As assisted reproductive technologies become increasingly popular, debate has intensified over the ethical justification for restricting access to ART based on various medical and non-medical factors. In 2010, the Australian state of Victoria enacted world-first legislation that denies access to ART for all patients with certain criminal or child protection histories. Patients and their partners are identified via a compulsory police and child protection check prior to commencing ART and, if found to have a previous relevant conviction or child (...) protection order, are given a “presumption against treatment.” This article reviews the legislation and identifies arguments that may be used to justify restricting access to ART for various reasons. The arguments reviewed include limitations of reproductive rights, inheriting undesirable genetic traits, distributive justice, and the welfare of the future child. We show that none of these arguments justifies restricting access to ART in the context of past criminal history. We show that a “presumption against treatment” is an unjustified infringement on reproductive freedom and that it creates various inconsistencies in current social, medical, and legal policy. We argue that a state-enforced policy of restricting access to ART based on the non-medical factor of past criminal history is an example of unjust discrimination and cannot be ethically justified, with one important exception: in cases where ART treatment may be considered futile on the basis that the parents are not expected to raise the resulting child. (shrink)

It is common to think that state enforcement is a restriction on freedom that is morally permitted or justified because of the unfortunate circumstances in which we find ourselves. Human frailty and material scarcity combine to make the compromise of freedom involved in exclusive state enforcement power necessary for other freedoms or other goods. In the words of James Madison, ‘if men were angels, no government would be necessary’ (1990: 267). But there is an opposing tradition, (...) according to which the very idea of freedom in society entails the necessity of state enforcement. However morally good human beings are, or whatever material conditions they find themselves in, on this view, the ideal of freedom we ought to be concerned to realise is such that it cannot be attained without state enforcement. It follows a priori from an important ideal of freedom that a state with exclusive enforcement power is necessary for individual liberty in society. In this paper, I argue against what I take to be the strongest argument of the a priori kind, which begins from the neo-republican ideal of freedom as non-domination, and thereby in (partial) defence of the alternative, Madisonian, view. Insofar as it is true that some sort of problematic domination will inevitably be present in a stateless society, I argue, the introduction of a state can do nothing to eliminate it. For the state to improve on even an ideal stateless society, it would need to give individuals control over the interference of potential dominators of a sort that could not be achieved in the ideal stateless society. -/- . (shrink)

Over the last decade, cities, counties, and states across the United States have enacted higher minimum wages, paid sick leave and family leave, domestic worker protections, wage theft laws, “Ban the Box” removal of questions about conviction history from job applications, and fair scheduling laws. Nevertheless, vulnerable workers still do not trust government to come forward and report labor law violations. The article argues that while increasing the size of the labor inspectorate and engaging in strategic enforcement are necessary, (...) they are not sufficient. It argues that co-enforcement, in which government partners with organizations that have industry expertise and relationships with vulnerable workers, has the potential to manage the shifting and decentralized structures of twenty-first-century production, which were explicitly designed to evade twentieth-century laws and enforcement capabilities. The article aims to contribute to a broader understanding of the role of organizations in enforcement and the circumstances in which their effectiveness can be maximized. It sets forth a set of scope conditions and mechanisms and examines empirical cases of co-enforcement in Austin, Los Angeles, and San Francisco. The main findings are that co-enforcement is most enduring when government agencies and worker organizations recognize each other’s unique capacities, rather than attempt to substitute for one another ; the effort focuses on a specific industry; and the collaboration receives strong political support. Sustaining the impacts of co-enforcement is found to require greater formalization of the partnership and funding streams. (shrink)

Many anarchists believe that a stateless society could and should feature laws. It might appear that, in so believing, they are caught in a contradiction. The anarchist objects to the state because its authority does not rest on actual consent, and using force to secure compliance with law in a stateless society seems objectionable for the same reason. Some people in a stateless society will have consented to some laws or law-generating mechanisms and some to others – while some (...) will have consented to none. Someone’s obedience to a legal requirement could be justly enforceable absent the state, nonetheless, given either her actual consent to the requirement or to a mechanism responsible for generating it or the coextensiveness of the legal requirement with a moral requirement. And it could thus be just on the anarchist’s own terms to enforce a narrow range of positive legal requirements even against outlaws who had declined to consent to them. (shrink)

This article explores how the segments of the state police and security organs were transformed into a large private security industry in Russia after 1992. As market reforms were launched, the numbers of private property owners grew dramatically, but the state institutions for the protection of property and dispute settlement were either absent or defunct. This gap was consequently filled with various private institutions, private protection companies and private security services being the major ones. The article studies the (...) context of their emergence, their functions and practices as well as their relations with the state and the criminal sector. (shrink)

This article examines the impact of the prevailing state ownership in the Chinese stock market on corporate governance and the financial regulatory system, respectively, as the internal and external monitoring mechanisms to deter corporate fraud and protect investors. In line with the literature that state ownership exaggerates the agency problem, we find that the retained state ownership in privatised firms increases the incidence of regulatory enforcements against fraud. For the state-owned enterprises (SOEs), however, larger state (...) ownership is associated with a lower incidence of enforcement actions. This is attributed to the mutual political affiliation of the fraudulent SOEs and the regulatory commission. A new regulation "Solutions for Listed Firm Checks" promulgated in March 2001 has mitigated this effect by empowering the regulatory commission to increase the severity of regulatory conditions. Our evidence confirms the improvement in the regulatory environment and investor protection in the Chinese stock market brought about by the regulatory reform and development. (shrink)

The primary goal of this article is to analyze Belgium’s universal jurisdiction law concerning humanitarian law violations and its relationship to global governance norms. When discussing the notion of universal jurisdiction, there are relatively few empirical situations that scholars can draw on to illuminate the debate. In general, there is a very theoretical orientation to the universal human rights debate. Belgium’s 1993 universal jurisdiction law brings a greater degree of empirical clarity to this debate. This law allowed Belgium to hear (...) cases concerning violations of humanitarian law, including genocide and other crimes against humanity, which happened anywhere, without any connection to Belgium. In essence, this was an attempt at the protection of human rights on a universal basis and may be the way forward in the prevention of mass atrocities. (shrink)

In debating the ethics of immigration, philosophers have focused much of their attention on determining whether a political community ought to have the discretionary right to control immigration. They have not, however, given the same amount of consideration to determining whether there are any ethical limits on how a political community enforces its immigration policy. This article, therefore, offers a different approach to immigration justice. It presents a case against legitimate states having discretionary control over immigration by showing both how (...) ethical limits on enforcement circumscribe the options legitimate states have in determining their immigration policy and how all immigrants (including undocumented immigrants) are entitled to certain protections against a state’s enforcement apparatus. (shrink)

Linda Radzick's new book, _The Ethics of Social Punishment_, contains an important discussion of punishment outside the context of the state. By way of celebrating this fine and welcome book, I try to probe some analytical contours concerning punishment seen from the general perspective on which Radzick and I agree. I suggest altogether abandoning the idea that (non-state) punishment needs to be inflicted by an authority. Furthermore, I insist on an account of retributivism that resists the usual accusations (...) of barbarism and bloodthirstiness. (shrink)

Over the last few years, an increasingly sophisticated literature devoted to normative questions arising out of the enforcement of immigration law had developed. In this essay, I consider what sorts of constraints considerations of justice and legitimacy may place on the enforcement of immigration law, even if we assume that states have significant discretion in setting their own immigration policies, and that open borders are not required by justice. I consider constraints placed on state or national governments, (...) constraints on enforcement by substate governments, and constraints on the actions of individuals. I show that there are significant limits on what states may do and what they may require substate governments and individuals to do, in enforcing their immigration laws, but that these constraints are not clearly incompatible with significant state discretion in setting immigration policy. Nonetheless, consideration of justice in enforcement is necessary for any complete normative account of immigration. (shrink)

Legitimate political institutions sometimes produce clearly unjust laws. It is widely recognized, especially in the context of war, that agents of the state may not enforce political decisions that are very seriously unjust or are the decisions of illegitimate governments. But may agents of legitimate states enforce unjust, but not massively unjust, laws? In this paper, I respond to three defences of the view that it is permissible to enforce these unjust laws. Analogues of the Walzerian argument from patriotism, (...) the Vitorian epistemic argument, and the proceduralist argument found in Rawls, Estlund, and others do not show that law enforcement is usually permitted to enforce unjust laws. Finally, I develop a proceduralist argument for the thesis that law enforcement is permitted to disregard unjust laws. I conclude by considering objections concerning the problem of optimizing society for justice and the problem of law enforcement agents with deplorable moral beliefs. (shrink)

. Under‐the‐covers undercover investigations: Some reflections on the state's use of sex and deception in law enforcement. Criminal Justice Ethics: Vol. 11, No. 1, pp. 13-24.

This essay differentiates two approaches to understanding the concept of coercion, and argues for the relative merits of the one currently out of fashion. The approach currently dominant in the philosophical literature treats threats as essential to coercion, and understands coercion in terms of the way threats alter the costs and benefits of an agent’s actions; I call this the “pressure” approach. It has largely superseded the “enforcement approach,” which focuses on the powers and actions of the coercer rather (...) than the perspective of the coercee. The enforcement approach identifies coercion with certain uses of the kinds of powers that agents need to accumulate and wield in order to be able to make significant, credible threats. Though there is considerable overlap extensionally in the instances of coercion recognized by the two approaches, the enforcement approach encompasses some uses of power to coerce that do not involve threats . It also circumscribes which threats should be counted as coercive, though notably it provides a picture of coercion that is non-moralized in its essentials. While there may be specific purposes for which a pressure account is to be preferred, I argue that the enforcement approach better describes how coercion works, and elucidates factors that are often tacitly assumed by pressure accounts. It also is more useful for explaining the social and political significance of coercion, and why coercion is thought to have the implications commonly associated with it. In particular, I argue that it helps us understand why uses of coercion are in general a matter of ethical significance, why state authority depends on commanding a monopoly on the right to use coercion, and why being coerced may reasonably provide one a defense against being held responsible for actions one is coerced into taking. (shrink)

The main subject of the present research is the enforcement of the European Union law in the domestic legal order. This topic was chosen considering the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community and especially its declaration No. 17 on primacy of EU law. This article will explain the meaning of primacy of the European Union law and the resulting problems in some EU Member States, as well as possible (...) solutions to tackle the problems. The primacy of the European Union law over the national law was recognised as one of the constitutive principles of the European Union. The article includes relevant provisions of the Lisbon Treaty that deal with the rules concerning the legal requirements of the primacy of the European Union law in the EU primary law. The European Court of Justice has developed the meaning of the principle of primacy, which means that the European Union law should take precedence over national law (even over constitutional provisions) and should there be any conflicts between EU law and national law, every national court is obliged to apply the law of the European Union. The main issue of this article is analysing the principle of primacy of the European Union law over the Lithuanian law. (shrink)

William Booth's 'On the Idea of the Moral Economy' (1994) is a scathing critique of the economic historians labelled as 'moral economists', chief among them Karl Polanyi, whose The Great Transformation is the groundwork for much of the later theorizing on the subject. The most devastating of Booth's criticisms is the allegation that Polanyi's normative prescriptions have anti-democratic, Aristotelian and aristocratic undertones for being guided by a preconceived notion of 'the good'. This article presents an attempt to rescue Polanyi from (...) this charge by reinterpreting his view of the relationship between the economic and the political, while elucidating the practical meaning of a moral economy. (shrink)

Under the Lithuanian legislation, current and future spouses are allowed to sign marital agreements by which their property rights and obligations are set. However, it underlines that in some cases the court may declare the whole agreement or some of its terms unenforceable. The legislator does not specify which particular terms may be declared unenforceable. Therefore, the implementation of the spouses’ right to choose the terms they want is put under doubt. As a result, it is very important to find (...) out the circumstances and the criteria that should be evaluated before a marital agreement or some of its terms are declared unenforceable. Under the Lithuanian legislation, the validity of a marital agreement is considered only at the moment it is signed. However, it is not the case in other countries. For instance, many courts of the United States in deciding on the validity of a marital agreement take into account all the circumstances and conditions both at the time a marital agreement is signed and at the time of divorce. Some courts analyse if an agreement was executed voluntarily, without any pressure or fraud, and if both parties provided fair and reasonable disclosure of the property or financial obligations as well as what were their bargaining powers and expectations. Other courts attempt to establish the effect an agreement will have on the parties after the termination of their marriage. Currently, Lithuanian courts have no practice in declaring a marital agreement unenforceable. However, due to the particularities of marital agreements and the state’s aim to defend the public interest, the means to evaluate the validity of a marital agreement become unclear. (shrink)

States are not only claiming the right to grant or deny entry to their territories but also enforcing this right against non-citizens in ways that cause significant harm to these individuals. In this article, I argue that endorsing the presumptive right to restrict immigration does not settle the question of when or how it may permissibly inflict harm on individuals to enforce this right. I examine three distinct justifications for causing harm to individuals. First, the justification of defensive harm holds (...) that harming individuals is morally permissible when they pose an unjustified threat to others. Second, the justification of protecting property states that harming individuals is morally permissible when they pose an unjustified threat to others’ property interests. Third, I consider the state punishment justification, which maintains that harming individuals is morally permissible when punishment is an appropriate response to their previous conduct. I conclude that any immigration enforcement measure that involves lethal force or the infliction of severe bodily harm is morally impermissible, whether it is used to defend the state or its property. Moreover, criminal sanctions for immigration violations are difficult to justify. (shrink)

The events of the beginning of the millennium have made it necessary to try to find a new philosophical sense of power enforcement as a social phenomenon. Conceptualization of the phenomenon involves its all-round consideration both as activity itself and social practice as its variety. The role of power enforcement in the life of the society, its social determinants, and its correlation with culture and state should also become a part of thorough comprehension. Power enforcement as (...) a variety of social practice is on the one hand aimed at forcible acquisition of products, territories, but on the other hand it is counteraction to it. Power enforcement, due to constant shortage of resources for subsistence, has always played a very important role in the course of historical development. It can be violent or nonviolent. Violent variety of power enforcement is the one, which purposes are parasitical and the means are illegal. Power enforcement has always been a corporate part of life of the human society; therefore it is not going to disappear forever. To neglect this fact means to have an inexcusable illusion. Under conditions of globalization, increasing of violent threats of unmilitary nature and in the first place the threat of terrorism is a peculiarity of the present day power enforcement. At the same time the threat of full-scale wars doesn’t seem to weaken but to some extent it is growing. The mission of philosophers is tounderstand these threats and to seek the ways to prevent them. (shrink)

Rick Johnstone's plea for liberal federalism and a supranational mechanism for enforcing “human rights” is reminiscent of what Thomas Hobbes said about “Christian commonwealths.” Behind their appeal to universal morality and religious doctrine was the frenzied attempt to shift rule “from Christian kings and sovereign assemblies absolute in their own territories” to “one Vicar of Christ, constituted of the universal church, to be judged, condemned, or deposed, or put to death as he shall think expedient, or necessary, for the common (...) good.” Johnstone is proposing or justifying a similar shift of authority for existing sovereign states to self-appointed vicars of…. (shrink)

There are important reasons for states to recognize and enforce the judgments of other states’ courts. There are also reasons that may militate against recognition or enforcement of certain foreign judgments, making it appropriate to calibrate or “fine tune” the presumption favoring recognition and enforcement so it is not applied too broadly. Most calibration principles, such as the principle that a judgment from a court lacking jurisdiction should not be recognized, are case-specific. However, one calibration principle that is, (...) to our knowledge, unique to the law of the United States stands out: the principle of systemic calibration, according to which U.S. courts must not recognize or enforce foreign judgments “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” In this Article, we aim to shed empirical light on how U.S.-style systemic calibration operates in practice. We find that state-of-origin indicator scores related to systemic adequacy are on average higher when U.S. courts recognize or enforce foreign judgments than when they refuse to do so. Moreover, the probability of recognition and enforcement increases as these indicator scores increase. However, in only six of the 587 opinions in our dataset did a court refuse recognition or enforcement based explicitly on the systemic inadequacy ground. Thus, while the level of systemic calibration in U.S. courts is high, it is mostly achieved implicitly. Finally, even judgments from states with low systemic adequacy scores are sometimes recognized or enforced by U.S. courts. (shrink)

Although Robert Nozick has argued that libertarianism is compatible with the justice of a minimal state—even if does not arise from mutual consent—few have been persuaded. I will outline a different way of establishing that a non-consensual libertarian state can be just. I will show that a state can—with a few important qualifications—justly enforce the rights of citizens, extract payments to cover the costs of such enforcement, redistribute resources to the poor, and invest in infrastructure to (...) overcome market failures. Footnotesa For very helpful comments, I am indebted to Dani Attas, Ellen Frankel Paul, Robert Johnson, Brian Kierland, Mike Otsuka, Eric Roark, and the other contributors to this volume. (shrink)

This article analyses implementation of freedom of assembly within Lithuania and in some other States of the European Union. Attention is paid to the differences in the implementation practices for this freedom while analysing probability of restriction of freedom of assembly in the light of legal, political and social factors. The article aims to substantiate that the quality of decision while adopting spreading ideas and expressed views during peaceful meetings, or adopting them later, or dismissing in general, is determined by (...) the democratic society being formed in the state during a particular period. On the other hand, although physical restriction of diffusion of ideas while implementing freedom of assembly is legitimate, it should not become the main control tool, since the development of the state in this direction is absolutely opposite to the expansion of democratic ideas in the society. Legal education should become the priority area of the policy conducted by the state. Particularly since this priority provides the security for the spread of best practices in democratic states, thus laying the grounds for effective prevention of expression of illegal behaviour. Such illegal behaviour may occur in the form of incitement of hatred and aggression in respect of persons who have different faith, race, nation or sexual orientation. The article substantiates that the real challenge faced by the modern democracy is security for practical implementation rather than the formal recognition and regulation of rights and freedoms. It has been found in practice that the implementation of freedom of assembly can be faulty restricted by the procedural justice. After evaluating experience of the States of the European Union and the way in which their national legal system is structured, the recommendations are made enabling a timely dispute settlement concerning the right of assembly, i.e., in order to prevent decision making process from becoming an obstacle for the implementation of freedom of assembly. It is pointed out that settlement of the dispute concerning the permission to hold a peaceful assembly after the date of the assembly is pointless and denies social importance of right of the assembly. (shrink)

Each state’s Medicaid Fraud Control Unit prosecutes billing fraud cases against individual healthcare providers who fraudulently bill Medicaid for services provided. Once an individual is convicted of billing fraud, the Office of Inspector General for the Department of Health and Human Services may exclude the individual from billing any federal government healthcare program, including Medicaid. Excluded individuals are added to a public list of exclusions, which restricts their ability to practice professionally. Prompted by criminology research into the impact of (...) policing resources, we test whether these government enforcement initiatives against fraud serve as a deterrent to would-be fraudulent billers. We document that key enforcement proxies, the staffing level and budget of an MFCU, are positively associated with the yearly number of exclusions added at the state level. Our results are consistent with the exclusion list not being a deterrent but provide support for MFCUs’ fraud detection efforts. This paper provides industry-specific fraud insights for auditors and other individuals involved in public policy, specifically Medicaid, and introduces a novel dataset to the accounting fraud research literature. (shrink)

This paper examines ethical violations committed by Certified Public Accountants in Puerto Rico in the 2002–2010 period and the related disciplinary actions taken by the local regulatory bodies. The institutional settings for the accounting profession in PR are different from those of the United States. Ethical complaints are investigated by the PR Society of CPAs and evaluated based on the Code of Professional Conduct of the American Institute of Certified Public Accountants, although most CPAs in PR are not affiliated with (...) the AICPA. Our study is based on data provided by the PR Society of CPAs that is not publicly available. We examine the association between the occurrence of the ethical violations and certain variables such as gender, type of practice performed by the CPA, and whether the CPA participates in a peer review program. Results of a multiple correspondence analysis suggest that not being a member of the AICPA, practicing as a sole practitioner, and not participating in a peer review program seem to be more associated with the occurrences of ethical violations by CPAs. We compare our findings with prior research on ethical infractions committed by CPAs in the United States and find some differences attributable to the institutional settings in PR. Overall, our results suggest the importance of codes of conduct in the accounting profession and compliance with such ethical guidelines by practicing accountants. (shrink)

One of the most conspicuous features of law, as it works in the world of our experience, is that legal norms are characteristically backed by coercive enforcement mechanisms. Nevertheless, many legal philosophers specializing in conceptual jurisprudence believe that coercion is not a conceptually necessary feature of law. In this essay, I argue that the authorization of coercive enforcement mechanisms is a conceptually necessary feature of law. I ground the argument in the Hartian claim that the sense of ‘law’ (...) requiring explication picks out municipal legal systems in the modern state; widely accepted Razian claims about how our legal practices construct the content of our legal concepts; claims showing the centrality of coercive enforcement mechanisms in every paradigm instance of law we have ever known; and logical difficulties arising in connection with explaining legal normativity in a system without such mechanisms. (shrink)

This article provides a study of the legal regulations of the European enforcement order and the uniform enforcement of judgments without the exequatur procedure, which have been in place between the member states of the European Union for five years already. In the Lithuanian civil procedure law it details the implementation of Regulation (EC) No. 805/2004 of the European Parliament and of the Council of 21 April 2004 for creating a European Enforcement Order for uncontested claims in (...) the national law of Lithuania. The aforementioned legal act of the European Union has been implemented in Lithuania with the adoption of the Republic of Lithuania Law on the Implementation of the European Union and International Legal Acts regulating civil procedure of 13 November 2008. (shrink)

In recent years, there has been renewed interest in the question of when, if ever, the state may use coercion to enforce majority views about what types of conduct are right or wrong, noble or base, decent or indecent. Such interest has been generated by both political and philosophibal pressures. In recent political history, controversies over such issues as abortion, homosexuality, pornography, textbooks in schools, new reproductive technologies such as surrogate parenting and in vitro fertilization, and faith healing have (...) focused attention on the role of the state in supporting or opposing various moral views. In political philosophy, often a theoretical reflection of the political debates of the time, we have seen renewed attempts to provide a satisfactory foundation for traditional liberal views of the legitimate scope of state power. In particular, there has been an emphasis on the neutrality of the liberal state and the right of individuals to be treated as equals by the state. (shrink)

In this paper I outline a theory of legitimacy that grounds the state’s right to rule on a natural duty not to harm others. I argue that by refusing to enter the state, anarchists expose those living next to them to the dangers of the state of nature, thereby posing an unjust threat. Since we have a duty not to pose unjust threats to others, anarchists have a duty to leave the state of nature and enter (...) the state. This duty correlates to a claim-right possessed by those living next to them, who also have a right to act in self-defence to enforce this obligation. This argument, if successful, would be particularly attractive, as it provides an account of state legitimacy without importing any normative premises that libertarians would reject. (shrink)

In October 2003 the Supreme Court of the United States allowed Arkansas officials to force Charles Laverne Singleton, a schizophrenic prisoner convicted of murder, to take drugs that would render him sane enough to be executed. On January 6 2004 he was killed by lethal injection, raising many ethical questions. By reference to the Singleton case, this article will analyse in both moral and legal terms the controversial justifications of the enforced medical treatment of death-row inmates. Starting with a description (...) of the Singleton case, I will highlight the prima facie reasons for which this case is problematic and merits attention. Next, I will consider the justification of punishment in Western society and, in that context, the evolution of the notion of insanity in the assessment of criminal responsibility during the past two centuries, both in the US and the UK. In doing so, I will take into account the moral justification used to enforce treatment, looking at the conflict between the prisoner’s right to treatment and his right to refuse medication where not justified by outcomes that can be reasonably expected to be positive for the individual. Finally, in contrast with some retributivist arguments in favour of enforced treatment to enable execution, I will propose a possible alternative, necessary if we are to consistently uphold the notion of autonomy. (shrink)

Structures of employment in low-wage industries, a diminished wage and hour inspectorate, and an unworkable immigration regime have combined to create an environment where violations of basic workplace laws are everyday occurrences. This article identifies four “logics” of detection and enforcement, arguing that there is a mismatch between the enforcement strategies of most federal and state labor inspectorates and the industries in which noncompliance continues to be a problem. In response, the authors propose augmenting labor inspectorates by (...) giving public interest groups like unions and worker centers a formal, ongoing role in enforcement in low-wage sectors. In three case studies, the authors present evidence of an emergent system—one that harkens back to a logic proposed by the drafters of the Fair Labor Standards Act but never implemented—of empowering those closest to the action to work in partnership with government. (shrink)

There is no denying that international human rights norms are enforced selectively. Some oppressive governments become the targets of military intervention, while the political sovereignty of other, equally oppressive regimes is left intact. My aim in this paper is to determine whether a military operation to defend human rights can possibly be made morally illegitimate by the fact that the state prosecuting it has failed, is failing or will fail to defend human rights under relevantly similar circumstances elsewhere.

: Hisbah is the most important institution in a society and nation.Enforcement parties are those who are directly involved in executing this. Incarrying out their duties, they bear heavy responsibility because it involvesthe rights of Allah and the rights of human. Hisbah implies theimplementation of al-amr bi-l-maʿrūf when it is clear thatit is abandoned, and wa-n-nahy ʿani-l-munkar when itis clear that it is done. This study is based on the concept of Hisbah in SharīʿahLaw which is of a general (...) and widespread aspect of enjoining good andpreventing evil. Literature reviews and library searches have been conductedintensively to clarify the principles of hisbah. Additionally, descriptiveand content analysis of textual content was done on the provisions of lawsand regulations as well as guidelines on the prevention of sharīʿah crimeparameters in Malaysia. In general, our country has implemented the conceptof hisbah in its own form without the branding of an institution specifically as“the institution of hisbah”. The roles and functions of hisbah are given to theSharīʿah Enforcement Division, Islamic Religious Department in the states. (shrink)

The law market model posits that the most appropriate resolution of choice-of-law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to optimal competition among jurisdictions to supply the most efficient law. This (...) model has influenced the rise of party autonomy, most notably in the widespread enforcement of many contractual choice-of-law and forum-selection clauses. One area that the model has had little influence on is the enforcement of foreign judgments. In the United States, judgments from other countries face higher hurdles in obtaining recognition and enforcement, as compared to judgments issued by courts of sister states. There has been little discussion in the law market literature of the possibility of ex ante contractually waiving these hurdles, or of choosing the law of states that make it easier to enforce foreign judgments. This reticence appears to be based in part on the assumption that state law on such recognition is mandatory and non-waivable, and that such law reflects the sovereign interests of states. Revisiting this regime through the lens of the law market model suggests that courts and public policymakers should permit parties, within broad limits, to contractually waive or select the law on judgment recognition, as they are permitted to do with other areas of law. (shrink)

This article examines the gender politics of Euro 2012, an international men’s football tournament that took place in Poland and Ukraine, through two cases of female protest. Informed by Cynthia Enloe’s question ‘Where are the women?’, the case studies focus on Polish football fan and model Natalia Siwiec and Ukrainian women’s organisation FEMEN in order to render visible the heteromasculine nation–sport nexus underpinning Euro 2012. The analysis demonstrates how Siwiec emerges as the ‘caretaker’ of the Polish nation-state during the (...) event by exposing how female bodies can be used to recuperate a polluted and emasculated national image. In contrast, FEMEN’s stunts are highly critical of the heteromasculine nation–sport nexus and reveal their position as ‘rebels’; however, a closer analysis of FEMEN’s actions beyond Euro 2012 shows how they can simultaneously operate as ‘enforcers’ of the nation-state. The role of ‘enforcers’ is especially pertinent in relation to the western nation-state’s contemporary ‘othering’ of Islam in the post-9/11 context. Both case studies demonstrate international politics in the making and call for closer scrutiny of the gender politics constitutive of seemingly apolitical and ‘inclusive’ sporting events. (shrink)

State agents’ misconduct (SAM), such as the violations carried out by the police or prosecution, may harm an offender’s rights during the criminal process in various ways. What, if anything, can retributivism, as an offense-focused theory that looks to the past, offer in response to SAM? The goal of this essay is to advance a retribution-based framework for responding to SAM within the criminal process. Two retribution-based arguments are provided. First, a retribution-based response to SAM aims to protect the (...) legitimacy of the criminal process. Such an argument is based on how the crime and punishment connect to the moral standing of the state and that connection’s meaning for the legitimacy of the trial (legitimacy-based argument). Second, a retribution-based response to SAM aims to consider the offender’s side of the penal dialogue and promote a more accurate calibration of the penal suffering (compensation-based argument). Based on these arguments, the essay theorizes the legal response for SAM in US and non-US traditions through the retributive lens. The essay concludes with a call for expanding the multiple roles for retributive logic to include the actions of law-enforcement actors and addresses what that expansion means for the justice of the criminal process. (shrink)

Situational aspects of action are discussed. The presented approach emphasizes the role of situational contexts in which actions are performed. These contexts influence the course of an action; they are determined not only by the current state of the system but also shaped by other factors as time, the previously undertaken actions and their succession, the agents of actions and so on. The distinction between states and situations is explored from the perspective of action systems. The notion of a (...) situational action system is introduced and its theory is expounded. Numerous examples illustrate the reach of the theory. (shrink)

The globalizing or totalizing imposition of a particular understanding of justice, fairness, or equality, as seen, for example, in Canada's single health care system, which forbids the sale of private insurance and the purchase of better basic health care, cannot be justified in general secular terms because of the following limitations: the plurality of understandings of justice, fairness, and equality, and the inability to establish one understanding as canonical. The secular state lacks plausible moral authority for the coercive imposition (...) of one such account on peaceable, consenting adults. This state of affairs, with regard to the weakness of human moral epistemological powers, means that the secular state fails to have the moral authority to forbid coercively the sale and purchase of organs. It further lacks the secular, moral authority to impose equal access to organ transplantations. Assertions of such authority amount to reckless claims of fairness, and for this reason, health care policy must be set within the constraints of limited, constitutional regimes. (shrink)

This essay does not directly address organ transplantation or even issues of justice, fairness, or equality in access to organs for transplantation. Instead, it engages a higher-order question: the justice of coercively and globally imposing any particular contentfull view of justice, fairness, and/or equality under circumstances that would violate peaceable, consensual choice. It is argued that state coercion, as in the prohibition of the sale of organs or the coercive imposition of equal access to transplantations or health care, is (...) unjust when there are insufficient grounds to establish with certainty the canonical normative character of the particular account of justice, fairness, or equality, as well as the warrant for the use of coercive force to impose such an account. (shrink)

The aim of this paper is to explore the connection between stateness (and its constituent attributes) and democracy by conceiving the effective state as an independent variable and a prerequisite for the success of a well-functioning democracy. Such a conditioning relationship between the state and the regime has often been subject to being neglected among many scholars of democratization, who have not considered the state as an important explanatory or at least obstructive variable for the success of (...) democratization. This paper argues that the existence of an effective and legitimate state is essential to build a well-functioning democracy. Herein, the variable of stateness is analysed in terms of four attributes: that of monopoly on the legitimate use of force; citizenship agreement; infrastructure capacity of the state; and law enforcement capacity. (shrink)

The movement against enforced disappearances has been exceptionally strong in Pakistan. It has highlighted the extralegal activities of state actors and has prompted the judiciary to question powerful agencies regarding their conduct. With the help of historical analysis, this article argues that the movement has grown out of the reactions generated by War on Terror in Pakistan. The state’s stance to override human rights for combating terrorism is challenged by a movement which is largely anti-War on Terror and (...) which is strengthened by historical and ideological factors as well as by respect for human rights. The movement against enforced disappearances had thus paved the ground for important debates on human rights in Pakistan. (shrink)

State aids law has become a major subject in its own right. Article 107 of the Treaty on the Functioning of the European Union (TFEU), which lays down the substantive rules on state aid, and Article 108 TFEU, which provides for the procedural rules, form part of the treaty chapter on competition. However, there are now several important pieces of legislation. The first is Council Regulation 994/98/EC, which applies Articles 107 and 108 TFEU. The gist of the regulation (...) is that the Commission is authorized to adopt block exemptions for certain categories of aid. On this basis, the Commission has adopted a number of regulations, which will be discussed in this chapter. The enforcement of the state aid rules by the Commission has been essential in containing the crisis. The Commission efforts have been supplemented by the policies of the European Central Bank, which provided enhanced credit support. (shrink)

Many just war theorists (call them traditionalists) claim that just as people have a right to personal self-defense, so nations have a right to national-defense against an aggressive military invasion. David Rodin claims that the traditionalist is unable to justify most defensive wars against aggression. For most aggressive states only commit conditional aggression in that they threaten to kill or maim the citizens of the nation they are invading only if those citizens resist the occupation. Most wars, then, claimed to (...) be justified by the traditionalist fail to meet the proportionality criterion. Thus, a just war, for Rodin, is best conceived of as a punitive war of law enforcement, not as a war of national-defense. I argue that Rodin does not have a case against the traditionalist. If national-defense is a disproportionate response to conditional aggression, then punitive war is a disproportionate response as well. Furthermore, the belief that punitive war is a proportionate response to conditional aggression underscores the traditionalist’s view that self-determination, cultural identity and the like are of sufficient value to defend by means of lethal force. I end the paper by very briefly sketching an account, different from that of Rodin’s, of how individual nations can be justified in waging wars of law enforcement. (shrink)

After the failed coup attempt on July 15, 2016, Turkey rapidly adjusted its national security strategies to align with the principles of a security state, resulting in a notable increase in human rights violations during the declared State of Emergency. Enforced disappearances, previously used by the State against Kurdish dissidents in the 1990s, resurfaced as a brutal method in the name of “State survival” following the failed coup attempt. This research examined the systematic and organized nature (...) of these enforced disappearances, their prevalence, specific targets, and the human rights abuses resulting from this practice. Twenty cases of enforced disappearances that occurred after July 15, 2016, were analyzed to achieve this. Three main themes emerged from the analysis: (1) enforced disappearance methods, (2) ineffective investigation, (3) torture. The examination revealed that enforced disappearances followed a systematic and widespread pattern. The narratives highlighted commonalities in the methods of disappearances, a preference for individuals affiliated with the Gülen Movement, and the subjecting of victims to severe violations, including torture. Fundamental human rights should have remained non-derogable even during the State of Emergency, as international human rights treaties to which the Turkish State is a signatory protect them. (shrink)

Kant infamously opposes not only revolution but also any resistance or disobedience by citizens that aims to compel states to reform themselves. This paper argues that, in fact, the Kantian account of the legitimate state has the resources for a distinctive justification of principled disobedience, including even violent or destructive resistance, that applies to citizens of contemporary Western democracies. When a state fails to enforce the law equally, this lack of equal enforcement can deprive some citizens of (...) the equal assurance of the security of their rights that, on the Kantian account, forms part of the very basis of the state’s claim of legitimate authority. This failure of equal enforcement of the law will thus be a defect of legitimacy and, as a result, those citizens may engage not only in civil disobedience but also in uncivil disobedience, even violent or destructive resistance, in order to compel the state to reform itself. In this context, such disobedience or resistance will count as furthering rather than undermining the project of governance by legitimate law. (shrink)