Renato Antonio Constantino Caycho, Renata Anahí Bregaglio Lazarte
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.
{"title":"A Four-Speed Reform: A Typology for Legal Capacity Reforms in Latin American Countries","authors":"Renato Antonio Constantino Caycho, Renata Anahí Bregaglio Lazarte","doi":"10.3390/laws12030045","DOIUrl":"https://doi.org/10.3390/laws12030045","url":null,"abstract":"In the past few years, Latin American countries have started to enact changes in their legal capacity regulations regarding persons with disabilities. However, even when these changes started over eight years ago, there were few to no analyses on the matter. In addition, 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.","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41426312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"How Can the Adoption of the Voluntary Guidelines Improve Public Policy and Women’s Access to Agricultural Land in Mexico, Guatemala, and Bolivia?","authors":"Itziar Sobrino-García","doi":"10.3390/laws12030044","DOIUrl":"https://doi.org/10.3390/laws12030044","url":null,"abstract":"Rural women in Latin America continue to face serious obstacles in land tenure, especially in areas such as México, Guatemala, and Bolivia. Gender inequality in land access is related to male preference in inheritance legislation, male privilege in marriage and state programs of 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.","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43612665","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Stratagems as a Means of Achieving Justice and Spreading Truth","authors":"Harro von Senger","doi":"10.3390/laws12030036","DOIUrl":"https://doi.org/10.3390/laws12030036","url":null,"abstract":"This contribution is based on the Chinese concept called Moulüe. A unique feature of Moulüe, without parallel in Western praxis-oriented schools of thinking, is its Yin-Yang dimension. The two hemispheres of the Yin-Yang symbol, a white one and a black one, are inseparably 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.","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44611417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Ronald Dworkin: Seeking Truth and Justice through Responsibility","authors":"Samra Ibric","doi":"10.3390/laws12030041","DOIUrl":"https://doi.org/10.3390/laws12030041","url":null,"abstract":"According to Dworkin, “truth” is an interpretative concept. Why? Moral judgements are often the subject of disagreement because they are often the result of divergent conceptual understandings. If, on the other hand, we want to interpret concepts correctly, we have to deal with 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.","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46614040","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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 [...]
{"title":"Introduction to the Special Issue «Justice Based on Truth»","authors":"Marcel Senn","doi":"10.3390/laws12030043","DOIUrl":"https://doi.org/10.3390/laws12030043","url":null,"abstract":"When I received a request from MDPI in 2021, in the midst of the COVID-19 pandemic, to guest-edit a new online journal of philosophy of law and legal theory, including the history of their disciplines, it was immediately clear to me that this 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 [...]","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45942611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Truth and Justice in Spinoza’s Theological–Political Treatise and the Ethics","authors":"Andreas Kistler","doi":"10.3390/laws12030039","DOIUrl":"https://doi.org/10.3390/laws12030039","url":null,"abstract":"Spinoza’s philosophy argues for the freedom of individuals as singular beings in the state. This freedom is not perfect yet immanent. Freedom—according to the Ethics—is a consequence of true knowledge and virtue, which must be able to develop and can only be 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.","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42056113","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Truth, Ethics and Legal Thought—Some Lessons from Dworkin’s Justice for Hedgehogs and Its Critique","authors":"Matthias Mahlmann","doi":"10.3390/laws12030042","DOIUrl":"https://doi.org/10.3390/laws12030042","url":null,"abstract":"This paper reconstructs some of the core elements of Dworkin’s epistemology of ethics. To understand why, for Dworkin, questions of legal philosophy lead to moral epistemology, the main points of Dworkin’s last restatement of his theoretical account of law are outlined. Against this 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.","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48458761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Justice and Truth: A Leibnizian Perspective on Modern Jurisprudence","authors":"Matthias Armgardt","doi":"10.3390/laws12030038","DOIUrl":"https://doi.org/10.3390/laws12030038","url":null,"abstract":"The purpose of this essay is to outline the significance of Leibniz’s philosophy of law for the present. The essay traces the main features of Leibniz’s theory and points out what further developments of his approach are pending today. Finally, it shows how similar Leibniz’s basic convictions are to those of Ronald Dworkin.","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42560479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Thomas Aquinas, Ronald Dworkin, and the Fourth Revolution: The Foundations of Law in the Age of Surveillance Capitalism","authors":"K. Smith","doi":"10.3390/laws12030040","DOIUrl":"https://doi.org/10.3390/laws12030040","url":null,"abstract":"Since the publication of Shoshana Zuboff’s The Age of Surveillance Capitalism, the strategies of Surveillance Capitalists and appropriate responses to them have become common points of discussion across several fields. However, there is relatively little literature addressing challenges that Surveillance Capitalism raises 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.","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48002841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Fuller, Dworkin, Scientism, and Liberty: The Dichotomy between Continental and Common Law Traditions and Their Consequences","authors":"Nadia E. Nedzel","doi":"10.3390/laws12030037","DOIUrl":"https://doi.org/10.3390/laws12030037","url":null,"abstract":"Dworkin’s and other analytic/positivist philosophers’ theoretical approach to law leads inexorably to politicization, totalitarianism, less justice, less trust in government, and less truth. A more practical approach is Fuller’s, which is based on experience of human behavior and an analysis of what has 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.","PeriodicalId":30534,"journal":{"name":"Laws","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49501950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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