Legal Edifice Research Articles

Tackling Non-Consensual Dissemination of Intimate Images in India’s Contemporary Legal Framework

AbstractThe rapid proliferation of digital technologies has ushered in a new epoch replete with unprecedented challenges about safeguarding personal privacy and the unauthorized dissemination of intimate images. This article explores the intricate legal landscape encompassing the Indian Penal Code, Information Technology Act, Digital Personal Data Protection Act and the Bharatiya Nyaya Sanhita Bill. This analytical pursuit casts a gaze upon the imperative task of addressing the non-consensual dissemination of intimate images within the contours of the digital milieu. This article comprehensively explores the potential repercussions of digital transgressions, laying bare the seismic impacts on individuals’ privacy, inherent dignity and psychological well-being. More than a mere exploration, this paper unfurls a roadmap for conceptualizing a holistic and productive legal framework in India – uniquely attuned to tackling the complex challenge of non-consensual dissemination of intimate images. Embedded within this endeavour are methodically derived recommendations, conceived upon the bedrock of meticulous dissection of pertinent legal provisions, nuanced analysis of case law and astute juxtapositions with international approaches to analogous predicaments. The overarching objective herein is to propel the evolution of a legal edifice that transcends the constraints of the digital epoch by forging a harmonious amalgamation of its principles with the bedrock tenets of human rights. At the heart of this scholarly endeavour lies an unswerving commitment – to secure and uphold individuals’ sanctified digital privacy inviolability. The ultimate goal is to erect formidable safeguards that staunchly shield individuals from the consequences concomitant with encroachments upon their digital sanctums. Through this concerted initiative, the pursuit of a legal landscape that is not only equitable and reasonable but also at pace with the dynamic digitalization landscape stands foregrounded. This work is thus a clarion call that echoes the need for continuous refinement in the pursuit of justice within the digital echelons of our society.

A Scientific Analysis of the Three-Step Test: Through the Lenses of International and Australian Laws

The paper examines the open access movement and its principles concerning creative outputs and related access opportunities, considering copyright protection. The international and ongoing integration of open access practise has brought about a reconsideration of foundational principles of copyright law. The paper's discussion considers the three-step test legal edifice, which is deeply rooted in international copyright law, and argues that its importance and application is of paramount importance regarding potential revisions of copyright law that would need to introduce open access provisions.

Pathways To African Unification: The Four Riders of The Storm

Research on African unification has not yet explained the reason for the belief in the possibility of post-colonial African states swiftly unifying as a federal or strong, functioning, supranational entity. This contribution attempts to fill this gap in the literature by exploring the various paths towards African unification. Some states pressing for unification misconstrued the history of the successful models that they insisted Africa could follow. This led to the assumption that a near frictionless and workable legal edifice for African unification could be easily created. This contribution has a twofold purpose: First, it draws attention to the importance of the intersection between history and law in construing and explaining the law as it relates to African unification. This is an intersection that has largely been ignored by scholars. Secondly, this contribution adds to the literature that asserts that African unification enthusiasts should reconsider mimicking other models in the expectation that this will help propel their goal of a united Africa. This study examines the routes to African unification, namely the role of socio-cultural interactions of Africans as propounded by Edward Blyden; the romantic speedy path as espoused by more radical forces by which the elite should muster the political will to bring a united Africa into existence; the role of force in creating a supranational Africa out of its independent states; and the role of market integration as an essential ingredient for any deeper and stronger relations among African states.

Openness Through the Lenses of the Three-Step-Test: International Perspectives on Copyright Protection

This paper is focused on openness movement and the principles that said movement declared regarding the use of works set under copyright protection to enable for open access works. The three-step-test legal edifice is deeply rooted in international copyright law; its meaning and application is of vital importance for any consideration of amending copyright law with the aim to include provisions for openness. Unless a provision for openness passes the three-step-test there can be no sustainable amendment of copyright law in favour of openness.

Politics of Loss in a World Heritage Site: The Case of the Historic Vegetable Gardens of the Land Walls of Istanbul

ABSTRACT This paper addresses issues concerning the Istanbul Land Walls Component Area, part of the World Heritage Site of the Historic Areas of Istanbul. The discussion focuses on the conservation status of the historic vegetable gardens (bostanlar in Turkish) in the area adjacent to the monument. The central concern is with the problematical situation, where the agricultural space and culture of the gardens are being denied heritage status, and are presently in the process of being destroyed. The immediate threat to the gardens comes from the forces of urban renewal projects that have been unleashed in Istanbul over the last two decades. It has been extremely difficult for various heritage experts and organizations to effectively challenge the commercial and political imperatives of urban regeneration. First, there is the issue of confronting an institutional and legal edifice with a singular commitment to urban renewal, characterized by an insensitivity to the complexities of urban sites. Furthermore, the core issue resides at the conceptual level, pertaining to the tension between an architectural and monumentalist approach to conservation, on the one hand, and an approach sensitive to cultural landscape, on the other. The fate of the bostanlar will depend upon some form of negotiation and reasonable accommodation between these two contrary perspectives.

WTO Framework on Regional Trade Agreements: A Legal Analysis

The global trading eco-system has seen a rapid proliferation of Regional Trade Agreements(RTAs) in recent years. With the ever increasing expansion of RTAs, countries are now witnessing an intensified competitiveness in world markets. While on the one hand, RTAs are seen as providing much better mechanisms for trading access in foreign countries with inbuilt flexibilities in rule formation and compliance, on the other, it is also said to be subverting the authority of the global trading body i.e. the World Trade Organization. The present article aims to analyse the critical legal bases of proliferating RTAs. To this end, it will offer an examination of the scope of RTAs and the key provisions under the WTO, which support the legal edifice of RTAs.

Суперфиций и право застройки: судьба юридических конструкций в историко-правовом контексте

Суперфиций и право застройки: судьба юридических конструкций в историко-правовом контексте

Rights-Based Law v. Duty-Based Law: Old Dilemma, New Perspective

The concept of right stands at the very center of our legal universe. Rights are the raw material from which the entire legal edifice is built. But one can also imagine an alternative legal universe that contains exactly the same norms as ours but is centered on the concept of duty. Duties would be the raw material from which this alternative legal edifice might be built. Following the Hohfeldian assumption of complete correlativity between rights and duties, one can argue that the difference between these two parallel legal universes is merely a matter of rhetoric. This article, however, argues that a rights-based legal world would presumably be significantly different from a legal world based upon duties. It provides a roadmap which highlights the major contours of the structural differences between rights-based law and duty-based law. The comparison that is made is between our modern law and classical Jewish law, the latter being considered a typical example of a duty-based legal system. Among the issues that are discussed in the course of the article are (a) duties which allegedly have no correlative rights; (b) the relations between affirmative duties and negative duties; (c) the relations between duties and claims; (d) deciding between contradictory norms. Towards the end of the article, this analysis leads us to consider the possibility of a richer, non-binary, legal language that combines elements of the lexicon of rights with elements of the lexicon of duties. Such a combination, executed judiciously, may enable us to relearn the language of duties while at the same time continuing to improve our rights-language, thus benefitting from the best of both worlds.

The Italian Legal Recipe: Basic Ingredients and the Bustle of Time

Many legal systems beyond the classical common/civil law mixed world may show themselves as the result of a historical combination of different paradigms, and of ever changing legal blends. Allegedly ‘pure’ (i.e. unmixed) civilian systems are no exception, as the Italian legal experience demonstrates. The Italian legal system stands as an emblematic illustration of how, in a civilian context, original and foreign (both civil law and common law) inspired legal rules, institutions, and attitudes may interact, develop through time, and synthesize themselves in a complex, yet unified legal culture.As is well-known, from a comparative perspective Italy is commonly conceived as a member of the civilian legal family, and, more in particular, as a mix of XIX-XXth century French and German influences. This is, however, only one side of the picture. Whatever their current respective zones of influences are, the point is that French and German legal models are no more (as they have never been) the only ingredient of the Italian recipe. As a matter of fact, the origin of many components stretches wider both in time and space. In some cases, it stretches back to the fragmented plurality of normative levels which characterized the peninsula’ legal edifice for centuries before political unification. In other cases, the origin of legal rules stretches up to the more recent borrowings from the United States experience: from the plea bargain to the ‘quasi’ adversary criminal trial, from securitization techniques to financial contracts models, from class action devices to the overarching patterns of judicial review.Hence, far from being a purely civilian amalgam, the Italian legal framework presents itself as the fruit of an endless interaction of local patterns with foreign-inspired paradigms. This is why the third legal family lenses can prove extremely useful in looking at the Italian allegedly ‘pure’ legal experience, and in highlighting the multiple ingredients of its somewhat mixed recipes. More generally, third legal family’s perspective may help put countries belonging to civilian legal family in context, and lead to a better understanding not only of the dynamic relationships between this family and other legal families, but also of the cross-fertilization phenomena which endlessly take place within and beyond family borders.

Treaty revision in the European Union: constitutional change through international law

The main instrument of constitutional change in the European Union, during the last twenty years, was the revision treaty, that is, an international agreement between the member states of the European Union making amendments to the so-called �founding treaties�. The recent adoption of a European Constitution was seen by all the leading actors, and without any controversy, as involving again a revision of the current Treaties in accordance with the procedure of Article 48 EU Treaty, rather than the creation of a wholly new legal edifice. This Constitution thus fits, despite its many novelties, in the long chain of European revision treaties. All the revision treaties were important steps in the development of the European integration process. They were also, from a legal perspective, cases of amendment of multilateral treaties subject to the legal regime set out in Articles 39 to 41 of the Vienna Convention on the Law of Treaties. European treaty revision was a success story in what could be called its golden age (1985�2000), when amendments were successfully made and implemented in accordance with the traditional method of intergovernmental conferences followed by national ratifications. However, increasing criticism of this traditional method led, not to the rejection of the international law framework altogether, but to claims for reform of the particular expression of that international law regime in the EU context. Those misgivings related to the exceedingly diplomatic (and therefore opaque) character of treaty negotiations, and to the excessive rigidity caused by the �double lock� of overall consensus by all governments at the intergovernmental conference, followed by universal ratification in all the member states. The article examines the recent debates on these points, as well as the remedies which the new European Constitution adopted or failed to adopt.

Insult to injury: libel, slander, and invasions of privacy

William K Jones reviews the seminal US Supreme Court decisions that restrict the First Amendment in order to protect persons against defamatory falsehoods, invasions of privacy, and related psychic harm. Covering cases ranging from a restaurant owner driven out of business over a veal chop to a University of Georgia football coach accused of sharing plays with an opponent before a game, Jones examines the many subtleties of the law, its interpretation, and its restrictions. Although the author concludes that the accommodations struck by the courts are appropriate, he nevertheless argues that there are serious deficiencies in the complex legal edifice that has been erected. After reviewing the relevant cases, Jones recommends a comprehensive new framework for dealing with the problem of defamatory falsehoods -- a framework designed to afford greater protection for expressions on public issues while also providing more meaningful relief to the victims of harmful speech. With material covering the impact of the internet and related electronic means of expression, Insult to Injury is sure to be of interest to current practitioners in the media bar, law students, and journalism students alike.

Something Happened on the Way to the ©

Something Happened on the Way to the ©

William Godwin and the "Ars Rhetorica"

THERE IS A RECIPROCAL RELATIONSHIP BETWEEN A NATION'S POLITICAL institutions and value it places on oratory. Some form of this maxim would have appeared a commonplace remark (and a locus of argument) throughout eighteenth century, and within context of political debate attempt to divorce oratory from a political or religious institution would have seemed unusual. The classical education of Englishmen who were prepared for the senate, bar, or encouraged them to view great oratory, among other arts, as indivisible from institutions; among ancient Romans, they judged, demise of oratory resulted from rise of luxury and degradation of senatorial virtue. (1) In eighteenth-century England, where democratic element of Commons supposedly balanced oligarchic and monarchic elements of Lords and King, connection between oratory and free institutions was played upon for sake of ideological support and liberally exploited by Whigs for purpose of political criticism. At same time, however, and often in reaction to this exploitation, eloquence was viewed as dangerous to free institutions because of its ability to rouse passions and put them under control of a talented speaker. (2) Fear of rhetoric went hand in hand with fear of complete subjection to democratic element and of tyranny that would inevitably result. From one point of view, therefore, it should seem strange (and eventually did seem strange) that William Godwin, long a partisan of parliamentary reform, would not seek it through democratic venue of public speaking, or at least approve of others' doing so. (3) From another point of view, it makes sense, however, that when in Enquiry concerning Political Justice (1793) he ended up proposing viability of a society without formal government, he should also discard public speaking with institutions which it would serve, in order to relocate scene of significant communication in private conversation. (4) Godwin's view of ars rhetorica harbors a further complication, moreover. (5) For while in 1793 he declared conversation medium of gradual reform, he also assiduously pursued his plan of enlightenment in public sphere of print journalism, venue open to private citizens who could use it to influence public decisions. This is an important choice, since he had earlier treated press virtually as a constitutional institution, as an extension of House of Commons' function of representing public opinion. To Godwin, not only press, but jury too had earlier constituted an important venue of public opinion, and it was not only not private, it was both traditionally a venue of authoritative public speaking and an institution deciding upon imposition of force. To be sure, value Godwin placed on press and jury in 1780S reflects his involvement with Foxite Whigs. The society without government he envisions in Political Justice, however, would integrate press into its new plan of education and would long preserve jury, to hear cases of violence against neighbors and property, before disappearing in final triumphant merging of private judgment and public good. This continuation of earlier views into later formulations is symptomatic of very rhetorical problem Godwin had continually to address: how to convince his audience that reform, even radical change, was possible. For, granted that in 1793 Godwin envisioned ultimate demise of parliamentary government and of entire legal edifice, yet if he wanted to effect this end gradually (and gradualness is a major component of his thought) what would he allow to carry over from old institutions, and how could old, rather than simply disappear, actually become something new? This question is intimately related also to his view of art of rhetoric, because it was originally in and for institutions of legislative assemblies and law courts that such an art was declared and described and (along with pulpit oratory) formed into stock of education in eighteenth century. …

Completing the Sentencing Revolution: Reconsidering Sentencing Procedure in the Guidelines Era

The central innovation of the guidelines sentencing revolution has been the creation of a regime in which facts other than those required for conviction have necessary conse quences at sentencing. In days of yore, judges mulling a sentence were entitled to receive information from virtually any source on virtually any subject, but they were never obliged to pass public judgment on the truth or falsity of what they heard because no finding of fact could constrain their discretion to set a sentence anywhere within the boundaries set by statutory maxima and minima. No more. The project of the original United States Sentencing Commission was to identify those facts that ought to influence sentencing outcomes and then to create a set of rules embodying the command that sentences would be affected whenever the identified facts were found. The idea was to bring law to a region of the criminal justice system thought to be lawless by making sentencing a more adjudicatory and less discretionary process. Few revolutions, however sweeping, eradicate all traces of the anden regime. The sentenc ing revolution razed the old church of discretionary, rehabilitative sentencing, and erected on its site a new temple in which rules designed by an expert commission and ratified by the elected legislature would be applied based on judicial findings of fact. However, the architects of the revolution, enmeshed in the details of their soaring new legal edifice, seemingly forgot to check the sub-basement. They built the new superstructure of substantive sentencing law right over the procedural foundation of the old discretionary, non-adjudicatory system. In consequence, although guidelines sentencing requires extensive factfinding, the pro cedural rules governing the sentencing hearing are but little changed from the pre-guidelines era. Although judges must now make findings of fact as an integral part of the task of guide lines application, those findings are the product of a process in which the government's bur den of proof is only a preponderance of the evidence, defendants have limited rights to discovery of evidence germane to sentencing factors, much of the true fact-finding is done (at least preliminarily) by probation officers without the benefit of any formal evidentiary presen tation, and the sentencing hearing itself is not subject to the rules of evidence. Unsurprisingly, this odd discontinuity between the mandatory and fact-dependent character of substantive federal sentencing law and the extreme informality of federal sentencing procedure has been a source of discontent with the new system since its inception. Yet little has changed in the thirteen years since the Guidelines went into effect. In the last few years, however, the debate over sentencing procedure has heated up. Vari ous observers have suggested that the guidelines sentencing system has changed the very way in which "crimes" are defined. If the definition of a crime is a list of factual elements that, when proven, produce a specified range of punitive sanctions, then one can fairly argue that the Sentencing Guidelines are now the true federal criminal code, and that adjudication of "Guidelines crimes" occurs, not at trial or by plea, but at sentencing. Some have questioned whether this new state of affairs is consistent with constitutional jury trial and due process guarantees. The U.S. Supreme Court is in the midst of considering a series of cases that attempt to define the issues that must be adjudicated in a trial before a jury and those that may properly be decided by a judge alone in the procedurally informal setting of a sentencing hear ing. In 1999, the Supreme Court suggested in a footnote that the Sixth Amendment requires a jury determination of any statutorily enunciated fact that might increase the maximum sen tence of a defendant.1 As this issue of fsr goes to press, the Court has just decided Castillo v. United States,2 a challenge to 18 U.S.C. ? 924(c)(1), which increased the maximum sentence for using or carrying of a "firearm" in relation to a crime of violence when the weapon was a

Sovereignty and Community after Haiti: Rethinking the Collective Use of Force

The history of diplomacy has been a history of two competing structural conceptions: sovereignty, the barrier that limits state power, and community values, the collective power that overcomes that barrier. In ages past, when the fault line shifted between sovereignty and community, and cracks began to appear in the old legal edifice governing use of force by sovereign against sovereign or community against sovereign, the leading nations of the world gathered at Westphalia, or Vienna, or Versailles, or San Francisco to clarify the contours of the new order and to formulate, however loosely, a set of rules that would govern the use of force for generations to come—rules that recognized states as equals, rules that prohibited aggression, rules that permitted only defensive force. But not this time.

Political strategies and the law in South Africa: analytical considerations

It is a commonplace that statutory law has been, and continues to be, a major mechanism in the structuring of the racial domination of the various black classes in South Africa. For this reason, oppositional political movements have had continuously to confront the law and to pose questions about political strategies towards legislation and its implementation. Political and trade union organisations have deployed two types of strategies and in both, generally, the entire racial legal edifice has been, at least implicitly, put into question. One strategy challenges that edifice by the organised disobedience of, or disregard for, one or more statutory enactments. Leaving aside sabotage and armed struggle, there are numerous examples in South African history of organised political campaigns aimed at forcing the regime to retreat through large scale transgressions of the law: these include the anti-pass campaigns of 1960 and earlier years; the Defiance of Unjust Laws Campaign of 1952; the establishment of schools in defiance of the 1956 Bantu Education Act; the refusal to comply with urban population removal orders under the Western Areas Resettlement Act and with rural relocation under other acts; and unlawful urban squatters movements. In passing, it should be noted that these types of actions must be rigorously differentiated from individual transgressions of the law with which radical criminology, deviance theory and some social history have been pre-occupied. In these accounts, individual criminal and deviant acts are conceived of as inherently political as essentially expressing opposition to the existing system and, therefore, as being revolutionary or at least radical in their connotations. The counterpart of this is to construe every individual recalcitrant act in the work situation as class struggle. In these arguments the ideas of the 'political', and the political class struggle, lose all specificity and are simply dissolved into an amorphous totality of social action. In this paper, by contrast, it is assumed that actions against the law constitute political strategies only when they involve joint and organised action as part of and as an expression of oppositional political discourses.

Le droit de la filiation légitime à la fin de l'Ancien Régime

Marie-Thérèse Allemand : The right of legitimate descendence at the end of the old régime. Under the Old Régime the Roman adage pater is est quem nuptiae demonstrant is the foundation of the right to legitimate descendence ; Parlements applied it rigorously and only allowed one exception, based on the physical impossibility for the spouses to cohabit. The argument of moral impossibility, based on facts indicating that the husband is not the father of his wife's child, was rarely accepted by courts. The reasons for this prudence are perhaps imputable to the difficulty of defining a system of proof. Nevertheless, on the eve of the Revolution, the courts systematically excluded, for civil cases, recourse to oral proof unaccompanied by any written proof. Yet, differences between courts, or within the same court, are numerous and show, in the absence of any particular legislation, the incomplete nature of the legal edifice in this matter.

Revolutionary War: Challenge to Just War

The doctrine of the "just war" has a hallowed place in the history of political and legal thought, while its more inflammatory counterpart, "revolutionary war," cannot call upon such a long and distinguished pedigree. This is not so surprising as it may at first seem since the doctrine of the "just war," or its momentary variation, has proved flexible enough to accommodate all sorts of wars for every kind of reason. I am prepared to argue that the claimants for either doctrine base their reasons for waging wars on similar, if not identical, principles. Hence the concept of "revolutionary war," to the extent that it may be a discernible and separate concept, can be subsumed in most cases under the general category of the "just war." What has happened in the long history of institutionalized warfare among nations is that the underlying reasons for legitimizing war have been overwhelmed by legal norms — a legal edifice so to speak — that have of necessity favored the established authorities.

The Theory of the State as a Sovereign Juristic Person

The casual student of Western political history encounters sovereignty in a number of guises. In the stage of absolute monarchy, it was a personal endowment of princes; in the stage of democracy, it seems to be a collective endowment of the “nation” or the “people.” In the latter period, moreover, a definition of law as the command of a sovereign becomes increasingly popular.These various contexts for sovereignty will already have suggested the protean possibilities of the general conception, but the student will have had little difficulty in sensing its generally anti-constitutional influence. Even popular sovereignty, which sounds the least dangerous, has had to be offset by opposing institutions in accounting for the relatively high constitutional morality of the democratic system.While, therefore, it is not surprising to find sovereignty again (and in a still different guise) when we examine the leading conceptions of American public law, one well may marvel to find it accorded a key position among them. For, strange to say, the sovereignty of the state is widely accepted as the cornerstone of a legal edifice which the lawyers themselves appear to have laid.