Anglo-American authors have paid little attention to a subtle distinction that has important jurisprudential implications. It is the distinction between sources of law and the legal norms which can be derived from sources by means of interpretation. The distinction might also be rendered as a threefold one, separating sources of law from legal norms and both of these from that which mediates their relation, namely, methods of legal interpretation. This paper intends to state the “source-norm” distinction clearly (...) and to give examples of jurisprudential insights that are missed, and mistakes that may be made if the distinction is not given its due. (shrink)

This book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. statutes, judicial (...) decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart's jurisprudence. Indeed, the book's analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. Chapter 4 argues that legal scholarship - or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal - can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.. (shrink)

A central puzzle in jurisprudence has been the role of custom in law. Custom is simply the practices and usages of distinctive communities. But are such customs legally binding? Can custom be law, even before it is recognized by authoritative legislation or precedent? And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of (...) a sense of legal obligation, or, at least, that the custom is reasonable and efficacious? And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? This volume answers these questions through a rigorous multidisciplinary, historical, and comparative approach, offering a fresh perspective on custom's enduring place in both domestic and international law. (shrink)

This paper presents one argument against the fundamental principle of legal positivism: the separation of law and morals. This principle is based on the view that morality is intrinsically subjective, while law presents objective standards of social behaviour. The author argues that there is a valid source for identifying the morality which is not individualistic but shared by the whole community. This source is found in simple narratives of folktales. The lawyers need folktales to identify moral principles shared by the (...) community when it is warranted by the letter of law itself (such as human rights issues). Even when there is no apparent need to determine the content of public morality, folktales are still helpful in presenting principles and illustrations that are vital to grasp the spirit of law. The contemporary law moves towards increasing technicality, and therefore, it poses a challenge to the rule of law and democracy. In the technicalities of law, the spirit of law is obliterated. This is particularly seen in the countries such as Thailand and China. Those countries view law as a machine of social control and manipulation. Law becomes the means of oppression. The cultural roots of law are ignored. Folktales contain a message of wisdom so desperately needed among Asian lawyers addicted to legal formalism. (shrink)

The formation of national law in the recovered state of Lithuania in 1918 was started by using foreign sources of law that had been implemented by occupants prior to the First World War. The most important object of acceptance was the old Russian tsar law, i.e. all of the sixteen volumes, which were clearly outdated and incompatible with the democratic form of the Lithuanian state. The preservation of foreign law, to the extent that it did not contradict the norms (...) of the Constitution, was established by the Constitution as temporary means within limitations to certain areas of regulation that were not regulated by the Lithuanian legislation. The newly issued national laws announced the relationship with the relevant accepted ones by providing specific references to the norms that had been changed or abolished. In the long run national law reduced the importance of the accepted laws by making them of secondary with a limited purpose to cover the gaps in national legislation. The complete removal of the accepted legislation was supposed to be accomplished by inventory, evaluation of feasibility, relevant corrections and translations into Lithuanian language. These tasks were undertaken by the Government in between the fourth and fifth decades. However, the Soviet occupation discontinued this effort. (shrink)

The most famous chapter of Montesquieu’s _ The Spirit of the Laws _ (1748), Book XI, Chapter 6, 'On the constitution of England,' was an important i nspiration to the creators of modern constitutions, to which they often referred. However, as a result of scholarly focus on the political institutions discussed in this book, Montesquieu’s economic analysis has been woefully neglected. In order to correct this scholarly imbalance, this paper will elucidate the essential significance of Montesquieu’s comparison between the constitution (...) of modern England and that of ancient Rome in Book XI of _ The Spirit of the Laws _ ; inextricable relationship between military and political institutions on the one hand, and the transfer and distribution of wealth on the other. To argue this point, this paper will focus on Montesquieu’s other writings in the same year and shortly after the publication of _ The Spirit of the Laws _ : the revised edition in 1748 of _ The Considerations on the Causes of the Greatness of t... _. (shrink)

The paper examines the realignment of the legal sources in an information society, by considering first of all the differences with the previous system of sources, dubbed as the “Westphalian model”. The current system is tripartite, rather than bipartite, for the sources of transnational law should be added to the traditional dichotomy between national and international law. In addition, the system is dualistic, rather than monistic, because the tools of legal constructivism, such as codes or statutes, have (...) to be complemented with the rules of customary law and contracts. In light of the canonical version of the law as a set of commands enforced through the threat of physical sanctions, however, two further novelties must be stressed, namely the soft law-tools of governance as a source of the system and the aim to embed normative constraints into technology, in order to enforce the law through the use of filtering systems, self-enforcing technologies, etc. This latter approach impacts on functions and requirements of the system, by transferring the normative side of the law from the traditional “ought to” of legal commands to what actually is on the basis of automatic techniques, thus affecting the very notion of source. The overall aim of the paper is to show that rearrangements of the legal sources are intertwined with redistributions of power and hence, a normative standpoint is needed, so as to determine whether scholars can obtain the solution that best justifies the integrity of the law before its hard cases, or the answer is a reasonable compromise between many conflicting interests. (shrink)

This book revisits the theory of the sources of international law from the perspective of formalism.

Considerable attention has been given to the accessibility of legal documents, such as legislation and case law, both in legal information retrieval (query formulation, search algorithms), in legal information dissemination practice (numerous examples of on-line access to formal sources of law), and in legal knowledge-based systems (by translating the contents of those documents to ready-to-use rule and case-based systems). However, within AI & law, it has hardly ever been tried to make the contents of sources of law, and (...) the relations among them, more accessible to those without a legal education. This article presents a theory about translating sources of law into information accessible to persons without a legal education. It illustrates the theory by providing two elaborated examples of such translation ventures. In the first example, formal sources of law in the domain of exchanging police information are translated into rules of thumb useful for policemen. In the second example, the goal of providing non-legal professionals with insight into legislative procedures is translated into a framework for making available sources of law through an integrated legislative calendar. Although the theory itself does not support automating the several stages described, in this article some hints are given as to what such automation would have to look like. (shrink)

Shiner has produced a valuable contribution to the field of analytical jurisprudence. He remains faithful to the investigative and exploratory task that he set for himself. Legal Institutions and the Sources of Lawcan be usefully consulted by anyone interested in the idea of a “source of law”. And it can certainly be used as an authoritative reference by those legal and political theorists who wish to pursue a fuller normative approach to law or politics.

This article builds upon the distinction between pluralism and plurality, the latter in the sense of variety or diversity. Plurality is an empirical fact, such as the biological diversity of the human species. In contrast, pluralism is a normatively underpinned social pattern according to which the diversity of interests, opinions, values, ideas, etc., of individuals and groups is recognized as a constitutive element of a political order. Pluralism can materialize only if a political order is not based upon the claim (...) of one undisputable truth. An embryonic form of pluralism through law emerged in ancient Greece with the institution of courts in which the parties to a legal dispute could argue over what the law said and hence officially present divergent meanings of justice. For the modern development the separation of law and justice was a major step towards pluralism insofar as the authority of the polity and the binding force of the law were no longer based upon the contention of one exclusive truth – auctoritas, non veritas facit legem. This Hobbesian principle banned religious, moral, philosophical and political discourses to the pre-political domain of privacy and secrecy from which pluralism could not result. Referring to the distinction between regulative and constitutive norms I submit that only the latter, not the former, can function as sources of pluralism. (shrink)

The book provides an overview of how international law is today constructed through diverse macro and microprocesses that expand its traditional subjects and sources, with the attribution of sovereign capacity and power to the international plane (moving the international toward the national). Simultaneously, national laws approximate laws of other nations (moving among nations or moving the national toward the international), and new sources of legal norms emerge, independent of states and international organisations. This expansion occurs in many subject (...) areas, with specific structures: commercial, environmental, human rights, humanitarian, financial, criminal, and labor law contribute to the formation of postnational law with different modes of functioning, different actors, and different sources of law that should be understood as a new complexity of law. (shrink)

Legitimate authority -- The claims of law -- Legal positivism and the sources of law -- Legal reasons, sources, and gaps -- The identity of legal systems -- The institutional nature of law -- Kelsen's theory of the basic norm -- Legal validity -- The functions of law -- Law and value in adjudication -- The rule of law and its virtue -- The obligation to obey the law -- Respect for law -- A right to dissent? : (...) civil disobedience -- A right to dissent? : conscientious objection --The purity of the pure theory -- The argument from justice, or how not to reply to legal positivism. (shrink)

Thomas Hobbes’s radical tendency to view natural law as a means of individual self-preservation sparked critical responses among natural law theorists in England and continental Europe. This chapter compares how two of Hobbes’s immediate successors and critics – Richard Cumberland and Samuel Pufendorf – dealt with the potential conflict between self-interest and the requirements of natural law. The chapter shows how both intended to reply to Hobbes in their own distinctive ways by attempting to show that the ultimate aim of (...) natural law, imposed by God, obligated people to promote the common good of humankind as a whole rather than mainly function as the means for individual and social utility. They did not, however, consider self-interest to be merely destructive for social cooperation and natural law. Both argued in their distinct ways that self-interest is the most effective motivation for people to consider the advantage of others and it leads them to promote the common good. This chapter also points out notable differences between Cumberland’s and Pufendorf’s treatment of the relation between the private good and the common good. (shrink)

This volume provides a critical roadmap through the major historical sources of legal semiotics as we know them today. The history of legal semiotics, now at least a century old, has never been written (a non-event itself pregnant with semiotic possibility). As a consequence, its sources are seldom clearly exposed and, as word, object and meaning change, are sometimes lost. They reach from an English translation of the 1916 inaugural lecture of the first Chair in Legal Significs at (...) the Amsterdam University, via mid 20th century studies on "property" or "contract," to equally fascinating essays on contemporary semiotic problems produced by former students of the Roberta Kevelson Semiotics Roundtable Seminar at Penn State University 2012 and 2013. Together, the materials in this book weave the fabric of semiotics and significs, two names for the unfolding of semiotics in law and legal discourse at least until the second half of the 20th century, and both of which covered a lawyer's focus on sign and meaning in law. The latter is embedded within the cultural imperatives of the civilization that gave these terms meaning and made them an effective tool for the dissection of law, its reconstitution as an instrument to be used by the lawyer to advance the interests of her clients, and for judges as a means to restructure language as a narrative of law whose power could bend behavior to its strictures. Legal semiotics has become an indispensible part of the elite lawyer's toolkit and a fundamental approach to analysis of legal texts. Two previous volumes published in 2011 and 2012 explored the conceptual, methodological and epistemological progress in the field of legal semiotics, the modern forms of semiotics study, and the mechanics of meaning making processes by lawyers. Yet the great lessons of semiotics requires a focus on the origins of the concepts and frameworks that would become contemporary legal semiotics, its origins as an object of the consciousness of meaning making-one whose roots, as lessons for the oracular conversations of law, are expanded in this volume. (shrink)

Leibniz beschreibt sein philosophisches Anliegen oft als Versuch, bestimmte Formen, die von den modernen Philosophen verbannt waren, wieder herzustellen. Dieser Aufsatz erörtert den historischen Gang dieser Verbannung und Leibniz' Bemühen um eine Rehabilitierung der Begriffe Natur, Form und Kraft, wobei er jedoch okkulte, “barbarische” und überflüssige Zutaten zur Naturphilosophie vermeidet.

In this article, I discuss the Protestant contribution to the modern concept of autonomy on the basis of an analysis of John Calvin's moral theology. I show that Calvin affirms our incapacity to know and want what is morally good, as expressed by natural law. Such incapacity is compensated for by the biblical mandates that, according to Calvin, should be incorporated into the positive legislation of Christian republics. In view of all this, I conclude that Calvin is far from the (...) Kantian idea of autonomy which defines our Modernity. (shrink)

Law dispositionalism is the doctrine according to which laws of nature are grounded on powers/dispositions. In this article, I shall examine how certain laws of nature can turn out to be contingent on this view. First of all, I shall distinguish between two versions of law dispositionalism (i.e., a weak and a strong one) and I shall also single out two further theses that may be conjoined with it (i.e., strong and weak dispositional essentialism). I shall then define four different (...) sorts of laws of nature. Afterwards, I shall examine five sources of contingency for law dispositionalism: the contingent existence of the relevant entities involved in the laws; the contingent activation, background and possession conditions of the powers at stake; the presence of contingent constants in the laws; the presence of indeterministic powers; the presence of powers that are not essential to the entities involved in the laws. (shrink)

Wharton's Treatise on the Conflict of Laws (1872) established his reputation in the field of international law. In 1884 he produced his Commentaries on Law, a work encompassing both international and constitutional law. His purpose in publishing this was, as he states simply in the Preface, "to give an exposition of what may be called public law. In the first three chapter are considered successively the nature, the source, and the history of law; and it is maintained that law, as (...) a rule of action, is the product of the conscience and need of the nation by which it is adopted.". (shrink)

Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons. This study is a comprehensive philosophical and legal analysis of the gray area in which the foundations of law and morality clash. This objective book views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or not (...) to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers. In examining the extent of the obligations owed by citizens to their government, Greenawalt concentrates on the possible existence of a single source of obligation that reaches all citizens and all laws. He also discusses techniques of amelioration of punishment for conscientious lawbreakers, asking how far legal systems should go to accomodate individuals who break the law for reason of conscience. Drawing from numerous examples of conflicts between law and morality, Greenawalt illustrates in detail the positions and predicaments of potential lawbreakers and lawmakers alike. (shrink)

The book comprises contemporary legal theory pertaining to Democratic States based on the Rule of Law from the perspective of general principles of law. It explains in detail, theoretically and based on the specific case law, the phenomenon of general principles of law - as a source of law and directly applicable legal norms. It is a work of legal theory, legal philosophy, and legal method, but it will also assist scholars and practitioners in the transitional justice field as it (...) shows how this theory of general principles of law has assisted Latvia to move away from the socialist legal tradition. (shrink)

The most comprehensive collection of Tibetan works in a Western language, this volume illuminates the complex historical, intellectual, and social development of Tibetan civilization from its earliest beginnings to the modern period. Including more than 180 representative writings, Sources of Tibetan Tradition spans Tibet’s vast geography and long history, presenting for the first time a diversity of works by religious and political leaders; scholastic philosophers and contemplative hermits; monks and nuns; poets and artists; and aristocrats and commoners. The selected (...) readings reflect the profound role of Buddhist sources in shaping Tibetan culture while illustrating other major areas of knowledge. Thematically varied, they address history and historiography; political and social theory; law; medicine; divination; rhetoric; aesthetic theory; narrative; travel and geography; folksong; and philosophical and religious learning, all in relation to the unique trajectories of Tibetan civil and scholarly discourse. The editors begin each chapter with a survey of broader social and cultural contexts and introduce each translated text with a concise explanation. Concluding with writings that extend into the early twentieth century, this volume offers an expansive encounter with Tibet’s exceptional intellectual heritage. (shrink)

I am going to begin today by bringing together one of the themes of Carol Voeller’s remarks with one of the criticisms raised by Rachel Cohon, because I see them as related, and want to address them together. Voeller argues that the moral law is constitutive of our nature as rational agents. To put it in her own words, “to be the kind of object it is, is for a thing to be under, or constituted by, the laws which are (...) its nature. For Kant, laws are constitutive principles … in something very close to an Aristotelian sense: for Kant, laws are proper to objects1 much as form is to object, for Aristotle.” Voeller believes that the moral law defines the kind of cause that we are, and we are under the moral law because we are that kind of cause. Since the defining quality of a rational agent is that a rational agent acts on its representation - I prefer to say conception - of a law, Voeller thinks the question for Kant is whether we can find a law which just is the law for causes that act on their representations of laws. As she puts it, “The problem, for Kant, is whether there is a law of a cause that acts on norms - on reflection, on its representation of a law. If there is, then the constitutive principle of that cause will be the law normative for it in reflection.” Now Voeller appears to think that I will disagree with this strategy for grounding the moral law, because she sees me as giving an anti-metaphysical or ametaphysical account of Kant’s ethics, in contrast to Kant’s own. But so far, I don’t.. (shrink)

Linking theses of Plato, Wittgenstein, and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose and, in the case of theory about human affairs—theory adequately attentive to the four irreducible orders in which human persons live and act—upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy is to be accorded to purposes which are, as best the theorist can judge, reasonable and fit to be adopted (...) by anyone, the theorist included. Section II defends the reasonableness of practical and moral judgments, against Michael Perry's ultimately nihilist claims that egoism's challenge to moral normativity has gone unanswered and that “reason for A” does not entail “reason for” anyone else. Section III takes up Steven Smith's suggestion that such subjectivism is encouraged by the talk in Natural Law and Natural Rights of “pursuing goods,” talk which is individualistic and neglectful of persons, inimical to an understanding of friendship, and impotent in the face of egoism. Here as elsewhere the key is to grasp that understanding any basic or intrinsic human good is to understand it as good for anyone like me and thus—since as I instantiate and embody a universal, viz. human being—as a good common to anyone and everyone. Section IV argues that common good gives reason for exercise and acceptance of authority, and for allegiance, even in time of breakdown. Section V argues that natural law theory is no more dependent on affirming God's existence than any other theory is, in any of the four orders of theory, but equally that is not safe for atheists. For, like any other sound theory, it suggests and is consistent with questions and answers about its grounds, in this case about the source of its normativity and of the human nature that its normative universals presuppose and affirm; and the answers are those argued for, too abstemiously, in the last chapter of NLNR and, more adequately, in the equivalent chapter of Aquinas. (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)

Antoni Kępiński, one of the most famous Polish psychiatrists, points to man as an ethical being. The philosopher is aware that particular moral norms have their different origins. According to his concept, their primary source is natural law. From it stem basic human decisions. In addition to this most important source, Kępiński also lists other sources that may also have an impact on human decisions. As one of the few professors, he points to genetic predispositions as one of the (...) possible sources of human morality. Social influences are also important to him. (shrink)

Jewish law has a history stretching from the early period to the modern State of Israel, encompassing the Talmud, Geonic and later codifications, the Spanish Golden Age, medieval and modern responsa, the Holocaust and modern reforms. Fifteen distinct periods are separately studied in this volume, each one by a leading specialist, and the emphasis throughout is on the development of the institutions and sources of the law.

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able to grasp its full (...) linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making. (shrink)

In this paper, I analyze the ‘Da ti’ chapter of the Han Feizi 韓非子. This chapter is often read as one of the so-called Daoist Chapters of text. However, a deeper study of this chapter allows us to see that, while Daoist terminology is employed, it is done so in a way that is certainly not reminiscent of either the Zhuangzi 莊子 or the Laozi 老子. Neither, though, does it have quite the flavor of other chapters in the Han Feizi (...) where scholars have often read Han Fei s advocating a system of government based on laws promulgated by the ruler, the content of which is left solely to the ruler’s discretion. Throughout this paper, I hope to demonstrate that a reading of the ‘Da ti’ chapter allows us to understand that Han Fei is not simply advocating a system of government based on laws promulgated by the ruler, the content of which is left solely to the ruler’s discretion. This chapter can help us begin to understand that Han Fei has a much more nuanced system and that he advocates law that accords with the overarching pattern of the universe. In doing this, I will show that the idea of fa 法 (standard, law) that we see utilized by Han Fei, both in these chapters do not fall neatly into Western conceptions of law, and thus previous scholars who have worked based on these conceptions have missed important aspects of Han Fei’s thought. I also attempt to demonstrate that this interpretation of law is consistent with the way that it is used in the rest of the Han Feizi. (shrink)

This article considers the interplay between intellectual property rights and classic property rights raised by Hoffman v. Monsanto (2005) and advances the idea that intellectual property law can serve as an autonomous source of liability for intellectual property owners. The article develops the conceptual advantages of demarcating physical and intellectual properties and allocating rights and responsibilities based on the respective property sphere. It introduces a theoretical Hohfeldian framework, in which the grant of a positive limited-term monopoly right entails a corresponding (...) duty, to establish intellectual property law as a source of internal limits on intellectual property rights. The article is a prolegomena to a detailed matrix of those rights and duties within intellectual property law. This matrix could support patentee duties that go beyond public disclosure of the invention and could establish patent law as an alternative legal framework to tort law to address harms caused by inventions. (shrink)

The purpose of this study seeks to analyze the problem of Unity in Diversity as a Source of Politics and Cultural Identity of the Indonesian Nation in Legal Formation. In general, the process of establishing customary, national, regional and international law in various parts of the world no one knows even uses Bhineka Tunggal Ika as the source of legal formation. However, often the formation of law in Indonesia refers to the philosophical meaning of Unity in Diversity. The formulation of (...) the research problem: 1) What are the markers of Unity in Diversity in Legal Formation?; 2) Why is Bhineka Tunggal Ika so important in the Formation of Law in Indonesia?; 3) Is there a contribution of Bhineka Tunggal Ika in the formation of customary law? This research was completed using qualitative methods. All data in this study are descriptive which have been collected directly or indirectly. Data acquisition is optimized through a literature study. All data were analyzed qualitatively to solve the research problem. The results showed that: 1) Unity in Diversity can be a marker of Indonesian national cultural identity in Legal Pluralism; 2) Bhineka Tunggal Ika in the formation of state law is considered relevant as a political source that is able to accommodate Customary Law and Religious Law into State Law; 3) Unity in Diversity as the identity of Indonesian Nation Culture, as well as political sources, has contributed in the spirit of the formation of Customary Law in the midst of the times. (shrink)