Laws

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In August of 2022, the United States Department of Treasury sanctioned the virtual currency mixer Tornado Cash, an open-source and fully decentralised piece of software running on the Ethereum blockchain, subsequently leading to the arrest of one of its developers in the Netherlands. Not only was this the first time the Office of Foreign Assets Control (OFAC) extended its authority to sanction a foreign ‘person’ to software, but the decentralised nature of the software and global usage highlight the challenge of establishing jurisdiction over decentralised software and its global user base. The government claims jurisdiction over citizens, residents, and any assets that pass through the country’s territory. As a global financial center with most large tech companies, this often facilitates the establishment of jurisdiction over global conduct that passes through US servers. However, decentralised programs on blockchains with nodes located around the world challenge this traditional approach as either nearly all countries can claim jurisdiction over users, subjecting users to criminal laws in countries with which they have no true interaction, or they limit jurisdiction, thereby risking abuse by bad actors. This article takes a comparative approach to examine the challenges to establishing criminal jurisdiction on cryptocurrency-related crimes. Full article

A socio-legal commentary, this article examines the emerging issue of digital harm in New Zealand’s health settings. There are recent cases, and an increasing number of them, demonstrating the medico-legal response to various forms of digital harm. Of these, several representative cases are considered in order to identify features of digital harm within the health context. The article questions whether this is a new type of harm, enabled by the creation of new technologies, or simply a different manifestation of conventional unprofessional or unethical behaviour. The article considers whether the existing medico-legal framework can appropriately respond to this harm and whether new legal or policy tools are required. The cases suggest that the rights and disciplinary systems in place can adequately deal with digital harm within their existing scopes, particularly when individuals have been harmed. However, gaps in the legal framework are identified, with particular reference to the actions of unregistered providers and harm to professions. Further, a future challenge for the system may be the response to COVID-19 vaccine denial and misinformation. As the legal response to digital harm in the health context is a relatively unexamined area of research, this work may guide future research. Full article

Unaccompanied immigrant children arrive in the US having fled deteriorating conditions and human rights violations in their home countries. Despite the large numbers of unaccompanied children, there is a lack of research on outcomes for unaccompanied children in the US and particularly for those in the Office of Refugee Resettlement’s (ORR) Long Term Foster Care (LTFC) program. This manuscript begins with a review of the existing laws that influence unaccompanied children (UC) served through the ORR’s LTFC program and a review of the current research on UC in foster care in the US. Notably, this manuscript also visualizes the numbers of UC that have arrived in the US since the early 2000s. These are used to provide a synthesis of recommendations for policy and practice with unaccompanied children. Full article

This contribution reports on a child protection case concerning the removal of a child from the custody of a parent with intellectual and developmental disabilities (IDD) in Iceland. Employing a mix of document analysis and interviewing, the results demonstrated two key themes forming the analysis: One is the aura of professionalism. A careful examination of the working methods reveals a continuation of the poor practices typical of the past, despite the claims made that specialised support for persons with disabilities has been tried and was not successful. The second analytical theme is alleged disabilities. This case provided evidence of a previously unseen tactic, to the best of our knowledge, by which a parent’s disability status was called into question. The argument offered herein is that this was pursued to sidestep the protections afforded to disabled parents under Icelandic law in recent years. We conclude by arguing that the combination of a heighted awareness of these legal protections and a greater scrutiny as to how these cases are worked appears to have led to a series of evolving tactics that are employed against disabled parents in an enhanced disability rights environment. Full article

Colombian hippopotamus populations are increasing against the backdrop of general species decline. In addition to wider calls for further protection, this pocket population is considered an invasive species and is subject to ongoing legal discussions about how they should be controlled and managed. These proceedings currently consider two options: whether the hippopotamus population needs to experience yearly culls or to use a fertility management program. This article explores whether species justice has a place within the control of non-native species via this case study of the Colombian hippo legal proceedings. When reviewing this case, neither euthanasia nor fertility control are fully in the interests of the species; however, fertility control is more in line with their interests. The conclusion considers whether it is possible to recognise the interests of wildlife within species management and how a shift towards the interests of species and species justice at minimum could provide more dignified and harmless methods of species control as well as find alternative solutions which are more in the interest of the majority of parties. Full article