Law Debate Research Articles

Can Historical Jurisprudence Inform the Artificial Intelligence and Law Debate?

The publication of a monograph by Dr Luca Siliquini-Cinelli on the history of scientia iuris in which he argues that law is a constructed form of knowledge that differs from experience is not just an important and very learned contribution to historical jurisprudence. The book’s thesis is also making an important contribution to the debate about the impact, and probable future impact, of artificial intelligence (AI) on law, legal thought and legal reasoning. In critically reviewing the book, this essay will briefly indicate how and why Dr Siliquini-Cinelli’s book is establishing a fundamental relationship between historical jurisprudence (understood as the history of legal thought) and AI. Keywords: artificial intelligence (AI); epistemology; legal singularity; map; model; philosophy; rule-theorist; territory.

Analyzing the U.S. Drone Program’s Deployment of Armed Unmanned Aerial Vehicles (UAVs) for Targeted Killings Outside of National Boundaries

Following the 9/11 attacks, U.S. counterterrorism efforts have gradually shifted focus from Afghanistan to regions like Pakistan, Yemen, and Somalia. The deployment of armed drones in these areas to target al-Qaeda members and their affiliates has sparked a contentious international law debate. While the U.S. drone policy claims adherence to international targeting rules, the reality of operations in remote locations has led to numerous civilian casualties. With a rising toll of civilian deaths, challenges in distinguishing between combatants and non-combatants, and concerns about accountability in drone operations, it seems that the approach taken by U.S. policymakers may have misconstrued existing laws governing hostilities. The policy lacks clarity on the applicable legal framework and necessary constraints to prevent potential misuse of drone technology, fostering a perception that the U.S. administration consistently employs armed drones without transparency or accountability. Despite extensive literature on the 9/11 attacks and scholarly discussions on U.S. drone use, the alignment between rules governing targeting under international humanitarian law and the practical implementation of drone operations by the U.S. remains an area with limited examination in international law. Consequently, given issues related to civilian casualties, collateral damage, and potential violations of humanitarian law principles, it becomes crucial to evaluate whether U.S. targeting practices violate the law of armed conflict.

Trauma and memory-A contribution to the current debate in law and psychotherapy

The recall of memories of past events, experiences and emotions is acomplex process. When experiencing traumatic events, as is the case with sexual violence, ahost of additional complexities and difficulties arise. This becomes especially important in court cases which rely mostly or exclusively on the testimony of the victim, where the problem of the fallibility of memory takes center stage. Some research studies emphasize the possibility of inducing, altering or suppressing memories, especially in the context of psychotherapy. This has led to the unfortunate reality that the testimony of victims who have undergone psychotherapy is often considered to be unreliable. This in turn can lead to the impression that adecision has to be made between treatment of the adverse effects of traumatic events and maximizing the chances for aconviction of the perpetrator in court. This article introduces some central concepts of our current understanding of memory and gives an overview of the relevant scientific literature and debate. Following this, it examines the dilemma as it pertains to the different groups of all involved parties (i.e., victims, members of the judiciary and psychotherapists). Lastly, it proposes aframework of how to approach asolution to this problem by focusing on research in critical areas, expansion of therapy guidelines and documentation procedures as well as communication of these efforts to all parties involved.

Criminalisation or prohibition: A death in custody prompts drugs law debate

Criminalisation or prohibition: A death in custody prompts drugs law debate

THE REBELLION OF CONSTITUTIONAL COURTS AND THE NORMATIVE CHARACTER OF EUROPEAN UNION LAW

AbstractThis article offers a reconstruction and assessment of the emerging rebellion of European constitutional courts against the exceptionless supremacy of European Union (EU) law. It presents the ontological theories of supremacy and how the Court of Justice of the EU (CJEU) overcame the first two major challenges of its history: the existential challenge of canonizing the general doctrine of supremacy and the Solange challenge of national fundamental rights. It provides an account of the emerging ultra vires challenge, including its root cause and evolvement, and provides an assessment and sets out proposals. The article demonstrates that the crux of the matter is not the primacy of EU law but the interpretive primacy of the CJEU. It argues that the rebellion was triggered by the perception that the CJEU case law features a declining normative and an increasing policy character. The debate about the CJEU's evolutionary interpretation, in a certain sense, parallels US constitutional law's debate between originalism and the living constitution, with the difference that the EU is a pluralist legal order.

Bounded solidarity? Experimental evidence on cross‐national bonding in the EU during the COVID crisis

AbstractMost studies on European solidarity (‘bonding’) during COVID‐19 lack a baseline comparison with outside states. We, therefore, cannot say whether European solidarity is universal or geared towards European Union (EU) insiders (‘bounding’). We thus ask whether European solidarity is ‘bounded’, that is, whether it relies on differentiation between European insiders and outsiders. We argue that if existent, bounded solidarity constitutes a long‐term and thick basis for institutional building. To explore this ‘bonding–bounding’ dynamic, we use a vignette experiment embedded into an original survey collected in eight European countries (n ∼ 8900), covering all European regions. Our design varies the countries receiving solidarity, and the channels (EU level vs. member state level), policy domains (health vs. economy) and instruments (loans, grants, medical equipment, vaccines) through which solidarity is provided. Regarding bounding, we find that most countries are more solidaristic with EU countries than an outsider, baseline state (Peru), Italy excepted. There is, nonetheless, a strong heterogeneity between countries: France, Germany, the Netherlands and Sweden mostly want to help themselves and Southern member states, but not Central Eastern European member states, which we show is due to their perceived obstructionism related to the Rule of Law debate. Concerning the nature of solidarity, we find that most respondents prefer solidarity to be channelled through the EU and loans, with evidence suggesting a freeriding mechanism behind this preference. All in all, our results indicate that EU citizens form a distinct community of solidarity which, in line with a Rokkanian understanding of polity formation, plays a key role in political development and consolidation.

Evolving rights to (and of) water in Chile: a case for relationship-based water law and governance

ABSTRACT Theoretical debates about water law have long been characterised by a tension between notions of water as a human right and as a commodity, alongside developing attention to resistance by Indigenous groups to the colonisation of their waters. This tension is apparent in Chile, where different conceptions of rights continue to be traded off against each other – including the rights to property and to water. In recent years, water law debates in Chile have gone beyond the traditional property/rights dichotomy. These debates increasingly evidence attempts to reflect diverse ontologies of water that emphasise not just rights to water but human responsibilities towards water. This article uses a legal analysis of Chilean laws, including the 2022 failed draft Constitution, to draw out implications for the continued evolution of related legal rights regimes. We uncover important lessons, with comparative and global relevance, about the normative content and potential of the human right to water, particularly in supporting reciprocity and relationality between peoples and waters. We argue there is merit in pursuing the human right to water alongside other legal pathways for protecting human relationships with water, within legal frameworks that guarantee the exercise of the rights and authority of Indigenous peoples.

De positie en samenstelling van oordelende instanties in het protestants kerkelijk tuchtrecht

The position and composition of judicial authorities in Protestant church disciplinary law. This article discusses the relationship of the position and composition of judicial authorities in the church (disciplinary) law of the Nederlandse Gereformeerde Kerken to the position and composition of judicial authorities in: (1) the church law of the Protestantse Kerk in Nederland and the Gereformeerde Gemeenten and (2) the disciplinary law of lawyers, medics and bankers. The issue of who is authorised to take disciplinary action has been the subject of debate in secular disciplinary law. This article shows that these themes are also relevant to church disciplinary law. There are significant differences between the arrangements in the compared forms of disciplinary law. This article provides an analysis of the similarities and differences. It concludes that the differences can be partly explained, but that from a theological point of view there are also reasons to introduce additional safeguards for a prudent and careful disciplinary procedure in church law. To this end, the article contains a number of recommendations.Contribution: This article clarifies the position and composition of judicial authorities in Protestant church disciplinary law and its theological backgrounds, and also provides recommendations from a (disciplinary) comparative law perspective with other groups. These recommendations are relevant to church law practice.

A Revolution in Property: Tocqueville and Beaumont on Democratic Inheritance Reform

Abstract Among the most controversial reforms investigated by Alexis de Tocqueville and Gustave de Beaumont was the idea of using inheritance as an instrument to diffuse property ownership. This article offers the first comparative account of the development of this concept across each of their major works. By situating their interventions within wider inheritance law debates, it is demonstrated how their evolving visions of democracy forced them to innovatively combine two normative arguments: (i) diffusing property ownership via inheritance was a precondition for placing democracy upon stable political foundations, and (ii) this could counter the rise of pauperism and the extreme wealth inequality of nineteenth-century industrial society. Far from being an anachronistic republican notion, such reforms were long considered too radical to be implemented in England and Ireland.

The International Recognition of Governments in Practice(s): Creatures, Mirages, and Dilemmas in Post-2011 Libya

Abstract The international (non)recognition of governments is a composite macro practice that has grown in visibility in recent years in response to contentious domestic political processes such as coups d’état, revolutions, and civil wars, yet it remains understudied in international relations. Doctrinal debates in international law and foreign policy reveal the normative vacuum and normative competition that have long surrounded this phenomenon, but say little about its specific operation and effects. This article brings together insights from recognition theory and international practice theory, and uses post-2011 Libya as an in-depth case study, drawing on elite interviews with diplomats, international officials, and other practitioners. The aim is to sketch a new research agenda by building a generalizable typology of smaller-scale government recognition micro practices (declaratory, diplomatic, informal engagement, intergovernmental cooperation, and support practices), and uncovering their guiding logics and consequences. I argue that, first, the international (non)recognition of governments is endowed with a distinct generative power, as it produces its own creatures through a range of micro practices that have identity formation and change, material empowerment, political legitimation, and sovereignty line-drawing effects. Secondly, it is geopolitically inevitable, as external actors involved in a country cannot ultimately avoid engaging with territorially grounded domestic political actors. Thirdly, it is not a black-and-white situation, as it involves a broad variety of practices guided by different, often contradictory logics. Finally, international government recognition practices are likely to run into three dilemmas stemming from three tensions: international versus domestic recognition, legitimacy versus effectiveness, and coherence versus inclusivity in conflict mediation.

Geneva, We Have a Problem: Internationalisation of Armed Conflicts through Indirect Intervention Remains a Dead Letter

AbstractThe article seeks to raise awareness about the non-application of the norms of international humanitarian law (IHL) of international armed conflicts in situations of so-called internationalised armed conflicts – namely, when a non-state armed group (NSAG) that is engaged in an armed conflict against the territorial state enjoys a degree of support from another state. Debates in academic circles and international case law have focused largely on the appropriate test and threshold for establishing the relationship between the NSAG and the supporting state. Practice, however, shows that regardless of the legal test, the foreign state support to the NSAG in a (or an initially) non-international armed conflict is so politically charged that it leads to a complete non-application of the law of international armed conflict by the relevant actors. The article demonstrates its conceptual findings through four case studies: the armed conflicts in Donbas, Nagorno-Karabakh, Democratic Republic of the Congo, and Yemen. Regardless of strong indications of foreign state support to the NSAG in these armed conflicts, no relevant actors applied the IHL norms of international armed conflict. The article provides broader suggestions on the possible avenues for remedying the issue.

Renewal of Islamic Family Law: Analysis of The Contribution of Qosim Amin's Thought

Qasim Amin's thoughts have influenced the Islamic family law reform movement in various countries. Although it has faced controversy and criticism, its contribution to positive changes in family law views and practices cannot be overlooked. He has provided the basis for contemporary thinking on how to harmonize Islamic teachings with the values ​​of equality and justice in the context of family law. This study uses a library research approach by searching various sources of literature, especially the works of Qosim Amin, then analyzing them through content analysis methods. The results of this analysis form the basis for drawing conclusions which are then presented in a report. The purpose of this paper is to find out the description and contribution of Qosim Amin in influencing family law in Islam. The results of the study explain that, Qasim Amin's thoughts in reforming Islamic family law include his views on gender equality, wiser polygamy arrangements, and a more equitable distribution of inheritance which have formed the basis for debate and reform of family law that is more modern and in accordance with the values ​​of equality. and justice in contemporary society.

American Legal Realism and the Revitalization of Literary Realist History

American Legal Realism and the Revitalization of Literary Realist History

Fixing the misalignment of the concession of corporate legal personality

Abstract The nature of separate legal personality is a perennial debate in corporate law. This paper uses insights from a previous iteration of the debate to argue that separate legal personality is best seen as a two-step process: it is a concession from the state to something real. That real thing is the economic concept of the firm, which has been recently debated within institutional economics. Viewing separate legal personality as a two-step process lets us explore whether the concession of separate legal personality is operating as it should. Law imposes no prerequisite requirement that a firm exists before establishing a company, nor limits firms to only one company. Law thus facilitates misalignments between the firm and the company. Such misalignments will only occur if two constituencies within the company structure – the ultimate shareholders and directors – consider it in their interests to create such misalignment. As a result, these misalignments harm third parties by allowing risk to be exported to them through opportunistic misalignment. This paper then explores the methods of misalignment and reviews current legal tools which are available to be deployed to re-align the company to the firm, and argues that they should be deployed.

Suro Month Wedding Prohibition: Islamic Perspective Customary Law Debate

The Javanese tradition of avoiding marriage in the month of Suro is highly upheld, especially by the community. It is widely believed that marriage in the month of Suro will bring danger to the bride and groom, whereas in the Islamic concept, there is no prohibition against marriage in the month of Suro (Muharram). Departing from these reasons, the purpose of this study is to describe two different views of Islamic teachings and Javanese cultural traditions that have continued to contradict each other from ancient times to the present. This research is set in Ponorogo Regency, East Java. The research method used is qualitative with a sociological empirical juridical approach. The primary data used are facts about human behaviour and written documents from traditional leaders, religious leaders and related people. Using interviews and documentation for data collection, then analyzed using sociological empirical juridical. The results of the study show that the philosophical meaning of the prohibition of marriage in the month of Suro that occurs in Javanese society, especially in Ponorogo Regency, can be divided into two sides based on Paul Ricoeur's theory, namely the meaning of the prohibition from the side of the text maker and the side of the recipient/reader of the text. From the perspective of these two sides, then the philosophical meaning contained in the tradition of prohibiting marriage in the month of Suro can be concluded as a syncretism meaning between Javanese religions and cultures.

Beyond minimalism and usurpation: designing judicial review to control the mis-enforcement of socioeconomic rights Designing judicial review to control the mis-enforcement of socioeconomic rights

Resumo This work critically evaluates the judicial enforcement of socioeconomic rights and its associate discourses. Drawing on the findings of an empirical research study on the health care-related litigation in Brazil, I argue that none of the two main arguments that drive this constitutional law debate —judicial minimalism and judicial usurpation— offer a complete account as to what I call the mis-enforcement of rights: a scenario with a deficit of inequality resulting from non-justified distributive and aggregate effects due to the judicial protection of a target group. I present evidence that two overlooked structural factors are actually in the roots of the mis-enforcement: the right-based legal reasoning and the litigation system focused on individualized lawsuits. Thus, in order to reorient the debate, I propose a design approach, according to which judicial enforcement of socioeconomic rights in dysfunctional democracies is legitimate as long as it focuses on (i) improving social change through a distribution of goods that guarantee basic needs to disadvantaged groups, under the counter-majoritarian principle, and on (ii) providing the institutions with incentives to effectively take political issues back to the democratic process. Achieving this purpose requires the adjudicatory practice (i) to regard issues more likely to arise in socioeconomic rights-related litigation —such as needs and recipients; (ii) to address background rules that interfere in the dynamics of enforcement— such as the distributive and aggregate effects; and (iii) to observe a procedure that promotes democratic values, such as political engagement, institutional accountability, representativeness, and openness.

Arbitral Activism and Choice of Law under the ICSID Convention

Abstract One of the most controversial debates in international investment law concerns the extent to which investment disputes should be internationalized or localized, that is to say, the extent to which international law or local (domestic) law should be applied to decide a dispute. An additional issue is the extent to which international law prevails over domestic law in the investment law context. The ICSID Convention represents a unique entry point into this dispute given that it explicitly regulates the law applicable in ICSID arbitrations through Article 42. In order to determine the role of international and local law under Article 42 of the ICSID convention, this article adopts a quasi-originalist approach focusing on the intention and understanding of the drafters as its lodestone and looking at the travaux préparatoires of the Convention, as well as other contemporaneous or near-contemporaneous sources in order to establish this. It also notes that the oft-overlooked doctrines of the New International Economic Order are an important part of the context of the ICSID Convention and failure to realize this has led to significant misinterpretation of the Convention. It finds that the dominant view of discarding host State law under Article 42 in favor of international law was neither intended by the drafters of the ICSID Convention nor was it their understanding of it. Instead, it finds that the drafters intended, and understood the ICSID Convention to require, the default application of host state law as part of a complex and nuanced interpretative process which would usually result in an outcome that respected both international and host State law.

CHARITY BEGINS – BUT DOES NOT END – AT HOME Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 BCLR 569 (CC)

Social assistance has emerged, within a broader social security system, as an important part of those measures that prevent and/or alleviate destitution in South Africa. Social assistance, as defined by the Committee of Inquiry into a Comprehensive System of Social Security for South Africa (Committee of Inquiry into a Comprehensive System of Social Security for South Africa Transforming the Present – Protecting the Future: Consolidated Report (2002) 36), means “state-provided basic minimum protection to relievepoverty, essentially subject to qualifying criteria on a non-contributory basis”. In April 2004, more than 7.9 million people were reported to benefit from the social grants (National Treasury (Republic of South Africa) Trends in Intergovernmental Finances: 2000/01-2006/07 (2004) 74). In most instances, predominantly in black households, grants (especially old-age grants) are the only family income. Old-age grants in particular are used not only to see the elderly through their old-age, but they also stretch far beyondthat to cater for the needs of the family. This important scheme, particularly its scope of coverage, has been a source of recent social security law debates. Central to these debates was the issue of non-citizens’ (non-)entitlement to the same social assistance benefits as citizens. This subject has no clear-cut answer(s).

On the right to diplomacy: historicizing and theorizing delegation and exclusion at the United Nations

AbstractThis article analyses the disregarded notion of the ius legationis (right of legation), revisiting historical debates in diplomatic theory and law over who possesses or ought to have this right. By examining how the ius legationis manifested into a volitional or subjectional or natural right, we argue that this renders it not merely a legal issue, but a highly political and ethical question that is of direct relevance to contemporary international relations. In an era where inclusivity is rhetorically promoted at the United Nations, we suggest that a rekindled right to diplomacy (R2D) – conceiving diplomacy as a right that is claimed but also contested – can shed light onto inequalities of representation and the role international law can play in remedying asymmetries and ethicizing the practice of diplomacy. Beyond its primary normative contribution, we argue that the R2D can also provide an analytical framework to understand UN's efforts at institutionalizing diplomatic pluralism, its logics of inclusion and exclusion, as well as the struggles of diverse groups to obtain accreditation, consultative status, and negotiation ability within multilateral diplomacy.

Shedding light on the gender quota law debate: board members’ profiles before and after legally binding quotas in Portugal

PurposeThis study aims to provide a comparative portrait of the profile of men and women in the boardrooms of listed companies (Euronext Lisbon, Portugal) during the first stage of the gender quota law, by comparing the profile of those board members appointed before the mandated quota law and those appointed after it. This study also seeks to contribute to a critical review of the main reservations expressed by some core institutional actors, who initially voiced their concern that it might be difficult to find women in equal conditions to men in terms of their cumulative experience and qualifications to serve as board members.Design/methodology/approachIn addition to providing a comparative descriptive analysis of male and female board members’ profiles before and after the mandated gender quota law, an aggregate professional endowments measure (professional endowments Index) is also calculated.FindingsThe research findings show that, in the first stage of the quota law, men and women appointed as board members after the mandated gender quota law are fundamentally similar in their professional attributes, forming a more homogeneous boardroom than those holding board positions before it.Originality/valueThis study contributes to the literature on the profile of the men and women serving on the publicly listed company boards in Portugal, by comparing their profiles before and after the mandated gender quota law. This study also fills a gap in the literature, as studies about gender quotas and corporate boards relating to Portugal and Southern European countries in general are still relatively scant. To the best of the authors’ knowledge, this is the first study carried out into the gender quota law on corporate boards in Portugal.