Freedom Of Commerce Research Articles

THE LEVELLERS AND THE BIRTH OF LIBERAL POLITICAL ECONOMY

AbstractWhen did liberal political theory, or perhaps liberal political economy, begin? Although many would trace their beginnings to the writings of Adam Smith, David Hume, or perhaps John Locke, in fact many of the propositions we today recognize as forming the core of liberalism were articulated in the first half of the seventeenth century by an unduly neglected group called the Levellers and their leader John Lilburne. In this essay, I first give some historical background and context to the Levellers and Lilburne. Next, I articulate several of their liberal positions, including freedom of religion, freedom of speech, and freedom of commerce and trade, and I examine their justifications for these positions, which I argue were both novel and radical. I conclude by exploring the contemporary relevance of the Levellers and argue that they should be considered as among liberalism’s most important founders.

The Québec System of Worker Participation: Toward a Refoundation on a New Constitutional Basis?

Workers’ participation rights, centred around collective bargaining, present numerous weaknesses in Quebec. The authors highlight in this respect the collision between collective bargaining rights and property rights, as well as freedom of commerce. However, for the authors, the new labour constitution in Canada heralds a positive change for workers’ basic participation rights.

Digital Exhaustion: New Law from the Old World

Ebooks, audio files, video clips, computer programs and other digital goods have become central to our information society and sharing community. When we acquire digital goods, we are usually prompted to accept lengthy and complex contract terms that limit our rights. Scholars and consumer protection associations are worried whether we still know what we when we click to now - apparently few of us do, according to a recent empirical study. While the study was conducted in the new world, consumer protection associations in the old world were already trying cases in German courts, asserting that consumers were mislead when they were invited to buy digital goods under contract terms that precluded any resale of digital goods. Yet, interestingly, German courts have not been sympathetic to the claims. German courts held that downloads of digital goods other than computer programs do not exhaust distribution rights, consumers cannot own digital goods they download, and even if they did, they cannot temporarily reproduce them to sell a copy without the storage medium. In this article, I provide an introduction to the practical and legal dimension of digital exhaustion; examine the statutory framework in the EU and the U.S. in comparison; analyze case law on both sides of Atlantic, including very recent decisions regarding digital goods that have not been publicized in the United States yet; and provide an international perspective on exhaustion across national borders. I then apply the relevant legal principles to a set of common factual scenarios and variations to illustrate the significance of the topic and provide concrete legal results and a well-founded policy assessment. The rules on copyright exhaustion remain very complex and divergent in the United States and the European Union. They differ in both jurisdictions, differ between software and other works, differ depending on transaction terms, differ as to whether reproduction is permissible to sell copies separate from storage media, and differ as to whether exhaustion applies internationally. No wonder that many of us do not know what we when we now. From a public policy perspective, advocates of digital exhaustion can refer to consumer expectations, public access to works, freedom of commerce and transaction privacy in favor of digital exhaustion, allowing consumers to resell copies of digital works without a need for permission from the copyright owner. Opponents can cite to the interests of copyright owners, freedom of contract principles and counterproductive disruptions that typically come with legislative changes or courts overruling established statutory interpretations. Worth noting is that German courts have so far largely rejected the concept of digital exhaustion and do not seem to be concerned about consumer confusion, despite the traditionally high standards of consumer protection in Germany. Views and findings from the German cases as well as comparative legal analysis should be considered as the topic works itself through courts in the United States and legislative reform is considered on both sides of the Atlantic.

Freedom, Commerce, Bodies, Harm: The Case of Backpage.com

This article situates lawsuits against Backpage.com in the context of changing laws and norms of sexual commerce and trafficking, and of evolving legal interpretations of Section 230 of the Communications Decency Act. Section 230 has been used repeatedly to shield internet service providers such as Backpage.com from liability for content generated by third parties that has led to criminal harm to others; in this case, the trafficking and commercial sexual exploitation of minors. Moving to a critique of the law as at times grievously detached from the realities it addresses, I compare the legal strategies and decisions in three prominent cases brought against Backpage.com in St. Louis, Tacoma, and Boston, respectively. This critique identifies the evacuation of gendered bodies and the harm done to them from the court opinions as an example of what Robert Cover has called the “interpretive violence” of the law, and of the judges who interpret and dispense it. I conclude by calling for courts and Congress to act together to disrupt the accumulation of interpretive precedent favoring freedom of commerce and speech over the protection of bodies from harm.

Digital Exhaustion - New Law from the Old World

Ebooks, audio files, video clips, computer programs and other digital goods have become central to our information society and sharing community. When we acquire digital goods, we are usually prompted to accept lengthy and complex contract terms that limit our rights. Scholars and consumer protection associations are worried whether we still know what we when we click to now - apparently few of us do, according to a recent empirical study. While the study was conducted in the new world, consumer protection associations in the old world were already trying cases in German courts, asserting that consumers were mislead when they were invited to buy digital goods under contract terms that precluded any resale of digital goods. Yet, interestingly, German courts have not been sympathetic to the claims. German courts held that downloads of digital goods other than computer programs do not exhaust distribution rights, consumers cannot own digital goods they download, and even if they did, they cannot temporarily reproduce them to sell a copy without the storage medium. In this article, I provide an introduction to the practical and legal dimension of digital exhaustion; examine the statutory framework in the EU and the U.S. in comparison; analyze case law on both sides of Atlantic, including very recent decisions regarding digital goods that have not been publicized in the United States yet; and provide an international perspective on exhaustion across national borders. I then apply the relevant legal principles to a set of common factual scenarios and variations to illustrate the significance of the topic and provide concrete legal results and a well-founded policy assessment. The rules on copyright exhaustion remain very complex and divergent in the United States and the European Union. They differ in both jurisdictions, differ between software and other works, differ depending on transaction terms, differ as to whether reproduction is permissible to sell copies separate from storage media, and differ as to whether exhaustion applies internationally. No wonder that many of us do not know what we when we now. From a public policy perspective, advocates of digital exhaustion can refer to consumer expectations, public access to works, freedom of commerce and transaction privacy in favor of digital exhaustion, allowing consumers to resell copies of digital works without a need for permission from the copyright owner. Opponents can cite to the interests of copyright owners, freedom of contract principles and counterproductive disruptions that typically come with legislative changes or courts overruling established statutory interpretations. Worth noting is that German courts have so far largely rejected the concept of digital exhaustion and do not seem to be concerned about consumer confusion, despite the traditionally high standards of consumer protection in Germany. Views and findings from the German cases as well as comparative legal analysis should be considered as the topic works itself through courts in the United States and legislative reform is considered on both sides of the Atlantic.

The Limitation of the Freedom of Commerce by Intellectual Property Moral Rights

By regulating the author’s moral rights, it was certainly wished to emphasize the fact that the entire intellectual property regulatory system has not been set for the “enrichment” of the commerce with new intangible assets or for clarifying the legal status of this category of intangible assets, but rather to protect the authors of intellectual property that are part of the international commerce. Any unclear regulation must be interpreted in favor of the author, as they prevail over the interests of all other interested persons. Any obligation assumed by the author or a contractor thereof, may be restricted, i.e. extended, by claiming that the author’s moral rights are violated or that they are not fully protected. In the intellectual property field, any kind of use of the protected work involving the economic rights, has a close connection with the work’s authorship claiming and, very often, with the work’s integrity compliance or withdrawal right. Any contract concluded between a person acquiring economic rights over an intangible asset, cannot deny or diminish author’s moral rights. Also considering the intertwining of moral rights with economic rights, one part of a contract can invoke the existence of a moral damage as a result of failure to comply with the author’s moral rights.

‘Free to Deal as He May Choose’: The Displacement of ‘Freedom of Commerce’ as a Necessary Condition to the Creation of Canadian Multiculturalism

In the 1940s the Canadian legal system was one which seemed incapable of recognizing racial discrimination as a problem worthy of jurisprudential attention. The 1939 Supreme Court of Canada decision in Christie v York Corporation confirmed that the owners of a tavern were entitled to refuse to serve a black man; in the infamous case of Viola Desmond, the courts held that a theatre owner was within its rights to segregate seating on the basis of skin colour. Excepting marginal voices expressing concern, no significant protest was raised against the court decisions. Sixty years later, facts virtually identical to those found in the Christie case resulted in a large monetary penalty being levied against the offending bar owner—like an inversion of Christie before it, the decision was so congruent with contemporary sensibilities that it occasioned virtually no comment. Using the Christie and Desmond cases and the introduction of the Charter of Rights and Freedoms as focal points, this paper traces the linguistic and legal changes which help explain such radically different responses from the legal system.

‘Free to Deal as He May Choose’: The Displacement of ‘Freedom of Commerce’ as a Necessary Condition to the Creation of Canadian Multiculturalism

In the 1940s the Canadian legal system was one which seemed incapable of recognizing racial discrimination as a problem worthy of jurisprudential attention. The 1939 Supreme Court of Canada decision in Christie v York Corporation confirmed that the owners of a tavern were entitled to refuse to serve a black man; in the infamous case of Viola Desmond, the courts held that a theatre owner was within its rights to segregate seating on the basis of skin colour. Excepting marginal voices expressing concern, no significant protest was raised against the court decisions. Sixty years later, facts virtually identical to those found in the Christie case resulted in a large monetary penalty being levied against the offending bar owner—like an inversion of Christie before it, the decision was so congruent with contemporary sensibilities that it occasioned virtually no comment. Using the Christie and Desmond cases and the introduction of the Charter of Rights and Freedoms as focal points, this paper traces the linguistic and legal changes which help explain such radically different responses from the legal system.

The 'Freedom of the Sea' and the 'Modern Cosmopolis' in Alberico Gentili's De Iure Belli

AbstractThe purpose of the present study is the understanding of Gentili's position on the law of the sea as expressed in his classic De iure belli (Hanoviae 1598). The key constitutive elements turn out to be: 1) the idea of the sea as 'res communis' to all mankind, which amounts to the concept of 'freedom of the sea'; 2) 'jurisdiction' of the coastal state on the adjacent sea, even on the high seas, in order to police crime and prevent/punish piracy. As such these two key elements, if taken in isolation, are rooted in the civil law tradition, but their true meaning can only be captured by placing them in the intellectual framework of which they constitute an integral part. Firstly, the epistemic structure of discourse hinges on the new science of natural jurisprudence, as applied to the subject of 'ius gentium bellicum'; secondly, the constituent theoretical languages emanate from a distinctive combination of civil law, scholastic-theological and humanist traditions. This procedure enables us to highlight the strikingly original and distinctly modern traits of Gentili's perspective on the law of the sea, which emerges as a corollary of his project of international/global order. A project that is based on the crucial notion of 'respublica magna' of mankind, a notion encompassing the two notions of 'freedom' and 'jurisdiction' that constitute and define the legal regime of the sea.The Stoic humanist notion of universal human society as 'corpus unum' implies, first of all, 'freedom of intercourse', or 'ius communicationis', to start from 'free passage' and 'freedom of commerce'. It is in the context of his argument about these basic freedoms that Gentili is finally led to discuss the subject of the 'law of the sea'. But, not only the concept of 'res communis', or 'freedom of use', but also the concept of 'jurisdiction', or 'protection', are strictly related to the same foundational concept of 'respublica magna'. This is a crucial characteristic of Gentili's approach to world order that is proved by reference to two cardinal points of his new 'cosmopolitan justice': 1) the 'international right to punish', as exemplified by the legitimacy of the wars of 'humanitarian intervention' and of the wars in support of the 'common law of mankind'; 2) the 'occupation of vacant land', which again underlines the relevance of the principle of 'jurisdiction' by striking a balance between the principle of 'free use' of nature and the 'jurisdiction' of the local ruler.Such a reconstruction definitely rejects the traditional image of Gentili as a supporter of 'maritime protectionism', on the ground of his Advocatio Hispanica published posthumously in 1613 and containing his pleadings as Spanish advocate before the Court of Admiralty. The guiding assumption here is that the book is strictly of a forensic character and as such devoid of any coherent theoretical substance. To the contrary, in his De iure belli, far from anticipating the English position in favour of 'mare clausum', Gentili tends to anticipate the essentials of Grotius' position, especially at the level of the ethic of the 'modern cosmopolis' and the related theme of colonial empire. On this very plane of discourse, Gentili's thinking transcends the so-called battle of the books and emerges as especially significant in illuminating the wider and deeper intellectual currents that contributed to the development of what were to become basic standard positions of modern international theory.

France's Grotian moment? Hugo Grotius and Cardinal Richelieu's commercial statecraft

Cardinal Richelieu's commercial projects have long been seen as a part of his early efforts to reform the French state. This paper argues that Richelieu's commercial activity can more profitably be viewed in the context of his thinking about relations between France and its neighbours and of a pan-European movement to reconsider the connections among commerce, governance and sovereignty spawned by the Dutch war with Spain. Specifically, it examines Richelieu's relations with the Dutch jurist Hugo Grotius. In 1626 the cardinal attempted to hire Grotius as a commercial expert, consulting with him on several occasions. Although Grotius declined, the cardinal was deeply influenced by Grotius’ arguments about the freedom of commerce and trade. Richelieu adapted these arguments to suit French needs and his own Catholic vision of the state.

Oil's Well that Ends Well? Critical Comments on the Merits Judgement in the Oil Platforms Case

The recent judgement on the merits in the Oil Platforms case has brought a long-standing dispute before the International Court of Justice to a close. This article critically analyzes some of the most interesting topics raised in this judgement, not least the fact that it was harshly criticized by a very high number of judges in their individual opinions. The issues discussed – such as the role of self-defence law within the confines of an ‘FCN treaty’ or the notion of ‘freedom of commerce’ – merely point to higher-level problems of a theoretical nature which cause our confusion as to substantive law.

Europe as a Great Power

Where is Europe?' Senator John McCain asked the United States Congress on 11 August 1992 with reference to the widening conflict in the former Yugoslavia. 'We have seen Germany recognize the sovereignty of some Yugoslav nations, but what evidence of leadership have they demonstrated beyond that action?'(f.1) The senator expressed not an isolated sentiment but rather the incomprehension of a good many of his colleagues at the unwillingness of America's strongest allies to cope with a crisis on their doorstep, and he touched on the reason why in the Balkans above all the New Europe of 1992 looked depressingly like older incarnations. Collective European will had been scarce in the face of unilateral German initiatives to force recognition of the breakaway republics of Croatia and Slovenia, and there was, as McCain spoke, little evidence of an emerging European formula for Balkan peace.The Balkan episode speaks volumes about contemporary Europe's preparedness to assume the responsibilities of a great power in the governance of post-cold war international relations. At no point during the political disintegration of Yugoslavia and the serial wars of succession that followed was a European-brokered peace and the enforcement thereof remotely convincing. Instead, Europe welcomed 20,000 United States troops to enforce an accord engineered by a Clinton administration reluctant to take up a task many Americans considered an inherently European calling. At that point, Michael Sturmer, a German historian, suggested that the only reasonable verdict available was that 'the Europeans, so powerful and active on the economic scene, will need Uncle Sam to protect them against their weakness, opportunism, and disunion.'(f.2) The contending forces in the Balkans had never recognized Europe as a force to be reckoned with. It projected neither moral authority nor the diplomatic stamina of a regional peacemaker.We are traditionally accustomed to thinking of great powers in terms of their ability to bring a degree of order and stability to relations among states in their region, an additional capacity to influence the norms governing relations between states globally, and their assumption of both special rights and responsibilities for the maintenance of those norms. We are also comfortable with the notion that the European states system constitutes a civilization and that Western Europe has since 1945 been involved in an effort to rehabilitate that civilization after its civil war of the first half of this century. Native to European standards of civilized behaviour, both within and between states, is the identification of the freedom of commerce, mobility, and personal conviction as fundamental human rights sanctified for some 350 million people in the European Convention on Human Rights. Measured by its post-cold war diplomacy, the New Europe remains a restorative project and features neither the attributes of a great power nor those of a particularly self-confident civilization.(f.3) Its states are often collectively incapable of exerting political will even within regions that may be considered part of the European periphery.The Nature Of The European ProjectIndeed, political will is a concept with which few European leaders are altogether comfortable after more than forty years of painstaking consensus-building and process-driven integration. The European Union (EU) has devoted only residual energies to the wreckage of its recognition diplomacy in Yugoslavia, largely because of what now appears to be an inability to look outward and beyond the administrative tasks of 'building Europe' that have consumed its attention for four decades. Before the fighting broke out, the discussion of the broader goals of a prospective European foreign policy proceeded in the somniferous vocabulary of integration, and it continued in much the same vein even as the Balkan war came to dominate the world press. At times, it was almost as if some invisible cone of silence over Brussels served to muffle the distant chatter of small arms in Sarajevo, Gorazde, and Srebrenica. …

Fief, Féodalité, Féodalisme. Enjeux Sociaux et Réflexion Historienne

L'image du passé, et plus particulièrement de son propre passé, forgée par chaque groupe social dominant au sein de toute société, est un des éléments essentiels de l'assise de sa légitimité. La complexité et la précision de cette image sont largement proportionnelles au degré de développement de la société considérée, sans toutefois qu'on puisse parler de corrélation stricte car la science historique n'est pas un processus purement cumulatif. Lorsqu'une classe voit lui échapper le contrôle de son devenir, elle sombre le plus souvent dans l'irrationalisme ; la recherche historique est alors soumise à divers blocages et peut même subir de graves régressions, moins visibles mais beaucoup plus nocives que les franches interruptions résultant des grands bouleversements sociaux.

Corporatism after the Corporations: The Debate on Restoring the Guilds under Napoleon I and the Restoration

I must say that with admirable dexterity I spoiled all the exotic wood that he gave me to work. This dear father often groaned to see that his only son would never be able to get a guild mastership and replace him in his shop. . . . Fortunately, the Revolution of '89 broke out, and soon afterward freedom of commerce was proclaimed, which allowed me to take over my father's establishment with no formality whatsoever. But this same freedom that made my fortune was soon the cause of my ruin; for on all sides sprang up cabinetmakers as ignorant as myself and with whom I could not compete. I therefore left my father's shop and, thanks to liberty of commerce, became a clockmaker. As you can imagine, I was even less a clockmaker than a cabinetmaker; but with the help of a skilled worker, I managed to fool the public for some time. Unfortunately, a mason, who set himself up next door as a clockmaker, jeweller, and occasional dealer in lamps, did me considerable harm, for he was even more crafty than my employee. . . . As for me, I left the clock trade with few regrets and opened a wineshop. Unhappily, I did not know how to handle this liquid. . . . I would have had to abandon my new establishment, had not an intelligent assistant come to my aid and taught me the useful art of making wine out of water and chemicals. . .

The regime of navigation on international waterways: Part III: Substantive rights and duties

The term “navigation” in the purely technical sense means no more than the movement of vessels; in this sense the term is used in regulations bearing on the technical conditions for the movement of ships. “Navigation”, the freedom of which is established in international treaties, has a quite different meaning. Freedom of communications (including freedom of navigation on rivers) and freedom of commerce had already been conceived as correlative and complementary notions in natural law. Both the earliest and most recent treaties on inland navigation give conclusive evidence that dissociation of these two notions was never contemplated. It is true that freedom of navigation and freedom of commerce are, in principle, concerned with different matters. Navigation understood as the mere movement of vessels, may be exercised for scientific, philanthropic or recreational purposes. However, such movement of vessels for non-commercial purposes was never of such importance as to justify international regulation. Every international agreement in this field has envisaged granting freedom of navigation as an economic activity. Never, in international treaties, has navigation been treated exclusively as movement of vessels in the technical sense, viz. as an activity with an end in itself. On the contrary, for the purpose of international regulation, navigation has constantly been regarded as an economic activity, viz. as the operation of transport services for passengers and, in particular, goods. In other words, the international regulations have always regarded navigation as the exercise of the shipping trade.

Public Prosecutor v. Aerts.

International Law — Relation to Municipal Law — International City of Tangier.Individuals — Position of — Access to International Tribunals — International City of Tangier.Aliens — Position of — Equality of Treatment and Freedom of Commerce.Treaties — Operation of — Conflict between Municipal Law and Treaty — City of Tangier.52Territories under International Government — City of Tangier — Status of — Legislation Infringing the Statute and Relevant Treaties — Functions of Legislative Assembly, of Committee of Control, and of the Administrator — Absence of Ordinary Division of Powers — Conflict between Municipal Law and Treaties — Aliens — Position of — Equality of Treatment and Freedom of Commerce.

The United States and the League of Neutrals of 1780

The idea of a league of nations is one with which the United States has been familiar since the very beginning of its history. The form in which it first appeared to this country was in the Armed Neutrality of 1780. The purpose of this league, which has sometimes been called the League of Neutrals, was the protection of neutral trade. Having its origin at the court of Catherine II, Empress of Russia, the Armed Neutrality set forth a body of rules respecting the freedom of commerce in time of war which must prove highly favorable to the United States when that country, in a future conflict, should change its status from that of a belligerent to that of a neutral. It is not surprising, therefore, that the inclusion of the United States among the membership of the league which the Tsarina was forming to enforce these principles was not without its advocates.