Abstract Debates on human rights universality frame universality according to an anthropological view called Western universalism and consider that “cultural relativism” is equivalent to any other framework. Thus, the discussion on this topic has been reduced to who is the rights-holder and the concept of human rights itself. There is a third approach to universality that must be addressed: the universality of interpretations. Most critics of human rights universality do not contest internationally agreed human rights norms (as established in treaties). Rather, they react against interpretations or standards as have been developed by human rights mechanisms. Accordingly, this paper explores three positions that have been developed around this notion: flexible Westerns, dialogical perspectives, and bottom-up approaches.
{"title":"Norms versus Interpretations: Human Rights Universality Revisited","authors":"Gabriela García Escobar","doi":"10.1515/gj-2023-0001","DOIUrl":"https://doi.org/10.1515/gj-2023-0001","url":null,"abstract":"Abstract Debates on human rights universality frame universality according to an anthropological view called Western universalism and consider that “cultural relativism” is equivalent to any other framework. Thus, the discussion on this topic has been reduced to who is the rights-holder and the concept of human rights itself. There is a third approach to universality that must be addressed: the universality of interpretations. Most critics of human rights universality do not contest internationally agreed human rights norms (as established in treaties). Rather, they react against interpretations or standards as have been developed by human rights mechanisms. Accordingly, this paper explores three positions that have been developed around this notion: flexible Westerns, dialogical perspectives, and bottom-up approaches.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"183 - 205"},"PeriodicalIF":0.0,"publicationDate":"2023-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44286849","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}
Abstract Artificial Intelligence (AI) is having a tremendous impact upon commercial activities, socio-economic activities, as well as technological progress. However, there is lack of clarity about the appropriate mechanics of AI regulation. A variety of proposals have been floated, but with little agreement concerning their implementation and interaction. This paper builds a framework to address these concerns. It first identifies the scope of AI for regulatory purposes by establishing the defining characteristic of this technology. In the second part, it identifies four different interpretations of the question, ‘why regulate AI?’, each with a bearing on the purpose of AI regulation. It treats each one of these as an ‘imperative of regulation’. The scope of each imperative is delineated. The last part situates the proposed mechanics of AI regulation within the imperative driven framework. Four broad categories of the mechanics of AI regulation are first described in detail in order to understand their features and are subsequently tested on the touchstone of the four imperatives, thereby ascertaining which of the imperatives drive the mechanics and which are irrelevant. The findings provide theoretical clarity to the AI regulation proposals being mulled over across the globe. The paper concludes with an argument for proactive regulation of AI.
{"title":"From ‘What’ and ‘Why’ to ‘How’: An Imperative Driven Approach to Mechanics of AI Regulation","authors":"Krishna Deo Singh Chauhan","doi":"10.1515/gj-2022-0053","DOIUrl":"https://doi.org/10.1515/gj-2022-0053","url":null,"abstract":"Abstract Artificial Intelligence (AI) is having a tremendous impact upon commercial activities, socio-economic activities, as well as technological progress. However, there is lack of clarity about the appropriate mechanics of AI regulation. A variety of proposals have been floated, but with little agreement concerning their implementation and interaction. This paper builds a framework to address these concerns. It first identifies the scope of AI for regulatory purposes by establishing the defining characteristic of this technology. In the second part, it identifies four different interpretations of the question, ‘why regulate AI?’, each with a bearing on the purpose of AI regulation. It treats each one of these as an ‘imperative of regulation’. The scope of each imperative is delineated. The last part situates the proposed mechanics of AI regulation within the imperative driven framework. Four broad categories of the mechanics of AI regulation are first described in detail in order to understand their features and are subsequently tested on the touchstone of the four imperatives, thereby ascertaining which of the imperatives drive the mechanics and which are irrelevant. The findings provide theoretical clarity to the AI regulation proposals being mulled over across the globe. The paper concludes with an argument for proactive regulation of AI.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"99 - 124"},"PeriodicalIF":0.0,"publicationDate":"2022-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48917848","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}
Abstract The purpose of this article is to explain why it is relevant to connect the European case-law on the Medical Devices Directive (MDD), by focussing on the defective breasts prostheses saga, to the future regulation of liability for healthcare IoT objects. I believe that by examining the recent case-law dealing with shortcomings in the regulation of medical devices, it will be possible to build a future liability scheme for defective IoT objects with medical functions. The article discusses how the new Medical Devices Regulation (MDR) is different from the previous MDD and whether it is likely to influence liability schemes for healthcare IoT objects. In conclusion, I argue that, however imperfect, the MDR could support the application of national liability systems in order to provide more effective and more protective liability schemes for IoT objects with medical functions.
{"title":"What Liability with the Internet of Things? Insights from the European Case-Law of the PIP Affair","authors":"F. Gennari","doi":"10.1515/gj-2022-0032","DOIUrl":"https://doi.org/10.1515/gj-2022-0032","url":null,"abstract":"Abstract The purpose of this article is to explain why it is relevant to connect the European case-law on the Medical Devices Directive (MDD), by focussing on the defective breasts prostheses saga, to the future regulation of liability for healthcare IoT objects. I believe that by examining the recent case-law dealing with shortcomings in the regulation of medical devices, it will be possible to build a future liability scheme for defective IoT objects with medical functions. The article discusses how the new Medical Devices Regulation (MDR) is different from the previous MDD and whether it is likely to influence liability schemes for healthcare IoT objects. In conclusion, I argue that, however imperfect, the MDR could support the application of national liability systems in order to provide more effective and more protective liability schemes for IoT objects with medical functions.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"125 - 150"},"PeriodicalIF":0.0,"publicationDate":"2022-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42681420","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}
Abstract The paper briefly sketches different “adaptations” possible to address the Covid crisis and then advances three possible avenues for future policy analysis of Covid-related measures, each of these avenues being based on a “conjecture”, respectively an evolutionary, a critical, and a cosmopolitan, and conjecture. The evolutionary conjecture implies regulatory transplants, the critical conjecture elicits competition of Covid-related measures, and the cosmopolitan conjecture assumes coordination of policies. The paper discusses how these conjectures based on pre-Covid literature could explain the regulatory dynamics and then asserts that growing evidence shows that regulatory measures appear to naturally lead to a “polity convergence” based on a common core of “Covid-biopower” and “Covid-biopolitics”. This convergence defies the initial expectations that the fragmented reactions to the Covid crisis could be explained by using the traditional research tools and also poses unprecedented critical issues that demand an expansion of the horizon of policy research.
{"title":"Regulatory Competition, Coordination and Polity Convergence in the Covid Ecosystemic Crisis: A Policy Approach","authors":"C. Garbarino","doi":"10.1515/gj-2022-0051","DOIUrl":"https://doi.org/10.1515/gj-2022-0051","url":null,"abstract":"Abstract The paper briefly sketches different “adaptations” possible to address the Covid crisis and then advances three possible avenues for future policy analysis of Covid-related measures, each of these avenues being based on a “conjecture”, respectively an evolutionary, a critical, and a cosmopolitan, and conjecture. The evolutionary conjecture implies regulatory transplants, the critical conjecture elicits competition of Covid-related measures, and the cosmopolitan conjecture assumes coordination of policies. The paper discusses how these conjectures based on pre-Covid literature could explain the regulatory dynamics and then asserts that growing evidence shows that regulatory measures appear to naturally lead to a “polity convergence” based on a common core of “Covid-biopower” and “Covid-biopolitics”. This convergence defies the initial expectations that the fragmented reactions to the Covid crisis could be explained by using the traditional research tools and also poses unprecedented critical issues that demand an expansion of the horizon of policy research.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"75 - 98"},"PeriodicalIF":0.0,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42642727","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}
Abstract This is a talk about the decline and fall of constitutional law, an overarching characteristic of the new millennium. I focus on the period from the end of the Cold War—once described as the end of history—to what I call the “Second Cold War” beginning in the second decade of this century and having escalated in the proxy war in Ukraine. The Second Cold War is also characterized by an aborted cooptation of China through the World Trade Organization (to tame China’s seemingly unstoppable ascension to global supremacy) as well as a state of permanent emergency.
{"title":"The Death of Law","authors":"U. Mattei","doi":"10.1515/gj-2022-0064","DOIUrl":"https://doi.org/10.1515/gj-2022-0064","url":null,"abstract":"Abstract This is a talk about the decline and fall of constitutional law, an overarching characteristic of the new millennium. I focus on the period from the end of the Cold War—once described as the end of history—to what I call the “Second Cold War” beginning in the second decade of this century and having escalated in the proxy war in Ukraine. The Second Cold War is also characterized by an aborted cooptation of China through the World Trade Organization (to tame China’s seemingly unstoppable ascension to global supremacy) as well as a state of permanent emergency.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"1 - 5"},"PeriodicalIF":0.0,"publicationDate":"2022-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42160717","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}
M. Qafisheh, R. Sahtout, Frances D. Albanese, Lex Takkenberg
Abstract The passage of over seven decades, coupled by consistent practice of States, has triggered the emergence of a distinct international legal regime for Palestinian refugees. Unlike the majority of contemporary refugees, Palestinians ‘refugeehood’ would not end pursuant to the acquisition of other citizenship(s) or by gaining protection akin to citizens in host States. Given their distinctive situation, individuals in this group, whose refugee status is intertwined to that of a prolonged denial of the right to self-determination, continue to be entitled to the right of return in their homeland in pre-1948 Palestine, namely either the State of Israel or the new State of Palestine within the 1967-occupied territory, depending on the original place of habitual residence of each individual or his/her ascendants before flight. In short, international law has generated a lex specialis regime for Palestinian refugees, which provides either equal, or heightened, protection and is in no means inferior, to other refugees.
{"title":"The Lex Specialis Regime Pertinent to Palestinian Refugees","authors":"M. Qafisheh, R. Sahtout, Frances D. Albanese, Lex Takkenberg","doi":"10.1515/gj-2022-0041","DOIUrl":"https://doi.org/10.1515/gj-2022-0041","url":null,"abstract":"Abstract The passage of over seven decades, coupled by consistent practice of States, has triggered the emergence of a distinct international legal regime for Palestinian refugees. Unlike the majority of contemporary refugees, Palestinians ‘refugeehood’ would not end pursuant to the acquisition of other citizenship(s) or by gaining protection akin to citizens in host States. Given their distinctive situation, individuals in this group, whose refugee status is intertwined to that of a prolonged denial of the right to self-determination, continue to be entitled to the right of return in their homeland in pre-1948 Palestine, namely either the State of Israel or the new State of Palestine within the 1967-occupied territory, depending on the original place of habitual residence of each individual or his/her ascendants before flight. In short, international law has generated a lex specialis regime for Palestinian refugees, which provides either equal, or heightened, protection and is in no means inferior, to other refugees.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"43 - 74"},"PeriodicalIF":0.0,"publicationDate":"2022-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47044517","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}
Abstract In contemporary politics of migration governance, the criterion of legal validity is hindered by legal efficiency. Or parliamentary government before executive governance. This tension between legal efficiency and legal validity can emerge in bilateral soft agreements. The article analyses the EU-Turkey Statement (2016) and the Memorandum of Understanding between Libya and Italy (2017). From these bilateral soft agreements, a turn from legal validity to legal efficiency can be observed. The efficiency criterion, by replacing the one of validity, limits significantly the role of the Parliaments and thus affects the overall institutional balance and the rule of law. The article recognises the geopolitical contingences that determine the adoption of soft law bilateral agreements. However, it suggests reflecting on how legal forms are manipulated to externalise and securitise the borders of Europe by retuning border management from legal efficiency towards legal validity, or in other words from soft to hard law.
{"title":"The Shift to Soft Law at Europe Borders: Between Legal Efficiency and Legal Validity","authors":"Martino Reviglio","doi":"10.1515/gj-2022-0040","DOIUrl":"https://doi.org/10.1515/gj-2022-0040","url":null,"abstract":"Abstract In contemporary politics of migration governance, the criterion of legal validity is hindered by legal efficiency. Or parliamentary government before executive governance. This tension between legal efficiency and legal validity can emerge in bilateral soft agreements. The article analyses the EU-Turkey Statement (2016) and the Memorandum of Understanding between Libya and Italy (2017). From these bilateral soft agreements, a turn from legal validity to legal efficiency can be observed. The efficiency criterion, by replacing the one of validity, limits significantly the role of the Parliaments and thus affects the overall institutional balance and the rule of law. The article recognises the geopolitical contingences that determine the adoption of soft law bilateral agreements. However, it suggests reflecting on how legal forms are manipulated to externalise and securitise the borders of Europe by retuning border management from legal efficiency towards legal validity, or in other words from soft to hard law.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"23 - 41"},"PeriodicalIF":0.0,"publicationDate":"2022-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45713672","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}
Abstract Through examination of conflict of laws as to U.S. federal courts and tribal law, this study highlights the impact of culture upon legal meaning. Disparities stem from long-standing norms which underpin legal concepts. These terms which give rise to legal philosophy and the judicial process defy clear English interpretation. Examples include the Latin term mens rea which serves as the foundation for Anglo-American punishment theory, and the Navajo term hózhó from which all conceptualizations of social order emanate. An exploration of these examples in the context of a recent case underscores the close link between law and culture.
{"title":"Problems in Cross-Cultural Legal Discourse: U.S. Federal and Native American Tribal Criminal Law","authors":"J. Brewer","doi":"10.1515/gj-2022-0033","DOIUrl":"https://doi.org/10.1515/gj-2022-0033","url":null,"abstract":"Abstract Through examination of conflict of laws as to U.S. federal courts and tribal law, this study highlights the impact of culture upon legal meaning. Disparities stem from long-standing norms which underpin legal concepts. These terms which give rise to legal philosophy and the judicial process defy clear English interpretation. Examples include the Latin term mens rea which serves as the foundation for Anglo-American punishment theory, and the Navajo term hózhó from which all conceptualizations of social order emanate. An exploration of these examples in the context of a recent case underscores the close link between law and culture.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"7 - 21"},"PeriodicalIF":0.0,"publicationDate":"2022-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49500117","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}
Abstract The expression “intersemiotic legal translation” refers to all forms of legal translation that use at least two different semiotic codes, of which at least one is not verbal. The article will analyze four different conceptions of intersemiotic translation by highlighting the different potential applications in the legal field, as well as the limitations related to this form of translation. The concept of “intersemiotic legal translation” will be examined as a species of the genus “legal translation”, and will be framed according to a typology consisting of six types of legal translation that will take both its semiotic and its legal dimensions into account.
{"title":"Intersemiotic Legal Translation: Semiotic Pluralism in Normative Drafting","authors":"O. Loddo","doi":"10.1515/gj-2022-0011","DOIUrl":"https://doi.org/10.1515/gj-2022-0011","url":null,"abstract":"Abstract The expression “intersemiotic legal translation” refers to all forms of legal translation that use at least two different semiotic codes, of which at least one is not verbal. The article will analyze four different conceptions of intersemiotic translation by highlighting the different potential applications in the legal field, as well as the limitations related to this form of translation. The concept of “intersemiotic legal translation” will be examined as a species of the genus “legal translation”, and will be framed according to a typology consisting of six types of legal translation that will take both its semiotic and its legal dimensions into account.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"537 - 555"},"PeriodicalIF":0.0,"publicationDate":"2022-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43572104","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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