results In assessing the impact of the legislation’s approach to (...) whistleblowing both in the UK and elsewhere, the author draws upon empirical research. Conclusion The author concludes that PIDA 1998 has not adequately protected whistleblowers and makes 12 recommendations for change. Despite the European Commission’s acknowledgement that whistleblowers can play a part in the fight against corruption, the author notes that common standards for their protection still seem a long way off. (shrink)