"Law week soccer competition: 16-19 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 25.

The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the High Court has disregarded the (...) knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’. (shrink)

This paper concerns what if any obligations a “society of equals” has to criminal offenders after legal punishment ends. In the United States, when people leave prisons, they are confronted with a wide range of federal, state, and local laws that burden their ability to secure welfare benefits, public housing, employment opportunities, and student loans. Since the 1980s, these legal consequences of criminal convictions have steadily increased in their number, severity, and scope. The central question I want (...) to ask is whether the infliction of these burdensome legal consequences for those who have already been punished by the state is consistent with the ideal of equality. I argue that these collateral legal consequences violate relational egalitarian principles of justice and are thus objectionable. I conclude by examining possible objections to my argument. (shrink)

This book provides an interdisciplinary examination of international law by addressing four critical questions: How are international legal rules distinctive? How does an investigator determine the existence of a rule of international law? Does international law really matter in international politics? and What effect could the changing nature of international relations have on international law? Using Constructivist theory, Arend argues that international law can alter the identity of states, and, consequently, have a profound impact on state behavior.

The paper deals with mutual conditionality of existence between the civil society and legal state. The paper is based on the 1918-1940 doctrine of independent Lithuania, the models of the legal state and the tentative models of the civil society created at that time. In the first part of the article, the concept of the legal state is discussed. In terms of creation of the model of the legal state, M. Romeris works are of (...) exceptional importance. It his works, M. Romeris related the legal state in essence with the legal, procedural system for ensuring the lawfulness. On the basis of works of European scholars of the 19th–20th centuries, M. Romeris conducted a critical analysis of the legal state and elucidated its most significant traits. It is notable that M. Romeris was able to make a correct insight into the strategy of advancing towards the legal state. (shrink)

Estonia has successfully created a digital society within the past 2 decades. It is best known for its eGovernment achievements, but it is also home for four unicorn star-ups. While the state is aiming to attract tech investments with e-Residency program and has recently started to invest into protecting national IP and safeguarding data from cybercrime by applying blockchain technology and creating its “digital embassy” in Luxembourg, emerging technologies such as and applications of artificial intelligence but also internet of (...) things have posed the question on legal regulation and standardization. The dilemma, however, seems to be that since the new technologies, such artificial intelligence is much more overwhelming phenomenon than e-governance and presumably, before deciding the legal standards, the political and economic strategies that go beyond the e-governance should be set. (shrink)

Evaluating the role and opportunities of state correction of the functions of religious organizations, it must be recognized that the state is not able to administratively change those trends and forms of activity that express the social purpose of religious associations and organizations.

Laying foundations -- Rejecting aggression -- Safeguarding cooperation -- Enforcing law -- Rectifying injury -- Liberating society -- Situating liberation.

This Article examines the implicit assumptions about the state and state-society relations that pervade the literature on legal pluralism. I argue that much of this literature rests on an underlying conception of the state as a monolithic entity which is clearly and objectively differentiated from society. Most notably, John Griffiths’ influential distinction between "weak" legal pluralism, which exists within the boundaries of the state, and "strong" legal pluralism, which involves both state and non-state legal (...) orders, reflects such assumptions. I contend that an alternative conceptualization of the state, which acknowledges the internal diversity and contradictions within the state and the blurred boundaries between state and society, can serve as a more productive basis for the study of legal pluralism. Such an approach draws attention to the socially constructed character of the boundaries between state and non-state legal orders, to the social significance of intra-state legal pluralism, to the points of view of individual litigants who maneuver between different courts of law, and to the institutional level of analysis, namely, the complex interrelations between different courts under conditions of legal pluralism. (shrink)

A legal system consists of a complex body of practices—primary and secondary—, particularly practices of reasoning and justification. The intellectual, theorized aspect of legal order is embodied in legal doctrine: the corpus of norm-sentences, norms and rules, principles, doctrines and concepts used as basis for legal reasoning and justification. It includes elaborate conceptual structures of principles and doctrines, explicit and sophisticated forms of reflection and criticism. It is only when we have understood the nature of (...) class='Hi'>legal doctrine that we can comprehend the workings of courts, lawyers and even legislatures. Concerning the need for a new conception of legal theory one question arises, above all, especially when external and internal observation as well as the critical reflection of the premises and presuppositions of all dealings with the law permit a degree of distance, the question, namely, whether it is not an increasing application of scientific methods that is needed, in the sense that the development of a legal theory from the beginning involves the integration of a norm-descriptive point of view and intellectual stand-point with the norm-prescriptive theory of law, by way of complementing each other, as it were (multi-level-approach to law). This, at least, appears to be the only way of clarifying also the relationship between le­gal theory and philosophy and the theory and sociology of law. The inevitable consequences of the development of a theory of norms and action also have to be drawn from this. (shrink)

In 2015, the Supreme Court of Canada struck down the criminal law prohibiting physician assisted death in Canada. In 2016, Parliament passed legislation to allow what it called ‘medical assistance in dying.’ The authors first describe the arguments the Court used to strike down the law, and then argue that MAID as legalized in Bill C-14 is based on principles that are incompatible with a free and democratic society, prohibits assistance in dying that should be permitted, and makes access (...) to medically-assisted death unnecessarily difficult. They then propose a version of MAID legislation that gives proponents and opponents of MAID everything they can legitimately want, contend that it is the only way to legalize MAID that is compatible with a free and democratic society, and conclude that it is the way to legalize MAID in Canada and other similarly free and democratic societies. (shrink)

1. Understanding.--2. Purpose.--3. Conciliation.--4. Justice.--5. Justice, science and religion as contributions to civilization.--6. Uniformitarian process under supreme law.

One of the early steps in the process of putting together an issue of the Hastings Center Report is ticking through each column we plan to run in that issue and making sure that we have somebody lined up to write it and—if we already have somebody lined up to write it—that the person hasn't forgotten. But as this issue approached, one of those we had all nicely lined up contacted us first, to say that he was retiring from this (...) particular gig.For many years, we have had a wonderful rotating line-up for At Law: Rebecca Dresser, of Washington University of St. Louis; Lawrence O. Gostin, of George Washington University; and Carl Schneider, of the University of Michigan, have taken turns, each writing twice a year. .. (shrink)

The present article explores the inner tensions of the legal culture in consumer society as a consequence of the interaction between democracy, liberalism and market economy under globalization. The interaction between democracy and modern political thought has given rise to liberal democratic society, moral and religious pluralism, and modern law. The interplay between liberal democracy and the market (“new liberalism”) has generated the idea of “instrumental reason”, whose penetration into many realms of life has transformed the structure (...) of society and democracy itself: consumer society and a dangerous tendency of social decline prevail. Under the expansion of globalization and social decline, instrumental law may not be enough to ensure the functioning of society. Consumer society does not understand modern law and thus renders it inefficient. (shrink)

The universalism of rights is a corollary to the individualistic semantics of the Enlightenment and the French Revolution. Paradoxically, the grounds of universalism were those legal and political concepts that theoretically describe the 19th century nation-state (such as sovereignty of the people, citizenship, rights, and the like). All these concepts of the liberal tradition construct the nation-state on the presupposition of a highly homogeneous political community of rational subjects, whose homogeneity consists in the very social, economic, political and sexual (...) conditions of their rationality. This kind of legal and political semantics is no longer adequate to characterize contemporary society which is a multicultural, highly in-homogeneous world-society. It no longer incorporates an ethic which is able to enforce universal leading values for human action. (shrink)

En tant que mineures juridiques, les femmes romaines sont normalement exclues des privilèges politiques tel que le droit de vote, tout comme elles sont exemptes des devoirs des citoyens (armée ou charges fiscales). Les femmes bénéficiaient cependant pleinement des privilèges garantis par le droit civil. Et bien que leur prise de parole dans des contextes politiques relève de l’exceptionnel, les lieux d’exercice de la citoyenneté leur étaient accessibles. C’est dans la religion publique que le terme civis Romana apparaît finalement. De (...) cette étude, il résulte que la citoyenne romaine existait bel et bien, et que cette citoyenneté se rapprochait de la civitas sine suffragio. La société romaine reposait avant tout sur des inégalités et une hiérarchie omniprésentes : entre les hommes citoyens de plein droit, entre eux et les citoyens sans suffrage, et entre citoyens et femmes citoyennes. Cependant, tous pouvaient expérimenter une forme de citoyenneté à travers des actes civiques. (shrink)

The article presents the results of the analysis of international legal regulation of the protection of freedom of speech, the right to freedom of expression within the UN and the Council of Europe. A comparative analysis of the definition of the right to express views and beliefs in various international legal acts was made. The case law of the European Court of Human Rights in cases related to the exercise of the right to express one's views and beliefs (...) on the Internet was considered. The analysis of the legislation of foreign countries regulating the right to express views and beliefs online was carried out. The materials of the article are of practical value for scientists and practitioners dealing with the issues of legal regulation of freedom of speech, the right to express views and beliefs, for forecasting and planning scientific research, improving legislation, for higher education teachers in educational activities, as well as for all interested persons. (shrink)

The present paper aims at addressing a crucial legal conflict in the information society: i.e., the conflict between security and civil rights, which calls for a “fine and ethical balance”. Our purpose is to understand, from the legal theory viewpoint, how a fine ethical balance can be conceived and what the conditions for this balance to be possible are. This requires us to enter in a four-stage examination, by asking: (1) What types of conflict may be dealt (...) with by means of balancing? (2) What is meant by balancing? Is it a metaphor that hides and dissimulates discretionary powers and subjective decisions or a rational instrument that helps us cope with conflicts between fundamental values and interests? (3) What models of balancing are available to us? Are these models irreducible to each other? What can provide us with a common understanding of different models of balancing? (4) How can the crucial issues of rational controllability, predictability, and homogeneity of legal decisions be dealt with? Our paper will try to answer those questions by trying to reconstruct the act of balancing in terms of a rational legal reasoning, which relies upon information. In fact, every judicial decision contains some information that is delivered to the legal system: that information may serve as the basis for future evaluations, decisions, and actions, and thus influence the way we recognize and hence we protect our values, interests, and rights. In this perspective, our examination will attempt to understand those questions in informational terms. This informational treatment can provide us with a more universalistic understanding of those issues and offer us a novel way to conceptually deal with them. To this aim, we will avail yourself of Luciano Floridi’s philosophy of information: notably, we believe his constructionist conception of epistemology is crucial, based on the Maker’s Knowledge approach and his solution of the upgrading problem (i.e., from information to knowledge) in terms of a network theory of account. The informational approach will help us having a better understanding of the balance between competing interests. (shrink)

Law, State, and Society in Early Imperial China: A Study with Critical Edition and Translation of the Legal Texts from Zhangjiashan Tomb No. 247. 2 vols. Translated and edited by Anthony J. Barbieri-Low and Robin D. S. Yates. Sinica Leidensia, vol. 126. Leiden: Brill, 2015. Vol. 1: pp. cxiv + 377; vol. 2: pp. xiv + 1038. €299, $389.

Taking for granted a radical criticism of the universalistic value of a post-Protestant understanding of religion and of the nexus between political democracy and secularization, the article aims first at framing the perspective of multicultural jurisdictions within contemporary processes of change of religious pluralism on a transnational scale; secondly at framing that perspective within the intellectual tradition of legal pluralism; and finally at inquiring into the compatibility of the new conceptual constellation ‘post-secular society plus legal pluralism’ with (...) a liberal frame. (shrink)

This is the first of two volumes announcing the emergence of the new legal realism as a field of study. At a time when the legal academy is turning to social science for new approaches, these volumes chart a new course for interdisciplinary research by synthesizing law on the ground, empirical research, and theory. Volume 1 lays the groundwork for this novel and comprehensive approach with an innovative mix of theoretical, historical, pedagogical, and empirical perspectives. Their empirical work (...) covers such wide-ranging topics as the financial crisis, intellectual property battles, the legal disenfranchisement of African-American landowners, and gender and racial prejudice on law school faculties. The methodological blueprint offered here will be essential for anyone interested in the future of law-and-society. (shrink)

The article considers the notary as a subject of active influence on the formation of postmodern democratic legal society, mediation of law in postmodern society. The constitutional definition of the state in this status does not mean that the civil law consciousness prevails in all spheres of its life. Since no person in society does not need this type of legal service, it is quite objective to consider this community as a subject whose activities should (...) be considered as a subject of formation not only of legal consciousness of society but also a leading subject of civil society. This primarily applies to private notaries, who, unlike public notaries, are fully responsible for the results of their activities. After all, a legal duty is organically combined with the responsibility from which the public notary is released. The study of the manifestations of the phenomenon of postmodernism is relevant to many disciplines, including - the philosophy of law. Modern research shows that classical types of legal understanding do not satisfy the understanding of postmodern law, which indicates the need to find a fundamentally new concept of law. The author concludes that the solution to this problem should be sought in the field of theories that offer new approaches to the interpretation of legal texts; this area is considered the most promising. (shrink)

On the extreme wing of libertarian ideology are the individualist anarchists, who wish to dispense with government altogether. The quasi-legitimate functions now performed by government, such as the administration of justice, can, the anarchists claim, be provided in the marketplace. George H. Smith.

Introduction. The development of legal culture and a culture of human rights in the modern world through media technologies, is acquiring special significance in connection with the processes of globalization and the spread of media in recent decades. The purpose of the article is to study the prospects for the use of media education in the formation of the legal social culture and a culture of human rights. Materials and methods. Based on a study of domestic and foreign (...) sources, issues of media education, media literacy, spiritual and moral education, the legal culture of society, the phenomenon of post-truth and ways of forming critical, creative thinking are considered. The use of general scientific, philosophical, and socio-pedagogical methods has made it possible to study media education as a dialogue of learning, stimulating the development of rational, critical thinking, focused on the search for the value foundations of intellectual and social activity. Results. The development of the field of information and communication technologies determines the principles for the formation of the content and orientation of modern education. Media education is interlinked with the development of democracy and human rights. It influences the formation of a culture of citizen participation, their active social position, civic and political culture. Media education plays a significant role in shaping the legal culture of society since critical media research and information research focuses on the analysis of power structures and structures of dominance in the media. A study of the interpretations of the concepts of "media education" and "media literacy" made it possible to show that media education focuses a person on a critical approach to media content. One of the main issues of media education is teaching a person the skills to critically study media and media technologies, which involves addressing the technological, cultural and historical specifics of specific media used at a specific time and place. Information and communication technologies have changed the way of life, work, communication, and ways of selfpresentation, the formation of values, participation in socially significant events. Therefore, a critical approach to mass media should be based on knowledge of socio-philosophical theories, ethics and research in the field of mass media. Discussion. Mass media are constructing a history of human rights, which updates the topic of the media policy of human rights, combining socio-legal, cultural and media theories. Education in the field of acquiring information perception skills, the ability to correctly understand the importance of audiovisual images, to competently handle and navigate information flows are necessary for the life of a modern person in society. (shrink)

Approaches to legal pluralism vary widely across the spectrum of different disciplines. They comprise normative and descriptive perspectives, focus both on legal pluralist realities as well as public debates, and address legal pluralism in a range of different societies with varying political, institutional and historical conditions. Emphasising an empirical research to contemporary legal pluralist settings in Muslim contexts, the present collected volume contributes to a deepened understanding of legal pluralist issues and realities through comparative examination. (...) This approach reveals some common features, such as the relevance of Islamic law in power struggles and in the construction of (state or national) identities, strategies of coping with coexisting sets of legal norms by the respective agents, or public debates about the risks induced by the recognition of religious institutions in migrant societies. At the same time, the studies contained in this volume reveal that legal pluralist settings often reflect very specific historical and social constellations, which demands caution towards any generalisation. The volume is based on papers presented at a conference in Münster (Germany) in 2016 and comprises contributions by Judith Koschorke, Karen Meeschaut, Yvonne Prief, Ulrike Qubaja, Werner de Saeger, Ido Shahar, Katrin Seidel, Konstantinos Tsitselikis, Vishal Vora and Ihsan Yilmaz. (shrink)

‘On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality’. B. R. Ambedkar’s famous last speech to the Constituent Assembly on 25 November 1949 still resonates within contemporary Indian constitutional law, and even more so his following interrogation: ‘how long shall we continue to live this life of contradictions?’ Prima facie societal, the contradiction is however also a temporal (...) one, Indian constitutional law being founded on both the British traditional idea of ‘continuum’ and the American inspired revolutionary principles of ‘pursuance’ of a novel legal and social order. Two recent Indian Supreme Court decisions pertaining to the de-criminalisation of same sex relations ( Navtej Singh Johar v. Union of India) and for the right of menstruating women to enter the Sabarimala Temple in Kerala ( Indian Young Lawyers Association v. Union of India) offer through their differing and sometimes dissenting opinions a glimpse at those temporal contradictions. Through an analysis of both decisions and in particular that of Chandrachud J. and Malhotra J.’s judgements, this article seeks to highlight two radically differing conceptions of temporality applied to constitutional issues, which can themselves be linked back to the transposition of the legal positivist discourse in India within the colonial era: on the one hand, an attempt to continue Common law’s empirical-based tradition and on the other hand, an (apparently) a-historical perception of Law drawn from neo-Roman civilian legal discourse and later normative positivism. If both branches of legal reasoning aim at protecting minorities’ rights, the value they inscribe to History within the realm of Law cannot be further apart. (shrink)

The United Nations confirmed that privacy remains a human right in the digital age, but our daily digital experiences and seemingly ever-increasing amounts of data suggest that privacy is a mundane, distributed and technologically mediated concept. This article explores privacy by mapping out different legal and conceptual approaches to privacy protection in the context of datafication. It provides an essential starting point to explore the entwinement of technological, ethical and regulatory dynamics. It clarifies why each of the presented approaches (...) emphasises particular aspects and analyses the tensions that arise. The resulting overview provides insight into the main strengths and limitations of the different approaches arising from specific traditions. This analytic overview therefore serves as a key resource to analyse the usefulness of the approaches in the context of the increasing datafication of both private and public spheres.Specifically, we contrast the approach focusing on data subjects whose data are being ‘protected’ with others, including Fair Information Practice Principles, the German right to ‘informational self-determination’, and the South American ‘habeas data’ doctrine. We also present and contrast emerging approaches to privacy and discuss their intersection with datafication. In conclusion, we put forth that rather than aiming for one single solution that works worldwide and across all situations, it is essential to identify synergies and stumbling blocks between the various regulatory settings and newly emerging approaches. (shrink)

The story of Judah and Tamar in Genesis 38 is one of the most intriguing stories in the Hebrew Bible. While it yields many useful insights into the character of God, the nature of sin and the aspiration of our redemption, it is equally offensive when one looks at it from a human rights perspective, considering, in particular, the vulnerable and defenceless woman, Tamar. Her being returned to her father’s house is portrayed as acting in accordance with the law for (...) a childless widow. However, using the critical hermeneutical lens, it becomes apparent that the real motive that drove Judah to send her away was his fear lest his only surviving son Shelah should share the fate of Er and Onan, whose deaths he plainly attributed to Tamar’s doing. As such, Tamar was deprived of the right to marry Shelah as provided for in the levirate marriage law. Using feministic hermeneutics and the comparative approach, this article foregrounds the vulnerability experienced by women, especially when their husbands mysteriously or suddenly pass away. Because of the patriarchal hegemony of African and Israelite societies, childless widows often find themselves ostracised from the same families which they thought they were now part and parcel of by virtue of having married into that family. Much of the ostracism emanates from the fact that they are usually fingered as the prime suspects responsible for having played a part in their husbands’ deaths. Hence, the crux of this article is to present the interface between the Israelite and African worldviews, highlighting the parallels between the plight of widows in the Israelite and Shona societies. (shrink)