Legitimate Protection Research Articles

The Legal Scopes of Liberty and the State in Light of the Utilitarianism of John Stuart Mill

In modern democracies the liberty of the individual is ensured and protected by the state or the government. But it is well-known that restrictions on liberty are institutionalized and the individual is responsible for obeying them. The liberty of the individual and its protection is provided through restrictions. On the other hand, the legal system and the government are the institutions that threaten the liberty of the individual. Mill’s thesis on individual liberty implies the primacy of it and sets out the social conditions in which it will be possible to realize and protect individual liberty. The main theme of his treatise On Liberty is the nature and boundaries of individual liberty, the scope of legitimate interference with individual liberty. In other words, the principle establishes a sufficient basis for the legitimate protection of the individual liberty, i.e. what is a restriction of a right, on the one hand, is at the same time a protection of it. An individual must be free from all forms of violence, if his/her actions do not harm others [Riley 2001, 46]. The purpose of the paper On Liberty is to provide one very simple principle. Main point of it is that the method of societies’ relations with the individual should not be coercion and control. No matter is it a case of physical violence as a form of punishment or as a form of moral coercion by society. Power over a member of a civilized community can only be exercised for the sole purpose of preventing harm to others. Thus, the liberty principle establishes a necessary condition for legitimate violence against any individual: his/her liberty of action must be restricted by law or opinion if there is a reasonable expectation that it will harm others.

Intentional Killing or A Right to Bodily Integrity: Can We Bridge the Moral Languages of Abortion?

This essay examines the differences that result from two different ways of framing abortion. The first way is intention based; it evaluates the act primarily on the basis of the purpose of the agent in acting. On this view, abortion is best described as intentional killing of the innocent. The second way is rights based; it evaluates an act on the basis of whether or not it occurs within the agent’s protected sphere of activity. On this view, abortion is best viewed as a legitimate protection of a woman’s bodily integrity. I explore how these different moral frames engage different aspects of the religious imagination. Finally, I suggest ways in which the chasm between intention-based analysis and rights-based analysis might be bridged.

A Franchise Agreement as an Act of Unfair Competition

The article is devoted to the analysis of the commercial concession agreement and antitrust immunities provided for by the provisions of the Law on the Protection of Competition and allowing business entities to use the design of the commercial concession agreement in order to conceal their own violations. A legal assessment of the nature of a commercial concession agreement is given, the boundaries between the legitimate protection of the rights and legitimate interests of a cheating entity and a violation of the requirements of antimonopoly legislation are determined.

Global Climate Refugee Governance Status and Feasibility Pathway Study

Increasing numbers of people are also being forced to flee their homes and countries due to the effects of climate change. These people, displaced by the loss of their habitats due to climate change, are known as climate refugees, nowadays distinguished from both climate migrants and environmental refugees, but often overlooked and unprotected by the international community due to their unclear international status. The international community should therefore provide climate refugees with the legitimate protection and care that are necessary to uphold their human rights.

The Police law within the system of administrative law.

Issues of police control and involvement are of great essence when aspects of administrative law are revealed. The issue here is that there is no way or instances where the legitimate protection of individual rights and freedom can be guaranteed without the presence of the police in ensuring that rights are protected through the respect of the rule of law. The only way this protection can be maintained is only through the operation or application of administrative law. When dealing with the concept of police law, emphasis is laid on the responsibilities this law enforcement agencies have when dealing with matters related to state security, protection of individual living in a given society, and to a certain extent, the entire public. There is no doubt that it is the role of the police to maintain peace and security within a given society, but the question we should be posing is whether their functions performed are done within the confines of respecting fundamental human rights, following the due process of the law being the fundamental and imperative basis or essence of administrative law. One thing is to ensure security, and the other one is to ensure that when enforcing this security, fundamental freedoms and rights of individuals will be respected by the supposed called law enforcement officers. It is therefore in this light that one can say, without any questioning, that under no circumstances should police law function without the intervention of administrative law, both most compliment each other, and activities of the police must be done in strict respect and compliance with that of administrative law.

Pomiędzy ochroną sektorów strategicznych a protekcjonizmem — uregulowania dotyczące osób zagranicznych w ujęciu porównawczym

Artykuł skupia się na ochronie sektorów strategicznych. Głównym celem, który sta-wia sobie autor, jest wskazanie różnicy pomiędzy protekcjonizmem jako doktryną ekonomiczną a uzasadnioną ochroną kluczowych sektorów gospodarki z perspektywy funkcjonowania państwa. Na początku tekstu przedstawiona jest obecna sytuacja na arenie międzynarodowej, która jest punk-tem wyjścia do rozważenia ograniczeń handlu i inwestycji wprowadzanych w systemach prawnych USA, Chin oraz państw członkowskich UE. Autor tekstu podkreśla znaczenie definicji pojęć, takich jak protekcjonizm, sektor strategiczny oraz osoba zagraniczna. Główna część tekstu dotyczy obo-wiązujących już regulacji, w szczególności nowych instrumentów prawnych, które wymienione państwa wprowadziły w ostatnim okresie.

Judicial Review: A Fertile Field of Contention

While constituting a core feature of democratic South Africa, judicial review of legislative action remains a contentious issue globally. The best case for such review remains convincing only in justifying severely constrained judicial veto power in select circumstances.In developing a novel construction of judicial review, various political and philosophical arguments both in support of and against various forms of judicial review is analysed. The author argues that the crucial question is not one of efficiencies but rather of political legitimacy and any form of legislative judicial review will only legitimately subvert legislative decisions where the underpinnings of democracy and rights are threatened with scant means of recourse available. The authors revised model advocating for the strict application of legislative judicial review to select circumstances pertaining primarily to minority rights, attempts to rid its present construction of existing pathologies while retaining some form of legitimate protection where necessary

Legitimate protection against verbal crimes

The author provides an overview of the legislative and legal practice of protection against verbal crimes in Hungary.

Doctrinal Contributions on the Right to Use the Work Provided by Law No. 8/1996

Abstract In the present study we propose to offer a series of doctrinal solutions regarding the legal analysis of the patrimonial right to use the work of the authors, under Law no. 8/1996. The importance of the approach lies in the in-depth understanding of the institution, the logical and legal motivations of the Romanian legislator’s options and the doctrinal and jurisprudential solutions in the field. Concerning the importance of legal protection of the author’s patrimonial rights, we will mention here only the argument accepted by the opinionated that social development and well-being are inextricably linked to the legal protection of intellectual creation. We assume that the individual would not be encouraged to create in the absence of legitimate protection of the creation of his intellect

Implementation of the principle of adversary procedure at the pre-trial stages in the criminal procedure legislation of the republic of azerbaijan

The article discusses the issues of the adversarial principle in modern criminal proceedings of the Republic of Azerbaijan and justifies the conclusion that this principle has effect not only in the lower courts, but also in pre-trial proceedings whenever the matter shall be settled by the court. The author identifies the problem of contentiousness regulation in the Criminal Procedure Code of the Republic Azerbaijan and justifies proposals for further legislative development and empowerment to ensure legitimate protection of equality of the parties.

The Inviolability of Medical Confidentiality in Malaysia: An Analysis of the Rules and Exceptions

The duty of medical confidentiality has been one of the core duties of medical practice as information created, disclosed, acquired directly or indirectly during the doctor-patient relationship is considered confidential and requires legitimate protection. Further, preserving confidentiality on the premise that the relationship between doctor and patient has been built on trust and confidence renders the duty to be seen as sacrosanct. The source for this duty can be found not only in the Hippocratic Oath, codes of ethics, religious tenets but also in the common law, principles of equity and statutory provisions. Nevertheless, technological advancements and the growth of social networks have contributed to the difficulties in preserving confidentiality as the information gathered tends to become vulnerable in unsecure environments. However, the duty of medical confidentiality is by no means absolute as it can be breached in situations in which there are stronger conflicting duties. This article discusses the rules governing the duty of medical confidentiality and the exceptions in which infringements to this duty become justified. It also gives an overview of the duty of confidentiality under Islamic law. It concludes that the inviolability of this duty may be without doubt but circumstances warranting its disclosure are crucial to serve the interests of justice.

Taxation and Human Rights: A Delicate Balance

The intersection of tax law and human rights can be viewed from two opposing perspectives. On the one hand, the ability of rich residents of developing countries and multinational corporations operating in those countries to evade or avoid taxation is directly linked to violations of human rights in those countries, especially from the perspective of social and economic rights like health and education. Providing such countries with the means to fight back and collect adequate revenues is essential in advancing such rights. On the other hand, some of the techniques used to achieve adequate revenue collection, like automatic exchange of information (AEoI) and country by country reporting, risk violating other human rights like privacy and the legitimate protection of trade secrets. This paper seeks to discuss both aspects and the need to find a reasonable balance between them.

Forced Migration: Typology and Local Agency in Southeast Myanmar

This article describes and analyses the decision-making and approaches to return, resettlement and rehabilitation of forced migrants--Internally Displaced People (IDPs) and refugees--in the context of armed conflict and an emerging process in southeast Myanmar. Drawing on literatures on agency and protection, we argue that forced migrants in and from Myanmar demonstrate great resilience and significant social capital, and that external support should be geared towards aiding their own ongoing struggles to achieve dignity and durable solutions to their plight. The article describes eight main types of conflict-induced forced migration in southeast Myanmar, determined largely by forced migrants' coping mechanisms in the context of hardship and abuse. Five main factors are further identified which influence these different types of forced migrants in their current decisions around return or resettlement and thus help us to understand the role of local agency in the changing context. Forced migration in southeast Myanmar has been driven to a large extent by the counter-insurgency strategy of the Myanmar Armed Forces (Tatmadaw), raising questions of the potential role of the state as a legitimate protection actor. Meanwhile, international assistance has been limited due to a lack of access to conflict-affected areas, meaning that external actors have also failed to provide adequate protection. Many displaced communities continue to rely on Ethnic Armed Groups (EAGs) and their associated networks for humanitarian support and social services. But these actors too can be compromised in their effectiveness as protectors by their lack of capacity, and their conflicting political, personal, economic or other agendas. Furthermore, civilians living under their influence are often saddled with increased attacks and harassment by the state. This lack of institutionalized protection demonstrates clearly the importance of understanding how communities protect themselves and relate to external actors. This is of particular significance at present in southeast Myanmar, where ceasefires between the government and seven local EAGs were signed in 2011 and 2012. These deals have created a degree of stability in the region, despite a wide range of ongoing security issues related to continued militarization. Additionally, decreases in violent conflict have allowed greater space for economic development actors, including the government, to expand agribusiness and extractive resources developments and to construct multiple roads, leading to significant land confiscation and damage to local livelihoods. (1) In this context, thousands of forced migrants have begun tentative moves either to return to previous locations (particularly where they still have claims to farmland) and/ or move to new in-country resettlement sites. Globally, the literature and policy discourse on protection of forced migrants and other victims of conflict and humanitarian disasters has focused on the role of external actors and their responsibility to intervene. However, there is a growing body of work exploring the importance of such forced migrants' own protection strategies, which we discuss below. This article aims to add to this body of literature. We demonstrate how peace processes and the rehabilitation of civilian victims of armed conflict are far more complex than simple transitions back to a pre-war status quo, and involve long and complex (and often contested) of deliberation. Background: Conflict, Peace and Humanitarian Impacts in Southeast Myanmar (2) Myanmar is home to more than 100 ethno-linguistic groups, and according to the 2014 census, has a population of over 51 million. Non-Burman communities make up at least 30 per cent of the population. Ethnic armed conflict has plagued southeast Myanmar--which borders Thailand, and encompasses Tanintharyi Region, Mon State, Kayin State, eastern Bago Region, Kayah State and southern Shan State--for over sixty-five years. …

Garden Leave Clause: Restrictive Covenant in Employment Contracts (with Special Reference to its Applicability in India)

'Interference with individual liberty of action in trading, and all restraints of trade themselves, if there is nothing more, are contrary to public policy, and therefore void.' However, legitimate business interests can be protected. Legitimate business interests: customer/trade connections or goodwill (also connection with suppliers); trade secrets or confidential information; and other legitimate interests. In order to be a legitimate means of controlling employees post termination of contract an employer can only seek what a court would regard as 'adequate' protection. A general restraint of trade is not a legitimate protection.

Contingent Loyalty and Restricted Exit: Commentary on the Restatement of Employment Law

Chapter 8 of the American Law Institute’s Restatement of Employment Law proposes bad law in every sense of the word when it restricts job mobility of current and former employees by imposing a general duty of loyalty and providing for enforcement of non-compete agreements. Its rules are vague and confusing on crucial issues where clarity and precision are needed. In allowing employers to prevent current and former employees from engaging in competitive employment, Chapter 8 is out of sync with the assumptions underlying the at will rule articulated in Chapter 2 of the Restatement, which insists that employment is an at will relationship that either side can terminate in order to pursue more lucrative opportunities with other contracting partners. It is also out of sync with the norms of many contemporary employment relationships in which employees are expected to bring their knowledge and skills to every job and to depart, perhaps after a relatively short-term period of employment, with enhanced knowledge and skills. The only legitimate interests employers have in restraining competition by current or former employees are protected by the law of misappropriation of trade secrets, by the torts of interference with contract and interference with prospective business advantage, and by the corporate opportunity doctrine for managerial employees who owe a fiduciary duty to the firm. The duty of loyalty, as stated in the Restatement and as applied by courts, adds no legitimate protection to employers and is simply anticompetitive. More important, in allowing employers to resort to contract and tort liability to restrict labor market mobility, the Restatement ignores a substantial body of empirical research showing that legal restrictions on mobility are bad for employees, bad for firms, and bad for the economy as a whole. Courts should approach provisions of Chapter 8 skeptically. If they do, the Restatement may fail in its aspirations to shape the law, but at least it will not fail in the ALI’s goal of improving the law.

Guerrilla Insurgency as Organized Crime

The escalation of violence committed by the Revolutionary Armed Forces of Colombia (FARC) guerrillas against noncombatant civilians triggered a shift in the theoretical orientation of scholars who study Colombia’s political economy. While previous explanations emphasized the sociopolitical “grievances” underlying guerrilla activities, recent explanations emphasize the “greed” motive, including guerrilla involvement in Colombia’s illegal narcotics trade. In this article, the author posits an alternative explanation using Charles Tilly’s theories of state formation to explain FARC activities in Caquetá, Colombia. Drawing from a longitudinal data set that documents the war making, state making, extraction, and protection activities of the FARC between 1975 and 2007, in addition to historical sociological methods, the author finds that increases in FARC repression stem from the growing militarization and paramilitarization of the region, which pressured the FARC to extract resources from the local population in a way that no longer served that population’s legitimate protection interests.

Versions of violence: Zimbabwe's domestic violence law and symbolic politics of protection

This article argues that political uses of violence and discursive representations of violence are part of a political discourse of legitimacy in Zimbabwean politics, and that this discourse relies on a gendered power matrix in which acts of violence are depicted either as legitimate protection or as illegitimate aggression or terror. The analysis is based on public debates about domestic violence legislation and media representations of political uses of violence in 2006 and 2007. However, this is viewed as part of a longer history of political violence, entailing a symbolic politics of protection and political legitimacy, in which the protection of the nation's women figures as metonymy for ‘the people’ in need of protection.

Expert Review Of Drug Patent Applications: Improving Health In The Developing World

Many developing countries have enacted intellectual property laws allowing patents on pharmaceutical products. These countries now must figure out how to provide legitimate protection of innovative discoveries while avoiding drug patents that do not conform to their laws. Using case-study examples, including the antiretroviral tenofovir disoproxil fumarate (TDF, or Viread), we demonstrate the importance of having outside experts participate in the review of drug patents. Vibrant patent review systems require sharing information among developing countries and active consultation with local public health authorities.

Food Security and Agricultural Protection in South Korea

South Korea has been pursuing food self‐sufficiency using high tariffs and high administrative prices in key agricultural and food markets. Using a dual approach to trade and trade restrictiveness indices, we analyze the impact of these market distortions on welfare and trade volume. Then, we compute second‐best distortions, which minimize the welfare cost of meeting observed levels of self‐sufficiency and production. We rationalize these second‐best distortions to what could be claimed as legitimate protection under a “food security” (FS) box in World Trade Organization (WTO) negotiations. FS‐box protection is sensitive to changes in the definition and the extent of the FS objectives. We show that FS via production targets and reliance on imports would be more palatable to consumers and trade partners, while preserving income transfer to the farm sector.

Congressional access to executive branch information: Lessons from Iran-Contra

The Iran-Contra affair highlights the ongoing contest between Congress and the President over access to information. To carry out their constitutional functions, each branch needs information and the ability to protect the disclosure of that information. In the case of Iran-Contra, legitimate protection of information was replaced by lies and deception on the part of Executive officials, the pursuit of contradictory policies by the Executive Branch, and the violation of congressional statutes. Congress was denied the information it needed to discharge constitutional responsibilities, requiring it to reassert legislative prerogatives by tightening oversight statutes and scrutinizing presidential nominees who had some involvement in Iran-Contra. As a result of prosecutions by the Independent Counsel, a number of Executive officials and private citizens who participated in Iran-Contra have already pled guilty or been found guilty by Federal juries. Other than some temporary mending of fences and promises of good-faith, it is uncertain whether Iran-Contra will yield more permanent and beneficial lessons.