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Laws — Open Access Journal

Laws (ISSN 2075-471X) is an international, scholarly, peer-reviewed, open access journal of legal systems, theory, and institutions, and is published quarterly online by MDPI.

Open Access - free for readers, with article processing charges (APC) partially funded by institutions through Knowledge Unlatched for a limited number of papers in 2019. Please contact the editorial office before submission to check whether KU waivers, or discounts are still available.
Rapid publication: manuscripts are peer-reviewed and a first decision provided to authors approximately 39.8 days after submission; acceptance to publication is undertaken in 11.1 days (median values for papers published in this journal in the second half of 2018).
Recognition of reviewers: reviewers who provide timely, thorough peer-review reports receive vouchers entitling them to a discount on the APC of their next publication in any MDPI journal, in appreciation of the work done.

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Latest Articles

Open AccessArticle

Beyond the Paris Agreement: Intellectual Property, Innovation Policy, and Climate Justice

by Matthew Rimmer

Laws 2019, 8(1), 7; https://doi.org/10.3390/laws8010007 - 18 February 2019

Abstract

The multidisciplinary field of climate law and justice needs to address the topic of intellectual property, climate finance, and technology transfer to ensure effective global action on climate change. The United Nations Framework Convention on Climate Change 1992 (UNFCCC) established a foundation for the development, application and diffusion of low-carbon technologies. Against this background, it is useful to analyse how the Paris Agreement 2015 deals with the subject of intellectual property, technology transfer, and climate change. While there was discussion of a number of options for intellectual property and climate change, the final Paris Agreement 2015 contains no text on intellectual property. There is text, though, on technology transfer. The Paris Agreement 2015 relies upon technology networks and alliances in order to promote the diffusion and dissemination of green technologies. In order to achieve technology transfer, there has been an effort to rely on a number of formal technology networks, alliances, and public–private partnerships—including the UNFCCC Climate Technology Centre and Network (CTCN); the World Intellectual Property Organization’s WIPO GREEN; Mission Innovation; the Breakthrough Energy Coalition; and the International Solar Alliance. There have been grand hopes and ambitions in respect of these collaborative and co-operative ventures. However, there have also been significant challenges in terms of funding, support, and operation. In a case of innovation policy pluralism, there also seems to be a significant level of overlap and duplication between the diverse international initiatives. There have been concerns about whether such technology networks are effective, efficient, adaptable, and accountable. There is a need to better align intellectual property, innovation policy, and technology transfer in order to achieve access to clean energy and climate justice under the framework of the Paris Agreement 2015. At a conceptual level, philosophical discussions about climate justice should be grounded in pragmatic considerations about intellectual property and technology transfer. An intellectual property mechanism is necessary to provide for research, development, and deployment of clean technologies. There is a need to ensure that the technology mechanism of the Paris Agreement 2015 can enable the research, development, and diffusion of clean technologies at a scale to address the global challenges of climate change. Full article

Open AccessArticle

Law’s Autonomy and Moral Reason

by Jack Clayton Thompson

Laws 2019, 8(1), 6; https://doi.org/10.3390/laws8010006 - 15 February 2019

Abstract

This paper intends to set out an argument to Legal Idealism and a thesis that holds law and morality as necessarily connected. My focus is on deconstructing the Positivist argument to the Autonomy Thesis and beginning to reconstruct it through the application of morality to law’s autonomous authority. My aim, ultimately, is to demonstrate how, through the concept of law, practical reason might explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morality. That is, I intend to demonstrate that morality both survives and remains identifiable (transparently) following the process of metamorphosis into institutionalised practical reasoning. If this is so, the authority of and obligation to law is simultaneously a form of morally rational obligation. In the response to the Positivist argument that moral values are incommensurate, I will show that this commensurability can be determined ‘artificially’ by a system of institutionalised reasoning (i.e., the law); this is to say, if I can show that the Legal Positivist argument is left incomplete without some explanation of moral values underpinning it, I need not to show that a specific, defensible moral truth or principle is required, but that an artificial weighting of abstract moral principles is sufficient Full article

Open AccessArticle

The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada

by James C. Simeon

Laws 2019, 8(1), 5; https://doi.org/10.3390/laws8010005 - 14 February 2019

Abstract

Terrorism is a concept that defies a simple and straightforward legal definition. Therefore, it is not surprising to find that there is no Comprehensive Convention on Terrorism with a universally accepted definition of what constitutes “terrorism.” Consequently, States have devised their own definitions of what constitutes terrorism that are typically found in their criminal law. This raises the fundamental question of whether there is a convergence or divergence in jurisprudential trends on what constitutes terrorism among States? Presumably, a convergence in jurisprudential trends is more likely to contribute to combatting the threat of terrorism at the international and national levels. Accordingly, this article comparatively analyzes the definition of terrorism in three common law jurisdictions: the United Kingdom, the United States, and Canada. It finds that although there are a number of similarities in the definition of terrorism in these three States, they have significantly different definitions of what constitutes terrorism. The UK definition, ostensibly, has the broadest definition of terrorism of the three States. The US has, undoubtedly, the most unique, with separate definitions for “international terrorism” and “domestic terrorism.” Additionally, Canada has the most international definition of terrorism, drawing on 13 functional terrorism Conventions to define offenses such as hijacking, hostage taking, and bombing, etc. The second part of the article comparatively analyzes seven of the leading Supreme Court cases on terrorism in these three States. From the ratio or rationes decidendi in each of these cases, it draws out the twelve legal principles that underlie these judgements and finds that they are similar and overall consistent. The conclusion reached is that there is, at least in these three common law jurisdictions, an apparent convergence in jurisprudential trends in the law of terrorism. This augurs well for the development and emergence of a common definition of what constitutes terrorism at the international and transnational levels, as well as more rigorous and effective counter-terrorism laws and policies within and across States. Full article

Open AccessArticle

Legal Capacity and Supported Decision-Making: Lessons from Some Recent Legal Reforms

by Antonio Martinez-Pujalte

Laws 2019, 8(1), 4; https://doi.org/10.3390/laws8010004 - 1 February 2019

Abstract

Article 12 of the Convention on the Rights of Persons with Disabilities calls for a thorough review of State laws to recognise the right of persons with disabilities to enjoy legal capacity on an equal basis with others, thereby abolishing substitute decision-making regimes, and to receive the support they need for its exercise. With the aim of providing useful guidelines for legislative changes yet to be made, the present study examines and assesses, in the light of the Convention, some of the most recent and innovative legislative reforms in the area of legal capacity. The analysis shows that, although they appropriately reflect a change of perspective, shifting from the paradigm of the “best interests” of the person to the respect of their will and preferences, some of these reforms are not fully satisfactory, particularly because they still allow partial or total deprivation of legal capacity for persons with disabilities, and maintain institutions which perpetuate substitute decision-making. However, the recent modification of the Peruvian Civil Code and Civil Procedure Code deserves a highly positive evaluation as the first regulation of legal capacity and supported decision-making substantially compliant with the Convention. Full article

Open AccessArticle

Judging Values and Participation in Mental Capacity Law

by Camillia Kong, John Coggon, Michael Dunn and Penny Cooper

Laws 2019, 8(1), 3; https://doi.org/10.3390/laws8010003 - 1 February 2019

Abstract

Judges face a challenging task in determining the weight that ought to be accorded to the person (P)’s values and testimony in judicial deliberation about her capacity and best interests under the Mental Capacity Act 2005 (MCA). With little consensus emerging in judicial practice, incommensurable values drawn from divergent sources often collide in such cases. This paper outlines strict and flexible interpretations of the MCA’s values-based approach to making decisions about capacity and best interests, highlighting the problematic implications for the normative status of P’s values and the participatory role of P in judicial deliberations. The strict interpretation draws a false separation between ascertaining P’s values and the intrinsic value of enabling P’s participation in court proceedings; meanwhile, the flexible interpretation permits judicial discretion to draw on values which may legitimately override the expressed values of P. Whether in the ambiguous form of internal and/or extra-legal judicial values, these value sources demand further scrutiny, particularly regarding their intersection with the values held by P. We offer provisional normative guidelines, which set constraints on the appeal to extra-legal values in judicial deliberation and outline further research pathways to improve the justification around judicial decisions regarding P’s participation. Full article

Open AccessEditorial

Acknowledgement to Reviewers of Laws in 2018

by Laws Editorial Office

Laws 2019, 8(1), 2; https://doi.org/10.3390/laws8010002 - 9 January 2019

Abstract

Rigorous peer-review is the corner-stone of high-quality academic publishing [...] Full article

Open AccessArticle

The Legal Profession in the Era of Digital Capitalism: Disruption or New Dawn?

by Salvatore Caserta and Mikael Rask Madsen

Laws 2019, 8(1), 1; https://doi.org/10.3390/laws8010001 - 4 January 2019

Abstract

This article investigates the impact of what we label “digital capitalism” on the structure and organization of the legal profession. We explore whether the rise of digital capitalism is transforming the dynamics of the legal field by the introduction of new actors and ways of practicing law, which might challenge the traditional control (and monopoly) of jurists on the production of law. We find that not only have new service providers already entered the legal market, but also new on-line tools for solving legal disputes or producing legal documents are gaining a foothold. Similarly, we also find that new intelligent search systems are challenging the role of junior lawyers and paralegals with regard to reviewing large sets of documents. However, big data techniques deployed to predict future courts’ decisions are not yet advanced enough to pose a challenge. Overall, we argue that these developments will not only change legal practices, but are also likely to influence the internal structure and organization of the legal field. In particular, we argue that the processes of change associated with digitalization is further accelerating the economization and commodification of the practice of law, whereby lawyers are decreasingly disinterested brokers in society and defenders of the public good, and increasingly service firms at the cutting edge of the capitalist economy. These developments are also triggering new forms of stratification of the legal field. While some legal actors will likely benefit from digitalization and expand their business, either by integrating new technologies to reach more clients or by developing new niche areas of practices, the more routinized forms of legal practice are facing serious challenges and will most likely be replaced by technology and associated service firms. Full article

Open AccessArticle

Pressure on Judges: How the Budgeting System Can Impact on Judge’s Autonomy

by Federica Viapiana

Laws 2018, 7(4), 38; https://doi.org/10.3390/laws7040038 - 19 December 2018

Abstract

Performance-based budgeting is a label that groups different budgeting models, developed in the New Public Management era, that link the funding to the performance of agencies. If European justice systems have been unresponsive to apply managerial techniques to courts, this is particularly true for modern budgeting techniques. Courts’ budgets have been, and still are in many cases, drafted only on historical costs, and, although important for the court functioning, it has been one of the most neglected subjects in court administration studies. In recent years, some countries have been developing new approaches to justice systems and court budgeting, using a “performance-based” budget perspective, which relates the courts’ budget to the efficiency results, setting specific performance targets. Although fundamental to ensure transparency, accountability, and proper resource allocation among courts, these approaches have an impact on judicial independence and autonomy, because they may put pressure on judges’ productivity and efficiency, to the detriment of quality. Building on two case studies, Finland and The Netherlands, this paper aims to analyze how, and to what extent, the “performance-based” budgeting system is influencing the functioning of courts and the autonomy of judges. Full article

Open AccessArticle

Seemingly Connected, Obviously Separate: The Parallel Realities of the UN Global Compact and the Multilateral Regimes in Water Governance

by Gor Samvel

Laws 2018, 7(4), 37; https://doi.org/10.3390/laws7040037 - 5 November 2018

Abstract

The UN Global Compact, being an institutional innovation in global governance, invites businesses to voluntarily commit to a selection of principles, rooted in multilateral regimes. Such commitment is expected to improve business practices and by that to close gaps in global governance. This spawns an expectation that through UN Global Compact business and multilateral treaty regimes will engage in mutually fertilizing and potentially coherent interaction to overcome the shortfalls of global governance. The current paper looks into this alleged interaction in the field of water stewardship and access to water. It explores first, the conceptual interdependence of the UN Global Compact and multilateral regimes in the respective fields and second, the ways in which the business practices reported under the UN Global Compact contribute to the advancement of the rules and principles thereof. The paper finds that the traditional multilateral systems and the innovative governance platform share an identical conceptual narrative but exist as separate realities on operational level. From the latter perspective the UN Global Compact might risk deepening governance gaps rather than close them. Full article

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Open AccessArticle

Due Diligence Obligations and Transboundary Environmental Harm: Cybersecurity Applications

by Akiko Takano

Laws 2018, 7(4), 36; https://doi.org/10.3390/laws7040036 - 31 October 2018

Abstract

This paper analyzes the due diligence obligations with regard to transboundary harm in international water law and their application to cybersecurity by clarifying the definition of due diligence in light of the procedural duties in recent International Court of Justice (ICJ) cases. The paper explores whether states have responsibilities to prevent transboundary harm caused by nonstate actors. The existing literature on due diligence obligations in international water law and cybersecurity was reviewed, along with ICJ cases relating to procedural duties (international co-operation, environmental impact assessments, and information sharing). The findings confirm that, although procedural duties may be less onerous in cyberspace than in the environment, such duties indeed exist, albeit to a lesser degree. The differences may be accounted for by the fact that customary law related to the environment is already well developed. This study clarifies the concept of due diligence by focusing on procedural duties and examining the definition of due diligence in cyber operations. Due diligence obligations are crucial for states seeking to prevent transboundary harm and are an evolving principle of international law. Full article

Open AccessReview

The Secret Silent Spaces of Workplace Violence: Focus on Bullying (and Harassment)

by Allison J Ballard and Patricia Easteal

Laws 2018, 7(4), 35; https://doi.org/10.3390/laws7040035 - 29 October 2018

Abstract

Any form of workplace abuse, be it bullying, sexual or non-sexual harassment, or other forms of workplace violence, represents a significant problem for both workers and organisations. The reality that worker complaints of such abuse are often silenced, frequently for long periods of time, has recently been spotlighted by the #MeToo movement. In this article we focus particularly on workplace bullying (some definitions include harassment). We explore how potential, and actual, complaints of such abuse may silenced—both before complaints are ever made, and also at different points along the complaint or dispute resolution process. We investigate how definitional and naming issues, worker ignorance and incapacity, workplace investigations, (alternative) dispute resolution and the legal pathways available to targets of workplace bullying and harassment may act to silence complaints. We also provide some practical suggestions for the targets of workplace abuse. Full article

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Open AccessComment

A Counterfactual Impact Analysis of Fair Use Policy on Copyright Related Industries in Singapore: A Critical Review

by George S. Ford

Laws 2018, 7(4), 34; https://doi.org/10.3390/laws7040034 - 5 October 2018

Abstract

In a 2014 article appearing in Laws, Ghafele and Gibert presented evidence on the economic impacts of Singapore’s change in its fair use policies showing a large effect on industries that manufacture goods useful for private copying of copyrighted works and no effect on the copyright industries. As detailed in this Comment, Ghafele and Gibert’s empirical analysis fails to shed light on the consequences of modifications to fair use policies. Full article

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Open AccessArticle

Who’s Talking About Us Without Us? A Survivor Research Interjection into an Academic Psychiatry Debate on Compulsory Community Treatment Orders in Ireland

by Liz Brosnan

Laws 2018, 7(4), 33; https://doi.org/10.3390/laws7040033 - 25 September 2018

Abstract

This paper presents a user/survivor researcher perspective to the debate among psychiatrists on the suggested introduction of Community Treatment Orders in Ireland. Critical questions are raised about evidence and the construction of psychiatric knowledge. Important questions include: How is this evidence created? What and whose knowledge have not been considered? Some critical issues around coercion, ‘insight’, and attributions of ‘lack of capacity’ are briefly considered. Further legal considerations are then introduced based on the United Nations Convention on the Rights of Persons with Disability. The paper concludes with a human rights-based appeal to reject the introduction of coercive community treatment in Ireland. Full article

Open AccessArticle

Are Immigrant Women Visible in Australian Domestic Violence Reports that Potentially Influence Policy?

by Nafiseh Ghafournia and Patricia Easteal

Laws 2018, 7(4), 32; https://doi.org/10.3390/laws7040032 - 21 September 2018

Abstract

Through an intersectional lens, this article explores whether immigrant women are represented in a sample of Australian government documents aimed at providing information about family violence in Australia, and discusses implications for policy development. The authors find that while these documents pay lip service to the special vulnerabilities of immigrant and refugee women; arguably, they do not engage with the complexities of the intersection of gender and other social categories. Given that the reports do not focus adequately on how race, ethnicity, culture and immigration status play a role in these women’s experiences of domestic violence, this may limit the effect of policies that address the culturally and linguistically diverse (CALD) victims’ needs and rights to protection. We argue that a more intersectional approach is necessary to address CALD women’s specific needs. Full article

Open AccessArticle

Tax Evasion and Incomplete Tax Transparency

by Noam Noked

Laws 2018, 7(3), 31; https://doi.org/10.3390/laws7030031 - 23 August 2018

Abstract

This article discusses the impact of incomplete tax transparency on tax evasion. While FATCA and CRS address some forms of tax evasion, tax evaders may still use other tax evasion opportunities. Anti-tax evasion measures might not be effective or cost-efficient if tax evaders can continue evading taxes through alternative tax evasion channels. Automatic exchange of information (AEOI) might also exacerbate the social harm from tax evasion if tax evaders take costly actions to avoid reporting. This article explores policy responses that could better address the problems created by incomplete tax transparency. Full article

Open AccessArticle

Towards Changing Compulsory Community Mental Health Treatment in New Zealand: Shining Light on How Community Treatment Orders Are Produced

by Alison Schneller, Katey Thom and Peter Adams

Laws 2018, 7(3), 30; https://doi.org/10.3390/laws7030030 - 14 August 2018

Abstract

In this paper, we use a constructed scenario to illustrate making a compulsory community treatment order in the New Zealand context. Drawing on publicly available documentation, we outline the existing mental health law framework that produces community treatment orders and emerging complex problems of their high, increasing and disproportionate use. We provide examples of human rights, indigenous and clinical effectiveness research that appear to be destabilising the existing mental health law framework. We argue assemblage theory (Deleuze & Guattari) is a useful theoretical tool to unpack the making and continued use of compulsory community treatment orders in the context of complex destabilising and stabilising influences. This is followed by an outline of the concept of assemblage with reference to the constructed scenario, focusing on processes, practices, places, types of knowledge, roles, documents and how they connect to produce certain effects that both enable and constrain participants’ actions. In the New Zealand context, we examine the potential for assemblage theory to generate new ways of thinking about compulsory mental health treatment in community settings by challenging perceived limitations and revealing opportunities for participants to act otherwise. We conclude with a proposal for further research shaped by this theory that explores the making of actual community treatment orders to reveal where there is potential to change existing relations towards more positive effects for participants. Full article

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Open AccessArticle

Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights Law

by Lucía Berro Pizzarossa

Laws 2018, 7(3), 29; https://doi.org/10.3390/laws7030029 - 7 August 2018

Abstract

Sexual and reproductive health and rights have increasingly been recognized in the international arena, but their evolution and the definition of their scope and content have not been received without controversy. From population control to human rights, from demographers’ competence to governmental prerogative, from couples’ rights to universal rights, this article will present an overview of the evolution of sexual and reproductive rights in the international arena. The development of these rights cannot be read in isolation but must be analyzed together with the broader landscape that hosts social and political movements, ideologies, religions, and revolutions. Understanding sexual and reproductive health and rights as historical creations, rather than timeless givens, enables us to devise historically informed instruments and policies that are more likely to succeed. This article contributes to the scholarly literature by providing an overview of past trends and of the conditions under which they occurred. Retracing the history of these rights enables us to clarify the scope of the state’s obligations to realize the right to sexual and reproductive health, to improve monitoring opportunities, and to ensure accountability for violations. This article explores these (and forthcoming) developments contributing to identify the existing obligations, the relevant actors, and the challenges that lie ahead. Full article

Open AccessArticle

The Rights Network: 100 Years of the Hohfeldian Rights Analytic

by Jack Clayton Thompson

Laws 2018, 7(3), 28; https://doi.org/10.3390/laws7030028 - 16 July 2018

Abstract

This paper sets out to reconsider the Hohfeldian framework of rights in celebration of the centenary anniversary of their original publication. It begins by conceptualizing each of the Hohfeldian incidents or rights before outlining the molecular or complex structure of rights to “things”. I adopt a broad use of the term of “right” and apply it to Legal, Moral, Equitable and Human conceptions and constructions. It sets out an argument in favor of a further definitional model—in addition to Hohfeld’s scheme of opposites and correlatives—which focuses on the function of these conceptual rights. Finally, it sets out to provide a model of rights as forming a network within a given community and the exponential growth of “rights-connections” within an expanding community. This is used to frame responses to common criticisms of “rights talk” and the balance of benefits and burdens on account of such a rights network. Ultimately, this paper seeks to demonstrate the benefit, and indeed necessity, of the Hohfeldian model in any discussion of rights. Without it “rights talk” is debased and impoverished. Full article

Open AccessArticle

Donald Trump and Institutional Change Strategies

by Jordan T. Cash and Dave Bridge

Laws 2018, 7(3), 27; https://doi.org/10.3390/laws7030027 - 6 July 2018

Abstract

This article integrates three fields of study: the “regime politics” paradigm in law and courts, the “institutional change” approach in public policy, and the “unilateral presidency” literature. In doing so, we show how law, politics, and public policy are inextricably linked, and that researchers can borrow assumptions, methods, and theories from a variety of fields. We use Donald Trump’s early presidency to show how political actors (especially presidents) can use four different change strategies. In the case of Trump, we highlight: shifting of decision-making authority via insurrectionary displacement; the elimination of the individual mandate via subversive layering; a change in drone use policy via opportunistic conversion; and a gradual desensitization and change in school choice education policy via symbiotic drift. We conclude by offering lessons for all three literatures we incorporate, as well as a way forward for studying a presidential administration that many find difficult to analyze. Full article

Open AccessArticle

Paradigm Shift or Paradigm Paralysis? National Mental Health and Capacity Law and Implementing the CRPD in Scotland

by Jill Stavert

Laws 2018, 7(3), 26; https://doi.org/10.3390/laws7030026 - 29 June 2018

Abstract

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) highlights the need to actively remove obstacles to, and promote, the full and equal enjoyment of human rights by persons with disabilities. This is challenging us to revisit existing conceptions about what is genuine equal and non-discriminatory enjoyment of human rights by persons with cognitive, intellectual and psychosocial disabilities and to accept that a real and fundamental culture change is required in order to achieve this. Whilst many states are seeking to address CRPD requirements in law and policy, including those identified in its Article 12, it is arguable that these do not go far enough in order to secure this culture change. This article considers three issues that need to be resolved as part of the process of achieving this paradigm shift, namely capacity assessments as thresholds for involuntary interventions, authorising involuntary interventions and support for the exercise of legal capacity, both generally and in the particular context of Scotland’s mental health and capacity laws. In doing so, it argues that it is debatable whether the CRPD paradigm shift can be realistically achieved by simply adapted or supplementing current legal and policy models. Full article

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