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Laws, Volume 12, Issue 3 (June 2023) – 26 articles

Cover Story (view full-size image): In the past few years, Latin American countries have started to enact changes in their legal capacity regulations regarding persons with disabilities. However, even when these changes started over eight years ago, there were few to no analyses on the matter. In addition, there is no encompassing theory or typology on how these reforms happen and on their effects. In the present paper, we propose two axes of analysis for the reforms: enforceability and compliance with Article 12 of the CRPD. This matrix allows for four kinds of reforms: incipient, formal, conciliatory and radical. Using this matrix, we examined the legislative changes in Argentina, Brazil, Colombia, Costa Rica, the Dominican Republic, El Salvador, Mexico, Nicaragua and Peru. View this paper
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14 pages, 297 KiB  
Article
Practitioner Rehabilitation following Professional Misconduct: A Common Practice Now in Need of a Theory?
by Lois J. Surgenor, Kate Diesfeld and Marta Rychert
Laws 2023, 12(3), 59; https://doi.org/10.3390/laws12030059 - 15 Jun 2023
Viewed by 1755
Abstract
Theories of rehabilitation have long been articulated in health and criminal justice contexts, driving rehabilitation practices in each area. In this article, several prominent theories are described to illustrate how their core assumptions aim to facilitate recovery and reduce relapse or reoffending. Professional [...] Read more.
Theories of rehabilitation have long been articulated in health and criminal justice contexts, driving rehabilitation practices in each area. In this article, several prominent theories are described to illustrate how their core assumptions aim to facilitate recovery and reduce relapse or reoffending. Professional disciplinary bodies are also often compelled by law or regulation to attend to practitioners’ rehabilitation after professional misconduct, with similar aims to restore the practitioner to safe practice. Yet, no rehabilitation theory has been articulated in this context despite professional rehabilitation being distinct from other settings. We propose that the current absence of a coherent theory is problematic, leaving professional disciplinary bodies to ‘borrow’ assumptions from elsewhere. Since rehabilitation penalties are frequently made by professional disciplinary bodies, we review several theories from health and justice contexts and highlight elements that may be useful in developing professional misconduct rehabilitation theory. This includes proposing methodological approaches for empirical research to progress this. Full article
18 pages, 343 KiB  
Article
Judicial Review of Mufti Decisions Applying Islamic Family Law in Greece
by Nikos Koumoutzis
Laws 2023, 12(3), 58; https://doi.org/10.3390/laws12030058 - 15 Jun 2023
Cited by 1 | Viewed by 1192
Abstract
Greece is a unique example of a country member of the Council of Europe that allows for the application of Sharia law by the Mufti on a select part of its citizenry: the members of the Muslim minority in Western Thrace (situated in [...] Read more.
Greece is a unique example of a country member of the Council of Europe that allows for the application of Sharia law by the Mufti on a select part of its citizenry: the members of the Muslim minority in Western Thrace (situated in NE Greece). However, to produce their effects, Mufti decisions need to undergo review and to be declared enforceable by the civil court. The aim of this article is to explore the relevant legal framework arranged in law 4964/2022 and presidential decree 52/2019, whereby the details of such a judicial review are set out. In particular, this article considers the prerequisite of the exequatur to religious adjudication, and then, it goes through all of the levels over which the said review extends, bringing progressively into focus the review of the scope of jurisdiction, the review of compatibility with the Constitution and the European Convention of Human Rights, and the review of some additional issues raised specifically by presidential decree 52/2019 over and above the points just mentioned. A final remark follows in connection with possible errors committed in religious adjudication—errors of law or fact—which remain beyond the reach of the review. Full article
(This article belongs to the Special Issue Family Law, Religion and Human Rights)
17 pages, 334 KiB  
Article
Protecting the Human Rights of Refugees in Camps in Thailand: The Complementary Role of International Law on Indigenous Peoples
by Loi Thi Ngoc Nguyen
Laws 2023, 12(3), 57; https://doi.org/10.3390/laws12030057 - 14 Jun 2023
Cited by 1 | Viewed by 2449
Abstract
This paper investigates whether and how International Law on Indigenous Peoples (ILIP) can complement protections granted under International Refugee Law (IRL) and International Human Rights Law (IHRL) to refugees in camps in Thailand. Presently, there are over 90,000 refugees from Myanmar in Thailand, [...] Read more.
This paper investigates whether and how International Law on Indigenous Peoples (ILIP) can complement protections granted under International Refugee Law (IRL) and International Human Rights Law (IHRL) to refugees in camps in Thailand. Presently, there are over 90,000 refugees from Myanmar in Thailand, confined to nine camps along the Thailand–Myanmar border. These refugees belong to different ethnic minority groups, but the vast majority are Karen—Indigenous Peoples from the Thailand–Myanmar border regions. They have fled to Thailand due to persecution by Myanmar authorities and segments of the Myanmar population. To date, Thailand has refused to become a party to the 1951 Refugee Convention or its 1967 Protocol. The country has failed to develop an asylum system and its laws continue to regard refugees as ‘illegal migrants’. These refugees have been surviving in conditions of profound rightlessness. I posit that ILIP has a critical role to play in addressing the protection gaps and limitations in IRL and IHRL. In particular, the ILIP system of collective rights is vital in recognising the specific needs of refugees who are indigenous peoples. ILIP therefore provides a potent tool to make IRL and IHRL more responsive to the protection needs of indigenous refugees. Full article
(This article belongs to the Special Issue Migrants and Human Rights Protections)
21 pages, 331 KiB  
Article
A Critical Analysis of the Rights and Obligations of the Manager of a Limited Liability Company: Managerial Legislative Basis
by Tomáš Peráček and Michal Kaššaj
Laws 2023, 12(3), 56; https://doi.org/10.3390/laws12030056 - 12 Jun 2023
Cited by 5 | Viewed by 1652
Abstract
The rights and obligations of an executive as a top manager of a limited liability company seem to be a long-settled question. However, the opposite is true. We were particularly interested in the question of the rights and obligations of the manager as [...] Read more.
The rights and obligations of an executive as a top manager of a limited liability company seem to be a long-settled question. However, the opposite is true. We were particularly interested in the question of the rights and obligations of the manager as a statutory body of the most widespread type of business company. A very important issue is the definition of the relationship between the limited liability company and the manager. The reason for this is the fact that it is a business–legal relationship and the protection provided to the executive in relation to the business company is based only on their mutual contractual basis. In addition to the examination of managerial knowledge and skills, we focused primarily on a critical analysis of the legal definition of the rights and obligations of an executive and their responsibility towards a limited liability company. As part of our research, we analyzed extensive jurisprudence, which completed our understanding of the concept of an executive and also defined the framework of not only their actions, but especially their rights and obligations. To achieve our goal, we used several scientific methods designed for the study of law, such as analysis, synthesis, comparison, deduction, and description. We critically evaluated the results of our research and compared the development of Slovak and Czech jurisprudence in the context of its influence on the investigated issue. At the same time, we answered the research question of whether legislative intervention is necessary for the already existing rights and obligations of a manager in relation to their limited liability company. This analysis of the rights and obligations of the manager of a limited liability company has several implications for both managers and companies as a whole, such as managerial autonomy, accountability, responsibility, and the balance of power. The research findings highlighted the significant decision making authority granted to managers. The obligations identified in the analysis emphasized the need for managers to act responsibly and be accountable for their actions. The rights and obligations of managers need to be balanced with the interests of other stakeholders, particularly the company’s members. In conclusion, the critical analysis of the rights and obligations of the manager of a limited liability company, based on the managerial legislative basis, revealed that managers possess decision making authority, profit distribution rights, limited liability protection, and entitlement to compensation. However, they are also obligated to fulfill fiduciary duties, comply with laws and regulations, maintain proper records, and exercise due care. The research underscored the significance of managerial autonomy, accountability, and a balanced exercise of power in a limited liability company. By understanding and adhering to their rights and obligations, managers can effectively navigate their roles while contributing to the success and sustainability of the company Full article
17 pages, 303 KiB  
Article
The Human Right to a Fair Trial in Competition Law Enforcement Procedures: A Rising Issue in Indonesian Experiences
by Siti Anisah and Sahid Hadi
Laws 2023, 12(3), 55; https://doi.org/10.3390/laws12030055 - 12 Jun 2023
Cited by 1 | Viewed by 1280
Abstract
The Indonesian Competition Supervisory Commission (ICSC) has the authority to investigate, prosecute, adjudicate, decide, and impose sanctions on business actors for violating Indonesian competition law. It also has the authority to establish procedural laws for the competition law enforcement procedures within its institution. [...] Read more.
The Indonesian Competition Supervisory Commission (ICSC) has the authority to investigate, prosecute, adjudicate, decide, and impose sanctions on business actors for violating Indonesian competition law. It also has the authority to establish procedural laws for the competition law enforcement procedures within its institution. This single role raises various issues in the current context, including the right to a fair trial and checks and balances. This article seeks to define the position of human rights, particularly the right to a fair trial, in competition law enforcement procedures. The result is that competition law enforcement procedures are subordinate to human rights, so they must be exercised in compliance with human rights standards, particularly the right to a fair trial. Based on the experience in Indonesia, this study finds that the ICSC’s single role is incompatible with human rights commitments in fair competition law enforcement procedures. As an alternative solution, this article encourages a modification and adjustment based on human rights commitments and checks and balances mechanism by limiting one of the ICSC’s authorities and broadening the interference of the Supreme Court in enforcing Indonesian competition law at the ICSC level. Full article
12 pages, 212 KiB  
Article
The U.S. Experience in Drafting Guidelines for Judicial Interviews of Children and Its Translation to Hague Abduction Convention Return Proceedings Globally
by Melissa Ann Kucinski
Laws 2023, 12(3), 54; https://doi.org/10.3390/laws12030054 - 09 Jun 2023
Viewed by 1096
Abstract
This article will focus on judicial interviews of children, in chambers, including in Hague Abduction Convention cases; the potential promise and pitfalls of conducting such interviews; and how the U.S. experience provides an excellent template for future discussions and work on creating a [...] Read more.
This article will focus on judicial interviews of children, in chambers, including in Hague Abduction Convention cases; the potential promise and pitfalls of conducting such interviews; and how the U.S. experience provides an excellent template for future discussions and work on creating a soft law instrument on this important information-gathering tool. Full article
23 pages, 1060 KiB  
Article
Milestones and Current Dilemmas: Evaluation of Sentencing Standardization for Illegal Possession of Drugs in China
by Jia Wu, Yang Xia and Apei Song
Laws 2023, 12(3), 53; https://doi.org/10.3390/laws12030053 - 07 Jun 2023
Viewed by 1653
Abstract
It has been more than ten years since the nationwide sentencing standardization reform was implemented in China to solve the widespread problem of uneven sentencing in criminal justice. A statistical analysis of 1595 written judgments of illegal possession of drugs showed that the [...] Read more.
It has been more than ten years since the nationwide sentencing standardization reform was implemented in China to solve the widespread problem of uneven sentencing in criminal justice. A statistical analysis of 1595 written judgments of illegal possession of drugs showed that the reform of sentencing for the standardization amount-based crimes has achieved remarkable results, and judges’ discretion has been highly normative and consistent. Under the same criminal circumstances, the degree of consistency between the amount involved in the crime and imprisonment has significantly increased, which is more in line with the standards of formal justice. However, the effect of the sentencing standardization reform declined as the amount involved in the crime increased. This exposes the shortcomings of the standardized sentencing model when considering multiple crimes; these include confusion between the amount and circumstances of a crime, the imbalance between crime and punishment, and the application of discretionary circumstances in sentencing depending on the amount involved in the crime. Therefore, it is necessary to attach more importance to the evaluation of the legitimacy of the sentencing range established by criminal law in subsequent sentencing reforms and to further refine and perfect the standardized sentencing mode, with a shift from formal justice to justice in form and substance. Full article
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16 pages, 269 KiB  
Review
From Canada to Scotland: The Incorporation of Ethical Wildlife Control Principles: A Review
by Hannah Louise Moneagle
Laws 2023, 12(3), 52; https://doi.org/10.3390/laws12030052 - 05 Jun 2023
Viewed by 1311
Abstract
In 2015, 20 experts from academia, industry, and non-governmental organisations on 5 continents agreed to a set of seven international principles for ethical decision making (“the principles”) in managing human–wildlife conflict. The principles have since been recognised in wildlife management policy and standards [...] Read more.
In 2015, 20 experts from academia, industry, and non-governmental organisations on 5 continents agreed to a set of seven international principles for ethical decision making (“the principles”) in managing human–wildlife conflict. The principles have since been recognised in wildlife management policy and standards in parts of British Columbia, Canada. In 2022, the principles were introduced to the Scottish Parliament by means of a formal Motion lodged by Colin Smyth MSP. Smyth expressed the view that opportunities existed to integrate the principles into the Scottish Government’s strategic approach to wildlife management and its species licensing review. The (now former) Minister for Environment, Biodiversity and Land Reform at the Scottish Government, Mairi McAllan, stated in the Motion debate that followed that she was committed to working to understand how the principles could sit alongside the Scottish Government’s ambitious programme to protect animals and wildlife. The Hunting with Dogs (Scotland) Bill was introduced to the Scottish Parliament prior (February 2022) to the Motion debate but passed on 24 January 2023, following various debate and amendment stages. It offered parliamentarians the first opportunity to align wildlife-specific legislation with the principles. The Bill received Royal Assent on 7 March 2023 and is now the Hunting with Dogs (Scotland) Act 2023 (“The Act”). A review of The Bill (and subsequent Act) can assist in identifying where it could have aligned more closely with the principles to assist decision makers in understanding how to usefully incorporate the principles into future wildlife legislation and policy. Full article
17 pages, 285 KiB  
Article
Transformative Justice for Elimination of Barriers to Access to Justice for Persons with Psychosocial or Intellectual Disabilities
by Jonas Ruškus
Laws 2023, 12(3), 51; https://doi.org/10.3390/laws12030051 - 05 Jun 2023
Cited by 1 | Viewed by 1545
Abstract
By adopting the Convention on the Rights of Persons with Disabilities (the CRPD) in New York, the United Nations heralded a new epoch on how disability-related matters ought to be comprehended and addressed across the globe. The aim of this article is to [...] Read more.
By adopting the Convention on the Rights of Persons with Disabilities (the CRPD) in New York, the United Nations heralded a new epoch on how disability-related matters ought to be comprehended and addressed across the globe. The aim of this article is to argue the role and substance of the CRPD, under which each State Party has a responsibility and duty to protect, promote and implement access to justice for all persons with disabilities on equal bases with others. Systemic and structural barriers to access to justice that are faced by persons with psychosocial or intellectual disabilities are highlighted, and the determinants of them are identified including boundaries of the principle of formal equality. The human-rights-based response within the framework of obligations of the States Parties of the CRPD to ensure access to justice for persons with psychosocial or intellectual disabilities is argued, with specific consideration of the principle of transformative equality. The analysis is based on the CRPD Committee’s jurisprudence, including Concluding observations for the States Parties, General Comments, statements and guidelines. Full article
(This article belongs to the Special Issue Rights of Vulnerable People)
19 pages, 336 KiB  
Article
Disability-Specific Sporting Competitions and the UN CRPD: Segregation as Inclusion?
by Rinke Beekman, Frea De Keyzer and Tim Opgenhaffen
Laws 2023, 12(3), 50; https://doi.org/10.3390/laws12030050 - 05 Jun 2023
Cited by 1 | Viewed by 1766
Abstract
Since the UN Convention on the Rights of Persons with Disabilities (CRPD) was created, segregation of persons with disabilities is no longer allowed. Separate schools, sheltered workshops, and isolated social care homes impede inclusion and must be banned. Sport is a remarkable exception [...] Read more.
Since the UN Convention on the Rights of Persons with Disabilities (CRPD) was created, segregation of persons with disabilities is no longer allowed. Separate schools, sheltered workshops, and isolated social care homes impede inclusion and must be banned. Sport is a remarkable exception to this general principle. The CRPD explicitly states that persons with disabilities should have the opportunity to organize, develop, and participate in disability-specific sporting activities. This contribution—focusing on the Paralympics and Special Olympics—examines why the CRPD allows and encourages disability-specific sporting competitions, despite (or perhaps due to) its radical choice for inclusion. Beyond that, this contribution asks the obvious follow-up question: if disability-specific competitions are allowed, how can the criteria for participation be determined in a manner consistent with the CRPD? The CRPD opposes a medical approach to disability, yet that approach is often used in selection criteria. Although this contribution primarily focuses on sports, the impact is wider: it raises questions on inclusion and how to assess disability. Full article
(This article belongs to the Special Issue Rights of Vulnerable People)
26 pages, 448 KiB  
Article
Children’s Participation in Care and Protection Decision-Making Matters
by Judith Cashmore, Peiling Kong and Meredith McLaine
Laws 2023, 12(3), 49; https://doi.org/10.3390/laws12030049 - 01 Jun 2023
Cited by 2 | Viewed by 2596
Abstract
Laws and policies in different jurisdictions provide a range of mechanisms that allow children involved in child protection processes and care proceedings to express their views when decisions that affect them are being made. Whether these mechanisms facilitate children’s involvement and whether they [...] Read more.
Laws and policies in different jurisdictions provide a range of mechanisms that allow children involved in child protection processes and care proceedings to express their views when decisions that affect them are being made. Whether these mechanisms facilitate children’s involvement and whether they result in children’s views being heard and “given due weight in accordance with the age and maturity of the child”, as required by article 12 of the UN Convention on the Rights of the Child, is the focus of this article. The law, policy and practice in New South Wales, Australia, are used to provide a contextual illustration of the wider theoretical and practical issues, drawing on international comparisons and research. It is clear there is still some way to go to satisfy the requirements of article 12 in Australia and other jurisdictions. These mechanisms often do not provide the information children need to understand the process, nor do they consistently encourage meaningful participation through trusted advocates who can accurately convey children’s views to those making the decisions. It is generally unclear how children’s views are heard, interpreted, and weighted in decision-making processes. The research findings from a number of countries, however, are clear and consistent that children often feel ‘unheard’ and that they have had few opportunities to say what is important to them. A number of conclusions and practice suggestions are outlined for how the law could better accommodate children’s views. Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)
26 pages, 1546 KiB  
Article
Municipal and Industrial Urban Waste: Legal Aspects of Safe Management
by Svetlana Ivanova and Natalia Lisina
Laws 2023, 12(3), 48; https://doi.org/10.3390/laws12030048 - 25 May 2023
Cited by 2 | Viewed by 1987
Abstract
Competent management of the production and consumption of waste is the foundation for ensuring a favorable environment in cities and comfortable living conditions for the population. Laws and regulations play a key role in this process since they determine measures aimed at creating [...] Read more.
Competent management of the production and consumption of waste is the foundation for ensuring a favorable environment in cities and comfortable living conditions for the population. Laws and regulations play a key role in this process since they determine measures aimed at creating conditions for safe waste management, an effective management system in the field of environmental protection from waste pollution. In the cities of many developing countries, including Russia, despite the efforts being made, there is an increase in the volume of municipal solid waste. Solving the problems of waste management has been set as a national task. The article analyzes the current condition of solid waste management systems in developed and developing countries and identifies the features and prospects of waste management, including the one in Russia. It is established that the existing set of organizational, sanitary, and legal measures, and legal regulation of relations and law enforcement practices in the field of solid municipal waste management in many developing countries is still in the forming stage. The positive experiences of countries in implementing sustainable systems of safe waste management and the positions of judicial bodies on controversial issues of waste management in cities can be used as the basis for an environmental policy of safe waste management at all levels of public authority, as well as improving legislation in the field of waste management. Full article
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11 pages, 257 KiB  
Article
Should Pharma Companies Waive Their COVID-19 Vaccine Patents? A Legal and Ethical Appraisal
by Tammy Cowart, Tsuriel Rashi and Gregory L. Bock
Laws 2023, 12(3), 47; https://doi.org/10.3390/laws12030047 - 23 May 2023
Cited by 1 | Viewed by 2089
Abstract
Pharmaceutical companies, like many other types of companies, are incentivized to create, manufacture, and distribute new products, in part due to the legal protections of patent law. However, the tension between patent rights and the public good has been heightened as pharma companies [...] Read more.
Pharmaceutical companies, like many other types of companies, are incentivized to create, manufacture, and distribute new products, in part due to the legal protections of patent law. However, the tension between patent rights and the public good has been heightened as pharma companies developed new vaccines to combat the COVID-19 pandemic. Wealthy governments paid well for vaccines and received ample supplies, while low- and middle-income countries struggled to obtain access to any vaccines. Some countries called for pharmaceutical companies to waive their patent protections for vaccines in order to facilitate the worldwide manufacture and distribution of COVID-19 vaccines. This paper will examine the rationale of patent protection and patent waiver issues, then compare these concepts with ethical constructs and a Jewish perspective. Full article
19 pages, 371 KiB  
Article
From Fashion Brand to Artwork: Divergent Thinking, Copyright Law, and Branding
by Marlena Jankowska and Berenika Sorokowska
Laws 2023, 12(3), 46; https://doi.org/10.3390/laws12030046 - 19 May 2023
Viewed by 2992
Abstract
The purpose of this study is to explore the interaction between copyright, branding, marketing, and heritage protection with regard to a fashion brand. The authors use analytical-critical and legal-dogmatic methods, supplemented with desk research, a case study approach, and a review of the [...] Read more.
The purpose of this study is to explore the interaction between copyright, branding, marketing, and heritage protection with regard to a fashion brand. The authors use analytical-critical and legal-dogmatic methods, supplemented with desk research, a case study approach, and a review of the marketing literature. This paper argues that the top-tier fashion brands use the concept of artification in order to build their brands, mesmerize clientele, and increase revenues. Although design and reference to the arts play a major role in the luxurious and premium end of the fashion business, this analysis proves that the top players do not necessarily observe the appropriate laws in these areas. The reader will see examples of the flouting of basic legal constraints by big players, e.g., copyrights or property rights, including the monetisation of the creativity of others with the expectation of no legal challenge. Offenders capitalise on the likelihood that a legal suit is too demanding for smaller players, such as foundations or museums. Full article
(This article belongs to the Special Issue Law and Cultural Heritage)
17 pages, 1132 KiB  
Article
A Four-Speed Reform: A Typology for Legal Capacity Reforms in Latin American Countries
by Renato Antonio Constantino Caycho and Renata Anahí Bregaglio Lazarte
Laws 2023, 12(3), 45; https://doi.org/10.3390/laws12030045 - 10 May 2023
Viewed by 2278
Abstract
In the past few years, Latin American countries have started to enact changes in their legal capacity regulations regarding persons with disabilities. However, even when these changes started over eight years ago, there were few to no analyses on the matter. In addition, [...] Read more.
In the past few years, Latin American countries have started to enact changes in their legal capacity regulations regarding persons with disabilities. However, even when these changes started over eight years ago, there were few to no analyses on the matter. In addition, there is no encompassing theory or typology on how these reforms happen and on their effects. In the present paper, we propose two axes of analysis for the reforms: enforceability and compliance with Article 12 of the CRPD. This matrix allows for four kinds of reforms: incipient, formal, conciliatory and radical. Using this matrix, we examined the legislative changes in Argentina, Brazil, Colombia, Costa Rica, the Dominican Republic, El Salvador, Mexico, Nicaragua and Peru. Incipient reforms (Mexico) are not that effective but can lead to serious later change. Formal reforms (the Dominican Republic, El Salvador and Nicaragua) have few to no effects. Conciliatory reforms (Argentina, Brazil and Costa Rica) are a legislative compromise that allows for progressive change. Finally, radical reforms create encompassing change that is good but might create problems in the implementation. Full article
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18 pages, 351 KiB  
Article
How Can the Adoption of the Voluntary Guidelines Improve Public Policy and Women’s Access to Agricultural Land in Mexico, Guatemala, and Bolivia?
by Itziar Sobrino-García
Laws 2023, 12(3), 44; https://doi.org/10.3390/laws12030044 - 08 May 2023
Viewed by 1456
Abstract
Rural women in Latin America continue to face serious obstacles in land tenure, especially in areas such as México, Guatemala, and Bolivia. Gender inequality in land access is related to male preference in inheritance legislation, male privilege in marriage and state programs of [...] Read more.
Rural women in Latin America continue to face serious obstacles in land tenure, especially in areas such as México, Guatemala, and Bolivia. Gender inequality in land access is related to male preference in inheritance legislation, male privilege in marriage and state programs of land distribution. Consequently, the activities implemented by governments have failed to take women into account. For this reason, the Food and Agriculture Organization of the United Nations (FAO) and several partner organizations developed a set of “Voluntary Guidelines” (VGs) on responsible governance of land tenure to reduce inequality. Therefore, the main objective is to determine the degree of governments’ commitment to the fight against inequality in access to land and the role of women regarding these rural areas of Latin America. For this, this research tests the compliance with the “Voluntary Guidelines” of the FAO in Mexico, Guatemala, and Bolivia. Full article
(This article belongs to the Section Law and Gender Issues)
7 pages, 730 KiB  
Editorial
Introduction to the Special Issue «Justice Based on Truth»
by Marcel Senn
Laws 2023, 12(3), 43; https://doi.org/10.3390/laws12030043 - 28 Apr 2023
Viewed by 1242
Abstract
When I received a request from MDPI in 2021, in the midst of the COVID-19 pandemic, to guest-edit a new online journal of philosophy of law and legal theory, including the history of their disciplines, it was immediately clear to me that this [...] Read more.
When I received a request from MDPI in 2021, in the midst of the COVID-19 pandemic, to guest-edit a new online journal of philosophy of law and legal theory, including the history of their disciplines, it was immediately clear to me that this offer could be a great opportunity for all of us working in the field of philosophy of law or legal theory to develop an organ to exchange knowledge through this, as well as further crises [...] Full article
12 pages, 232 KiB  
Article
Truth, Ethics and Legal Thought—Some Lessons from Dworkin’s Justice for Hedgehogs and Its Critique
by Matthias Mahlmann
Laws 2023, 12(3), 42; https://doi.org/10.3390/laws12030042 - 28 Apr 2023
Cited by 1 | Viewed by 1798
Abstract
This paper reconstructs some of the core elements of Dworkin’s epistemology of ethics. To understand why, for Dworkin, questions of legal philosophy lead to moral epistemology, the main points of Dworkin’s last restatement of his theoretical account of law are outlined. Against this [...] Read more.
This paper reconstructs some of the core elements of Dworkin’s epistemology of ethics. To understand why, for Dworkin, questions of legal philosophy lead to moral epistemology, the main points of Dworkin’s last restatement of his theoretical account of law are outlined. Against this background, the paper critically assesses the merits of Dworkin’s criticism of current prominent forms of skepticism and what it teaches us about the epistemology of legal thought. Full article
9 pages, 207 KiB  
Article
Ronald Dworkin: Seeking Truth and Justice through Responsibility
by Samra Ibric
Laws 2023, 12(3), 41; https://doi.org/10.3390/laws12030041 - 28 Apr 2023
Viewed by 3140
Abstract
According to Dworkin, “truth” is an interpretative concept. Why? Moral judgements are often the subject of disagreement because they are often the result of divergent conceptual understandings. If, on the other hand, we want to interpret concepts correctly, we have to deal with [...] Read more.
According to Dworkin, “truth” is an interpretative concept. Why? Moral judgements are often the subject of disagreement because they are often the result of divergent conceptual understandings. If, on the other hand, we want to interpret concepts correctly, we have to deal with the analysis of the underlying values we attach to these concepts. Dworkin understands the true as a matter of interpretation, which—and this is often misunderstood—is capable of producing a correct conception of the truth. The truth is thereby directly related to justice. Dworkin even ties his theory of interpretation to an objective truth that can only produce conclusive reasons for a specific advocacy of a particular position in an argument after responsible and intensive debate—in the sense of his two-stage theory. In fact, it turns out that Dworkin’s search for and conception of an objective truth describes a (historical) process. We interpret what our ancestors have already interpreted and continue to understand (in a modified way). This reflexive responsibility is ours to bear; according to Dworkin, it is our responsibility to always stand up for truth through good arguments. Full article
27 pages, 397 KiB  
Article
Thomas Aquinas, Ronald Dworkin, and the Fourth Revolution: The Foundations of Law in the Age of Surveillance Capitalism
by Kyle Lauriston Smith
Laws 2023, 12(3), 40; https://doi.org/10.3390/laws12030040 - 28 Apr 2023
Viewed by 1522
Abstract
Since the publication of Shoshana Zuboff’s The Age of Surveillance Capitalism, the strategies of Surveillance Capitalists and appropriate responses to them have become common points of discussion across several fields. However, there is relatively little literature addressing challenges that Surveillance Capitalism raises [...] Read more.
Since the publication of Shoshana Zuboff’s The Age of Surveillance Capitalism, the strategies of Surveillance Capitalists and appropriate responses to them have become common points of discussion across several fields. However, there is relatively little literature addressing challenges that Surveillance Capitalism raises for the foundations of law. This article outlines Surveillance Capitalism and then compares the views of Thomas Aquinas and Ronald Dworkin in four areas: truth and reality, reality and law, interpretation and social custom, and virtue and law; finally, it closes by asking whether the law alone can provide a sufficient response to Surveillance Capitalism. The overarching argument of the article is that, while Aquinas’s view of the foundations of law accounts for and responds to the challenges of Surveillance Capitalism more effectively than Dworkin’s, law alone cannot provide a sufficient response to this emerging phenomenon. Full article
11 pages, 320 KiB  
Article
Truth and Justice in Spinoza’s Theological–Political Treatise and the Ethics
by André Kistler
Laws 2023, 12(3), 39; https://doi.org/10.3390/laws12030039 - 28 Apr 2023
Viewed by 1606
Abstract
Spinoza’s philosophy argues for the freedom of individuals as singular beings in the state. This freedom is not perfect yet immanent. Freedom—according to the Ethics—is a consequence of true knowledge and virtue, which must be able to develop and can only be [...] Read more.
Spinoza’s philosophy argues for the freedom of individuals as singular beings in the state. This freedom is not perfect yet immanent. Freedom—according to the Ethics—is a consequence of true knowledge and virtue, which must be able to develop and can only be realised gradually. The state and the laws establish the framework that makes this freedom possible. Freedom and true knowledge are basic concepts of the metaphysical system. Justice, however, appears as a legal and political concept in Spinoza’s thought, which the philosopher did not discuss in depth. Nevertheless, the concept of justice has a specific significance in the philosophical context in which it occurs in the TTP—especially in the wisdom of King Solomon—and in the Ethics. Justice, on the one hand, strengthens harmony, security, and freedom. On the other hand, the freedom to philosophise forms a condition for justice to develop according to reason. The knowledge that justice has a importance in Spinoza’s thought is consistent with the complexity of his philosophy and makes its understanding more complete. Full article
9 pages, 241 KiB  
Article
Justice and Truth: A Leibnizian Perspective on Modern Jurisprudence
by Matthias Armgardt
Laws 2023, 12(3), 38; https://doi.org/10.3390/laws12030038 - 28 Apr 2023
Cited by 1 | Viewed by 1265
Abstract
The purpose of this essay is to outline the significance of Leibniz’s philosophy of law for the present. The essay traces the main features of Leibniz’s theory and points out what further developments of his approach are pending today. Finally, it shows how [...] Read more.
The purpose of this essay is to outline the significance of Leibniz’s philosophy of law for the present. The essay traces the main features of Leibniz’s theory and points out what further developments of his approach are pending today. Finally, it shows how similar Leibniz’s basic convictions are to those of Ronald Dworkin. Full article
47 pages, 493 KiB  
Article
Fuller, Dworkin, Scientism, and Liberty: The Dichotomy between Continental and Common Law Traditions and Their Consequences
by Nadia Elizabeth Nedzel
Laws 2023, 12(3), 37; https://doi.org/10.3390/laws12030037 - 28 Apr 2023
Viewed by 1944
Abstract
Dworkin’s and other analytic/positivist philosophers’ theoretical approach to law leads inexorably to politicization, totalitarianism, less justice, less trust in government, and less truth. A more practical approach is Fuller’s, which is based on experience of human behavior and an analysis of what has [...] Read more.
Dworkin’s and other analytic/positivist philosophers’ theoretical approach to law leads inexorably to politicization, totalitarianism, less justice, less trust in government, and less truth. A more practical approach is Fuller’s, which is based on experience of human behavior and an analysis of what has worked in the past. That is also the approach traditionally used in the common law system. This article uses a comparative study of the two Western traditions, their history, and their most prominent legal philosophers to explicate how and why Dworkin’s and Fuller’s approaches are consistent and inconsistent with those traditions, followed by a comparative analysis of the results obtained by prominent international NGOs. Dworkin’s approach, which grows out of analytic philosophy, is unworkable because like all scientistic theories, it treats human beings mechanistically, de-emphasizing personal responsibility, ignoring the need for individual incentive, and it assumes an all-encompassing, all-powerful government of experts to make legal decisions for a collectivity. Under Fuller’s common law approach, the proper role of law is to manage conflict, as it cannot be prevented and cannot always be resolved, thus building the public’s trust in government as unbiased and apolitical as possible. This concept of the rule of law places law above government, minimizes politicization, incentivizes personal responsibility, individual incentive, and entrepreneurship, and is the only true common good among men. Full article
13 pages, 1575 KiB  
Article
Stratagems as a Means of Achieving Justice and Spreading Truth
by Harro von Senger
Laws 2023, 12(3), 36; https://doi.org/10.3390/laws12030036 - 28 Apr 2023
Viewed by 1415
Abstract
This contribution is based on the Chinese concept called Moulüe. A unique feature of Moulüe, without parallel in Western praxis-oriented schools of thinking, is its Yin-Yang dimension. The two hemispheres of the Yin-Yang symbol, a white one and a black one, are inseparably [...] Read more.
This contribution is based on the Chinese concept called Moulüe. A unique feature of Moulüe, without parallel in Western praxis-oriented schools of thinking, is its Yin-Yang dimension. The two hemispheres of the Yin-Yang symbol, a white one and a black one, are inseparably interconnected. According to the Moulüe concept, the white hemisphere is the place of transparent, conventional, legal ways to solve problems, whereas the black hemisphere harbors hidden agendas, and unconventional, cunning methods to solve problems, with the 36 stratagems as a central component. A person with Moulüe competence who is confronted with a problem can switch from options for action in one hemisphere to options for action in the other according to the circumstances. This contribution shows how the realization of justice, and the spreading of truth, can be achieved based on Moulüe skill which enables the application of the 36 stratagems. Full article
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23 pages, 405 KiB  
Article
Transitional Justice Process and the Justice Theory of Roland Dworkin
by Helen Gyr
Laws 2023, 12(3), 35; https://doi.org/10.3390/laws12030035 - 26 Apr 2023
Viewed by 2528
Abstract
The determination of truth in the aftermath of war aiming at establishing justice and peace is a key element of a transitional justice (TJ) process. The theory of justice of Roland Dworkin deals with an approach in which the interpretation of values such [...] Read more.
The determination of truth in the aftermath of war aiming at establishing justice and peace is a key element of a transitional justice (TJ) process. The theory of justice of Roland Dworkin deals with an approach in which the interpretation of values such as equality, liberty or truth are paramount. Dworkin’s theory of justice is applied to constitutional states and lays out how democratic values are negotiated. The goal of a TJ process is to lead a state towards democracy after a war or internal armed conflict. TJ processes as well as Dworkin’s theory of justice are to be understood as dynamic, which implies that they are subject to constant change and thus to be considered in their respective social, cultural, political, and economic contexts. This paper explores the relationship between truth and justice in the framework of a TJ trial and Roland Dworkin’s theory of justice. The TJ process in Colombia serves as a case study because that was where I conducted field research in TJ in 2019. Full article
30 pages, 546 KiB  
Article
The Persistent, Pernicious Use of Pushbacks against Children and Adults in Search of Safety
by Michael Garcia Bochenek
Laws 2023, 12(3), 34; https://doi.org/10.3390/laws12030034 - 23 Apr 2023
Cited by 1 | Viewed by 3397
Abstract
Border pushbacks, including at the European Union’s external borders and by countries such as Australia, Mexico, Turkey, and the United States, are common—and in fact have become a new normal. These border policing or other operations aim to prevent people from reaching, entering, [...] Read more.
Border pushbacks, including at the European Union’s external borders and by countries such as Australia, Mexico, Turkey, and the United States, are common—and in fact have become a new normal. These border policing or other operations aim to prevent people from reaching, entering, or remaining in a territory. Screening for protection needs is summary or non-existent. Pushbacks violate the international prohibitions of collective expulsion and refoulement, and pushbacks of children are inconsistent with the best interests principle and other children’s rights standards. Excessive force, other ill-treatment, family separation, and other rights violations may also accompany pushback operations. Despite formidable obstacles such as weak oversight mechanisms, undue judicial deference to the executive, and official ambivalence, domestic court rulings and other initiatives show some promise in securing compliance with international standards and affording a measure of accountability. Full article
(This article belongs to the Special Issue Protecting the Rights of Children in Migration)
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