The article focuses on methods of teaching commercial lawyers, whose native language is not English, some linguistic aspects of drafting a contract in English. The author, whose principal occupation is teaching legal English, has created a Course on Language Aspects of English Contract for in-service lawyers. The course is aimed at teaching learners to understand and interpret English contracts written in traditional legal English and help them develop some drafting and redrafting techniques taking into account the (...) modern tendency growing in English speaking common law countries towards simplifying traditional legal English. A number of contracts written in different styles have been analysed, basic contract categories each characterised by certain operative words and phrases, have been established and terminology glossary have been compiled. The purpose of this paper is to present the course’s syllabi, outline and teaching methods. (shrink)

This book is the first translation into English of the Reflections which Kant wrote whilst formulating his ideas in political philosophy: the preparatory drafts for Theory and Practice, Toward Perpetual Peace, the Doctrine of Right, and Conflict of the Faculties; and the only surviving student transcription of his course on Natural Right. Through these texts one can trace the development of his political thought, from his first exposure to Rousseau in the mid 1760s through to his last musings in the (...) late 1790s after his final system of Right was published. The material covers such topics as the central role of freedom, the social contract, the nature of sovereignty, the means for achieving international peace, property rights in relation to the very possibility of human agency, the general prohibition of rebellion, and Kant's philosophical defense of the French Revolution. (shrink)

This book examines the most controversial issues concerning the use of pre-drafted clauses in fine print, which are usually included in consumer contracts and presented to consumers on a take-it-or-leave-it basis. By applying a multi-disciplinary approach that combines consumer's psychology and seller's drafting power in the logic of efficiency and good faith, the book provides a fresh and unconventional analysis of the existing literature, both theoretical and empirical. Moving from the unconscionability doctrine, it criticizes (and in some cases refutes) (...) its main conclusions based on criteria which are usually invoked to sustain the need for public intervention to protect consumers, and specifically related to Law (contract complexity), Psychology (consumer lack of sophistication criterion) and Economics (market structure criterion). It also analyzes the effects of different regulations, such as banning vexatious clauses or mandating disclosure clauses, showing that none of them protect consumers, but in fact prove to be harmful when consumers are more vulnerable, that is whenever sellers can exploit some degree of market power. In closing, the book combines these disparate aspects, arguing that the solution (if any) to the problem of consumer exploitation and market inefficiency associated with the use of contracts of adhesion in these contexts cannot be found in removing or prohibiting hidden clauses, but instead has to take into account the effects of these clauses on the contract as a whole. (shrink)

The paper outlines ongoing research on logic-based tools for the analysis and representation of legal contracts, of the kind frequently encountered in large-scale engineering projects and complex, long-term trading agreements. We consider both contract formation and contract performance, in each case identifying the representational issues and the prospects for providing automated support tools.

Artificial Intelligence (AI) applied to the legal domain is gaining ground. AI is argued to be particularly helpful with labour-intensive activities and repetitive tasks. Amongst the various AI solutions, ChatGPT has gathered momentum and its acclaimed advantages are, amongst others, document generation and contract review. This paper wishes to assess the effectiveness of two chatbots in contract drafting. To this aim, ChatGPT (by OpenAI) and Gemini (by Google) are prompted to write two supply contracts each, the first (...) one written in English according to the laws of England and Wales, and the other one still written in English, but according to the laws of the Republic of Italy. The paper finds that each contract pair generated by the AI solutions is identical, thus disregarding legal-system specificities and language conventions. Therefore, the drafts present a number of fallacies, either because they are incomplete, or because they include clauses that are redundant or inapplicable in a given legal system. The paper claims that human intervention and supervision are necessary to tackle the shortcomings generated by AI, at least as far as contract generation is concerned and with regard to the two chatbots addressed. (shrink)

In this paper, the author intends to present an approach against lengthy contracts, judgements, and pleadings. He describes the advantages of brevity, conciseness, and plain English, focusing on research in Israel and abroad. An extreme example of how a whole page may be condensed into one sentence is provided by the author, as well as the opinion of a Supreme Court Chief Justice regarding methods to be used in writing good judgments, and a lawyer’s proposal to summarize pleadings. In the (...) second part of this paper, the author briefly illustrates the differences between three disciplines: Law, Business Administration, and Social Sciences. He proposes that the Law should examine and adopt several elements from other disciplines that can have a positive impact on legal language. (shrink)

Introduction -- "Every Legitimate Government is Republican": Rousseau's Debt to and Departure from Montesquieu on Republicanism -- What if There is no Legislator? Rousseau's History of the Government of Geneva -- Rousseau's Republican Citizenship: The Moral Psychology of The Social Contract -- Rousseau's negative liberty: Themes of domination and skepticism in The Social Contract -- Rousseau's Ancient Ends of Legislation: Liberty, Equality (& Fraternity) -- Property and Possession in Rousseau's Social Contract -- Political Equality Among Unequals -- (...) On the Primacy of Peoplehood: Nations and Nationalism in Rousseau's Social Contract -- Rousseau on Voting and Electoral Laws -- Rousseau and the puzzle of the Roman Republic -- Rousseau's Case against Democracy -- Rousseau's Dilemma or "Of Civil Religion" -- Entreating the Political: Politics and Theology in Rousseau's Social Contract -- Civil Religion and Political Unity: Social Contract 4.8. (shrink)

The research on technologies and methodologies for (accurate, real-time, spontaneous, three-dimensional…) facial expression recognition is ongoing and has been fostered in the past decades by advances in classification algorithms like deep learning, which makes them part of the Artificial Intelligence literature. Still, despite its upcoming application to contexts such as human–computer interaction, product and service design, and marketing, only a few literature studies have investigated the willingness of end users to share their facial data with the purpose of detecting emotions. (...) This study investigates the level of awareness and interest of 373 potential consumers towards this technology in the car insurance sector, particularly in the contract drafting phase, with a focus on differentiating the respondents between generation Y and Z. Results show that younger people, individuals with higher levels of education, and social network users feel more confident about this innovative technology and are more likely to share their expressive facial data. (shrink)

Kohl and Nimmerfall, two legal scholars from the Faculty of Law at the University of Vienna, have put forth an edited volume dealing with ‘law and language in practice’. In this article, I present a critical evaluation of the work, taking into consideration its structure and organisation, the range and depth of the work, and the construction of and perspectivation on legal language in use and the legal language user. I do so from the interdisciplinary view of legal linguistics and (...) social semiotics, two areas of critical intellectual inquiry that are doubtlessly underrepresented in this volume. While legal linguists in Austria have anticipated the work as a hopeful bridge-builder across the domains of law and language, Kohl and Nimmerfall display a lack of awareness towards ongoing controversies in legal linguistics on the national and international level that seriously jeopardise the aim of the work. Currently the volume is being used in a course held by the authors entitled “Legal Literacy: Contract drafting, legislation and other areas of law”. Despite the work’s breadth of legal contexts touched upon and its undisputed worth for the community of practice, the work gives a sometimes disconcerting impression of authority in the field. While the authors’ openness to embracing language issues in legal contexts ought to be welcomed, the nearly complete lack of references made to the ever-growing body of research in legal linguistics, not only in Austria but around the globe, is surprising and concerning. (shrink)

Together with Plato's Republic, Jean-Jacques Rousseau's Social Contact is regarded as one of the most original examples of Utopian political engineering in the history of ideas. Similar to the Republic, Rousseau's Social Contract is better known today for its author's idiosyncratic view of political justice than its lessons on law-making or governance in any concrete sense. Challenging this common view, Rousseau, Law and the Sovereignty of the People examines the Genevan's contribution as a constitutionalist and builder of institutions, relating (...) his major ideas to issues and debates in twenty-first century political science. Ethan Putterman explores how Rousseau's just state would actually operate, investigating how laws would be drafted, ratified and executed, arguing that the theory of the Social Contract is more pragmatic and populist than many scholars assume today"--Provided by publisher. (shrink)

Transformations in the biological, medical and legal processes of infertility, substantial modifications in family structure and the advancement of methods and techniques of reproductive technology will affect the next step in both legal and medical terms to address the regulation of bioethics and law in Kosovo. There is a need to establish perspectives in both ethical and professional terms, since the Republic of Kosovo is in the process of drafting a Civil Code. Many of these issues have been raised (...) and addressed during the review and evaluation of family law in the context of harmonisation and inclusion of this law in the Civil Code of the Republic of Kosovo. During the several meetings of official members with different interest groups regarding family law, the need has been raised to regulate family law to be included in the Civil Code for motherhood and fatherhood in the case of reproduction with biomedical assistance, as well as for the birth contract as a donation for another person (so-called surrogate motherhood). These bioethical and legal issues indicate the urgent need for legal harmonisation of a multidimensional platform specifically based on the principles of public health and universal human rights Conclusion. These bio-ethical and legal interferences indicate the urgent need for legal harmonization of a multidimensional platform specifically designed based on the principles of public health and universal human rights. (shrink)

As is so often the case in a common law system, the legal protection conferred by one strand of law is undermined by other legal provisions. There is no blanket legal duty which compels health care professionals to undergo HIV/AIDS tests; on the other hand, appropriately drafted contracts of employment, duties imposed by courts on employees and the risk of litigation by patients with pressurise individual workers to submit to testing. Whereas in Italy the law clearly condemned any compulsory testing (...) of health care workeers, but must now be interpreted to support it, in England and Wales each individual worker's case must be examined in order to determine whether testing must be submitted to. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A Case for Hume's Nonutilitarianism ARYEH BOTWINICK IN MANY HISTORIES OF WESTERN THOUGHTI--as well as in those devoted more specifically to the history of Western political thought2--the designation of Hume as a utilitarian in his ethical and political theory is taken for granted. The word "utility" occurs frequently in both the Treatise and the Enquiry concerning the Principles of Morals, and this has led most commentators to posit a (...) natural continuity between Hume's invocation of the term and later philosophical elaboration of it. However, more is involved here than simply a repetition of a key word or phrase. The doctrine of sympathy that plays a crucial role in nineteenth-century utilitarian thought 3 also appears to be central to Hume's ethical and political thought. Moreover, Hume's views on such a fundamental question as political obligation would appear to have been adopted directly by the utilitarians. Bentham, for example, when dealing with the question of the ground of political obligation, cites Hume directly in order to reaffirm his position," which seems to suggest that degree of shared assumptions and insight among thinkers that goes to constitute a particular tradition. Yet, it is my contention s that the historical categorization described in the previous paragraph 6is too facile in that it overlooks important discontinuities separating Hume from utilitarian thought. Although many interpreters have claimed that Hume was not a utilitarian simply because he was a noncognitivist, the theories of morals and politics often attributed to him are extensionally equivalent with I am grateful to Professor Thomas Scanlon of the Department of Philosophy at Princeton for his comments on earlier drafts of this paper. ' See, for instance, J. Bronowski and Bruce Mazlish, The Western Intellectual Tradition (London: Hutchinson & Co., 1960), p. 475. 2 See, for example, George H. Sabine, A History of Political Theory, 3rd ed. (New York: Holt, Rinehart and Winston, 1961), p. 602, where, however, Hume's utilitarianism is regarded as having more in common with John Stuart Mill's than with Bentham's. 3 John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, Belknap Press, 1971), pp. 183-194. 4 Jeremy Bentham, A Fragment of Government, ed. Wilfrid Harrison (Oxford: Basil Blackwell, 1967), pp. 49-56. 5Rawls, to some extent, supports an interpretation of Hume as a nonutilitarian. See, for instance, how he construes Hume's rejection of an original contract (Theory of Justice, pp. 32-33). Yet on the crucial question of a doctrine of sympathy he posits a continuity between Hume and utilitarian thought, which I find unacceptable. 6 John Plamenatz, in his history of utilitarian thought, specifically supports this categorization (The English Utilitarians [Oxford: Basil Blackwell], pp. 22-45). See below, final pages, for a further discussion of Plamenatz's scheme of categorization. [4231 424 HISTORY OF PHILOSOPHY utilitarianism. 7 It is precisely this claim that I wish to dispute. With regard to the doctrines of utility and sympathy, I shall try to pinpoint the import they carried for Bentham and his followers and compare this with the meanings these doctrines have in the context of Hume's thought. I shall also attempt to relate his thought to the important English philosophers in the social contract tradition--Hobbes and Locke-exploring the possibility that Hume's deepest affinities might lie with his contractarian predecessors, rather than with his utilitarian successors. As a preliminary question we might consider how Hume defines the concept of utility. It seems that for him the term remains a fairly vacuous one to be identified with an unspecified tendency of an action "to the good of mankind. ''8 He does not appear to connect the notion of utility with that of pleasure the way the utilitarians do. 9 Hume's invocation of the concept of utility outside the context of its association with pleasure would not necessarily prevent our considering him a utilitarian if in the structure of his theory of moral judgment (where he supplies some content to the notion of "the good of mankind") the notion of "pleasure" serves as the common denominator in terms of which a balancing process can be carried out. However, an examination of the arguments where Hume makes use... (shrink)

Normal 0 21 false false false MicrosoftInternetExplorer4 On February 12, 1440 Nicholas of Cusa (1401-1464) concludes in his birthplace of Kues drafting the first major systematic formulation of his thinking: De docta ignorantia . The main category of his metaphysics in this context, i.e. the maximum , is analyzed and interpreted by him on three considerations: the maximum in an absolute sense, as contracted and finally as absolute and contracted, at the same time. In the context of the First (...) Book, which presents the singular methodology of the docta ignorantia , considers the maximum in itself in light of the paradoxical concept of coincidentia oppositorum in the absolute. In the final chapters of this first book tackles the critical of the theological discourse and thus, the problem of the ineffable name of maximum et minimum absolutum . Hence the purpose of this work is the further on cusan’s evaluation of language problem as it shows through treatment of the theological discourses and divine names that emerge from them, in light of the way of docta ignorantia. (shrink)

In St. Francis Regional Medical Center v. Blue Cross & Blue Shield of Kansas ), the United States Court of Appeals for the Tenth Circuit upheld Blue Cross/Blue Shield of Kansas's anti-assignment requirement, on the grounds that the Employee Retirement Income Security Act preempted a hospital's claim against Blue Cross. The court also held that public policy supported anti-assignment requirements in health plans not covered under ERISA.When drafting ERISA, Congress did not explicitly address assignability of health care benefits. According (...) to the court of appeals, congressional silence constituted an intent to allow the parties to negotiate freely the assignment of health care benefits. Examining non-ERISA health plans, the court adopted a balancing test to determine the validity of anti-assignment clauses; it found that anti-assignment requirements promote freedom of contract and may include medical costs. (shrink)

The very idea of the draft European Union (EU) Constitutional Treaty was reexamined after the failed French and Dutch referendums and the Treaty of Lisbon (also known as the Reform Treaty) was drafted and entered into force on 1 December 2009 after it’s ratification by all 27 member states. The traditional notion of a Constitution as a national legal document establishing the social contract and a moral minimum for a particular socially unified group still prevails in legal and political (...) thinking. Indeed, the European Union has some constitutional elements, but absence of the so called ‘European demos’ prevents us from recognizing the founding treaties as a real ‘European constitution’ in the proper sense of the word. The author agrees with the decision to exclude the term ‘Constitution’ from the title and contents of the new Reform Treaty. The author also suggests that softer terms, like ‘European constitutional order’ and ‘European Constitutionalism’ might better reflect the scope of contemporary European integration than the term of ‘a Constitution for Europe’. A rethinking of the ‘constitutional core’ of the Lisbon Treaty was inspired following the so-called Lisbon judgments of Czech, Latvian and German constitutional courts. (shrink)

A victim of a crime may claim that the criminal must make restitution of the benefit gained at his expense. The enrichment may arise directly from the criminal act. For example, a criminal demands money with menaces or obtains Property by fraud. No legal system will allow him to retain his enrichment gained at his victim's expense. More difficult problems arise if the criminal's enrichment is an indirect enrichment, for example, if he or members of his family used information relating (...) to his criminal activities and published his story. The victim's common law claim may be defeated by such submissions as: the benefit was not gained at the plaintiff's expense or the criminal did not act wrongfully in using the information so acquired. There is also the forfeiture rule which insures, in England, that neither the legal nor beneficial title to property vests in the criminal; in contrast, in the United States, the criminal will be deemed to hold the property on constructive trust. These issues are discussed in Part I and Part II of the article respectively. Part III of the article discusses briefly the English legislation which seeks to deprive criminals of the profits of their criminal activities. An important statute, the Criminal Justice Act 1988, is not well drafted. The existence of such statutes should not exclude the possibility of a common law restitutionary claim where no confiscation order has been, or can be, made. This point is examined further in Part IV of the article, which discusses the implications of the important decision of the English Court of Appeal in Attorney-General v. Blake in 1998, where the defendants conduct amounted, not only to a breach of contract, but to a serious criminal offense. Part V of the article asks whether there should be further legislative intervention and suggests that the American statutes provide only limited guidance for the English draftsman. The nature and scope of any future English legislation must now take into account the United Kingdom Human Rights Act 1998. Its possible impact is discussed in the final Part, VI, of the article. (shrink)

Although the Refugee Convention 1951 generally provided that contracting states should recognise those who came within its definition as refugees, it did not prescribe how contracting states should determine this in order to enable them to balance this obligation with their national interests. However, evidence from the background and drafting of the Refugee Convention 1951 suggests that the provisions that a contracting states would implement in order to protect its interests would be commensurate with the human rights spirit of (...) the treaty. This implied that contracting states would act fairly in balancing the competing interests in devising status determination policies and would take into account decent considerations. But, from a theoretical viewpoint, it is arguable that some recent asylum determination policies have been based on the threats posed by asylum seekers. Asylum seekers have come to be blamed for contributing to the national issues that some contracting states face and as such, some contracting states have adopted draconian measures as a result. (shrink)

The idea of a data transfer agreement (DTA) template for the South African (SA) research community is receiving increasing attention. Whiledeveloping such a DTA template is certainly a worthwhile project, questions regarding the project’s practical execution should be addressed,including how to best operationalise the envisioned DTA template, and the content of the envisioned DTA template. It is proposed that anempowerment approach be followed in operationalising the envisioned DTA template, which is contrasted with the regulatory approachfollowed with the material transfer agreement (...) that the Minister of Health promulgated in 2018. While the regulatory approach would entailgovernment making the use of the envisioned DTA template compulsory regardless of the quality of such a template, the empowermentapproach, by contrast, entails a focus on developing a high-quality, professionally drafted DTA template for the SA research community andmaking the use thereof a matter of own choice. Regarding the content of the envisioned DTA template, four hot-button content provisionsare analysed, and it is argued that SA research institutions and researchers should be empowered to: (i) have clarity and legal certaintyregarding their ownership of data, where relevant; (ii) be able to commercialise their research findings without unnecessary contractualconstraints; (iii) avoid falling into the trap of unlawful benefit sharing with research participants; and (iv) be aware that their legal role asresponsible parties, where relevant, cannot be contracted out via a DTA. (shrink)

The draft Common Frame of Reference is likely to play a prominent role in the further development of European contract law. Therefore, with a view to its acceptability it is crucial to assess the draft from the point of view of social justice.The DCFR has all the characteristics of a typical European compromise. Ideological and esthetical purists will certainly be disappointed. This is not necessarily something to be worried about. A common frame of reference is not drafted, in the (...) first place (if at all), for esthetical or ideological reasons; it is meant to provide some normative guidance in the further development of European contract law. European citizens have very different interests, preferences and opinions in relation to almost all the subjects dealt with in the DCFR. A DCFR consistently based on only one conception about the right choices would inevitably have disappointed all European citizens with a different idea of social justice in European private law. Therefore, if we really want the further Europeanization of private law we will have to accept that it will probably look rather different from both the particular Member State law that each of us is familiar with and our personal ideas of social justice. The publication of the interim outline edition of the draft CFR, which is the result of a close collaboration between hundreds of legal scholars from all Member States, has brought that message home. The characterisations of the DCFR as 'a law for big business and competent consumers' or, alternatively, as a 'massive reduction of private autonomy' are both unfounded. Overall, from the point of view of social justice, the DCFR is fairly balanced. Nevertheless, there is certainly room for improvement.Even if the DCFR is going to remain only a soft law instrument it is still likely to have a considerable influence on the further development of private law in Europe and will therefore also affect, directly or indirectly, the lives of all European citizens. For this reason it is crucial that European citizens will not only be the addressees of the CFR, or of the legislative measures based thereon, but can also rightly consider themselves as its authors. After the drafting by legal experts and the rather one-sided 'stakeholders'' input that were both organised by the European Commission it is now time for the citizens' voice. Only a meaningful input from the European and national Parliaments can provide the final CFR with the regulatory legitimacy that it needs.The level of consumer protection in the DCFR is sufficiently high for it to be acceptable as the content of an optional instrument, which could be made applicable, for example, by clicking on a 'blue button'. However, as an absolute maximum beyond which the Member States would not be allowed to go in the case of full harmonisation, it is submitted, the level of protection in the DCFR is insufficient. Moreover, the DCFR draws a sharp distinction between B2C and B2B contracts. It categorically excludes from the protection that it grants to consumers all businesses, even the smallest ones that may be as vulnerable as consumers (or even more so) when it comes to a lack of information, inexperience and dependence. This sharp distinction deviates from the law in many Member States, is not required by the EC Treaty (which is relevant with a view to the CFR's role as a toolbox for revising the acquis and for drafting new acquis), and is potentially contrary to the fundamental principle of justice that any distinction between groups of people should favour the least privileged.General private law - the bulk of the model rules contained in the DCFR - cannot be said to be 'neoliberal' as the Social Justice Group feared it would. Nor is it 'socialist' as some business stake holders warned for. It strikes a balance between autonomy and solidarity that is quite similar to the ones drawn in the modern private laws (including the case law, i.e. not merely the civil codes) of the Member States. However, where the DCFR deviates from the Principles of European Contract Law (PECL) it is always in the liberal direction.Throughout the last Century general clauses, such as good faith, have played a prominent role in promoting social justice in private law in the Member States. In fact they became delegations of law-making power to the courts in order to allow them to find just and fair solutions in new cases. This tradition was codified in the PECL. However, in the DCFR the role of good faith is narrower and deliberately so. From the point of view of social justice it is important that in the final CFR the role of good faith as an undisputed legal basis for judge-made law should be restored.The catalogue of underlying values and principles, that is meant to become the preamble to the final CFR and is likely to play a crucial role in the interpretation and further development of the CFR, brings back to the foreground some fundamental values that have played a prominent role in private law making in the Member States but that have been overshadowed, on the European level, by the narrow focus on market building. Having said that, the list of values in the DCFR could be framed so as to be more balanced. In particular, the privileged position of party autonomy as the only principle that is also contained in the black-letter model rules seems unjustified. (shrink)

Thomas Sheehan and Richard E. Palmer The materials translated in the body of this volume date from 1927 through 1931. The Encyclopaedia Britannica Article and the Amsterdam Lectures were written by Edmund Hussed (with a short contribution by Martin Heideg ger) between September 1927 and April 1928, and Hussed's marginal notes to Sein und Zeit and Kant und das Problem der Metaphysik were made between 1927 and 1929. The appendices to this volume contain texts from both Hussed and Heidegger, and (...) date from 1929 through 1931. As a whole these materials not only document Hussed's thinking as he approached retirement and emeri tus status (March 31, 1928) but also shed light on the philosophical chasm that was widening at that time between Hussed and his then colleague and protege, Martin Heidegger. 1. The Encyclopaedia Britannica Article Between September and early December 1927, Hussed, under contract, composed an introduction to phenomenology that was to be published in the fourteenth edition ofthe Encyclopaedia Britannica (1929). Hussed's text went through four versions (which we call Drafts A, B, C, and D) and two editorial condensations by other hands (which we call Drafts E and F). Throughout this volume those five texts as a whole are referred to as "the EB Article" or simply "the Article. " Hussed's own final version of the Article, Draft D, was never published of it appeared only in 1962. (shrink)

The Study Group on a European Civil Code has taken upon itself the task of drafting common European principles for the most important aspects of the law of obligations and for certain parts of the law of property in movables which are especially relevant for the functioning of the common market. Like the Commission on European Contract Law's "Principles of European Contract Law", the results of the research conducted by the Study Group on a European Civil Code (...) seek to advance the process of Europeanisation of private law. Among other topics the series tackles sales and service contracts, distribution contracts and security rights, renting contracts and loan agreements, negotiorum gestio, delicts and unjustified enrichment law, transfer of property, and trust law. The principles furnish each of the national jurisdictions a grid reference. They can be agreed upon by the parties within the framework of the rules of private international law. They may provide a stimulus to both the national and European legislator for moulding private law. Beyond this, they aim to further discussion about the creation of a European Civil Code, or a Common Frame of Reference in the area of patrimonial law, by submitting a concrete model. The "Principles of European Law" are published in co-operation with Stämpfli, Bern. For other co-operation-partners and for more information see www.sellier.de. (shrink)

The main purpose of the study is to analyze the feasibility and necessity of an EU Constitution. Briefly, the history of the draft constitution is as follows: The draft treaty aims to codify the two main treaties of the European Union - the Treaty of Rome of 1957 and the Treaty of Maastricht of 1992, as amended by the Treaty of Amsterdam (1997) and the Treaty of Nice (2001). The debate on the future of Europe is believed to have begun (...) with a speech by German Foreign Minister Joschka Fischer in Berlin in 2000. The process began after the Laeken Declaration, when the European Convention was set up, chaired by former French President Valerie Giscard d'Estaing, with the aim of drafting a constitution. The draft contract was published in July 2003. After lengthy discussions and debates over the proposal for qualified majority voting, the final text was approved in June 2004 and signed by representatives of the Member States on 29 October 2004. The failure of the treaty in France and the Netherlands is a serious blow to the European Union because these two countries are considered to be loyal supporters of the European project. The text of the treaty was subsequently rewritten by the Amato Group, officially the Active Committee on European Democracy (ACED), a group of high-ranking European politicians. During the German presidency of the Union, a new treaty was proposed - the Treaty of Lisbon - to replace the original draft of the Constitution. On 12 June 2008, the Lisbon Treaty was also rejected in a referendum in Ireland. But if we want to look beyond history, we can ask - Why does the EU need a Constitution and how can the Constitution be the roadmap to an advanced future for the EU? The answers to this question can be found by analyzing several directions (these are the main points of the article): historical reflexivity; socio-cultural analysis of the philosophical concepts of well-known political and social philosophers such as Immanuel Kant, John Locke; the modern constellation through the prism of Jürgen Habermas and the decision to make a text as a Constitution which its aim is to reach the starting point of an entire community like the EU. Keywords: constitution, EU, philosophy, law, John Locke, Immanuel Kant, Jurgen Habermas. (shrink)

The paper discusses the status of shall in today’s legal drafting and legal translation, and by presenting typologies by a number of authors briefly addresses the variety of meanings it is used to express, in both legislation and contracts. It introduces the “shall dilemma” faced by non-native legal translators working both from and into English. The dilemma consists in the discrepancy between the promiscuous and abundant use of shall in authentic as well as translated documents, on the one hand, (...) and the recommendations found in various drafting manuals promoting either a shall-free policy or a disciplined use of shall, on the other hand. The research part presents the results of a survey carried out among a carefully chosen sample of professional legal translators to determine what their policy is on the use of shall. The results include both quantitative findings and additional comments made by the translators, and confirms the divide between actual practice and the recommendations. In the next section of the paper, the results are applied and a series of step-by-step exercises are introduced which should raise the awareness of legal translation trainees of the ambiguity of shall and teach them to use it in a reasoned and disciplined way. (shrink)

This book pieces together the jigsaw puzzle of Einstein's journey to discovering the special theory of relativity. Between 1902 and 1905, Einstein sat in the Patent Office and may have made calculations on old pieces of paper that were once patent drafts. One can imagine Einstein trying to hide from his boss, writing notes on small sheets of paper, and, according to reports, seeing to it that the small sheets of paper on which he was writing would vanish into his (...) desk-drawer as soon as he heard footsteps approaching his door. He probably discarded many pieces of papers and calculations and flung them in the waste paper basket in the Patent Office. The end result was that Einstein published nothing regarding the special theory of relativity prior to 1905. For many years before 1905, he had been intensely concerned with the topic; in fact, he was busily working on the problem for seven or eight years prior to 1905. Unfortunately, there are no surviving notebooks and manuscripts, no notes and papers or other primary sources from this critical period to provide any information about the crucial steps that led Einstein to his great discovery. In May 1905, Henri Poincare sent three letters to Hendrik Lorentz at the same time that Einstein wrote his famous May 1905 letter to Conrad Habicht, promising him four works, of which the fourth one, Relativity, was a rough draft at that point. In the May 1905 letters to Lorentz, Poincare presented the basic equations of his 1905 "Dynamics of the Electron", meaning that, at this point, Poincare and Einstein both had drafts of papers relating to the principle of relativity. The book discusses Einstein's and Poincare's creativity and the process by which their ideas developed. The book also explores the misunderstandings and paradoxes apparent in the theory of relativity, and unravels the subtleties and creativity of Einstein. (shrink)

Only 27 percent of Americans in a 1995 Harris poll said they had read or heard “quite a lot” about genetic tests. Nonetheless, 68 percent said they would be either “very likely” or “somewhat likely” to undergo genetic testing even for diseases “for which there is presently no cure or treatment.” Perhaps most astonishing, 56 percent found it either “very” or “somewhat acceptable” to develop a government computerized DNA bank with samples taken from all newborns, and their names attached to (...) the samples. This does not necessarily mean the public is unconcerned about genetic privacy. More likely it means that the public is still uninformed about the risks associated with genetic testing, and has not thought at all about the risks involved in storing identifiable DNA samples.A central question presented by genetic screening and testing is whether the genetic information so obtained is different in kind from other medical information, and, if so, whether this means that it should receive special legal protection. (shrink)

We have learned that the issues we raised are very difficult to think about clearly, and what "works" for one thinker falls flat for another, and leads yet another astray. So it is particularly useful to get these re-expressions of points we have tried to make. Both commentaries help by proposing further details for the Multiple Drafts Model, and asking good questions. They either directly clarify, or force us to clarify, our own account. They also both demonstrate how hard it (...) is for even sympathetic commentators always to avoid the very habits of thought the Multiple Drafts Model was designed to combat. While acknowledging and expanding on their positive contributions, we must sound a few relatively minor alarms. (shrink)

This volume is the first of three which will contain all of Locke's extant writings on philosophy which relate to An Essay Concerning Human Understanding, other than those contained in volumes of the Clarendon Edition of John Locke such as the Correspondence. The book contains the two earliest known drafts of the Essay, both written in 1671, and provides for the first time an accurate version of Locke's text together with a record of virtually all his changes, in notes at (...) the foot of each page. (shrink)

Very diverse societies pose real problems for Rawlsian models of public reason. This is for two reasons: first, public reason is unable accommodate diverse perspectives in determining a regulative ideal. Second, regulative ideals are unable to respond to social change. While models based on public reason focus on the justification of principles, this book suggests that we need to orient our normative theories more toward discovery and experimentation. The book develops a unique approach to social contract theory that focuses (...) on diverse perspectives. It offers a new moral stance that author Ryan Muldoon calls, "The View From Everywhere," which allows for substantive, fundamental moral disagreement. This stance is used to develop a bargaining model in which agents can cooperate despite seeing different perspectives. Rather than arguing for an ideal contract or particular principles of justice, Muldoon outlines a procedure for iterated revisions to the rules of a social contract. It expands Mill's conception of experiments in living to help form a foundational principle for social contract theory. By embracing this kind of experimentation, we move away from a conception of justice as an end state, and toward a conception of justice as a trajectory. (shrink)

Only 27 percent of Americans in a 1995 Harris poll said they had read or heard “quite a lot” about genetic tests. Nonetheless, 68 percent said they would be either “very likely” or “somewhat likely” to undergo genetic testing even for diseases “for which there is presently no cure or treatment.” Perhaps most astonishing, 56 percent found it either “very” or “somewhat acceptable” to develop a government computerized DNA bank with samples taken from all newborns, and their names attached to (...) the samples. This does not necessarily mean the public is unconcerned about genetic privacy. More likely it means that the public is still uninformed about the risks associated with genetic testing, and has not thought at all about the risks involved in storing identifiable DNA samples.A central question presented by genetic screening and testing is whether the genetic information so obtained is different in kind from other medical information, and, if so, whether this means that it should receive special legal protection. (shrink)

After the Provisional Basic Law (Provisional Constitution) had been adopted on 11 March 1990, it soon became clear that it did not meet the new needs of the society and the state. It became clear that the new Constitution had to be drafted promptly. Its drafting was taking place at the time of heated discussions about various things, but especially about the structure of branches of state power, the empowerment thereof and their interrelations. The author of the article was (...) a member of the working group drafting the new Constitution. In his article, the author presents passages from the notes made by him about the sittings of the Provisional Commission for Drafting the Constitution and those of its working group. The notes disclose the variety of the views of the deputies and legal specialists and show the difficult way of emergence of the draft Constitution. This is confirmed by the time-line of drafting the Constitution. In 1990 and at the beginning of 1991, the first draft Constitutions were published, which had been drafted by the members of the societies of Lithuanian philosophers and lawyers, by the Lithuanian Democratic Labour Party, etc. Prior to the resolution of the Supreme Council of the Republic of Lithuania of 7 November 1990, a group of deputies was formed for drafting an outline of the concept of the Constitution. On 22 October 1991, the Council of the Seimas of the Lithuanian Sąjūdis Movement made a statement “On the Restoration of the Institution of the President of the Republic”. On 5 November 1991, the Supreme Council of the Republic of Lithuania adopted a Resolution “On the Development of the Lithuanian Constitutionalism”, whereas by its resolution of 10 December 1991 it formed the Provisional Commission for Drafting the Constitution. On 3 March 1992, the said Provisional Commission approved the draft Constitution that it prepared; it was submitted to the Supreme Council. Three members of the Provisional Commission had submitted alternatives to a number of articles of the Constitution. On 21 April 1992, the Supreme Council assented to the work done by the Provisional Commission and decided to publish the draft Constitution so that it could be discussed by the public. On 6 May 1992, the Lithuanian Sąjūdis Movement, the Democratic Party, the Christian Democratic Party, and the Lithuanian Nationalist Union formed a coalition for drafting an alternative draft Constitution; soon the press published the alternative draft Constitution prepared by the Sąjūdis Movement Coalition “For the Democratic Lithuania”. On 23 May 1992, the referendum on the restoration of the institution of the President of the Republic took place—that referendum did not approve the proposal. Thus, two alternative draft Constitutions appeared. The essential difference between those drafts was a different approach to the system of branches of state powers, their empowerment and their interrelation. The draft Constitution prepared by the Provisional Commission was based on the parliamentary republic form of governance, whereas in the draft prepared by the Sąjūdis Movement Coalition “For Democratic Lithuania” the model of half-presidential republic was dominant. In order to prepare a single draft Constitution, which could then be proposed for the referendum of the Nation, political and legal compromises were sought. For this purpose, the Group for the Adjustment of Constitutional Issues was formed. At the end of September and at the beginning of October 1992, one single (the so-called “compromise”) draft Constitution was prepared from the existing two alternative drafts. The Constitution of the Republic of Lithuania was adopted by the Nation in the referendum of 25 October 1992 and came into force on 2 November 1992. (shrink)

This was written in 2014 during desultory afternoons in hinterland Bengal. The blog went on to feature in a US Bible Blog carnival. The author tried then to start a dialogue between the Gospel of Glory and Hinduism. But now, in 2018, this seems puerile and infantile to the author.

Our main goal is to investigate whether the infinitary rules for the quantifiers endorsed by Elia Zardini in a recent paper are plausible. First, we will argue that they are problematic in several ways, especially due to their infinitary features. Secondly, we will show that even if these worries are somehow dealt with, there is another serious issue with them. They produce a truth-theoretic paradox that does not involve the structural rules of contraction.

‘Contract cheating’ has recently emerged as a form of academic dishonesty. It involves students contracting out their coursework to writers in order to submit the purchased assignments as their own work, usually via the internet. This form of cheating involves epistemic and ethical problems that are continuous with older forms of cheating, but which it also casts in a new form. It is a concern to educators because it is very difficult to detect, because it is arguably more fraudulent (...) than some other forms of plagiarism, and because it appears to be connected to a range of systemic problems within modern higher education. This paper provides an overview of the information and literature thus far available on the topic, including its definition, the problems it involves, its causal factors, and the ways in which educators might respond. We argue that while contract cheating is a concern, some of the suggested responses are themselves problematic, and that best practice responses to the issue should avoid moral panic and remain focussed on supporting honest students and good academic practice. (shrink)

We present a decision-theoretically motivated notion of contraction which, we claim, encodes the principles of minimal change and entrenchment. Contraction is seen as an operation whose goal is to minimize loses of informational value. The operation is also compatible with the principle that in contracting A one should preserve the sentences better entrenched than A (when the belief set contains A). Even when the principle of minimal change and the latter motivation for entrenchment figure prominently among the basic intuitions in (...) the works of, among others, Quine and Ullian (1978), Levi (1980, 1991), Harman (1988) and Gärdenfors (1988), formal accounts of belief change (AGM, KM – see Gärdenfors (1988); Katsuno and Mendelzon (1991)) have abandoned both principles (see Rott (2000)). We argue for the principles and we show how to construct a contraction operation, which obeys both. An axiom system is proposed. We also prove that the decision-theoretic notion of contraction can be completely characterized in terms of the given axioms. Proving this type of completeness result is a well-known open problem in the field, whose solution requires employing both decision-theoretical techniques and logical methods recently used in belief change. (shrink)

In writing papers, students confront two obstacles. First, they may not know what philosophical writing is, mistaking an extended statement of their opinion for a philosophy paper. Second, some students lack certain key writing skills and so have difficulty organizing and conveying their view on a philosophical issue. In addition to reading good philosophical works, students need practice writing, editing, and revising their work and so rough drafts become a key component in teaching philosophical writing. This paper outlines the traditional (...) procedure for rough drafts, highlights some difficulties with this approach, and then details an alternative approach that is advantageous in several ways. In addition, an example classroom handout is provided that introduces this alternative procedure. (shrink)

The pervasive use of contracts in healthcare is a source of unease for many healthcare ethicists and patient advocates. This commentary examines the use of such contracts with individuals in rehabilitation settings who have complex medical and behavioural issues. The goals of this paper are to examine the many factors that can lead to contract use, to discuss some legal and ethical implications of contract use, and to assess contract use in light of concerns about health equity. (...) The paper concludes with some practical alternatives to the use of such contracts, and refers specifically to tools that might be borrowed from the field of behavioural therapy. (shrink)

This paper applies Wempe’s (2005, Business Ethics Quarterly 15(1), 113–135) boundary conditions that define the external and internal logics for contractarian business ethics theory, as a system of argumentation for evaluating current or prospective institutional arrangements for arriving at the “good life,” based on the principles and practices of social justice. It does so by showing that a more dynamic, process-oriented, and pluralist ‘dialogic twist’ to Donaldson and Dunfee’s (2003, ‘Social Contracts: sic et non’, in P. Heugens, H. van Oosterhout (...) and J. Vromen (eds.), The Social Institutions of Capitalism: Evolution and Design of Social Contracts (Cheltenham, UK, Edward Elgar Publishing, Ltd.) pp. 109–126; 1999, Ties that Bind: A Social Contracts Approach to Business Ethics (Boston, MA, Harvard Business School Press); 1995, Economics and Philosophy 11(1), 85–112; 1994, Academy of Management Review 19(2), 252–284.) integrated social contracting theory (ISCT) of economic ethics will further develop this promising and influential approach to moral reasoning, ethical decision-making, and stakeholder governance. This evolutionary, interactive learning-based model of ethical norm generation via dialogic stakeholder engagement is particularly appropriate within economic communities that are experiencing value conflict and pressures for institutional change. (shrink)

Social contract theory has been criticized as a “theory in search of application.” We argue that incorporating the nano, or individual, level of analysis into social contract inquiry will yield more descriptive theory. We draw upon the psychological contract perspective to address two critiques of social contract theory: its rigid macro-orientation and inattention to the process of contract formation. We demonstrate how a psychological contract approach offers practical insight into the impact of social contracting (...) on day-to-day human interaction. We then articulate several potentially testable propositions that emerge from this nano-level perspective. (shrink)

Blockage contraction is an operation of belief contraction that acts directly on the outcome set, i.e. the set of logically closed subsets of the original belief set K that are potential contraction outcomes. Blocking is represented by a binary relation on the outcome set. If a potential outcome X blocks another potential outcome Y, and X does not imply the sentence p to be contracted, then Y ≠ K ÷ p. The contraction outcome K ÷ p is equal to the (...) (unique) inclusion-maximal unblocked element of the outcome set that does not imply p. Conditions on the blocking relation are specified that ensure the existence of such a unique inclusion-maximal set for all sentences p. Blockage contraction is axiomatically characterized and its relations to AGM-style operations are investigated. In a finite-based framework, every transitively relational partial meet contraction is also a blockage contraction. (shrink)

How robust is a contraction-free approach to the semantic paradoxes? This paper aims to show some limitations with the approach based on multiplicative rules by presenting and discussing the significance of a revenge paradox using a predicate representing an alethic modality defined with infinitary rules.

We have learned that the issues we raised are very difficult to think about clearly, and what "works" for one thinker falls flat for another, and leads yet another astray. So it is particularly useful to get these re-expressions of points we have tried to make. Both commentaries help by proposing further details for the Multiple Drafts Model, and asking good questions. They either directly clarify, or force us to clarify, our own account. They also both demonstrate how hard it (...) is for even sympathetic commentators always to avoid the very habits of thought the Multiple Drafts Model was designed to combat. While acknowledging and expanding on their positive contributions, we must sound a few relatively minor alarms. (shrink)

An important question for proponents of non-contractive approaches to paradox is why contraction fails. Zardini offers an answer, namely that paradoxical sentences exhibit a kind of instability. I elaborate this idea using revision theory, and I argue that while instability does motivate failures of contraction, it equally motivates failure of many principles that non-contractive theorists want to maintain.

In turn, the volume explains how an understanding of these contract law doctrines can be enhanced by a proper conception of exploitation.

Some theorists have developed formal approaches to truth that depend on counterexamples to the structural rules of contraction. Here, we study such approaches, with an eye to helping them respond to a certain kind of objection. We define a contractive relative of each noncontractive relation, for use in responding to the objection in question, and we explore one example: the contractive relative of multiplicative-additive affine logic with transparent truth, or MAALT. -/- .

This paper investigates, in a simple risk-sharing framework, the extent to which the incompleteness of contracts could be attributed to the complexity costs associated with the writing and the implementation of contracts. We show that, given any measure of complexity in a very general class, it is possible to find simple contracting problems such that, when complexity costs are explicitly taken into account, the contracting parties optimally choose an incomplete contract which coincides with the ‘default’ division of surplus. Optimal (...) contracts with complexity costs are constrained efficient in our model. We therefore interpret our results as saying that, in the absence of a strategic role for complexity costs, their effect is entirely determined by their size relative to the size of payoffs. (shrink)

This chapter contains sections titled: Introduction The Challenge to the Distinctiveness and the Coherence of Contract Four Autonomy‐Based Theories Three Teleological Theories Concluding Remarks References.

Contract as Promise is a study of the philosophical foundations of contract law in which Professor Fried effectively answers some of the most common assumptions about contract law and strongly proposes a moral basis for it while defending the classical theory of contract. This book provides two purposes regarding the complex legal institution of the contract. The first is the theoretical purpose to demonstrate how contract law can be traced to and is determined by (...) a small number of basic moral principles. At the theory level the author shows that contract law does have an underlying, and unifying structure. The second is a pedagogic purpose to provide for students the underlying structure of contract law. At this level of doctrinal exposition the author shows that structure can be referred to moral principles. Together the two purposes support each other in an effective and comprehensive study of contract law. This second edition retains the original text, and includes a new Preface. It also includes a substantial new essay entitled Contract as Promise in the Light of Subsequent Scholarship--Especially Law and Economics which serves as a retrospective of the work accomplished in the last thirty years, while responding to present and future work in the field. (shrink)

This chapter contains sections titled: Background: mapping the field of business ethics The evolution of social contract approaches to business ethics Integrative social contracts theory (ISCT) Remaining issues and promising research directions for contractarian business ethics.