Positive Duties Research Articles

Mutualism: a model for managing risk in P2P sharing

Abstract This article explores how the risk structure currently adopted by the sharing economy, in particular the highly formalised and contrived systems of contract constructed by platforms, is largely constituted by the rules of property law. This effectively ties sharing activities to the old model of private property and its accompanying boundaries of privatised risk and value and undermines the efforts of collaboration to supersede those boundaries through peer-to-peer co-production of value. This article aims towards presenting an alternative model of risk distribution for the sharing economy that is more reflective of its collaborative nature. To this end, I will draw on ideas from commons and mutualism and propose the possibility of creative use of contracts to stipulate positive duties and obligations between collaborative partners as a device to construct a collective and/or mutual risk system.

Corporations and positive duties to fulfil socio-economic rights: developing international human rights law

ABSTRACT There is much contestation about the nature and scope of corporate human rights obligations under international law. Some maintain that corporations have a basic responsibility to avoid human rights violations in their operations; others argue for a wider scope of accountability, including a more active duty to protect human rights. I argue that corporations should have positive duties under international law to fulfil all human rights, especially socio-economic rights. I ground my argument in the staggering inequality that exists between the wealthiest corporations, on the one hand, and the poorest parts of the global population, on the other. This is entrenched by a perfect storm of global economic inequality, international trade, and transnational corporate power. This creates structural poverty, which enables conglomerates to generate profits that, promises notwithstanding, do not reach people living in indigency. This results in the anomaly whereby indigent communities actually subsidise corporate profits. It is this inequity and concomitant benefit, that justifies the imposition of positive duties on corporations to fulfil socio-economic rights. However, this duty is limited. I identify a series of interlocking factors, the coalescence of which creates a reasonable and justifiable imposition of human rights duties onto corporations.

Academic Spin-offs through the Lens of Pragmatism and Mixed Methods

In conclusion, this paper explores the intricate dynamics of improper omission as an amplifying device within the Colombian legal context. A detailed analysis has demonstrated how improper omission allows the imputation and punishment of individuals who, without fulfilling the typical description of conduct, incur criminal liability when they abandon their role as guarantors in the absence of a nexus of avoidability. This occurs when they fail to prevent the typical results that, in the context of legal assets in their charge, the perpetrator can update their conduct, but refuses to do so without sufficient justification. It is crucial to differentiate between the general clause of equivalence of improper omission and the special clause of equivalence. While the former pertains to all legal assets, the latter is limited to specific legal assets mentioned in Article 25 of the Criminal Code. This distinction is vital to guarantee coherence and proportionality in the application of criminal law, thus preventing potential arbitrariness and violations of fundamental rights while enabling effective protection of positive duties of protection of legal rights with criminal protection. In particular, the issue of extending the position of guarantor to the protection of legal interests beyond those contemplated in the first paragraph of Article 25 of the Criminal Code has been addressed. By means of practical examples and analyses of case law, it has been demonstrated how improper omission can be constituted in a variety of contexts, including situations in which typical behaviors may arise as a result of the negligence or eventual inaction of an individual, whereby the individual in question removes himself from the protection of the legal assets in his control, which he has assumed voluntarily, so that an omission is constituted without sufficient justification. In conclusion, the clarification of the concepts presented here will contribute to the ongoing academic and legal discourse on improper omission in Colombia. It will provide a comprehensive and nuanced understanding of its application and implications within the country's legal framework. Through rigorous and thoughtful analysis, we encourage continued exploration and debate on this complex issue, with the aim of enhancing and strengthening the administration of justice in Colombia.

Positive Duties of the Security Council Under the UN Charter and International Law

Abstract The current international context, characterised by a crisis in the multilateral institutions including the United Nations Security Council (sc), invites one to explore an often-overlooked question: whether the UN Charter and international law impose positive duties on the sc. To answer this question, this article offers a theoretical approach to an issue that has not received much attention from the authors. This exploratory study discusses the existence of duties of the sc; it analyses those duties under the Charter and international law, especially in Article 39, in the UN Purposes and Principles, and in the jus cogens norms. The article deals with the content and scope of the duties, arguing for a due diligence nature of them, and it also addresses the issue of the consequences of breaches, especially the institutional consequences within the UN system.

The Right to Defend the Homeland v. the Duty to Defend the Homeland

The central issue in the context of the russo-ukrainian war due to the aggression of the Russian Federation is the interpretation of whether it should be interpreted as the right to defense or as the duty to defend the Motherland. The problem seems to be understudied in the literature, although in fact it is revealed in considerable detail from the point of view of national security and extraordinary protection of the constitution. The article reveals the structure of the right to defend the Homeland in the context of existential threats to the Ukrainian nation through the lens of positive duties of the State and the principle of republicanism as the basis for joint activities of citizens. The author proposes an approach to resolving the dilemma of the right/obligation to defend the Homeland as ensuring the security space of free citizens and identifies the main components of the subjective public right to defend the Homeland and the obligations of the State which correspond to it. The structure of the right to defence of the Homeland consists of a set of institutional and procedural means of ensuring Ukraine’s defence capability as a security space for citizens who exercise their right to defend Ukraine, and the State’s obligations to 1) keeping records of the population capable of performing functions of defending the Motherland; 2) organizing military training and teaching tactical medicine to citizens; 3) providing the population with military ammunition and their effective administration; 4) organizing the controllability of the national defence system in the event of a military The notion of defence of the Homeland as the right to resist despotism and aggression is crucial in understanding the structure of the responsibilities of the State of Ukraine and the corresponding joint activities of citizens to implement systematic measures to build an effective defence capability of the nation and the State. Building up the territorial defence forces makes it possible to quickly deploy military units in case of an enemy troop breakthrough into the rear of the national territory and provide them with a worthy response, destroying enemy military units and conducting adequate retaliatory operations.

English Language Teaching: Teaching College Students English for Particular Functions

This paper includes a current evaluation as well as a course layout. English for unique functions (ESP) within the subject of ELT (English Language Teaching), 2) the characteristics of teachers and students in ESP, and 3) the demanding situations associated with the trainer, pupil, surroundings, and other factors in ESP teaching. The ESP in ELT refers back to the particular English language necessities of the target learners or scholars. It describes the coaching of a certain English genre for college students with a defined set of targets that is geared in the direction of and concentrated on English teaching and studying. Based totally on an assessment of desires, targets, and the sports requiring English, ESP is created and advanced. Positive duties as a trainer, such as asking college students to develop study goals, creating a supportive environment, getting to know their surroundings, and assessing college students' progress, are all approaches to shaping publications. At the same time, getting to know techniques that are properly designed, difficult-to-remember know-how, and a specific ardor for learning are all associated with newcomers. Within the implementation of ELT, there are challenges and issues related to the instructor in coaching ESP, inclusive of the poor quality of the lectures and textbooks, the lecturers' inadequate qualifications and teaching strategies, and the absence of a theoretical framework for coaching ESP. difficulties relating to the students, such as their demographics, the demands of learning ESP, their English skill ability, the differences between their native tongue and other languages, their loss of vocabulary, their reliance on dictionaries, and their lack of know-how of how to use dictionaries, particularly ESP phrases. while the environment-associated challenges consist of a shortage of educational substances, courses with an excessive number of students, and a heavy emphasis on exams.

О новой попытке вывести позитивные обязанности из формулы универсального закона Канта

According to the positive duties objection, it is not possible to derive positive duties from Kant’s Formula of Universal Law (FUL). However, in his recent “Deriving Positive Duties from Kant’s Formula of Universal Law”, Guus Duindam tries to answer this objection. More specifically, Duindam tries to show how both a duty of benevolence and a duty of self-perfection can be derived from the FUL. I critically examine Duindam’s arguments. I maintain that Duindam’s argument for the positive duty of benevolence is ambiguous and that this ambiguity exposes him to a fatal dilemma: on one horn, Duindam faces the same objection that he concedes to be effective against other attempts to answer the positive duties objection; on the other horn, the procedure he recommends cannot be based on the FUL (because it does not evaluate actions on the basis of their corresponding maxims). In addition, I maintain that Duindam’s benevolence argument rests on a procedure that is, in general, intractable and, in this particular case, foredoomed (because it can be shown that there are no positive duties of the kind he tries to derive). From there, I turn to Duindam’s argument for the positive duty of self-perfection. I explain that Duindam’s derivation of the duty of self-perfection, even if successful, does not answer the positive duties objection. This is because Duindam never appeals to the FUL in his derivation of the duty of self-perfection (the derivation is based, rather, on instrumental reasoning from the second-order end to accomplish our first-order ends). I elaborate on this by comparing and contrasting Duindam’s argument with Oliver Sensen’s interpretation of how to apply the FUL in the latter’s recent “Universal Law and Poverty Relief”.

«Философы всегда будут восхищаться Кантом…»

The topics of this issue, devoted to the tercentenary of Immanuel Kant’s birth, focus on his practical philosophy, most notably on the problems of free will in the light of the debates at the end of the eighteenth century; on the concept of human dignity and its reflection in daily life and in the main legal documents of the Russian Federation; on the possibility of deriving positive duties from the categorical imperative; and on the relevance of Kantian ethics to modern-day realities. The issue of the reception of Kant’s philosophy in Russia is also discussed, using as an example the article by Russian religious philosopher Alexey Vvedensky in the historical context of Kant’s early reception and subsequent fate in the twentieth century.

The System of Ecclesiastical Law Sources of Ukraine

The article is devoted to the determination, systematization, and study of the system of Ecclesiastical Law sources. This is a necessary and primary task for understanding the content of ecclesiastical law and its establishment in the legal system of Ukraine.
 The conducted analysis has given grounds to make up conclusions concerning the formal inequality and the subordination of some sources to others.
 The Constitution provisions contains norms and principles relating to human rights and freedoms, defining Ukraine as a secular state and determine the positive duties of the state in the field of religion. The laws if Ukraine contains the large number of ecclesiastical legal norms regulating various aspects of state-confessional relations. Bylaws specify and detail the provisions of laws. Judicial law-making in the field of ecclesiastical law is manifested through the decisions of the European Court of Human Rights, which in Ukraine are considered the sources of law, through the decisions of the Constitutional Court of Ukraine, which revises laws for compliance with the constitution and fundamental values, as well as the decisions of the Supreme Court, the conclusions of which are binding not only for judicial bodies but also for all subjects of authority, which implement in their activities a legal act containing the relevant legal norm.

International Humanitarian Law and the Use of Starvation as a Method of Warfare: Positive Duties on the Parties to the Conflict

Starvation is one of the numerous humanitarian consequences following armed conflicts as a result of the obstruction in the chain of production and distribution. However, the situation becomes worrisome when starvation isemployed by the parties to a conflict as a method of warfare. This trend was obvious in a number of contemporary armed conflicts such as Russia-Ukraine war, Syrian war, Ethiopia-Tigray war, and Yemeni war, to mention but a few. These were all characterized by the destruction of objects indispensable to the survival of the civilian population and in some casethe obstruction of humanitarian access to civilians in need of humanitarian assistance. Against this background, the paper focuses on examining the rules of International Humanitarian Law regulating the use of starvation as a method of warfare, with a view to identifying the positive obligation of the parties to conflict towards strengthening these rules. The study adopted the traditional doctrinal method of legal research combined with qualitative approach. It is the finding of this paper that deliberate attacks against objects indispensable to the survival of the civilian population; and the obstruction of humanitarian access to civilians in need of humanitarian assistance are the major ways through which civilians are starved in situations of armed conflicts. To tackle this problem, the paper recommended among other things, the use of the distinctive emblems to enhance the distinction between civilian objectives and military objectives; and the facilitation of the passage relief materials particularly foodstuff for civilians in need of humanitarian assistance.

Putting "Epistemic Injustice" to Work in Bioethics: Beyond Nonmaleficence.

We expand on Della Croce's ambition to interpret "epistemic injustice" as a specification of non-maleficence in the use of the influential four-principle framework. This is an alluring line of thought for conceptual, moral, and heuristic reasons. Although it is commendable, Della Croce's attempt remains tentative. So does our critique of it. Yet, we take on the challenge to critically address two interrelated points. First, we broaden the analysis to include deliberations about hermeneutical injustice. We argue that, if due consideration of epistemic injustice is to require more than negative ethical obligations in medicine, dimensions of hermeneutical injustice should be explored as an avenue to arrive at such positive duties. Second, and relatedly, we argue that this may encompass moral responsibilities beyond the individual level, that is: positive obligations to take action on a structural level. Building on Dotson's concept of "contributory injustice" and Scheman's concept of "perceptual autonomy," we suggest that the virtues of testimonial and hermeneutical justice may provide additional content not only to negative prohibitions of action (i.e. non-maleficence) but also to positive requirements of action, like respecting patient autonomy.

Deriving Positive Duties from Kant's Formula of Universal Law

Abstract According to the objection from positive duties, Kant's Formula of Universal Law is flawed because it cannot be used to derive any affirmative moral requirements. This paper offers a response to that objection and proposes a novel way to derive positive duties from Kant's formula. The Formula of Universal Law yields positive duties to adopt our own perfection and others’ happiness as ends because we could not rationally fail to will those ends as universal ends.

Reproductive rights within the context of regulatory environment and support, legal doctrine and judicial practice of the European Court of Human Rights: certain aspects

The article is dedicated to consideration and assessment of certain problematic aspects of legal regulation of reproductive rights within the legislative framework of Ukraine. It has been noted that the conclusions concerning the understanding of legal nature of reproductive rights should not be seen as general in character, considering that such understanding is in each case determined by specificities of a certain field of law in the light of which the reproductive rights are being subjected to research. Therefore, legal regulation of reproductive rights, as well as specific rules applicable to the exercise and protection of such rights, to a certain extent, is in fact implemented through the rules of civil and family law, as well as through the rules set forth in other areas of law.
 Reproductive rights, as a complex combination of possibilities and opportunities for an individual that are aimed at securing the reproductive function of a human being, i.e. reproduction of one's own kind, are classified in the Ukrainian civil legislation as personal non-proprietary rights of an individual that provide natural existence of a person. Proceeding from the concepts of positive duties of the State and horizontal effect of human rights, and based on the studies and analysis of the judicial practice of the European Court of Human Rights (hereinafter referred to as the ECtHR), specific attention has been given to the autonomy of the complex category of reproductive rights, which, in its turn and to a certain extent, is related to other personal non-proprietary rights of an individual (such as the right to life, the right to receive medical care, the right to personal privacy, the right to physical security, the right to be treated with dignity and respect, etc.).
 Based on the analysis of studies by various scientists, it has been established that there is no unified theoretical approach not only to the definition of the term of reproductive rights, but also to the range of rights that may be regarded as such. In considering the content of reproductive rights, one should account for differentiation of such rights in general terms within the following range of legal rights: the right to reproductive choice; the right to reproductive health; the right to be informed of reproductive rights; the right to secrecy in exercise and protection of reproductive rights; the right to protection of reproductive rights.
 It has been substantiated that reproductive rights are implemented in practice, certain elements of reproductive rights have been legally consolidated, which indicates not only the formation and development, but also actual functioning of reproductive rights. At the same time, the existing national legal regulations are not consistent with the actual state of affairs observed in the reproductive area. Therefore, legal relations in the field of reproductive rights of individuals require adequate and proper standardisation. The ECtHR plays a major role in shaping the approach to legal regulation of reproductive rights due to its extensive judicial practice in resolution of disputes regarding the protection of reproductive rights.

On Our Moral Entanglements with Wild Animals

In Just Fodder, Milburn argues for a relational account of our duties to animals. Following Clare Palmer, he argues that, though all animals have negative rights that we have a duty not to violate, we only gain positive obligations towards animals in the contexts of our relationships with them, which can be personal or political. He argues that human beings have collective positive duties towards domesticated animals, in virtue of the kind of relationship between us established by domestication. However, when it comes to wild animals, he argues that we have no such morally relevant relationships, and so we have only negative duties towards them. I argue that throughout history and even prehistory human beings have morally entangled themselves with wild animals sufficiently that we may in fact have collective positive duties towards many, if not all, wild animals.

CLASSICAL LIBERAL ARGUMENT AGAINST PARENTAL RIGHTS

That the freedom of one individual entails the unfreedom of another is a fundamental challenge for liberalism, and this article examines how children pose a problem for certain varieties of liberalism. It begins by showing that the term liberalism is used in very different ways in the literature on parental rights. Then an analysis of a strand of liberalism referred to as classical political liberalism, based on John Locke and John Stuart Mill, is performed. A classical liberal framework is then proposed, where the government does not have comprehensive positive duties to ensure that children achieve certain outcomes, but in which it does have a clear duty to create and secure a negative space for each child. It is also argued that liberal theory is based on a comprehensive conception of the good, and that in order to know what sort of negative space is required, this must be acknowledged.

Two Concepts of Dignity: On the Decay of Agency in Law


 
 
 This paper examines the radical shift we can observe in the modern legal understanding of dignity. That one should be respected for one’s own sake is a cornerstone of our modern societies, enshrined in our laws and constitutions. The idea of dignity, however, is subject to fundamentally different interpretations. More precisely, we examine two such theories of dignity – namely, the “agency theory of dignity,” associated with Immanuel Kant and based on people’s capacity for free will, and the “well-being theory of dignity,” recently championed by Alan Gewirth and regarding dignity a kind of intrinsic worth that belongs equally to all human beings as such. Kantian dignity means that we should endorse strong negative duties, but not positive duties, such as duties of welfare. From Gewirth’s one we can derive rights not only of negative freedom, but also duties of well-being toward others.
 The modern shift from the former to the latter, we argue, is problematic, first, inasmuch as it is an expression of the decay of agency in our legal systems, and, second, because the well-being theory of dignity is often self-defeating, hurting the well-being of the worst-off and lowering total welfare in society. This paper accordingly maintains that we should go back to the agency theory of dignity.
 Using an antinomian reading of Kant’s theory, we maintain that rational people are to be their own lawmaker and act from laws they themselves made, that the scope of legislative activity should be limited as a matter of dignity, and the role of dignity should be reduced in our laws. The main conclusion is that dignity cannot be a principle of law, as it is rather a principle of responsibility.
 
 

ULUSLARARASI SİYASET VE ETİK: KÜRESEL YOKSULLUK ÜZERİNE OLUMLU, OLUMSUZ VE MÜTEKABİL GÖREVLER

Global poverty has been an issue at the centre of ethical debates, because it has devastating effects on human life and it is the main source of various inequalities in society. This paper, which deals with the moral duties of humanity to reduce global poverty, argues that humanity has both positive duties to help the existing poor and negative duties to prevent the emergence of new poor and to find a permanent solution to poverty. The argument that ensures paper’s originality is that the poor, who claim positive rights for themselves, are obliged to fulfil their ‘reciprocal negative and positive duties’ towards the benefactors in return. By defending the opinion that a hierarchy should be determined for the interpersonal distribution of negative and positive duties, the paper also contributes to a fair distribution of duties between both those who request aid and those who aid.

The validity of the notary's self-safety clause in the notary deed

The results of this study show that the self-security clauses listed by the notary in the deeds did not violate the provisions of laws and regulations, especially the UUJN. That is, the clause is validly stated on the condition that the notary lists the clause based on the statements of the complainants and that the statements or statements and supporting documents as a reference for making a notarial deed are valid, so if in the future it is known that there are wrong things, then the notary can use the clause as a form of effort to secure themselves or as a form of notarial resistance if the notary is used as a witness, the suspect/defendant, the defendant/co-defendant because of the deed he made. Juridically, the notary's self-protection clause does not have the legal force to bind third parties such as prosecutors, public prosecutors, or judges, so the clause cannot provide legal immunity for the notary if the notary can indeed be proven guilty in advance of the court. The clause only applies to notaries who have carried out the position's duties, especially in doing deeds by the provisions of the UUJN and laws and regulations.How to cite item: Budiman, N., Kinasig, N.M.A.S., Pangandaheng, T.M.C., Nada, A.Q., (2022). The validity of the notary's self-safety clause in the notary deed. Jurnal Cakrawala Hukum, 13(3)300-307. doi:10.26905/idjch.v13i3.8616.

Unjust Enrichment And Libertarianism

Abstract The present paper takes on the question of whether the doctrine of unjust enrichment is compatible with libertarianism. Despite Walter Block’s recent arguments to the contrary, the paper argues that unless a gain is received in accordance with the libertarian principles of justice, it is without a basis and thus unjust. This fact alone proves that the concept of unjust enrichment is compatible with libertarianism. Besides, even though it is true — as Block claims — that forcing the recipient of an unjust gain to return it or pay for it involves positive duties and is therefore incompatible with libertarianism, the present paper argues that the practical consequences of this fact would be negligible, for compensatory schemes would develop on the free market anyway in justice-preserving steps.

Beyond Acts and Omissions — Distinguishing Positive and Negative Duties at the European Court of Human Rights

The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if they only allow one fulfilment option. These delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties.