Purpose of this article is to tell foreign readers about novels made in Russian intellectual property law in 2014. As is known modern Russian revolution in the field of intellectual property legislation occurred January 1, 2008 when Russian intellectual property legislation was codified, included in the text of part fourth of the Civil Code of the Russian Federation. Part fourth of the Russian CC entered into force on January 1, 2008. At the same day seven sectoral intellectual property (...) laws were repealed. Second Revolution in this field took place during 2014: Federal law №35-FZ, 2014, substantially amending the Fourth part on the CC, entered into force on October the 1st of 2014. Scientific aim: The essence and evaluation of these amendments is the subject matter of this paper. Methods: The research is based on the analysis of the new amendments and articles added to the part fourth of the CC. Findings: Codification of the sectoral legislation en bloc in CC is a unique phenomenon. The author believes that such a construction of intellectual property law was made correctly and at the proper time. Factually the Federal Law №35-FZ is the eleventh law amending the text of the part fourth of the CC. But all previous amendments were small and not substantial. As far as amendments introduced by the law №35-FZ are concerned, they are numerous and very, very substantial. Before entering into force of the law №35-FZ, the Part fourth of the CC contained 328 articles. The law 35-FZ amends 169 articles of it and adds seven new articles. I am convinced that the law is a rather big step towards building a modern system of intellectual property legislation in Russia. Conclusions: More than 150 amendments were introduced by the law №35-FZ. Author estimates about 80% of them as positive and about 20% as negative and erroneous. These amendments do not contradict the international intellectual property agreements signed by the Russian Federation. Generally their purpose is to enhance and clarify the Russian intellectual property legislation and to narrow the gap between Russian and European intellectual property laws. The author of this article deals with intellectual property laws more than 50 years on. This paper is a short English version of various articles on this topic published in Russian, in journals: «The business and the law» and «The patents and licenses». (shrink)

This essay describes the background and possible reasons for legal intervention in the use of lime in the early bleaching industry and draws on the Statutes at Large and other Acts of Parliament as primary sources. The developing chemical knowledge that may have contributed to the later Acts of repeal is also considered in some detail. The earliest noted prohibition was in 1633 and the years 1823, 1825, and 1828 were important repeal dates. No related legislation later (...) than 1828 has been found. During the period from 1633 to 1828 there were many renewals and modifications to existing laws concerning linen and hempen manufacture; several of these contained subsections regarding bleaching. The considerable number of such Acts may account for the apparent confusion shown by earlier authors on this subject. Furthermore, the various Acts passed by the Irish House of Commons over its lifetime from 1400 to 1800, with its many interruptions, were published in a limited number of editions and are consequently held by few libraries. Ireland instituted its own laws and it was only after the Act of Union in 1800 that matters were dealt with by Westminster. Indeed, earlier historians have not always appreciated that, at certain periods of the history of the United Kingdom, Ireland and Scotland had their own separate parliaments. (shrink)

Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, -and limited the maximum number of wives to four. Although polygyny is mubah (permissible) in Islamic law, it is not an absolute right that every man can use arbitrarily. Thus in Islamic law, the legitimacy of polygyny has been attributed (...) to the presence of two basic conditions: the observance of justice among co-wives and providing maintnance. However, the observance of these conditions that is left to the mercy of men leads to the exploitation of the right for practicing to polygyny and victimization of the first spouse. Therefore, inserting some restrictions for using this right has come to the agenda from time to time in Islamic legal history. The first legal arrangements concerning the restriction of the polygyny (taaddud al-zawjāt) in the history of Islamic law were indirectly made with the Family Law Decree of 1917 which was prepared in the last periods of the Ottoman Empire. Among the late Islamic jurists, the issue of the limitation of polygyny by public authority in Islamic law continues to be discussed. The civil laws of contemporary Muslim countries contain different regulations on the issue. In this article, the restriction of polygyny by the public authority in Islamic family law will be focused on.Summary: Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, and limited the maximum number of wives to four. Thus, relevant verses in the Qur’an (al-Nisa 4/3, 129) and the Prophet’s own practice (al-Ahzab 33/50, 51, 59 al-Tahrim 66 / 3-5) show that it is legitimate for a man to marry more than one woman (up to four) at the same time in Islamic law. Although polygyny is legally permissible (mubah) in Islamic law it is not an absolute right that every man can arbitrarily use. Thus in Islamic law, the legitimacy of polygyny has been attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintenance. On the other hand, there may be some exceptional circumstances permitting polygyny in Islamic law. For example, when female population is much more than male in the society and when a, woman is can not fulfill her family duties due to her cureless illness, polygyny is permitted in Islamic law.As it can be understood from the explanations above, polygyny in Islamic law is not a general and mandatory provision that should be applied by every man who has legal capacity to marry. On the contrary, it is an exceptional provision that is justified if there are certain conditions and justifications. According to this; polygyny is a moral and legal institution that is made up of mutual consent based on individual and social conditions and needs in Islamic law. Therefore, men do not have to marry a second woman on their current wives, as well as women have the right to say “no” to marry a married man as a second wife.When the conditions and rationales indicated in the relevant verses and doctrine are evaluated together, it can be said that in order to be able to legitimize the polygyny in Islamic law, there must be three basic conditions:(1) Observing justice among spouses, (2) Having sufficient financial power to provide maintenance for spouses, (3) Existence of individual or social need or necessity.Therefore, in order to prevent the exploitation of polygyny, which is justified under certain conditions and justifications in Islamic law, the above-mentioned conditions must be fulfilled. Otherwise, polygyny can cause some problems, unrest and injustice for individual, family and society. Hence, in the presence of certain conditions and justifications, polygyny accepted in Islamic law as a moral and legal institution aiming the elimination of individual and social arbitration.Although the legitimacy of polygyny in Islamic law depends on the existence of certain conditions and special circumstances, it is a known fact that they are not always observed in practice. It can be said that the right of polygyny is a subject of abuse in practice. Therefore, the limitation of polygyny by the public authority has come to the fore in Islamic legal history. Today, control of the public authority and inserting some restrictions of polygyny continue to be discussed among the Islamic jurists. In the past, it is possible to say that the control of the exercising of this right has been done relatively by society (social environment). However, nowadays, since the society cannot perform the control mechanism, it is brought up by the state (public authority) on behalf of the society.Among the contemporary Islamic jurists regarding the supervision or limitation of polygyny by the public authority; there are two approaches: “those who accept” and “those who do not accept” such restrictions.Islamic jurists, who accept that public authority is allowed to intervene in polygyny, grounded their views on two perspectives: The first is that the polygyny is legally permissible and the public authority has the authority to limit the permissible (mubah) in Islamic law. The second is that polygyny is restricted with the conditions in the Qur’anic verses such as “husband’s observation supervision of justice among his wives” and “having the power for ensuring the livelihood (nafaqa) of his wives” and it is more appropriate for the benefit of society and the purpose of the legislator (Shari’) to be subject to the control of the public authority whether these conditions are present or not. Islamic jurists, who do not agree that the public authority has the right to intervene in polygyny grounded their views on two perspectives as well: First, polygyny is a legitimate right mentioned in the verses in Islamic law and there is no definite proof that this can be prohibited or restricted by the public authority. Secondly, it is contrary to the verses to prohibit or limit the right that the Qur’an makes legitimate (free).Thus, it is possible to say that the opinion which accepts that the public authority has to limit polygyny is more accurate in terms today’s social conditions. Namely, polygyny is linked to two basic conditions: ”husband’s observance of justice among his wives and having the power to provide maintenance for his wives. Therefore, supervision of the public authority on checking the existence of these conditions is more appropriate for the purpose of the legislator (Shari legitimizing polygyny and social benefit.In fact, the Ottoman Family Law Decree of 1917 indirectly limited the right of the husband to marry more than one woman, giving the woman right to stipulate a condition in her marriage contract that her husband not to marry a second woman. In the 1924 Draft of Family Law Decree, which was prepared after the repeal of the Family Law Decree of 1917, but not enacted, it was proposed that the application of polygyny should be presented to the approval judge.In today’-s Muslim countries, there are three different practices: namely “completely prohibiting polygyny”, ”releasing polygyny” and “giving the court the right to monitor the existence of necessary conditions “. In countries such as Morocco, Algeria, Iraq, Syria, Indonesia, Malaysia (and Pakistan), the validity of polygyny depends on the permission and supervision of the judiciary. Some of these countries which have accepted judicial review have given the judicial control for the requirement of justice, some of them the conditions of justice and maintenance some of them for the conditions of justice, maintenance and a legitimate justification.In sum, in accordance with the provisions of the relevant verses, polygyny in Islamic law is legitimately permissible (mubah). However, the public authority has the right and authority to limit the mubah in Islamic law in the case of the elimination of damage and the necessity of the public interest. On the other hand, the public authority has the right and authority to enact the law in Islamic law by preferring one of the existing ijtihads that meet the needs of the society and conforms to the conditions of the age.According to this, when the public authority made a statutory regulation that links the use of right of polygyny to the permission of the judge, this regulation is binding on society.Therefore, in the event of such a legal arrangement, it is possible for the public authority to allow the men who comply with the conditions and not to allow the ones who are not to comply with the conditions after conducting the necessary investigation. As a matter of fact, now Family Laws of many Muslim countries now include such legal arrangements. It is also worth mentioning here that there may be a necessity for a man to marry more than one woman (up to four) at the same time in terms of social benefits, when the population of male and female in a society is excessively disproportionate. In such circumstances, it is also possible that the public authority encourages, or even mandates, the marriage of men who have fulfilled the conditions to more than one woman. (shrink)

Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration (...) inferred congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

The extent to which the legal doctrine addresses manifestations of constitutionalism has been constantly growing. However, the majority of research in constitutionalism focuses on the analysis of the power of the Constitution and the fundamental principles entrenched in it whereas ordinary branches of law, including civil procedure, affected by the constitutional law remains outside the scope of a deeper analysis. The author of the present paper is convinced that certain aspects of the impact of constitutional justice on such branches as, (...) in particular, civil procedure deserve deeper interest. The modest scope of the paper precludes an extensive analysis of the role of the Constitution as a fundamental binding Act and today’s abundant doctrine of Lithuania’s Constitutional Court in civil procedure. Therefore, the present paper is confined to an analysis of individual aspects of direct application of the Constitution and the doctrine of the Constitutional Court. The article analyses the power of the Constitution and its impact on the civil procedure as an Act laying down the fundamental principles binding the legislator in adopting procedural instruments and principles to be followed by courts and as a remedy for violations of rights or a tool to address loopholes and collisions of law. Courts of general jurisdiction perform the control of legitimacy of legal Acts by checking their compliance with the Constitution in individual cases and by applying to the Constitutional Court for repeal of anticonstitutional norms or by applying the Constitution as an Act of direct effect to eliminate loopholes, interpret statutes and deal with collisions of legal norms. The author believes that the fact that the courts of general jurisdiction frequently raise questions of incompliance of legal Acts with the Constitution and decisively apply to the Constitutional Court evidences a high level of legal culture and legal consciousness of the judges. That fact may also serve as a precondition for the growth of confidence in the judiciary as judicial procedures may contain no uncertainties as to the constitutionality of the statutes to be followed in litigation. (shrink)

In most countries where Islam is acknowledged as a, or the, source of legislation, abortion is permitted under certain conditions and at certain stages of pregnancy. This article examines some of these laws and argue that they represent a continuation of the logic that governed the views of pre-modern Muslim jurists on abortion, that is, harm aversion. However, these laws also add a ‘modernist’ twist to that logic – rather than repealing that logic altogether, modernist views on ‘rights’ and (...) the advancement of medical knowledge and technology have influenced the priorities of Muslim jurists and lawmakers as far as abortion and the issues associated with it are concerned. This influence has furthermore been possible by a conscious selection and blending of pre-modern views to serve modern concerns. In all this, however, harm aversion remains the centrifugal principle, even when the abortion discourse in Muslim countries appears couched in the modernist discourse of rights. (shrink)

The aim of the paper is to present the diachronic changes taking place in legal languages and discuss whether the translators, who for some reason use as an equivalent an obsolete term, may produce a target text which is communicatively ineffective. The research methods applied encompass: the parametric approach to the interlingual comparison of legal terminology for translation purposes, the analysis of pertinent literature on translation and translation errors, the analysis of comparable texts for the purpose of observing diachronic changes (...) in terminology. The diachronic change in terminology most frequently is the result of the amendments of legislation or repealing one act and replacing it with a new one. The terminological changes are especially frequent when the change in the political system occurs and the need appears to adjust the legal system to the new political ideology and principles. For that reason, the authors have analysed in detail three Polish acts on copyright enacted under three different political regimes that is to say (i) after the First World War when Poland regained independence after 123 years of occupation (Act of 29 March 1926 on Copyrights [Ustawa z dnia 29 marca 1926 r. o prawie autorskiem]), (ii) under the communist rule in Poland that lasted from 1945 until 1989 (Act of 10 July 1952 on Copyrights [Ustawa z dnia 10 lipca 1952 r. o prawie autorskim]), and finally (iii) after the collapse of communism in Poland and the period of transition into the democratic and free market society (Act on Copyrights and Related Rights of 4 February 1994 [Ustawa o prawie autorskim i prawach pokrewnych z dnia 4 lutego 1994 roku]). Apart from the main Polish corpus of above-mentioned acts, the authors have also provided examples from some other languages to confirm that the diachronic changes take place everywhere and miscommunication problems resulting from using an obsolete term in translation may occur in any pair of languages. In the last part of the paper the problem of the scale of miscommunication resulting from the usage of obsolete terminology in the target text is discussed. (shrink)

Orders for removal under Section 47 of the 1948 National Assistance Act are little discussed. However, they involve severe infringements of the civil liberties of those affected. It is argued that all previously presented justifications for the use of these orders fail. Repeal of the act is called for. The Law Commission has drafted alternative legislation, but this has not been enacted. Until this occurs local authorities, the Faculty of Public Health Medicine and individual public health physicians should (...) refuse to be involved in its use. (shrink)

Resistances to sexual and gender rights are shifting and need new theorisations. This article develops the analytical concept of heteroactivism by exploring its relation to abortion debates in Ireland. Heteroactivism as an analytical category examines resistances to sexual and gender rights that seek to reiterate the place of the heteronormative family (both in terms of gender norms and heterosexuality) through activisms that can stand against new legislative orders. The article investigates three texts to explore how the ‘Vote No’ campaign in (...) Ireland discussed ‘loving both’, but in the main thrust of the poster campaign instead focused on the foetus as an ‘unborn child’. Using textual and visual analysis, we show the creation of Ireland through seeking to ‘love both’ and create a distinction from the dangers, and foreign contagion, of England. The article concludes by arguing that ongoing work is needed to explore heteroactivism and its diverse manifestations, including in abortion debates. (shrink)

A l'heure de l'inflation normative, une réflexion sur la fin du droit peut paraître paradoxale, voire aller à contre-courant des mutations contemporaines du droit. En outre, les nombreux travaux relatifs à ces mêmes mutations et aux transformations du droit ces dernières années laissent penser que le droit ne peut connaître de fin, se renouvelant en permanence pour ne jamais laisser d'espace de non droit. Sans à coup, sans coupe nette, le droit poursuivrait sa progression sans heurt. Le droit n'aurait-il donc (...) jamais de fin? L'adage "ubi societas ibi jus" plaide, à l'évidence, pour une réponse négative. Cependant, de multiples questions se posent. Est-ce qu'une norme peut vraiment cesser d'exister et si oui, à partir de quand? Le droit connaît-il un terme? Peut-il disparaître? Issu d'un colloque qui s'est tenu à l'Université de Versailles Saint-Quentin-en-Yvelines, composé de contributions de spécialistes reconnus des diverses branches du droit public, cet ouvrage offre à travers l'examen de la fin du droit un regard sur sa définition même. (shrink)

This article evaluates New Zealand’s Medicines Amendment Bill 2011. This Bill is currently before Parliament and will amend the Medicines Act 1981. On June 20, 2011, the Australian and New Zealand governments announced their decision to proceed with a joint scheme for the regulation of therapeutic products such as medicines, medical devices, and new medical interventions. Eventually, the joint arrangements will be administered by a single regulatory agency: the Australia New Zealand Therapeutic Products Agency. The medicines regulations in Australia and (...) New Zealand will be updated as part of this process. The Medicines Amendment Bill addresses some of the well-recognised deficiencies in the Medicines Act 1981. However, a comprehensive overhaul of the Act is not being undertaken. I argue that repealing and replacing the Medicines Act 1981 would be preferable and advisable, given the number of legal difficulties with the Act and, in particular, where it does not align with equivalent current international law. (shrink)

Irish legislative engagement with abortion law reform has never been framed by recognition of the rights of pregnant women, girls and other people. Rather, where it has taken place at all, it has always been foetocentric and punitive, exceptionalising abortion and conceptualising law as a means of discouraging it. In important ways, the post-repeal landscape has failed to break decisively with this orientation. While in 2018 there was certainly more discussion of women’s entitlement not to be exiled from the (...) country in order to make decisions about reproduction, the framing that dominated legislative and government discourses of abortion law reform was one in which the ‘problem’ being addressed was such that unsafe medication, exclusion from formal medical systems, and the undeserved punishment of people who had received diagnoses of fatal foetal conditions in the course of their ‘much wanted pregnancies’ were the focus. There was little or no engagement in legislative politics with the right to choose, reproductive agency, reproductive justice or the moral standing of pregnant people as ethical decision makers when it came to their pregnancies. As a result, post-repeal abortion law reform was more about managing risk than maximising agency. I will argue that this underpins and partly explains the shortcomings of the new law: the Health (Regulation of Termination of Pregnancy) Act 2018 (‘HRTPA 2018’). Within that new legal regime, I argue, pregnant people continue to lack decisional security when it comes to their reproductive lives and are exposed to significant constitutional and dignitary harms as a result. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Feminist Studies 46, no. 2. © 2020 by Feminist Studies, Inc. 489 Anna Romina Guevarra and Maya Arcilla The Source of Actual Terror: The Philippine Macho-Fascist Duterte  What is JUSTICE with the violence you’ve waged  What is FREEDOM? Our people are encaged  What is JUSTICE with the violence you’ve waged?  What is FREEDOM? Our people are encaged  We have nothing to lose—nothing but our (...) chains  We have nothing to lose—nothing but our chains  Ang tao, ang bayan—ngayon ay lumalaban  Ngayon ay lumalaban—ang tao ang bayan 1  We will, we will oust you!  We will, we will oust you! —Lyrics of a chant at a Chicago protest rally, July 8, 20202 On July 8, 2020, in front of the Philippine Consulate of Chicago, a group of activists representing multiple transnational organizations committed to the pursuit of democracy, participated in a Global Day of Action against an Anti-Terrorism Law (ATL) passed in the Philippines five days earlier. This particular rally was led by fierce student and community organizers and workers who loudly proclaimed their opposition to President Rodrigo Duterte’s misogynistic and fascist measures. The epigraph 1. The people, the nation—today they fight / Today they fight—the people, the nation. 2. Song written by Charmaine Balisalisa. 490 Anna Romina Guevarra and Maya Arcilla above captures the lyrics of one young activist’s chant directed at Duterte and choreographed to the tune of Queen’s “We will Rock You.” People followed her steps and gestures rhythmically and in unison, accompanying her chant with sounds from a gangsa (gong), bells, a skateboard tapping the ground, and an empty bucket. There have been multiple protests denouncing Duterte since he assumed power in 2016, but on this particular day, the sense of outrage and urgency was especially palpable in the face of this new law aimed at suppressing dissent. This legislation marked a high point in Duterte’s efforts to exert authoritarian control, and it is significant that opposition to his regime has taken on a specifically feminist character. The Philippines Anti-Terrorism Act of 2020 (Republic Act No. 11479), signed into law on July 3, 2020, amends the Philippines Human Security Act of 2007 by expanding the government’s power and scope for defining what constitutes “terrorism.” It consolidates power through the creation of an Anti-Terrorism Council (ATC) appointed by the President and empowered to act without oversight from the judiciary or legislature. The ATC can order mass arrests without warrants and detain individuals without due process for the mere suspicion of being involved in “terrorist” activities. This Law violates the Philippine Constitution’s Bill of Rights by eliminating free speech, violating the people’s right to privacy, and criminalizing individuals on suspicion of wrongdoing. As the law stipulates, anyone involved in “creating an atmosphere and spreading a message of fear” and “provoking or influencing by intimidation the government or any of its international organizations” will be construed as inciting terrorism. Indeed, this law will continue to erode democratic governance in the country, with some labeling it a “stealth declaration of martial law.”3 As US Congressional Representative Jan Schakowsky (D-IL) noted at the press conference she convened on July 15 to publicly call for the Anti-Terrorism Law’s repeal, “this law represents a new weapon in the administration’s campaign to suppress dissent and will worsen attacks on ordinary people.” 3. Jodesz Gavilan, “‘Stealth Declaration of Martial Law’: Rights Groups Slam Duterte, Anti-Terror Law,” Rappler, July 3, 2020, https://rappler.com/nation /human-rights-groups-statements-duterte-signing-anti-terror-law. Anna Romina Guevarra and Maya Arcilla 491 “A Timeline of Terror”: From “Pride is a Protest” and #JusticeForFabelPineda to #HandsOffGabriela4 A number of prominent feminists and queer rights activists have been targeted under President Duterte in the lead up to the passing of the ATL. On June 26, twenty LGBTQ activists representing Bahaghari, an LGBTQ+ rights organization in the Philippines, were arrested at a Pride rally. These protestors, referred to as the “Pride 20,” were speaking out against the ATL and were immediately arrested.5 A few days later, fifteen-year-old Fabel Pineda from San Juan Ilocos Sur was gunned... (shrink)

This chapter examines the progressive nature of liberalization of the free movement of capital supported by reference to the relevant treaty provisions, secondary legislation, and case law of the Court of Justice of the European Union (CJEU). The free movement of capital is closely associated with the single currency of the European Union, the euro; consequently, the chapter will also briefly examine the current reform measures introduced for its effective management. The rules on the free movement of capital were (...) set out in Articles 67 to 73 European Economic Community (EEC) with the aim of facilitating the liberalization of the capital movements between the member states. The change of the legal foundation of the free movement of capital after the Maastricht Treaty has created some degree of uncertainty over the legal status of Capital Directive 88/361/EEC as it owes its existence to the repealed Article 67 EEC. (shrink)

We have just completed an exhausting nine‐month debate on the future of the Affordable Care Act. I see this debate as having ended—as of this writing—in a draw. After months of repeal efforts, Republicans in the House barely passed in early May, with a 217‐to‐213 margin, the American Health Care Act, which would have significantly amended the ACA. Republicans in the Senate spent the summer trying to arrive at amendments to the AHCA that could attract fifty of their fifty‐two (...) votes, but in the end, the clock ran out on their opportunity to enact an amendment without Democratic input. With this legislative failure, we appear to be in a stalemate. The Affordable Care Act remains in place as the law of the land, but the Trump administration seems committed to at best condemning the ACA to malign neglect and at worst actively undermining it at every opportunity. Given the political stalemate, the time is right to reassess the deeper issues at stake and ponder the prospects for a considered compromise on health reform. (shrink)

In a debate between tolerance and intolerance one is disinclined to side with intolerance. Nevertheless that, in a sense, is what I want to do in this paper. The particular debate I have in mind is the old one between H.L.A. Hart and Patrick Devlin about the legal enforcement of moral values. It should be noted, though, that the issue has by no means been settled in the minds of many people. The proposed repeal of the British law prohibiting (...) the promotion of homosexuality (a law known as Section 28) “could destroy Scottish society,” according to Mazhar Malik of Glasgow’s Ethnic Community Resource Centre, echoing Devlin’s concern from the 1960s. In what follows I will first sketch and defend, partially, what I take to be Devlin’s communitarian argument and then attempt to explain what is wrong with it and how this should affect our estimation of the proper relation between law and morals. I will argue that at least some private ‘immorality’ can be defended without recourse to the liberal belief in a morally private sphere. In part I I look at the kind of communitarianism that can be found in Devlin’s work, in part II I support this reading of Devlin and expand on it by looking at some important passages from his work, and in part III I consider the reasons why his argument does not support legislation against gay sex, and, in fact, could be used to defend gay rights. (shrink)

There have been two recent attempts to disentangle the evidence for the procedures in fourth-century Athens for the enactment and revision of nomoi, by D. M. MacDowell and by M. H. Hansen. I have learned from both, but think that further progress can be made. MacDowell distinguishes five separate measures: The Old Legislation Law, requiring action at a specified time, advance publicity for the new proposal, concurrent repeal of any existing law with which the new proposal conflicts, and (...) a decision by nomothetae who are omomokotes, men who have sworn the dicastic oath : this is described as a παλαις νόμος, and as the law καθ' ν σαν ο πρότεροι νομοθέαι. Replacing that c. 370, the New Legislation Law, no longer requiring action at a specified time, advance publicity, concurrent repeal, or that the nomothetae should be omomokotes: as a result of the change conflicting laws have been enacted, and for some time continuing to the mid 350s commissioners have had to be elected to sort out the conflicts. Still valid in the 350s, the Review Law, requiring an annual epicheirotonia of the laws in four subject divisions in the assembly on 11 Hecatombaeon , advance publicity for new proposals, and at the third assembly after 11 Hecatombaeon the appointment of nomothetae who are omomokotes to decide between the existing laws and the new proposals. (shrink)

In a 2018 referendum, the Irish electorate voted in favour of repealing Ireland's quasi-total legal ban on abortion. The referendum campaign saw important public discussions regarding gender roles in twenty-first century Ireland. While the constitutional ban on abortion was condemned by abortion rights advocates for marginalising women's agency, the legislation which replaced it has not escaped criticism either. Therefore, questions surrounding the conceptualisation of women's agency in the 2018 referendum are still relevant today. Adopting a multimodal critical discourse analysis (...) approach, this paper analyses signage from the weeks before the vote to examine the discursive construction of women's agency in the linguistic landscape of the referendum campaign. I argue that many mainstream campaign organisations – including those arguing for liberalisation of abortion laws – were complicit in the discursive diminishment of women's agency, suggesting that the campaign did not necessarily challenge prevailing ideologies of gender and agency. (shrink)

ABSTRACT:This essay explores how bioethics as a field, rather than as a collection of individual efforts by bioethicists working within it, can inform deliberation on matters of bioethical import that, for better or worse, are in the hands of civic processes. It is motivated by the repeal of a constitutional protection of abortion access in the Supreme Court Dobbs v. Jackson Women's Health Organization decision, which effectively returned abortion regulations to states rather than setting a baseline federal protection of (...) abortion access up to fetal viability. Given the outsized role of local legislators in shaping health-care policy through legislation, about abortion as well as other health topics, the author proposes foundational bioethical education for legislators and considers two potential models for such education: one that operates on a clinical ethics consultation model, and one that mirrors bioethical coursework taught in traditional academic settings but modified for a legislator audience. Although both models present notable challenges requiring further conceptualization and problem-solving, overcoming these hurdles would enable bioethics to provide a service to civic learning and placemaking that would complement advocacy or lobbying efforts by individual bioethicists. (shrink)

Health care costs and affordability are critical issues to consumers. Just as we assess the coverage impacts of a health reform proposal, we should be able to evaluate how the plan will constrain health care costs: its theory of cost control. This essay provides a framework to assess health reform plans on their theories of cost control, identifying the key policy tools to constrain health care costs organized in a two-by-two matrix across the following dimensions: price vs. utilization and public (...) vs. private payers. It then applies the framework to the Affordable Care Act and the Republican's 2017 legislative efforts to repeal and replace the ACA to identify their general theories of cost control, revealing on the plans' strengths, blind spots, and incoherence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Landmark Legal Cases in BioethicsSusan Cartier Poland (bio)Only a few decades old, the interdisciplinary field of bioethics has developed surrounded by centuries of legal tradition and moral philosophy. Bioethics and the law have weaved back and forth over time influencing each field. Sometimes ethics leads the debate on problematical issues; for example, the Recombinant DNA Advisory Committee at the National Institutes of Health established regulations prior to initiating human (...) gene therapy. At other times, law takes over; Roe v. Wade, for example, has polarized and closed public discussion on abortion. Most frequently, however, scientific developments initiate discussion in both fields, as when the announcement of the birth of Dolly—the first cloned mammal—sparked President Clinton to ask the National Bioethics Advisory Commission for a report on cloning.A back-and-forth pattern also exists within the law itself, this time between legislator and judge. Legislators enact statutes, which apply universally to regulate conduct in society. Judges, on the other hand, interpret statutes and apply them to particular cases to resolve disputes between parties. Case law, as judge-made law is called, that grows in the absence of legislation becomes the common law. Legislatures can change the course of common law development by enacting more law, usually as amendments, but sometimes as repeals. A judge who sees the facts of a case or the law differently may also change the common law. And so the counterpoint between legislator and judge goes.A legal case becomes a landmark in bioethics because of its historical or precedential value to the field. Historical cases reflect judicial reasoning or rationalization that lays the conceptual foundation for a bioethical principle. Perhaps the best known example of this is the focus on the right to self-determination in Schloendorff that led to the development of informed consent. The principle of autonomy in bioethics derives its legal impetus from this line of cases.A case that acquires landmark status because of its precedential value does so for one of two reasons based on legal precedents. First, the case may be one of “first impression.” In the legal sense, that means that the particular case with its [End Page 191] facts or issues is the first one that a particular court has confronted within that court’s jurisdiction or area of decision-making authority. To be a landmark in bioethics, however, the ordinary sense of “first impression” applies. The first time that a particular bioethical topic has appeared in court for legal resolution makes a case one of “first impression” for bioethics. The case of Baby M on surrogacy contracts illustrates this.The second way in which a case can achieve landmark status based on precedents involves legal precedent and the jurisdictional basis of the court system. Under the common law system, a preceding case that involves the same or similar facts or issues as a current case must be followed by lower—i.e., less authoritative—courts in the same jurisdiction. That judicial rule of decision making is called stare decisis. It creates an institution of continuity, yet allows for change due to differences in judicial interpretation of facts and issues, which is called distinguishing the case.All courts under United States jurisdiction must follow the U.S. Supreme Court. By its sheer power of authority, the Court issues opinions that, if they concern bioethical topics, make cases landmarks in bioethics. For example, Roe v. Wade made abortion legal and set off the debate between maternal and fetal rights. Casey later refined, or to some redefined with a discussion of stare decisis, the bioethical underpinnings of Roe by framing the debate as one between maternal rights and state interests.In law, precedents concern only appellate cases. Trial courts, like that in McFall v. Shimp, handle questions of both fact and law. Appellate courts, like that in Brotherton, hear appeals from the lower trial courts and address legal issues only. Trial judges apply the law to facts, and appellate judges reason about the trial judge’s legal interpretation.Appellate court decisions are the ones most frequently published, either in print or electronically online, for citation. Consequently they are the easiest to locate and retrieve. “Reporters” as... (shrink)

Not so very long ago - in historical terms - the politics of Medicare were thought to be stable and well-established. Medicare’s 1965 enactment culminated an epochal political battle that spanned fifteen years and involved mass mobilization, millions of dollars in lobbying expenditures, and bitter partisan controversy. By the late 1980s those seemed to be distant birthing pains long since overshadowed by the program’s robust health and popularity. Medicare politics had devolved into a model of pluralist “normalcy” in which a (...) relatively specialized and autonomous group of subject-matter experts in the federal bureaucracy, the Congress, and affected interest groups largely made policy by negotiating among themselves, primarily on issues of provider reimbursement. Even the extraordinary events involving the 1988 enactment of the “Medicare Catastrophic Coverage Act” legislation, and the ensuing public firestorm that led to its partial repeal in 1989, could be seen as an aberrational deviation from a more placid pattern. (shrink)

The article explores the problems of the legal status of the regulatory authorities in the energy sector of Ukraine in the context of the administrative reform currently taking place in the Ukraine and the fulfillment of the EU requirements in this sphere. Based on the analysis of the EU legislation, in particular Directive 2009/72/EC of the European Parliament and the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC and Directive (...) 2009/73/EC of the European Parliament and the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, and the experience of Ukraine in the field of energy regulation, the author of this article supports granting the special legal status to the national regulatory authorities in the energy sector of Ukraine and their separation from the system of state executive bodies, however, recommends to stipulate in the Constitution of Ukraine the provisions, regarding the organizational legal form and the establishment procedure of such bodies, the appointment and dismissal procedure for their management and members, the peculiarities of the relations of these bodies with the President of Ukraine, the Parliament of Ukraine and the Government of Ukraine. (shrink)

Not so very long ago - in historical terms - the politics of Medicare were thought to be stable and well-established. Medicare’s 1965 enactment culminated an epochal political battle that spanned fifteen years and involved mass mobilization, millions of dollars in lobbying expenditures, and bitter partisan controversy. By the late 1980s those seemed to be distant birthing pains long since overshadowed by the program’s robust health and popularity. Medicare politics had devolved into a model of pluralist “normalcy” in which a (...) relatively specialized and autonomous group of subject-matter experts in the federal bureaucracy, the Congress, and affected interest groups largely made policy by negotiating among themselves, primarily on issues of provider reimbursement. Even the extraordinary events involving the 1988 enactment of the “Medicare Catastrophic Coverage Act” legislation, and the ensuing public firestorm that led to its partial repeal in 1989, could be seen as an aberrational deviation from a more placid pattern. (shrink)

ABSTRACTOn 28 October 2012, Savita Halappanavar, an Indian woman living in Ireland, died in hospital while under medical care for a miscarrying pregnancy. According to her husband, her repeated requests for an abortion were ignored because of the presence of a foetal heartbeat. Ms Halappanavar’s death was a critical event in the process leading to a referendum on 25 May 2018, when the Irish electorate voted to repeal the Eighth Amendment of the Constitution, removing the constitutional ban on abortion. (...) The name Savita has become indelibly linked to the changing course of abortion politics, so it is timely to reassess the role of the media in shaping the parameters of the debate about the impact of her death on the issue. This study presents a frame analysis of Irish newspapers in the weeks following her death, mapping the political, medical, legal and socio-ethical discourses, as well as the related contemporaneous events that set the agenda for the type of debate that was to follow. It identifies four media frames: Public Tragedy, Political Opportunity, Abortion Legacy and Maternal Health. Our central argument is that the overall effect of media framing provided much face-saving for politicians in the way that the legislative issue was viewed through a conservative party-political lens, despite public outrage. (shrink)

Restrictions upon international bribery by U.S. business firms, as incorporated in the Foreign Corrupt Practices Act, have been controversial since this legislation was passed in 1977. Despite many attempts to repeal or change the law, it remains as originally enacted.This article reports on a survey of U.S. business professionals concerning international bribery. Response to our survey reveals a divided business community in terms of their opinions on the ethics of international payments prohibited by the present law.

This book considers the efficacy of the common regulatory model of the licensing regime as a means of regulating animal use in England, with a particular focus on wild animals and the regime’s ability to ensure animal welfare needs are met. Using information gleaned from over 550 inspection reports relating to the period 2008 through 2019, obtained using FOI Act requests, the book analyses the extent to which animals used by these industries are protected by law. Tyson analyses the limitations (...) present in the practical application of English legislation responsible for creating a number of relevant licensing regimes.The regimes discussed include: The Zoo Licensing Act 1981, the now repealed Welfare of Wild Animals in Travelling Circuses Regulations 2012, and the Animal Welfare Regulations 2018, introduced under the Animal Welfare Act 2006. Exploring the weakness in the use of this type of regulatory model, Tyson proposes compelling recommendations for change in future policy development. Making an important contribution to the question of enforcement of animal welfare laws, this book provides useful and original insights into the implementation of licensing regimes, and will be of particular interest to scholars of animal welfare law, animal ethics, and critical animal studies. (shrink)

General relativity has a geometric and a field interpretation. If angular momentum conservation is invoked in the geometric interpretation to explain experiments, the causality principle is violated. The field interpretation avoids this problem by allowing faster-than-light propagation of gravity in forward time. All existing experiments are in agreement with that interpretation. This implies the existence of real superluminal propagation and communication of particles and fields, free of causality problems. The introduction of real physical faster-than-light propagation into gravitation, electrodynamics and quantum (...) theory has important consequences for physics. (shrink)

0n a lucid, concise volume, Jeremy Waldron defends the role of legislation, presenting it as an important mode of governance. Aristotle, Locke and Kant emerge as proponents of the dignity of legislation. Waldron's arguments are of obvious importance and topicality, especially in countries that are considering the introduction of a Bill of Rights. The Dignity of Legislation is original in conception, trenchantly argued and very clearly presented, and will be of interest to a wide range of scholars (...) and thinkers. (shrink)

Legislation that authorises controversial organ procurement strategies but ignores respect for autonomy is flawed in principle and predictably unworkable in practiceThe UK Human Tissue Act 2004,1 designed to regulate all activity involving human tissue, organs, or bodies, was introduced in the House of Commons in December 2003, received Royal Assent on 15 November 2004,2 and has been partially implemented by Commencement Orders from April 2005. The new act, which repeals and replaces the Human Tissue Act 1961, the Anatomy Act (...) 1984, and the Human Organ Transplants Act 1989, has its origins in events of serious public concern, namely the retained organs scandals at Bristol Royal Infirmary3 and the Royal Liverpool Childrens’ Hospital.4 The act is correspondingly dominated by regulation of postmortem examinations and retention of human tissue, with consistent emphasis on the need for fully informed consent. Compliance with these requirements is now mandatory with the threat of up to three years’ imprisonment and/or fines for any deviation.The impact of the original proposals within the bill on research and the clinical practice of pathology have been carefully considered and documented,5 with subsequent amendments to ameliorate professional concerns.6 The act, however, also carries significant implications for medical practice in areas where donor recruitment for transplantation can take place, and representations on these aspects during readings of the bill7 have produced neither clarification, justification, nor amendment within the final legislation.Section 43 will make it lawful for hospital authorities “to take steps for the purpose of preserving the part for use for transplantation and to retain the body for that purpose”. The original explanatory notes for the bill8 while it proceeded through parliament implied that such action, prior to consent to transplantation being sought, was then lawful, clause 44 as section 43 …. (shrink)

In Elements of Legislation, Neil Duxbury examines the history of English law through the lens of legal philosophy in an effort to draw out the differences between judge-made and enacted law and to explain what courts do with the laws that legislatures enact. He presents a series of rigorously researched and carefully rehearsed arguments concerning the law-making functions of legislatures and courts, the concepts of legislative supremacy and judicial review, the nature of legislative intent and the core principles of (...) statutory interpretation. (shrink)

Principles of legislation.--Principles of the civil code.--Principles of the penal code.

Principles of legislation.--Principles of the civil code.--Principles of the penal code.

Background Chemotherapy and/or radiotherapy treatments may cause premature ovarian failure and irreversible loss of fertility. In the context of childhood cancers, it is now acknowledged that possible negative effects of therapies on future reproductive autonomy are a major concern. While a few options are open to post-pubertal patients, the only immediate option currently open to pre-pubertal girls is cryopreservation of ovarian tissue and subsequent transplantation. The aim of the study was to address a current gap in knowledge regarding the offer (...) of fertility preservation by Ovarian Tissue Cryopreservation for prepubescent girls with cancer, and to explore current practices and attitudes of Canadian, French and Moroccan pediatric heme oncologists. The comparative perspective is relevant since legal frameworks surrounding fertility preservation and funding offered by the healthcare system vary greatly. Methods An online survey was sent to the 45 pediatric oncology centers in Canada, France and Morocco. Results A total of 39 centers responded. OTC is offered by almost all pediatric heme oncologists in France, very few in Canada, and none in Morocco. For pediatric hematologists/oncologists who do not propose fertility preservation in Canada, the reasons are: the technique is still experimental, it is not available locally and cost of the technique for the family. 97% of Canadian and 100% of Moroccan pediatric hematologists/oncologists think OTC should be funded by the healthcare system as it is in France and in the province of Quebec in Canada. Conclusions The results of this study show tremendous diversity in the provision of OTC across countries, whereby its offer is correlated with legislation and funding. We argue that the current reality, in which this technology is often not offered to families, raises ethical issues related to justice and equity of access, as well as informed consent and future reproductive autonomy. (shrink)

A comprehensive account of English legal thought in the age of Blackstone and Bentham for nearly a century, The Province of Legislation Determined advances an ambitious reinterpretation of eighteenth-century attitudes to social change and law reform. Professor Lieberman's bold synthesis rests on a wide survey of legal materials and on a detailed discussion of Blackstone's Commentaries, the jurisprudence of Lord Kames and the Scottish Enlightenment, the chief justiceship of Lord Mansfield, the penal theories of Eden and Romilly, and the (...) legislative science of Jeremy Bentham. The study relates legal developments to the broader fabric of eighteenth-century social and political theory, and offers a novel assessment of the character of the common law tradition and of Bentham's contribution to the ideology of reform. (shrink)

The idea of legislative intent plays a central role in legal interpretation and constitutional theory, yet is repeatedly challenged as being an illusion. Refuting these challenges, this book develops a robust account of how and why legislatures form intentions, and the importance of these intentions to understanding law and parliamentary democracy.

ABSTRACTThis article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is that the fundamental aim of law should be the promotion of human flourishing, where a flourishing human life is understood as a life of rational and social activities that express the human excellences. Law can promote flourishing in several ways. Because peace and prosperity are conducive to human flourishing, legislation should aim at the establishment and (...) maintenance of these conditions. The human excellences are developed in childhood and young adulthood by stable and nurturing families and by educational institutions: therefore, the law should support and foster families and schools. Although some critics have argued that an aretaic theory of legislation must support so-called “vice laws,” this is not the case. A virtue-centered approach must take into account the effects produced by criminalization of alcohol, drugs, gambling, and prosti... (shrink)

I. Principles of legislation. Principles of the civil code.--II. Principles of the penal code.

I elicit some of Foucault’s insights to provide a more realistic picture than is the norm in social and political theory of how best to identify and overcome domination. Foucault’s vision is realized best, I argue, by combining his account with two related conceptions of domination based on human needs and realistic accounts of politics that focus on agency, power and interests. I defend a genealogical, inter-subjective account of how the determination of needs and interests forms the basis of ascertaining, (...) on a continuum, the extent to which relations of power generate states of domination. To that end I propose institutional changes that would empower citizens in positive and negative ways: power over legislation in district assemblies and via veto and repeal; real control over representatives through various means; and decennial constitutional plebiscites. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Time For Beginners:Natality, Biopolitics, and Political TheologyRosalyn Diprose and Ewa Płonowska ZiarekDespite The Growing Interest in Hannah Arendt’s idea of natality and its relationship to politics,1 natality is rarely discussed in the context of biopolitics.2 This is all the more puzzling since Arendt is not only a thinker of natality but also, as Agamben acknowledges in Homo Sacer, the first thinker of biopolitics (Agamben 1998, 3–4). While we will (...) elaborate the complexity of what these two terms mean shortly, a useful provisional definition of “natality” is birth as “event” and as the figure of a new beginning in political life. Michel Foucault defined “biopolitics” as the government of the biological life of a population where the state holds the right to life and death in terms of the power to “make live and … let die” (Foucault 2003, 254). We are interested in the relation between natality and biopolitics with regard to maternity in particular, first of all, because this intersection marks the site of some of the more surprisingly volatile conflicts of contemporary political life, and second, because the biopolitical regulation of giving birth raises the question of the fate of political transformation and agency within a biopolitical framework. This second point is illustrated by two relatively short-lived but volatile political events, one in Australia in December 2005–February 2006 and the other in the United States early in 2012.The Australian Case of Ru486A public debate erupted in Australia in late 20053 when, in an unprecedented move, four women senators from across the political party spectrum sponsored a “private members bill” to repeal the federal minister for health’s jurisdiction [End Page 107] over the licensing of RU486 (the so-called “home abortion pill”).4 The senators were protesting how the then conservative Australian government (the so-called Howard Government) was continuing to block the licensing of the drug despite Australia’s relatively liberal approach to surgical abortion, which has been legally available since the 1970s. The debate exposed how the Howard Government, in one of its first legislative acts after assuming power in 1996, had placed abortive agents such as RU486 under its own jurisdiction (instead of the independent body, the Therapeutics Goods Administration, which regulates all other drugs). Even though protest at this situation was well overdue by 2005, it was surprising that RU486 in particular became the focal point of contestation of government authority over life at that time. There were a number of other aspects of the government’s wider legislative agenda that were more publicly contested—harsh refugee policies, participation in the war in Iraq, draconian antiterrorism legislation, legislation deunionizing the labor market and tightening the marriage act to define marriage in terms of sexuality. Yet only RU486 succeeded in mobilizing a wave of defiance of prime ministerial authority sufficiently strong to push the debate in parliament to a rare “conscience vote” (a “free vote” that suspends the usual allegiance to one’s political party required in the Westminster system) and, even more rare, a vote that the prime minister and minister for health lost. Perhaps heartened by the success of this expression of dissent, others within the government (and the Labor opposition) began to challenge other aspects of the Howard Government’s conservative legislative agenda, eventually leading to a change of government in 2007.What does the RU486 event reveal about the relation between maternity, the politics of reproduction, political agency, and government of the life of a population? Why did administration of a home abortion pill become such a focus of dissent against totalizing government, sufficient to effectively reactivate democracy? And more specifically, what does this event say about political agency, biopolitics, and the significance of reproductive self-determination? Our second example illustrates the converse—the ever-present threat to close down women’s reproductive self-determination.The Case of the U.S. “Birth Control Mandate” of 2012In February and March 2012, the Republican Party presidential campaign veered off course from its disciplined focus on fixing the economic crisis and engaged instead what the media called “the war... (shrink)