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Incentivizing Civic Engagement at Public and Private Universities: Tax Exemptions, Laws, and Critical Dialogues 激励公立和私立大学的公民参与:免税、法律和批判性对话
IF 1.2 Q3 Social Sciences Pub Date : 2024-05-22 DOI: 10.3390/laws13030032
Eric Morrow, Casey Thompson, Payton Jones, Boleslaw Z. Kabala
What are the differences in how public and private institutions of higher education, with religious schools as a subset of private colleges and universities, approach on-campus protests in a framework of civic engagement? Unfortunately, public, private, and religious schools have all restricted opportunities of speech, assembly, and protest, despite in many cases state and federal courts ruling that this is against the law. With the goal of increasing the civic capacities of students at all institutions of higher education, we propose a mechanism of partial revocation of tax exemptions at universities that do not currently uphold a robust understanding of civic engagement opportunities for all students, which will apply to any college or university receiving federal funding, consistent with the constitutional tradition of free speech still exemplified by Brandenburg v. Ohio and the “national policy” test of Bob Jones University vs. United States. In doing so, we build on the critique of exemptions in the recent work of Vincent Phillip Munoz on religious liberty. By opting only for incentives and by not even incentivizing private institutions that continue to restrict civic engagement but that do not accept federal dollars, we affirm and support a mutually beneficial ongoing dialogue among public, private, and religious schools. This dialogue, as it is sharpened and maintained in place by our recommended policies, is also consistent with pluralism as conceptualized by Jacob Levy.
公立和私立高等教育机构(宗教学校是私立高校的一个分支)在公民参与框架内处理校内抗议活动的方式有何不同?不幸的是,公立、私立和宗教学校都限制了言论、集会和抗议的机会,尽管在很多情况下州和联邦法院都裁定这样做是违法的。为了提高所有高等院校学生的公民能力,我们提出了一种机制,即对目前没有坚持为所有学生提供公民参与机会的大学取消部分免税,这将适用于任何接受联邦资助的学院或大学,并与勃兰登堡诉俄亥俄州一案中的言论自由宪法传统以及鲍勃-琼斯大学诉美国一案中的 "国家政策 "测试保持一致。在此过程中,我们借鉴了文森特-菲利普-穆诺兹(Vincent Phillip Munoz)近期关于宗教自由的著作中对豁免的批判。通过只选择激励措施,甚至不激励那些继续限制公民参与但不接受联邦资金的私立学校,我们肯定并支持公立学校、私立学校和宗教学校之间正在进行的互利对话。这种对话在我们建议的政策中得到了加强和维持,也符合雅各布-李维(Jacob Levy)所提出的多元化概念。
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引用次数: 0
Algorithmic Exploitation in Social Media Human Trafficking and Strategies for Regulation 社交媒体中的算法剥削 人口贩运与监管策略
IF 1.2 Q3 Social Sciences Pub Date : 2024-05-20 DOI: 10.3390/laws13030031
Derek M. Moore
Human trafficking thrives in the shadows, and the rise of social media has provided traffickers with a powerful and unregulated tool. This paper delves into how these criminals exploit online platforms to target and manipulate vulnerable populations. A thematic analysis of existing research explores the tactics used by traffickers on social media, revealing how algorithms can be manipulated to facilitate exploitation. Furthermore, the paper examines the limitations of current regulations in tackling this online threat. The research underscores the urgent need for collaboration between governments and researchers to combat algorithmic exploitation. By harnessing data analysis and machine learning, proactive strategies can be developed to disrupt trafficking networks and protect those most at risk.
人口贩运在暗处猖獗,而社交媒体的兴起为贩运者提供了一个强大而不受监管的工具。本文深入探讨了这些犯罪分子如何利用网络平台锁定并操纵弱势群体。通过对现有研究的专题分析,探讨了人贩子在社交媒体上使用的策略,揭示了如何操纵算法来为剥削提供便利。此外,本文还探讨了现行法规在应对这一网络威胁方面的局限性。研究强调了政府和研究人员合作打击算法剥削的迫切需要。通过利用数据分析和机器学习,可以制定积极主动的战略来破坏贩运网络,保护那些面临最大风险的人。
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引用次数: 0
Law, Technology, and Our Governance Dilemma 法律、技术和我们的治理困境
IF 1.2 Q3 Social Sciences Pub Date : 2024-05-10 DOI: 10.3390/laws13030030
R. Brownsword
This article highlights a dilemma that we face when we turn to new tools that promise to improve on law’s imperfect governance. On the one hand, our discontent with law’s governance is both broad and deep, and much of it is rooted in the human nature of the legal enterprise. Yet, we remain attached to the essentially human nature of law’s governance. On the other hand, we recognise the potential benefits in technological governance but not without some displacement of the human element. Caught on the horns of this dilemma, we attempt to limit the loss of the human element by insisting that governance must be compatible with human rights or human dignity, or, more directly, that governance must limit the applications of technology so that they remain human-centric. Given a demand for human-centric applications of technologies, we consider how far humans might, and should, go in deploying new tools with a view to improving law’s imperfect governance. Should these tools be limited to assisting humans? Or, might they replace humans? Or might we even govern by technological management of places, products, and processes so that reliance on both humans and rules is reduced? It is concluded that, in all spheres of governance and in all human communities, the one thing that is essential is that the applications of new technologies are controlled so that they do not undermine the generic conditions which are presupposed by viable groups of human agents.
本文强调了当我们求助于有望改善法律不完善治理的新工具时所面临的两难境地。一方面,我们对法律治理的不满既广泛又深刻,其中大部分源于法律事业的人性。然而,我们仍然坚持法律治理本质上的人性。另一方面,我们认识到技术治理的潜在益处,但也不能不考虑人的因素。在这两难的抉择中,我们试图限制人的因素的丧失,坚持认为治理必须与人权或人的尊严相一致,或者更直接地说,治理必须限制技术的应用,使其始终以人为本。鉴于以人为本的技术应用需求,我们考虑人类在部署新工具以改善法律不完善的治理方面可以走多远,应该走多远。这些工具是否应仅限于辅助人类?或者,它们是否可以取代人类?或者,我们甚至可以通过对场所、产品和流程的技术管理来进行治理,从而减少对人类和规则的依赖?结论是,在所有治理领域和所有人类社会中,有一点是至关重要的,那就是对新技术的应用加以控制,使其不会破坏有生存能力的人类代理群体所预设的一般条件。
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引用次数: 0
Establishing Boundaries to Combat Tax Crimes in Indonesia 在印度尼西亚划定打击税务犯罪的界限
IF 1.2 Q3 Social Sciences Pub Date : 2024-05-04 DOI: 10.3390/laws13030029
Dwi Nurferyanto, Yoshi Takahashi
Enforcing criminal tax law in Indonesia presents a critical yet challenging task, because of the intricate interplay between tax and criminal law interests. The Indonesian Government has introduced leniency in tax criminal law enforcement, guided by the ultimum remedium principle, where criminal sanctions are considered as a last resort. Under this policy, tax offenders can absolve themselves from legal liability. However, such leniency throughout the enforcement process can lead to perceptions of injustice within society. This research uses descriptive, evaluative, and normative juridical methods to examine Indonesia’s approach to enforcing criminal tax laws within the framework of tax and legal interests. Our findings reveal that the current policies heavily favor taxpayer interests by providing numerous concessions to offenders. This trend is concerning, as it may result in a surge of tax crime cases. Conversely, adopting the primum remedium principle, where criminal sanctions are the initial response, poses the risk of harsh legal consequences. In light of these challenges, we propose a balanced approach incorporating elements of both ultimum and primum remedium principles to establish clear boundaries and provisions within criminal tax law enforcement policies. By doing so, we aim to accommodate tax interests while upholding legal interests.
由于税法和刑法利益之间错综复杂的相互作用,在印度尼西亚执行刑事税法是一项关键而又具有挑战性的任务。印尼政府在税收刑事法律执法中引入了宽大政策,以 "最后补救"(ultimum remedium)原则为指导,将刑事制裁视为最后手段。根据这一政策,税务犯罪者可以免除自己的法律责任。然而,在整个执法过程中,这种宽大政策可能会导致社会产生不公正的看法。本研究采用描述性、评价性和规范性司法方法,在税收和法律利益的框架内研究印尼执行刑事税法的方法。我们的研究结果表明,现行政策严重偏袒纳税人利益,为罪犯提供了大量优惠。这种趋势令人担忧,因为它可能导致税务犯罪案件激增。相反,如果采用primum remedium 原则,将刑事制裁作为最初的应对措施,则有可能导致严厉的法律后果。鉴于这些挑战,我们建议采取一种平衡的方法,将最高原则和最低补救原则的要素结合起来,在税收刑事执法政策中确立明确的界限和规定。通过这样做,我们的目标是在维护法律利益的同时兼顾税收利益。
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引用次数: 0
The Challenge of Defining the Secular 界定世俗的挑战
IF 1.2 Q3 Social Sciences Pub Date : 2024-05-02 DOI: 10.3390/laws13030028
Georgina Clarke, Renae Barker
Judges have long wrestled with the gigantean task of defining religion, with some describing the task as being ‘called upon to ponder the imponderable’, an impossible task, and even misguided. Despite these sentiments, and comments in almost every legal definition expressing the impossibility of the task, judges have, in fact, been able to come up with numerous legal definitions for religion. These have been applied in myriad circumstances to define the outer limits of the rights and responsibilities of states, religious communities, organisations, and individuals. By contrast, the term secular has rarely been judicially defined. However, it is no-less important in defining the rights and responsibilities of states and their citizens and residents, particularly in light of the number of states that claim, implicitly or explicitly, to be secular. This paper, therefore, (re)examines the definition of the secular as it pertains to the concept of the secular state. It considers the need for a legal definition of the secular with particular reference to constitutional and other legal instruments that include the term. It then examines the difference between the terms secular, secularisation and secularism, noting the often erroneous conflation as well as the inevitable interaction and overlap between these key concepts. Finally, drawing on existing classifications of legal definitions of religion, the paper classifies definitions of the secular into three overarching classifications, namely ‘historical’, ‘substantive’ and ‘characteristic’.
长期以来,法官们一直在与界定宗教这一艰巨的任务作斗争,有些人将这一任务描述为 "被要求思考不可思 议的问题",是一项不可能完成的任务,甚至是被误导的任务。尽管有这些看法,而且几乎所有的法律定义都表达了这项任务的不可能性,但事实上,法官们还是为宗教提出了许多法律定义。这些定义被应用于各种情况,以界定国家、宗教团体、组织和个人的权利与责任的外部界限。相比之下,世俗一词很少有司法定义。然而,它在界定国家及其公民和居民的权利与责任方面却同样重要,尤其是考虑到有许多国家以暗示或明示的方式宣称自己是世俗的。因此,本文(重新)研究了世俗的定义,因为它与世俗国家的概念有关。本文考虑了对世俗的法律定义的必要性,特别提到了包含该术语的宪法和其他法律文书。然后,它探讨了世俗、世俗化和世俗主义这三个术语之间的区别,指出了这些关键概念之间经常出现的错误混淆以及不可避免的互动和重叠。最后,本文借鉴现有的宗教法律定义分类,将世俗定义分为三大类,即 "历史性"、"实质性 "和 "特征性"。
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引用次数: 0
Human and Divine Law at the Secular University: The Divide between Classical Liberalism and Post-Classical Liberalism 世俗大学中的人法与神法:古典自由主义与后古典自由主义之间的分歧
IF 1.2 Q3 Social Sciences Pub Date : 2024-04-24 DOI: 10.3390/laws13030025
Owen Anderson
The American university has been guided by classical liberalism in its defense of the freedom of speech and academic freedom. The idea is that a university is a place where all ideas and perspectives can be debated. However, this idea is increasingly being challenged by those who want the secular university to be a place that advances a social philosophy that promises to transform society by dismantling structural racism and providing for greater equity. In this article, I will argue that both of these models have been shaped by democratic legal ideals and both share a common skeptical assumption about the basic questions of meaning that each person must answer. The legal structures developed by Westphalian modernity attempt neutrality on questions about meaning. This can be seen even in recent Supreme Court decisions affirming the individual’s right to determine meaning for themselves. This skeptical root has produced the conflict between classical liberals and the social transformation that we are witnessing at our universities. I argue for a third option that I find in the Declaration of Independence, which affirms that we can and should know the answers to basic questions which then provide the foundation for education and law.
美国大学一直以古典自由主义为指导,捍卫言论自由和学术自由。这种思想认为,大学是一个可以对所有思想和观点进行辩论的地方。然而,这一理念正日益受到一些人的挑战,这些人希望世俗大学成为一个倡导社会哲学的地方,承诺通过消除结构性种族主义和提供更大的公平来改造社会。在本文中,我将论证这两种模式都是由民主法制理想所塑造的,两者都对每个人必须回答的基本意义问题有着共同的怀疑假设。威斯特伐利亚现代性发展起来的法律结构试图在意义问题上保持中立。这一点甚至可以从最高法院最近的判决中看出,这些判决肯定了个人为自己确定意义的权利。这种怀疑论的根基导致了古典自由主义者与我们在大学中所目睹的社会变革之间的冲突。我主张第三种选择,我在《独立宣言》中找到了这种选择,它确认我们能够也应该知道基本问题的答案,从而为教育和法律提供基础。
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引用次数: 0
Reconciling International Climate Law and the Energy Charter Treaty through the Use of Integrative Interpretation in Arbitration 通过在仲裁中使用综合性解释协调国际气候法与《能源宪章条约
IF 1.2 Q3 Social Sciences Pub Date : 2024-04-22 DOI: 10.3390/laws13020024
Eike Hinrichsen
The conflicting objectives of the Energy Charter Treaty’s (ECT) protection of fossil fuel investments and climate change mitigation can reveal themselves in investor state dispute settlement (ISDS). As neither the modernization nor the termination of the ECT is likely, ECT arbitration will continue to exist. This article, therefore, examines the reconciling potential of integrative interpretation in climate relevant ECT arbitrations. An integrative interpretation is not only prescribed by the international rules of treaty interpretation, but can also be found in the practice of international dispute settlement. However, international climate law has not yet been taken into account by a single ECT tribunal. Although some hurdles and uncertainties remain in practice, examples of extraneous treaty use, as well as the reasoning of the judgments of recent climate litigation, show that ECT ISDS has the potential to reconcile climate change and energy investment interests in the future.
能源宪章条约》(ECT)保护化石燃料投资的目标与减缓气候变化的目标之间的冲突在投资者与国家争端解决(ISDS)中显露无遗。由于《能源宪章条约》既不可能现代化,也不可能终止,因此《能源宪章条约》仲裁将继续存在。因此,本文探讨了综合解释在与气候相关的《经济合作条约》仲裁中的调和潜力。综合性解释不仅是国际条约解释规则的规定,也可以在国际争端解决实践中找到。然而,国际气候法尚未被任何一个 ECT 仲裁庭考虑在内。尽管在实践中仍存在一些障碍和不确定性,但条约外使用的例子以及近期气候诉讼判决的推理都表明,《欧洲条约》ISDS 有可能在未来协调气候变化和能源投资利益。
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引用次数: 0
Influence of the Cultural Defence on Conduct and Culpability in South African Criminal Law 南非刑法中文化辩护对行为和罪责的影响
IF 1.2 Q3 Social Sciences Pub Date : 2024-04-01 DOI: 10.3390/laws13020023
Jacques Matthee
South African criminal law has no separate, distinct, or novel cultural defence. Such a defence could negate or mitigate an accused’s criminal liability for a culturally motivated crime. Whether South Africa’s criminal law could adopt such a defence requires understanding its influence on the requirements for criminal liability. This article evaluates the influence of the cultural defence on the elements of conduct and culpability. The first part deals with the cultural defence and voluntary conduct. The discussion then turns to culpability, which consists of criminal capacity and fault (mens rea). The third part considers the cultural defence’s influence on criminal capacity, while the fourth considers its influence on fault. More specifically, the article evaluates how the existing types of defence that can negate conduct and culpability in South Africa’s criminal law can accommodate arguments of an accused’s cultural background, values, and beliefs to determine whether there is a gap that only a separate, distinct, or novel cultural defence can fill. The article concludes that South Africa’s principles of conduct and culpability are already flexible enough to accommodate such arguments, obviating the need for introducing a separate, distinct, or novel cultural defence.
南非刑法没有单独、独特或新颖的文化辩护。这种辩护理由可以否定或减轻被告出于文化动机所犯罪行的刑事责任。南非刑法是否可以采用这种辩护理由需要了解其对刑事责任要求的影响。本文评估了文化辩护对行为和罪责要素的影响。第一部分涉及文化辩护和自愿行为。然后讨论由犯罪能力和过失(犯罪意图)组成的罪责。第三部分考虑了文化辩护对犯罪能力的影响,第四部分考虑了文化辩护对过错的影响。更具体地说,文章评估了南非刑法中可否定行为和罪责的现有辩护类型如何容纳被告的文化背景、价值观和信仰论点,以确定是否存在只有单独、独特或新颖的文化辩护才能填补的空白。文章的结论是,南非的行为和罪责原则已经足够灵活,足以容纳此类论点,因此没有必要引入单独、独特或新颖的文化辩护。
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引用次数: 0
The Invocation of the Precautionary Principle within the Investor–State Dispute Settlement Mechanism: Not Seizing the Occasion 在投资者与国家争端解决机制内援引预防原则:不抓住时机
IF 1.2 Q3 Social Sciences Pub Date : 2024-03-28 DOI: 10.3390/laws13020022
N. Masumy, Sara Hourani
The principal purpose of this article is to demonstrate how the precautionary principle can be included in the investor–state dispute settlement (ISDS) deliberative process by providing a legal solution that would permit the invocation and implementation of this concept within the ISDS operational framework. The precautionary principle has been widely applied in the environmental management field, yet its role within the ISDS framework has remained relatively underutilised. To analyse this issue, this paper first explores the operational justification of the precautionary principle and how decision-makers should endorse it in order to fully recognise and address environmental concerns on a legal level. Next, the article proceeds to examine recent ISDS cases in which the precautionary principle was invoked and compares various risk assessment techniques to illustrate how it may be incorporated into the deliberative process and harmonised with other standards. The paper suggests that the forward-looking nature of the precautionary principle has paramount importance in disputes involving oil and gas, particularly in cases where oil and gas activities are believed to contribute to greenhouse gas emissions that could worsen global warming. This paper advances the argument that a wider application of the principle could better equip ISDS tribunals to address the limitations of scientific knowledge, especially under circumstances where significant or irreversible environmental damage may occur.
本文的主要目的是证明如何将预防原则纳入投资者与国家争端解决(ISDS)的审议过程,提供一种法律解决方案,允许在 ISDS 操作框架内援引和实施这一概念。预防原则已被广泛应用于环境管理领域,但其在 ISDS 框架内的作用相对而言仍未得到充分利用。为了分析这一问题,本文首先探讨了预防原则的操作理由,以及决策者应如何认可该原则,以便在法律层面上充分认识和解决环境问题。接下来,文章继续研究了近期援引预防原则的 ISDS 案件,并比较了各种风险评估技术,以说明如何将预防原则纳入审议过程并与其他标准相协调。本文认为,预防原则的前瞻性在涉及石油和天然气的争端中具有极其重要的意义,尤其是在石油和天然气活动被认为会导致温室气体排放从而加剧全球变暖的情况下。本文提出了一个论点,即更广泛地适用该原则可以使 ISDS 法庭更好地应对科学知识的局限性,尤其是在可能发生重大或不可逆转的环境损害的情况下。
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引用次数: 0
Trashing the Tables: The Critical Legal Studies Symposium of the Stanford Law Review, Then and Now 砸烂桌子:斯坦福法律评论》批判性法律研究研讨会,过去与现在
IF 1.2 Q3 Social Sciences Pub Date : 2024-03-26 DOI: 10.3390/laws13020021
Paul Baumgardner
When the critical legal studies (CLS) movement emerged in the United States, many in the legal community were shocked by the movement’s radical calls to remake legal education. But the movement also presented bold criticisms of quantitative legal scholarship and calculation in law that have proven remarkably prophetic. This article resuscitates the CLS movement’s concerns over “scientific law” in one of the movement’s most canonical works: the Critical Legal Studies Symposium issue of the Stanford Law Review in 1984. Along the way, this article explores the scope and limits of CLS admonitions regarding quantitative research and legal problem solving for the present day.
当批判性法律研究(CLS)运动在美国兴起时,法律界的许多人都对该运动要求重塑法律教育的激进主张感到震惊。但是,这场运动也对定量法律学术研究和法律计算提出了大胆的批评,事实证明这些批评是非常有预见性的。本文在该运动最经典的作品之一--1984 年《斯坦福法律评论》的《批判性法律研究研讨会》--中重提了该运动对 "科学法律 "的担忧。在此过程中,本文探讨了CLS关于定量研究和法律问题解决的告诫在当今的适用范围和局限性。
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引用次数: 0
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