Laws — Open Access Journal

This article traces the rise and fall of psychiatric evaluation in criminal trials from the School of Criminal Anthropology of the late nineteenth century to the current Italian justice system. Influenced by positivism and by specific theories on human evolution, Cesare Lombroso considered criminal action as the result of organic causes excluding any kind of legal autonomy and responsibility of the accused. The Positive School of Penal Law he founded with Enrico Ferri and Raffaele Garofalo profoundly inspired the Rocco Code, on which the current Italian Penal Code is still based, albeit with revisions and repeals. Drafted in 1930 during the fascist government (1922–1943), the latter has also suffered from racial ideology. In order to assess potential mental illnesses that would exclude the responsibility of the accused, to determine their level of dangerousness and to establish the corresponding security measures introduced by the Rocco Code, Italian criminal justice consolidated the link between penal law and psychiatric instruments. Such faith in psychiatric evaluation, however, has been particularly questioned by the increasing frequency of judicial processes involving members of different cultural communities in Italy since the 1970s. Thus, the predominantly pathological aspects evaluated by forensic psychiatrists have often proved to be conceptually and methodologically inadequate to take fully into account the differences between cultures, as well as the different social and cultural conditions affecting the defendant’s behaviour. This paper argues that cultural anthropology is particularly suited as an instrument capable of disclosing the cultural implications of the legal process and encourages the use of cultural expertise as an important tool for the inclusiveness and understanding of diversity. Full article

This paper explores the complex evolution of the role anthropologists have played as cultural experts in the regulation of the entheogenic use of the peyote cactus throughout the 20th century. As experts of the “peyote cult”, anthropologists provided testimonies and cultural expertise in the regulatory debates in American legislative and judiciary arenas in order to counterbalance the demonization and prohibition of the medicinal and sacramental use of peyote by Native Americans through state and federal legislations. In the meantime, anthropologists have encouraged Peyotists to form a pan-tribal religious institution as a way to secure legal protection of their practice; in 1918, the Native American Church (NAC) was incorporated in Oklahoma, with its articles explicitly referring to the sacramental use of peyote. Operating as cultural experts, anthropologists have therefore assisted jurists in their understanding of the cultural and religious significance of peyote, and have at the same time counseled Native Americans in their interaction with the legal system and in the formatting of their claims in appropriate legal terms. This complex legal controversy therefore provides ample material for a general exploration of the use, evolution, and impact of cultural expertise in the American legal system, and of the various forms this expertise can take, thereby contributing to the contemporary efforts at surveying and theorizing cultural expertise. Through an historical and descriptive approach, the analysis notably demonstrates that the role of anthropologists as cultural experts has been marked by a practical and substantive evolution throughout the 20th century, and should therefore not be restrictively understood in relation to expert witnessing before courts. Rather, this paper underlines the transformative and multifaceted nature of cultural expertise, and highlights the problematic duality of the position that the two “generations” of anthropologists involved in this controversy have experienced, navigating between a supposedly impartial position as experts, and an arguably biased engagement as advocates for Native American religious rights. Full article

The article highlights how the strategic use of the Convention on the Rights of Persons with Disabilities (CRPD) by disabled people’s organizations (DPOs) in Iceland has produced a shift in the balance of power with regard to how, and by whom, disability legislation and policy in Iceland is developed. The article draws on a study examining the last stages of a consultative process between representatives of DPOs and policymakers in Iceland leading up to the adoption, in May of 2018, of core disability legislation, Laws pertaining to services for disabled people with long-term support needs (No. 38/2018). It examines the process from the perspective of representatives of DPOs through in-depth interviews and document analysis. This article draws on critical theory and the human rights approach in its analysis, with a particular emphasis on the roadmap to the coproduction of policy provided by the CRPD and the UN CRPD Committee through the issuance of guidance to States Parties to the Convention. It draws attention to the DPOs’ ongoing refocusing of their strategies, and their emphasis on harnessing the rights contained in the CRPD to gain recognition of their right to participation in the coproduction of policy and in changing process norms. Full article

The purpose of this article is to demonstrate that a wide range of entities associated with the State and which engage in business or investment activities on behalf of the State have an important role to play in the promotion and implementation of the sustainable development goals found in the 2030 Agenda. The contribution starts with a background to the 2030 Agenda, followed by an introduction to the features of State-owned entities. Since the 2030 Agenda requires the ‘mobilization of all available resources’ to achieve its implementation, it is argued that entities that are owned by States could have a significant role to play in this context. Examples of good practices from a number of jurisdictions show how the development and implementation of domestic measures that cover State-owned entities have the potential to contribute to the promotion and implementation of the 2030 Agenda. Full article

The province of Quebec, Canada, seeks to implement relational alternate project delivery methods to achieve sustainability and energy efficiency in public construction. However, the relational differences between the formal written parts of different delivery methods have yet to be analyzed and understood, as is the case with the relational aspects of contracts and the achievement of sustainable and energy-efficient infrastructure. Using a hermeneutic interpretation of Macneil’s relational contract norms and grounded theory, 26 contracts involving Quebec’s largest public client of vertical infrastructure and representing three different types of project delivery methods (design–bid–build (DBB), design–Build (DB), and construction manager–general contractor/integrated project delivery (CMGC/IPD)) were analyzed using NVivo. It was found that CMGC/IPD is the most relational project delivery method available to Quebec’s public clients, namely because of the public client’s active involvement in the realization process, the increasing complexity of roles, the multitude of common management structures, and the internalization of sustainability measures and conflict resolution. Furthermore, Quebec’s CMGC/IPD was found to be an IPD-ish delivery method, lacking the early involvement of the construction manager and the risk/reward sharing mechanisms necessary to achieve pure IPD status. The findings and theoretical considerations discussed here will help policymakers, contract drafters, and public clients interested in implementing relational contracting practices in public construction projects. Full article

In mid-2013, the Australian federal government introduced the National Disability Insurance Scheme (NDIS), a ground-breaking reform of disability support services, encapsulated by the mantra of increasing “choice and control”. The scheme provides eligible persons with disabilities a legislated entitlement to supports they may require to increase their independence and social and economic participation. The NDIS has been hailed as a major step forward in Australia’s efforts to realize the human rights of persons with disabilities, in accordance with the UN Convention on the Rights of Persons with Disabilities (CRPD). A core aspect of the CRPD is guaranteeing persons with disabilities their civil and political right to equality before the law, including their right to enjoy legal capacity on an equal basis with others, as provided by Article 12 of the CRPD. The purpose of this paper is to examine how the concept of choice and control has been operationalized within the NDIS and to critically analyze the extent to which it accords with the requirements of Article 12. It will be argued that even though the NDIS expressly seeks to implement the CRPD as one of its key objectives, it ultimately falls short in fully embracing the obligations of Article 12 and the notions of autonomy and personhood underlying it. Full article

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

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

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

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

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

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

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

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

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

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

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

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