This paper adopts an economic interpretation of the legal process, explaining legal change as the outcome of the complex interplay of entrepreneurial forces operating inside, as well as outside the legal system. The question of concern is whether the concept of entrepreneur as elaborated by Kirzner in a theory of the market process can be extended to understand the legal process as well. The focus on the alertness of legal decision-makers, their capacity to learn from (...) experience and the multitude of legal and nonlegal sources they are referring to, seems to provide a possible methodology for an economic approach to law that avoids the exaggerated belief in the objectivity, determinacy and cogency of legal reasoning typical for mainstream law-and-economics, and at the same time the opposite exaggeration of law’s radical subjectivity and indeterminacy characterizing most of contemporary critical legal literature.Cet article adopte une interprétation économique du processus juridique en expliquant l’évolution du droit comme le résultat de l’interaction complexe de forces entrepreneuriales opérant à l’ intérieur et à l’extérieur du système juridique. Il s’agit de montrer que le concept d’entrepreneur élaboré par Kirzner pour expliquer le fonctionnement du processus de marché peut offrir une méthodologie également pour comprendre les processus de production du droit. En mettant l’accent sur la vigilance des décideurs, leur capacité d’apprendre par l’expérience, ainsi que la multitude des sources juridiques et extrajuridiques auxquelles ils se réfèrent, une approche économique du droit qui renvoie à cette théorie de l’entrepreneur, peut éviter d’un côté l’hypothèse irréaliste d’omniscience de l’autorité juridique qui sous-tend l’analyse économique traditionnelle du droit et de l’autre côté, l’hypothèse opposée non moins exagérée de la subjectivité et de l’indétermination radicales de l’évolution juridique qui caractérise une partie dominante de la littérature juridique critique contemporaine. (shrink)

The paper delves into the evolution of language in French and English, focusing on the feminization and neutralization of job titles in legal and professional settings. It explores how these linguistic changes are intertwined with the broader implications of language in shaping moral and ethical standards, advocating for gender equality, and challenging gender biases. The study highlights the slow but impactful progress in linguistic reform within legal contexts, suggesting strategies to align legal language with contemporary principles (...) of gender equality. (shrink)

This work studies the issue of political representation from the perspective of a specific legal culture, the exercise of political rights in the context of the occidental democratic system, a concept that has undergone a profound evolution to the present day. The essential aspects for an analysis of this progression are voting, decision making, and the relationship between representatives and their constituents. Overall, the phenomena making up the crisis of representation have been explained as a result of changes (...) that have affected the operation and structure of modern states constituted as representative democracies. The idea is that a well-functioning representative system comes primarily from the form of government and electoral system in which it develops. (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)

This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power.Explores enduring questionsFocusing ...

Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of (...) legal knowledge in new cases. These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners. (shrink)

The COVID-19 pandemic laid bare systemic inequities shaped by social determinants of health (SDoH). Public health agencies, legislators, health systems, and community organizations took notice, and there is currently unprecedented interest in identifying and implementing programs to address SDoH. This special issue focuses on the role of medical-legal partnerships (MLPs) in addressing SDoH and racial and social inequities, as well as the need to support these efforts with evidence-based research, data, and meaningful partnerships and funding.

The thesis examines the origins and function of legal theory within the context of the development of early Islamic law. I argue against the depiction of the development of law as a series of compromises between traditionalism and rationalism. Rather, by evading the demands of traditionalism, law evolved into a complex doctrinal entity rooted in the social structures of third-century Abbasid society. This revision of the development of law provides a context to evaluate early works of legal theory. (...) Moreover, in context of my analysis of the development of law, I attempt to explain the emergence of legal theory as an independent discipline and its function within the greater structure of law. (shrink)

The article is a review of Hauke Brunkhorst’s book on a _Critical Theory of Legal Revolutions_. The author addresses three points: Hauke Brunkhorst’s notion of history, and of what remains unseen; the dialectics of evolution and revolution, and whether the approach is sufficiently dialectic, according to its own promise; and the implicit notion of critique.

Much legal research focuses on understanding how judicial decision-makers exercise their discretion. In this paper we examine the notion of legal or judicial discretion, and weaker and stronger forms of discretion. At all times our goal is to build cognitive models of the exercise of discretion, with a view to building computer software to model and primarily support decision-making. We observe that discretionary decision-making can best be modeled using three independent axes: bounded and unbounded, defined and undefined, and (...) binary and continuous. Examples of legal tasks are given from each of the eight ensuing octants and we conclude by saying what this model shows about current legal trends. We should stress that our taxonomy has been based on our observations of how discretionary legal decisions are made. No claim is made that our model is either complete (providing advice in every domain) or exact, but it does help knowledge engineers construct legal decision support systems in discretionary domains. (shrink)

The University of Minnesota organized a conference ("Evolution and Public Education," December 5, 1981) to help clarify issues in the creation/evolution controversy and to examine arguments of the proponents of scientific creationism. This six-part book, a revised version of a resource manual compiled for the conference: (1) discusses the theory of evolution and its place in science education; (2) examines the creationist movement; (3) states the position of scientific creationists; (4) responds to creationists' arguments against evolution; (...) (5) explores legal issues in the controversy; and (6) provides some perspectives on attempts to treat the Genesis creation account as science. The fifth section, on legal issues, includes Judge Overton's decision striking down the Arkansas Creationism Act, as well as pieces of legislation which reveal the changing tactics of creationists, who first sought to ban the teaching of evolution in the 1920s, then sought equal time for biblical creationism in the late 1960s and early 1970s, and now seek a two-model approach to earth science/biology teaching (evolution as one model, scientific creationism as the other). A comprehensive bibliography lists most of the important works that directly address the controversy, as well as many publications on the philosophy of science and faith issues. (JN). (shrink)

Legal reasoning is an engaging field for cognitive science, since it raises so many fundamental questions, such as the representation and evolution of complex concepts. This article focuses on aspects of legal reasoning that require reasoning with cases, often in concert with other modes of reasoning.

African jurisprudence, like African philosophy, continues to be hotly debated. This article contends that the debate straddles the uniqueness claim which either emphasises the existence or possibility of a peculiar legal framework on the continent, and a historical co-extensional position reiterating that African jurisprudence is a continuum of other legal traditions. The article argues that there is no uniquely African jurisprudence, and that what obtains within the structures of jurisprudence on the continent also exists within various legal (...) traditions elsewhere, and as such can at best be described as ‘jurisprudence in Africa’ rather than ‘African jurisprudence’. It defends this thesis through analytic and comparative explications of the content of natural law theory and legal positivism as experienced on the continent. It concedes that relics of the colonial legal experience create contestations that inform scholars’ calls for a return to traditional legal systems. It concludes that a reconstructive jurisprudence in Africa must take cognisance of the continent’s historical and evolutionary legal experiences, but that a unified or monolithic theory may not be sufficient to address the choice of functional jurisprudence. Keywords African jurisprudence, jurisprudence in Africa, African legal evolution, diffused legal theories. (shrink)

Describes evolution, including the history of the theory, biological classification, societal and legal ramifications, and the connection between evolution and ...

Evolution and ethics. Prolegomena (1894).--Evolution and ethics (1893).--Science and morals (1886).--Capital, the mother of labour (1890).--Social diseases and worse remedies (1891): Preface. The struggle for existence in human society. Letters to the Times. Legal opinions. The articles of war of the Salvation Army.

Human biological tissue samples are an invaluable resource for biomedical research designed to find causes of diseases and their treatments. Controversy has arisen, however, when research has been conducted with laboratory specimens either without the consent of the source of the specimen or when the research conducted with the specimen has expanded beyond the scope of the original consent agreement. Moreover, disputes have arisen regarding which party, the researcher or the source of the specimen, has control over who may use (...) the specimens and for what purposes. The purposes of this article are: to summarize the most important litigation regarding the use of laboratory specimens, and to demonstrate how legal theory regarding control of laboratory specimens has evolved from arguments based upon property interests in biological samples to claims that the origins of laboratory specimens have privacy interests in their genetic information that should be protected. (shrink)

During the 1970s and 1980s, legal precedent, governmental recommendations, and professional society guidelines drove the formation of hospital ethics committees (HECs). The Joint Commission on Accreditation of Health Care Organization’s requirements in the early 1990s solidified the role of HECs as the primary mechanism to address ethical issues in patient care. Because external factors drove the rapid growth of HECs on an institution-byinstitution basis, however, no initial consensus formed around the structure and function of these committees. There are now (...) almost 40 years of empirical studies on the composition, administration, and activities of HECs in the United States. We conducted a systematic review of the available empirical literature on HECs to describe their evolution. As HECs changed over time, they increased their total number of members and percentage of members from nursing and the community. Although physicians increasingly chaired these committees, their presence as a percentage of overall members declined. The percentage of administrative members remained steady, although committees became increasingly likely to have at least one administrative member. HECs were also increasingly likely to report to an administrative body or to the board of trustees or directors rather than to the medical staff. Finally, consultation volume increased steadily over time. There has not, however, been a national survey of the composition of ethics committees, their administration, or volume of consultation in more than 10 years, despite increasing calls for professional standards and quality improvement assessments among HECs. (shrink)

The article describes the evolution of problems in the Lithuanian labour law and labour law science since the re-establishment of independence in 1990. Three periods of evolution are presented: the Soviet period (lasted until 1990), the transitional period (1990- 2004) and the period of the Labour Code (2003 and onwards). During the Soviet period, the Code of Labour Laws regulated employment relationship in strict detail as the main employer was the state itself. Good reflections of that period can (...) be pointed out: active (but forced) collective bargaining, single tariff system that implemented equal treatment in the field of remuneration for work and fluent performance of enforcement of labour laws (legal clarity). During the transitional period, new labour laws were introduced and tuned-up with international labour standards (ILO), but in general there were no essential changes in practice. During all that period, the Lithuanian Labour Code was drafted and came in force in 2003. The period of the new Labour Code started together with the European integration and had to bring new trends of the European labour market into Lithuanian practice. The government and academics brought few initiatives for the liberalisation of labour laws but most of them were stuck in the stage of consulting with social partners (Tripartite Council). Nevertheless, 22 years after the collapse of command economy labour laws incompatible with free labour market still dominate. It is obvious that the Lithuanian Labour Code is outdated and needs general reconstruction. Scientific researches and the EU Council recommendations call for the introduction of flexibility, implementation of flexicurity aiming for full integration into the single European labour market. Some strict labour code rules are prevented from functioning in practice. The courts are forced to derogate from disproportionate and improper articles of the Labour Code. The author brings some of the existing problems of labour law into light and proposes their possible solutions. The existing crisis of labour law could be solved by drafting a new Labour Code with the help of academic researchers and by introducing it directly to the Parliament for adoption. (shrink)

“Public health legal preparedness” is a term born in the ferment, beginning in the late 1990s, that has led to unprecedented recognition of the essential role law plays in public health and, even more recently, in protecting the public from terrorism and other potentially catastrophic health threats.The initial articulation of public health has not kept pace with rapid evolution in the concept and in practical development of public health preparedness itself. This poses the risk that legal preparedness (...) may fall behind construction of general readiness in the public health system—and may, in fact, undercut achievement of comprehensive public health preparedness for massive threats to health in both the United States and world-wide. Inadvertent results might include both negative health impacts and infringement on individual rights. (shrink)

The aim of the article is to discuss the legal language transformations from a diachronic perspective taking into account the following factors: (i) spatial and temporal, (ii) linguistic norm changes, (iii) political, (iv) social (customs), and (v) globalization as well as (vi) EU-induced. Spatial and temporal factors include legal relations influenced by climate and the cycles of nature. Linguistic factors include spelling reforms and grammatical changes each language undergoes, for example, as a result of usage. As far as (...) the law is concerned, normative changes can be observed when laws are amended. Other factors such as customs, usage, etc. cannot be neglected when discussing the language of the law. Analogously political correctness and usage can be observed in gender sensitive language and the introduction of such terms as chairperson instead of chairman. Social factors should not be overlooked. As a result of social changes, numerous terms have been introduced to legal lexicons in many countries starting with same-sex unions or same-sex-marriages. The so-called political correctness enforces some language changes and leads to the introduction of new terms and at the same time the abandonment of others. Consequently, some terms cease to be used and consequently become archaic. The aim of the article is to focus on diachronic changes in legal languages and present the communication problems resulting from them from intra- and inter-lingual perspectives. (shrink)

The progress of electronic health technologies and biobanks holds enormous promise for efficient research. Evidence shows that studies based on sharing and secondary use of data/samples have the potential to significantly advance medical knowledge. However, sharing of such resources for international collaboration is hampered by the lack of clarity about ethical and legal requirements for transfer of data and samples across international borders. Here, the International Clinical Trial Center Network reports the legal and ethical requirements governing data and (...) sample exchange across four continents. The most recurring requirement is ethical approval, whereas only in specific conditions approval of national health authorities is required. Informed consent is not required in all sharing situations. However, waiver of informed consent is only allowed in certain countries/regions and under certain circumstances. The current legal and ethical landscape appears to be very complex and under constant evolution. Regulations differ between countries/regions and are often incomplete, leading to uncertainty. With this work, ICN illuminates the unmet need for a single international collaborative framework to facilitate DSE. Harmonising requirements for global DSE will reduce inefficiency and waste in research. There are many challenges to realising this ambitious vision, including inconsistent terminology and definitions, and heterogeneous and dynamic legal constraints. Here, we identify areas of agreement and significant difference as a necessary first step towards facilitating international collaboration. We propose the establishment of a working group to continue the comparison across jurisdictions, create a standardised glossary and define a set of basic principles and fundamental requirements for DSE. (shrink)

For much of the twentieth century, philosophy and science went their separate ways. In moral philosophy, fear of the so-called naturalistic fallacy kept moral philosophers from incorporating developments in biology and psychology. Since the 1990s, however, many philosophers have drawn on recent advances in cognitive psychology, brain science, and evolutionary psychology to inform their work. This collaborative trend is especially strong in moral philosophy, and these volumes bring together some of the most innovative work by both philosophers and psychologists in (...) this emerging interdisciplinary field. The contributors to volume 1 discuss recent work on the evolution of moral beliefs, attitudes, and emotions. Each chapter includes an essay, comments on the essay by other scholars, and a reply by the author of the original essay. Topics include a version of naturalism that avoids supposed fallacies, distinct neurocomputational systems for deontic reasoning, the evolutionary psychology of moral sentiments regarding incest, the sexual selection of moral virtues, the evolution of symbolic thought, and arguments both for and against innate morality. Taken together, the chapters demonstrate the value for both philosophy and psychology of collaborative efforts to understand the many complex aspects of morality. Contributors: William Casebeer, Leda Cosmides, Oliver Curry, Michael Dietrich, Catherine Driscoll, Susan Dwyer, Owen Flanagan, Jerry Fodor, Gilbert Harman, Richard Joyce, Debra Lieberman, Ron Mallon, John Mikhail, Geoffrey Miller, Jesse Prinz, Peter Railton, Michael Ruse, Hagop Sarkissian, Walter Sinnott-Armstrong, Chandra Sekhar Sripada, Valerie Tiberius, John Tooby, Peter Tse, Kathleen Wallace, Arthur Wolf, David Wong Walter Sinnott-Armstrong is Professor of Philosophy and Hardy Professor of Legal Studies at Dartmouth College. (shrink)

The thesis of this study is that there is a plausible, adequate and coherent theory of law which lies embedded in the corpus of Marxist writings. This latent theory of law is a variant of natural law theory, called in the thesis, 'Legal Naturalism'. Marxist legal theory is formally similar to other theories within the natural law tradition. It differs from other theories because it posits a different locus for law from those affirmed by these other theories. Natural (...) law, for Marxism, refers to the "natural law of the mode of production". Legal naturalism is the view that the basic law of a given epoch or social formation is that law which is an essential aspect of the mode of production. Like other natural law theories, legal naturalism asserts that the positive law of any particular society is reflective of deeper structures. ;The legal naturalist interpretation of Marxism differs from existing interpretations in denying that the deeper structures which positive law reflects is solely, or even significantly, economic. They are legal, but naturally legal. Natural law provides a touchstone with which to identify, differentiate, explain and evaluate positive law. The implications of the distinction between natural law and positive law for the evolution and future of law examined and defended. (shrink)

The European Community has been in existence for forty years. This period has seen considerable change and development in both the institutional and the substantive law of the EC -- and more recently the EU. Numerous works on EC law have been published over the years, ranging from textbooks, to specialist monographs, to collections of essays on particular aspects of Community jurisprudence. This, however, is the first work which seeks to stand back from the ever-growing detail of Community law, and (...) examine this jurisprudence from an evolutionary and interdisciplinary perspective. Every important area of institutional and substantive European law is covered -- leading lawyers analyse the evolution of their area of expertise across time, bringing out the major thematic changes which have occurred.These changes are then viewed against the broader political and economic background of the Community as a whole. This book will give readers a clearer understanding of the overall legal picture, and will also allow them to gain a richer perspective on the interaction between law and other forces which have shaped the Community and made it what it is today. (shrink)

At the beginning of the study of physical phenomena, the idea of "force" was widely used to explain the non-stationarity of observed phenomena, such as the movement of bodies. However, as mechanics and physical theories developed, the force notions gained own formal definitions and names, without the use of the term "force". So, the concept of kinetic energy arose instead of "vis viva", and "current" instead of "current strength" ets. Additionally, a number of new physical theories have been formulated without (...) the use of force concept. As a result, different types of forces have gradually been replaced by other more important concepts, such as energy and action, which are closely linked to fundamental physical principles. It is interesting to note that the general trend in the development of civilizations has been a shift from unrestricted power (expressed in the thesis "might makes right") to its subordination and incorporation into a legal framework. This is similar to the evolution of physics, which has seen the notion of force become eliminated or subordinated to more general principles and laws. (shrink)

The article is devoted to the historical analysis of teleological argumentation evolution in the legal interpretation. The ideas of ancient Greek and Roman orators, philosophers and lawyers, which served as the basis for development of the idea of teleological interpretation in the European legal tradition, are examined. The history of teleological interpretation method development in European legal theory from Medieval jurists to sociological legal approach of the late 19 th and 20 th centuries is observed, (...) as well the existence of two main approaches in understanding the teleological method of interpretation, namely subjective-teleological and objective-teleological, is ascertained. The author states that there is a direct correlation between the concept of law and the approach to understanding of the teleological interpretation method. In conclusion, the author insists on the more progressive nature of the objective-teleological method of legal interpretation. (shrink)

Reedition of papers in English spanning from 1986 to 2009 /// Historical background -- An imposed legacy -- Twentieth century contemporaneity -- Appendix: The philosophy of teaching legal philosophy in Hungary /// HISTORICAL BACKGROUND -- PHILOSOPHY OF LAW IN CENTRAL & EASTERN EUROPE: A SKETCH OF HISTORY [1999] 11–21 // PHILOSOPHISING ON LAW IN THE TURMOIL OF COMMUNIST TAKEOVER IN HUNGARY (TWO PORTRAITS, INTERWAR AND POSTWAR: JULIUS MOÓR & ISTVÁN LOSONCZY) [2001–2002] 23–39: Julius Moór 23 / István Losonczy 29 (...) // ON THE SURVIVAL OF ILMAR TAMMELO’S LETTER AND MANUSCRIPT ADDRESSED TO PROFESSOR MOÓR [2009] 41–44 // PROFESSIONAL DISTRESS AND SCARCITY: ALEXANDER HORVÁTH AND THE LEGACY OF NATURAL LAW IN HUNGARY [2005] 45–50 // HUNGARIAN LEGAL PHILOSOPHY IN THE 20TH CENTURY [2011] 51–72: I. The Pre-war Period [1. Bódog (Felix) Somló (1871–1920) 52] / II. The Inter-war Period [2. Gyula (Julius) Moór (1888–1950) 54 / 3. Barna Horváth (1896–1973) 55 / 4. József Szabó (1909–1992) 57 / 5. István Bibó (1911–1979) 58 / 6. Tibor Vas (1911–1983) 59 / 7. István Losonczy (1918–1980) 60] III. The Post-war Period (Communism) 61 [8. Imre Szabó (1912–1991) 62 / 9. Vilmos Peschka (1929–2006) 63 / 10. Kálmán Kulcsár (1928–2010) 65] IV. Contemporary Trends and Perspectives 66 [11. Csaba Varga (b. 1941) 66 / 12. András Sajó (b. 1949) 69 / 13. Béla Pokol (b. 1950) 70] V. Our Understanding of the Law Today 71 --- AN IMPOSED LEGACY -- LOOKING BACK [1999] 75–94: 1. On Ideologies and Marxism in general 75 / 2. Life of an Intellectual in Communism 79 / 3. On Marxism and its Socialist Cultivation in Particular 82 / 4. Legal Philosophising [4.1. Approaches to Law 87 / 4.2. Arriving at a Legal Ontology 91] 5. Conclusion 94 // LEGAL PHILOSOPHY OF THE MARXISM OF SOCIALISM: HUNGARIAN OVERVIEW IN AN INTERNATIONAL PERSPECTIVE [2003] 95–151: I. Development and Balance of Marxist Philosophising on Law in Hungary [1. Preliminaries (until 1948) 96 / 2. Stalinism (from the Soviet Occupation on) {a) Liquidation of the »Residues« 98 / b) Soviet-type Uniformisation [Gleichschaltung] 99 / c) Denial of the Past, with a Dual Effect 99 / d) »Socialist Legality«, Drawn from the Progressive Past of Western Europe 103 / e) Search for the Germs of Scholarly Evolution 103} 3. Institutionalisation Accompanied by Relaxation (from the 1960s) [a) Epigonism Becoming the Scholarly Ideal 104 / b) Stalinism in a Critical Self-perspective 105 / c) Disciples Diversified Launching their own Trends 107 / d) Comparatism 110 / e) (Re)discovery of the Western Legal Philosophy as a Competitor 112 / f) A Leading Mediatory Role within the »Socialist World Order« 114} 4. Disintegration (in the 1980s) {a) Attempt at Laying New Foundations for Marxism with Epigonism Exhausted 115 / b) Competitive Trends Becoming Exclusive 115 / c) Western Legal Philosophy Acknowledged as a Fellow-traveller within the Socialist Orbit Proper 116 / d) Hungarian Legal Theory Transforming into a National Corpus 118 / e) The Practical Promotion of Some Balance 119} 5. End-game for a Substitute State Religion (in the 1990s) 120] II. Marxist Legal Philosophising in an International Perspective [Ad 1: To the Preliminaries 122 / Ad 2: To Stalinism 124 / Ad 3: To Institutionalisation Accompanied by Relaxation {a) Late Separation from Vishinskiy’s Theory 125 / b) From Ideological Self-closure to an Apparently Scholarly Openness 127 / c) From Political Ideology to Genuine Scholarship 130 / d) International Recognition of Socialist Jurisprudence as an Independent Trend 135 / e) Together with Western Trends 137} Ad 4: To Disintegration {a) Loss of Attraction as Mere Epigonism 139 / b) Exclusivity of Competing Trends 139 / c) Fellowship with »Bourgeois« Trends 140 / d) An own Trend, Internationally Recognised 141 / e) A yet Progressive Role 142} Ad 5: To the Present state 143] III. A Temporary Balance 145 // AUTONOMY AND INSTRUMENTALITY OF LAW IN A SUPERSTRUCTURAL PERSPECTIVE [1986] 151–175: 1. The Strange Fate of Concepts 151 / I. A Relational Category 2. Basis and Superstructure: The Genuine Meaning 154 / 3. Exerting Social Influence as a Conceptual Minimum 156 / 4. Relationships within the Prevailing Totality 158 / 5. Attempts at Interpretation in Hungary 159 / 6. The Lukácsian Stand 162 / 7. Lukács’s Recognitions 168 / 8. Some Criticism 169 / II. The Law’s Understanding 171 / 9. Law Interpreted as Superstructure 171 / 10. Conclusions Drawn for the Law’s Understanding 173 // LEGAL THEORY IN TRANSITION (A PREFACE FROM HUNGARY) [2000] 177–186 // DEVELOPMENT OF THEORETICAL LEGAL THOUGHT IN HUNGARY AT THE TURN OF THE MILLENNIUM [2006] 187–215: 1. International Environment 188 / 2. The Situation in Hungary 190 / 3. Outlook I: The Historical-comparative Study of Legal Cultures and of the Lawyerly Way of Thinking 203 / 4. Outlook II: The Paradigmatic Enigma of the Transition to Rule of Law 207 / 5. Incongruity in Practice 213 / 6. Perspectives 214 --- TWENTIETH CENTURY CONTEMPORANEITY -- CHANGE OF PARADIGMS IN LEGAL RECONSTRUCTION: CARL SCHMITT AND THE TEMPTATION TO FINALLY REACH A SYNTHESIS [2002] 219–234: 1. Dangers of Intellectualism 219 / 2. Schmitt in Facts 221 / 3. Schmitt and Kelsen 222 / 4. On Bordering Conditions 226 / 5. With Kelsen in Transubstantiation 230 / 6. Polarisation as the Path of Theoretical Development 232 // KELSENIAN DOCUMENTS IN HUNGARY: CHAPTERS ON CONTACTS, INCLUDING THE GENESIS OF AUTOBIOGRAPHY [2006] 235–243: 1. Preludes 235 / 2. The Search for Moór’s Bequeath 235 / 3. Moór’s Collegiality 238 / 4. Bibó as a Disciple Translating 241 // THE »HART-PHENOMENON« [2002] 245–267: I. The Hart-miracle 246 [1. The Scene of Britain at the Time 247 / 2. The Personal Career 250 / 3. The Opus’ Career 252 / 4. Verbal Sociologism 255 / 5. Growing into the British Pattern 259] II. The Hart-phenomenon 260 [6. Origination of a Strange Orthodoxy 261 / 7. Mastering Periods of the 20th Century 263 / 8. Raising the Issue of Reception in Hungary 365] // LITERATURE? A SUBSTITUTE FOR LEGAL PHILOSOPHY? [2007] 269–287: 1. The Enigma of Law and its Study 269 / 2. “Law and Literature” 271 / 3. Varieties of “Law and Literature” 274 / 4. The German Study of Artistic Representations 280 / 5. Some Literary Reconsiderations 285 / 6. Conclusion 287 --- APPENDIX -- THE PHILOSOPHY OF TEACHING LEGAL PHILOSOPHY IN HUNGARY [2007] 291–320: I. Why and How to Philosophise in Law? 291 / II. The State of Teaching Legal Philosophy 294 / III. The Philosophy of Teaching Legal Philosophy 296 / IV. Programme at the Catholic University of Hungary 300 [1. Graduate Studies 300 {a) Basic Subjects 301 / b) Facultative Seminars 305 / c) Closing Subjects 309 / d) Written Memoranda and the Thesis 312} 2. Postgraduate Studies 313 / 3. Conclusion 317] V. Perspectives 318 /// Index of Subjects 321 / Index of Normative Materials 328 / Index of Names 329 . (shrink)

Interpretations of the tax law, issued by tax authorities, are a fairly new institution in Poland. They were introduced into the legal system by the Tax Ordinance Act of 29 October 1997. From that time these regulations were deeply changed three times. Now it seems that Polish legislator has finally succeeded in elaborating an appropriate model for binding interpretation of tax law that protects the interests of taxpayers. However, discussed regulations seem to need some other amendments. The objective of (...) this article is to present the evolution of the provisions pertaining to the issuing of the so-called official interpretations of tax law and to point at certain shortcomings of the present regulations. (shrink)

Although the treatment of history in late nineteenth-century American legal scholarship remains largely unexplored, two recent areas of research have discussed this subject tangentially. Historiographical critiques of the emphasis on doctrine by American legal historians typically maintain that late nineteenth-century legal scholars viewed history as disclosing an inevitable evolutionary progression from primitive to civilized forms. This "whiggish" approach, the critiques add, ignored the context and function of past law while apologetically justifying conservative existing law as autonomous scientific (...) truth. Without addressing the historiographical critiques, scholarship about late nineteenth-century legal thinkers has touched on their historical research and assumptions, mostly in passing as part of inquiries about other subjects. Designed primarily to convey how both areas of research have contributed to the historiography of late nineteenth-century American legal history, this article concludes by drawing on my own extensive reading of the original sources. Sometimes in support but often in refutation of the existing secondary literature, my findings reveal that the late nineteenth-century scholars formed a distinctive and sophisticated American school of historical jurisprudence that merits further study. Often warning against the very faults ascribed to them by dismissive subsequent scholars, many viewed legal evolution as a contingent response to social change and urged substantial reform of existing law. The American school of historical jurisprudence, moreover, provides an important intellectual context for new insights into two giants of American legal thought, Oliver Wendell Holmes, Jr. and Roscoe Pound. (shrink)

The article analyses, in a comparative perspective, the phenomenon of the evolution of the protection of surviving spouse’s inheritance rights in France and Lithuania, the two legal systems historically having some points of interaction. The protection of the surviving spouse is one of the major preoccupations of married couples of today, the couple occupying a central role within the contemporary family. Comparative analysis reveals certain points of convergence between these two legal systems inasmuch the surviving spouse is (...) considered by both legislations as an heir ab intestat and whose protection over the years has been considerably strengthened. The surviving spouse is called to inherit alongside with the heirs of the first or second order and is entitled to the proportions in assets that have not ceased to increase. Lithuanian law seems to have been innovative at an earlier stage than French law, as it is only in the beginning of the 21st century that significant reforms were carried out in this area of law in France. Analysis has also revealed apparent differences in the scope of protection of the surviving spouse, both in regards to the protection provided by law (statutory protection), as well as protection organised by the will of the spouses (voluntary protection). In some respects the statutory protection is more extensive in France (for example, complementary statutory rights of the spouse in regards to the dwelling place or the quality of héritier réservataire) and the instruments of this protection seem to be more varied (for example, the possibility for the spouses to organise their matrimonial regime by inserting specific clauses into the nuptial contract, mechanisms outside the nuptial contracts, such as donations, wills or life insurance contracts). However, this protection might appear to be more extensive under Lithuanian law as far as the voluntary protection is concerned taking into account the introduction, by the new Lithuanian Civil Code of 2000, of the joint will of spouses under which the whole property of the deceased spouse shall be inherited by the surviving spouse (except the mandatory share of succession). The article raises some doubts as to the desirability or even feasibility of aligning the two models of protection given the fact that each of the two countries has its own history and traditions. Nevertheless, a proposition resurges from the analysis in regard to the possible improvement of the protection of the rights to the dwelling place of the surviving spouse under Lithuanian law. Some elements from the existing French model could be transposed given that the dwelling place is an essential family element providing some stability for the surviving spouse. (shrink)

“Public health legal preparedness” is a term born in the ferment, beginning in the late 1990s, that has led to unprecedented recognition of the essential role law plays in public health and, even more recently, in protecting the public from terrorism and other potentially catastrophic health threats.The initial articulation of public health has not kept pace with rapid evolution in the concept and in practical development of public health preparedness itself. This poses the risk that legal preparedness (...) may fall behind construction of general readiness in the public health system—and may, in fact, undercut achievement of comprehensive public health preparedness for massive threats to health in both the United States and world-wide. Inadvertent results might include both negative health impacts and infringement on individual rights. (shrink)

The process of evolution is largely absent from philosophical legal literature, to the extent that the possibility of a genetic origin of rights has not been explored. This is striking given that human rights theory stems from natural law and natural rights, which seems to imply a potential link with natural selection. Furthermore, the concept of nature has played a significant role in the philosophical foundations of international legal norms of rights and responsibilities. On the surface it (...) may seem desirable to link rights to genetics. However, this approach can undermine criticism of genetic research and risks subordinating rights-based analysis to a problematic endeavour. The article looks to the discourse of ‘geneticization’ to provide a critique of future research into ‘law as evolution’. It recommends shifting jurisprudential thinking beyond the confines of bioethics, in line with future advances in biological research into the genetic origins of rights. (shrink)

This book uses a critical lens to discuss live stream uses and misuses, as well as the impacts of live streaming on various fields. In the landscape of the historical evolution of communication technologies, this volume opens up a new space for discussing legal and ethical issues associated with the use of live streaming.

In his account of legal revolutions, Hauke Brunkhorst applies a dual perspective encompassing the approaches both of systems and discourse theory to social evolution: functional adaptation and group-based normative learning coexist as two mechanisms of societal change, the latter being conceptualized as occasional interruptions to an overall systemic process of societal evolution. This article argues that Brunkhorst’s ‘systems theory first’ perspective undermines his claim to be delivering critical theory and that while it is both possible and necessary (...) to incorporate a systems-theoretical perspective into discourse-theoretical social theory when devising a critical theory of law and democracy, the reverse does not apply. The building blocks of Habermas’ reconstructive approach to social evolution are presented as a conceptual framework that constitutes an alternative to Brunkhorst’s ‘systems theory first’ perspective but remains compatible with the basic premises of his account. A discourse-theoretical view that sees societal development in terms of a social learning process chimes with Brunkhorst’s dual perspective on the dialectics of legal evolution but at the same time upholds the aims of critical theory. (shrink)

Forensic genomics now enables law enforcement agencies to undertake rapid and detailed analysis of suspect samples using a technique known as massively parallel sequencing (MPS), including information such as physical traits, biological ancestry, and medical conditions. This article discusses the implications of MPS and provides ethical analysis, drawing on the concept of joint rights applicable to genomic data, and the concept of collective moral responsibility (understood as joint moral responsibility) that are applicable to law enforcement investigations that utilize genomic data. (...) The widespread and unconstrained use of this technology without appropriate legal protections of individual moral rights and associated accountability mechanisms, could potentially not only involve violations of individual moral rights but also lead to an unacceptable shift in the balance of power between governments and the citizenry. We argue that in light of the rights of victims and the security benefits for society, there is a collective moral responsibility for individuals to submit their DNA to law enforcement and for MPS to be used where other, less invasive techniques are not effective. However, this application should be limited by legislation, including that any data obtained should be directly relevant to the investigation and should be destroyed at the conclusion of the investigation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Ethical, Legal, and Social Implications Research Program at the National Human Genome Research InstituteEric M. Meslin (bio), Elizabeth J. Thomson (bio), and Joy T. Boyer (bio)Organizers of the Human Genome Project (HGP) understood from the beginning that the scientific activities of mapping and sequencing the human genome would raise ethical, legal, and social issues that would require careful attention by scientists, health care professionals, government officials, (...) and the public. The establishment of the ELSI (ethical, legal, and social implications) programs at the National Human Genome Research Institute (NHGRI) and the Department of Energy (DOE) was thought to be vital to the success of the HGP in the United States. It also provided a novel approach to the simultaneous study of ethical, legal, and social issues and basic scientific issues. Eric Juengst, the first director of the ELSI program, described its origins in a previous issue of the Kennedy Institute of Ethics Journal (Juengst 1991). Now in its seventh year, the ELSI program has accomplished much. This article summarizes the evolution and goals of the ELSI program at NHGRI, outlines the program’s current research priorities with examples of activities within each priority area, and provides a look to the future, including the initiation of a strategic planning process.Evolution and Goals of the ELSI Research ProgramThe HGP’s “genomic” goals are unique: to map and sequence the entire human genome—some 3 billion base pairs that make up approximately 80–100,000 genes—and the genomes of related model organisms by the year 2005. This goal was particularly ambitious since, when it was proposed, the technologies for mapping and sequencing had yet to be developed. When the HGP was first established, its organizers also elaborated a set of ELSI goals, which they saw as vital to the success of the genome project. The original ELSI goals were: (1) to anticipate and address the implications of the HGP for individuals and society and (2) to examine the ELSI consequences of mapping and sequencing the human genome in order to stimulate public discussion. To meet these goals, the NHGRI created its ELSI research program in 1990. Along with mapping, sequencing, [End Page 291] and mammalian genetics, ELSI was one of four original branches in the NHGRI Division of Extramural Research that funded research in those areas. Although the individual “branches” no longer exist, the mechanisms for funding research remain much the same. While the overall goals of the program have not changed, the specific ways of achieving the goals have continued to evolve. The importance of the ELSI program lies not in the collection of a full set of data that will be valuable in and of itself, but in the value of using and interpreting this new set of information.Early on, the NHGRI described a set of somewhat more specific goals: (1) to develop a program to help understand the ethical, legal, and social implications of the human genome project and (2) to identify and define the major issues of concern and develop policy options to address them. These more specific goals have been largely met. As the most recent biennial NHGRI Progress Report notes, “a robust ELSI research and education program has been established, many of the most urgent ELSI issues have been identified, and many policy options to address these issues have been proposed” (NCHGR 1995, p. 21). Between 1990 and 1996, ELSI provided more than $32.5 million in funding through 128 research and education grants in more than 30 states and in Canada (Table 1). The ELSI research budget is unique in that when originally created, it was specifically tied to the amount of money provided for the overall NHGRI budget. The NHGRI originally devoted 3 percent of its extramural budget to fund ELSI projects, but in FY 1991, it increased the ELSI budget to 5 percent, a figure that remains today. Table 2 lists the expenditures for each fiscal year since 1990 and the cumulative expenditures to date. The ELSI research budget at NHGRI this year will be about $7 million. When other sources of funding—e.g., co-funding arrangements with other institutes and agencies and the funding of ELSI... (shrink)

In this article I show that rabbinic reasoning, in its mature Talmudic form, rests on a foundation of five presuppositions, or axioms, including the comprehensiveness and non-redundancy of Scripture, and is guided by two formulas. The first formula is the formula of bijection, A∼B, which establishes a one-to-one correspondence between A, the textual elements of the Torah and B, the propositions of law comprising the system of halakhah; the second is the formula of adequate justification, ∃fx ( fx ⊃L ), (...) which states that there is a feature fx that serves as adequate justification for the application of a law L. The ‘Thirteen Rules of Rabbi Yišma’el (Ishmael)’ are analysed in terms of these formulas. An outline of stages in the evolution of rabbinic interpretation and reasoning in the Talmudic period sets the Thirteen Rules in their historical context as a third-century attempt, subsequently refined, to systematise rabbinic scriptural interpretation and legal reasoning. (shrink)

. The author analyses the concept of legal security from its historical evolution to its main structural aspects. In the first part he argues that legal security is a historical and cultural concept of the modern world. He considers a series of factors which lead from the general concept of security generated by an ideological monism and the social rigidity characterizing the Middle Ages to the concept of legal security protected by the legal monism of (...) the modern state, where legal security, understood as formal or procedural justice, has become a principle inspiring the entire legal system. Then he considers legal security in the social state as the expression of the relationship between man and his social needs. In the second part the author makes a structural analysis of the concept of legal security in a modern legal order, identifying the different spheres in which it can be found: state,—focusing on procedural guarantees as limits to power—, law—considering the internal functioning of the legal system—, society—stressing the effects of the action of the social state on the idea of legal security. (shrink)

Cette édition numérique a été réalisée à partir d'un support physique, parfois ancien, conservé au sein du dépôt légal de la Bibliothèque nationale de France, conformément à la loi n° 2012-287 du 1er mars 2012 relative à l'exploitation des Livres indisponibles du XXe siècle. Pages de début Majesté de l'État et dignité de la personne selon Hegel La renaissance des doctrines philosophiques classiques Le droit naturel et le droit de la raison L'ordre juridique et la question de son fondement dans (...) la philosophie du droit contemporaine en France La pensée juridique et les doctrines philosophiques modernes Pensée moderne et réformes pénales Philosophie de l'ordre civil positif L'herméneutique et la philosophie du droit analytique Le personnalisme juridique Rawls en FrancePhilosophie du droit : les enjeux d'une fin de siècle Pages de fin. (shrink)

This Essay presents law’s evolution as a paradoxical union of the finite and the infinite. At any given point in time, law is a finite body of norms, which can be identified. At the same time, law’s evolution is infinite because rule-mutations that alter those norms are indeterminable. In modern legal systems, law’s evolution occurs under the constraining influence of master texts, which provide normative durability by enshrining the fundamental norms of a legal system and (...) fortifying them against change. Despite this stabilizing role, however, master texts are themselves open to mutations. Therefore, law’s evolution under the constraints of a master text mediates the paradoxical union of law’s finite and infinite nature. (shrink)

Preface 9 PART I: RELIGIOUS, SCIENTIFIC, AND PHILOSOPHICAL BACKGROUND Introduction to Part I 19 1. The Bible 27 2. Natural Theology 33 William Paley 3. On the Origin of Species 38 Charles Darwin 4. Objections to Mr. Darwin’s Theory of the Origin of Species 65 Adam Sedgwick 5. The Origin of Species 73 Thomas H. Huxley 6. What Is Darwinism? 82 Charles Hodge 7. Darwinism as a Metaphysical Research Program 105 Karl Popper 8. Karl Popper’s Philosophy of Biology 116 Michael (...) Ruse 9. Human Nature: One Evolutionist’s View 136 Francisco Ayala 10. Universal Darwinism 158 Richard Dawkins PART II: CREATION SCIENCE AND THE McLEAN CASE Introduction to Part II 187 11. The Creationists 192 Ronald L. Numbers 12. Creation, Evolution, and the Historical Evidence 231 Duane T. Gish 13. Witness Testimony Sheet: McLean v. Arkansas Board of Education 253 Michael Ruse 14. United States District Court Opinion: McLean v. Arkansas Board of Education 279 Judge William R. Overton 15. The Demise of the Demarcation Problem 312 Larry Laudan 16. Science at the BarùCauses for Concern 331 Larry Laudan 17. Pro Judice 337 Michael Ruse 18. More on Creationism 345 Larry Laudan 19. Commentary: Philosophers at the BarùSome Reasons for Restraint 350 Barry R. Gross PART III: INTELLIGENT DESIGN CREATIONISM AND THE KITZMILLER CASE Introduction to Part III 369 20. But Isn’t It Creationism? The Beginnings of "Intelligent Design" in the Midst of the Arkansas and Louisiana Litigation 377 Nick Matzke 21. What Is Darwinism? 414 Phillip E. Johnson 22. Is It Science Yet? Intelligent Design, Creationism, and the Constitution 426 Matthew Brauer, Barbara Forrest, and Steven G. Gey 23. Kitzmiller v. Dover Area School District Expert Witness Testimony 434 Michael Behe 24. Kitzmiller v. Dover Area School District Expert Report 456 Robert T. Pennock 25. A Step toward the Legalization of Science Studies 485 Steve Fuller 26. What Is Wrong with Intelligent Design? 495 Elliott Sober 27. United States District Court Memorandum Opinion: Kitzmiller, et al. v. Dover Area School District, et al. 506 Judge John E. Jones II 28. Can’t Philosophers Tell the Difference between Science and Religion? Demarcation Revisited 536 Robert T. Pennock. (shrink)

The paper concerns the problem of the legal responsibility of autonomous machines. In our opinion it boils down to the question of whether such machines can be seen as real agents through the prism of folk-psychology. We argue that autonomous machines cannot be granted the status of legal agents. Although this is quite possible from purely technical point of view, since the law is a conventional tool of regulating social interactions and as such can accommodate various legislative constructs, (...) including legal responsibility of autonomous artificial agents, we believe that it would remain a mere ‘law in books’, never materializing as ‘law in action’. It is not impossible to imagine that the evolution of our conceptual apparatus will reach a stage, when autonomous robots become full-blooded moral and legal agents. However, today at least, we seem to be far from this point. (shrink)

According to most Evolutionary Psychologists, human moral attitudes are rooted in cognitive modules that evolved in the Stone Age to solve problems of social interaction. A crucial component of their view is that such cognitive modules remain unchanged since the Stone Age, and I question that here. I appeal to evolutionary rollback, the phenomenon where an organ becomes non-functional and eventually atrophies or disappears—e.g. cave-dwelling fish losing their eyes. I argue that even if cognitive modules evolved in the Stone Age (...) to solve problems of social interaction, conditions since then have favoured rollback of those modules. This is because there are institutions that solve those problems—e.g. legal systems. Moreover, evidence suggests that where external resources are available to perform cognitive tasks, humans often use them instead of internal ones. In arguing that Stone Age cognitive modules are unchanged, Evolutionary Psychologists say that evolutionary change is necessarily slow, and that there is high genetic similarity between human populations worldwide. I counter-argue that what is necessarily slow is the building-up of complex mechanisms. Undoing this can be much quicker. Moreover, rollback of cognitive mechanisms need not require any genetic change. Finally, I argue that cross-cultural similarity in some trait need not be rooted in genetic similarity. This is not intended as decisive evidence that rollback has occurred. To finish, I suggest ways we might decide whether moral attitudes are likely to be rooted in unchanged Stone Age modules, given that I have argued that cross-cultural similarity is not enough. (shrink)