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‘Hard AI Crime’: The Deterrence Turn 硬人工智能犯罪威慑转向
IF 1.2 2区 社会学 Q1 LAW Pub Date : 2024-05-07 DOI: 10.1093/ojls/gqae018
Elina Nerantzi, Giovanni Sartor
Machines powered by artificial intelligence (AI) are increasingly taking over tasks previously performed by humans alone. In accomplishing such tasks, they may intentionally commit ‘AI crimes’, ie engage in behaviour which would be considered a crime if it were accomplished by humans. For instance, an advanced AI trading agent may—despite its designer’s best efforts—autonomously manipulate markets while lacking the properties for being held criminally responsible. In such cases (hard AI crimes) a criminal responsibility gap emerges since no agent (human or artificial) can be legitimately punished for this outcome. We aim to shift the ‘hard AI crime’ discussion from blame to deterrence and design an ‘AI deterrence paradigm’, separate from criminal law and inspired by the economic theory of crime. The homo economicus has come to life as a machina economica, which, even if cannot be meaningfully blamed, can nevertheless be effectively deterred since it internalises criminal sanctions as costs.
由人工智能(AI)驱动的机器正越来越多地接管以前由人类单独完成的任务。在完成这些任务的过程中,它们可能会故意犯下 "人工智能罪行",即做出如果由人类完成就会被视为犯罪的行为。例如,尽管设计者尽了最大努力,但高级人工智能交易代理仍可能自主操纵市场,而不具备被追究刑事责任的属性。在这种情况下(硬人工智能犯罪),就会出现刑事责任漏洞,因为没有任何代理(人类或人工智能)可以因为这种结果而受到合法惩罚。我们的目标是将 "硬人工智能犯罪 "的讨论从追究责任转向威慑,并设计一种独立于刑法的 "人工智能威慑范式",其灵感来自犯罪的经济理论。经济人作为一种经济机器跃然纸上,即使无法对其进行有意义的指责,但由于其将刑事制裁内化为成本,因此可以对其进行有效威慑。
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引用次数: 0
The Data Crowd as a Legal Stakeholder 作为法律利益相关者的数据人群
IF 1.2 2区 社会学 Q1 LAW Pub Date : 2024-05-06 DOI: 10.1093/ojls/gqae017
Shelly Kreiczer-Levy
This article identifies a new legal stakeholder in the data economy: the data crowd. A data crowd is a collective that: (i) is unorganised, non-deliberate and unable to form an agenda; (ii) relies on productive aggregation that creates an interdependency among participants; and (iii) is subjected to an external authority. Notable examples of crowds include users of a social network, users of a search engine and users of artificial intelligence-based applications. The law currently only protects users in the data economy as individuals, and in certain cases may address broad public concerns. However, it does not recognise the collective interests of the crowd of users and its unique vulnerability to platform power. The article presents and defends the crowd’s legal interests in a stable infrastructure for participation. It therefore reveals the need for a new approach to consumers’ rights in the data economy.
本文指出了数据经济中一个新的法律利益相关者:数据人群。数据人群是一个集体,它(i)无组织、无商议、无法形成议程;(ii)依赖于在参与者之间形成相互依赖关系的生产性聚合;(iii)受制于外部权威。人群的显著例子包括社交网络用户、搜索引擎用户和基于人工智能的应用程序用户。目前,法律只保护数据经济中的个人用户,在某些情况下可以解决广泛的公共问题。然而,它并没有认识到用户群的集体利益及其对平台权力的独特脆弱性。本文介绍并捍卫了人群在稳定的参与基础设施中的合法利益。因此,它揭示了数据经济中消费者权利新方法的必要性。
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引用次数: 0
'Everything is Obstetric Violence Now': Identifying the Violence in 'Obstetric Violence' to Strengthen Socio-legal Reform Efforts. 现在一切都是产科暴力":识别 "产科暴力 "中的暴力,加强社会法律改革努力。
IF 1.4 2区 社会学 Q1 LAW Pub Date : 2024-05-04 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae016
Camilla Pickles

Since its global uptake, 'obstetric violence' is increasingly used to capture any/all violations during reproductive healthcare, with few conceptual limits. Consequently, it runs the risk of becoming an overgeneralised concept, making it difficult to operationalise in socio-legal reform efforts. This article draws on the Latin American origins of the concept and aims to provide a theoretical framework to support a focused and coherent socio-legal reform agenda. It offers a universal definition of violence, being the violation of physical or psychological integrity, and localises this definition using the 'view from everywhere'. The article proposes that violence will qualify as 'obstetric violence' if the violation of integrity occurs in the context of antenatal, intrapartum and postnatal care. Further, the subject of the violence is the birthing woman, trans or non-binary person. Thinking in terms of a 'continuum of violence' in reproductive healthcare ensures that different forms of obstetric violence are recognised and helps envisage overlaps with other violences.

自 "产科暴力 "在全球范围内流行以来,它越来越多地被用于描述生殖保健过程中的任何/所有暴力行为,几乎没有概念上的限制。因此,它有可能成为一个过于笼统的概念,使其在社会法律改革工作中难以操作。本文借鉴了这一概念在拉丁美洲的起源,旨在提供一个理论框架,以支持重点突出、连贯一致的社会法律改革议程。文章提出了暴力的普遍定义,即对身体或心理完整性的侵犯,并利用 "各地观点 "将这一定义本地化。文章提出,如果暴力是在产前、产中和产后护理过程中发生的,那么这种暴力就属于 "产科暴力"。此外,暴力行为的主体是分娩妇女、变性人或非二元人。从生殖保健中的 "暴力连续体 "的角度思考,可确保不同形式的产科暴力得到承认,并有助于设想与其他暴力的重叠。
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引用次数: 0
The Case Against Human Rights Penality 反对人权刑罚
IF 1.2 2区 社会学 Q1 LAW Pub Date : 2024-04-30 DOI: 10.1093/ojls/gqae013
Natasa Mavronicola
This article seeks to make the human rights case against human rights penality—that is, against the reliance upon and foregrounding of penal mechanisms in the protection of (certain) human rights. The rationale for the alliance between human rights and state penality has at least three central dimensions: effectiveness, accountability and equal protection. In particular, the mobilisation of criminal law (enforcement) and punishment is often treated as the most effective means of preventing and/or redressing human rights violations. Moreover, the criminal process and sanction are often understood as the pinnacle of accountability for serious human rights violations. Finally, the egalitarian rationale for human rights penality views it as redistributing protection to under-protected persons. While remaining committed to human rights, I unpack (some of) the ways in which human rights penality ultimately fails to uphold and even undermines the principles that it has been promoted as fulfilling within the human rights frame.
本文试图从人权角度提出反对人权惩罚的理由,即反对在保护(某些)人权时依赖和强调刑罚机制。人权与国家刑罚结盟的理由至少有三个核心方面:有效性、问责制和平等保护。特别是,动用刑法(执法)和惩罚往往被视为预防和/或纠正侵犯人权行为的最有效手段。此外,刑事程序和制裁往往被理解为对严重侵犯人权行为的最高问责。最后,人权刑罚的平等主义理由认为,它是将保护重新分配给受保护不足的人。在继续致力于人权的同时,我解读了人权刑罚最终未能维护甚至破坏其在人权框架内所倡导的原则的(部分)方式。
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引用次数: 0
Administrative Justice in the Modern Mixed Administrative State: Moving Beyond Taxonomies 现代混合行政国家中的行政司法:超越分类法
IF 1.2 2区 社会学 Q1 LAW Pub Date : 2024-04-21 DOI: 10.1093/ojls/gqae015
Janina Boughey
The challenges that government outsourcing presents for administrative law were the topic of considerable scholarly discussion in the 1990s and early 2000s, with broad agreement amongst public lawyers that outsourcing should not result in a loss of the particular kind of accountability with which administrative justice is concerned. Yet, over the past two decades, while government outsourcing has continued and evolved, very little has been done to address these challenges. This article explores the question of when non-court-based administrative justice accountability mechanisms ought to extend to outsourced government functions. I argue that much of the focus of administrative lawyers to date has been on the approaches that courts should take, which has led governments and legislatures to adopt tests and taxonomies largely developed in or for the courts, which distinguish between ‘public’ and ‘private’ functions. I show that these taxonomies are not well adapted to administrative justice mechanisms outside of the courts, are not fit for purpose in many modern government outsourcing arrangements and have resulted in significant accountability gaps. I propose a different starting point for thinking about administrative justice in the modern mixed administrative state, based on normative principles as opposed to categories.
政府外包给行政法带来的挑战是 20 世纪 90 年代和 21 世纪初学术界广泛讨论的话题,公职律师普遍认为外包不应导致行政司法所关注的特定责任的丧失。然而,在过去的二十年中,虽然政府外包一直在继续并不断发展,但在应对这些挑战方面却鲜有作为。本文探讨的问题是,非法院的行政司法问责机制何时应该扩展到外包的政府职能。我认为,迄今为止,行政法律师的关注点主要集中在法院应采取的方法上,这导致政府和立法机构采用了主要由法院制定或为法院制定的测试和分类标准,这些标准区分了 "公共 "和 "私人 "职能。我的论述表明,这些分类法并不能很好地适用于法院以外的行政司法机制,也不适合现代政府的许多外包安排,并导致了严重的问责漏洞。我提出了一个不同的出发点来思考现代混合行政国家中的行政司法问题,其基础是规范性原则而非分类。
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引用次数: 0
The Pluralities of Property 财产的多元性
IF 1.2 2区 社会学 Q1 LAW Pub Date : 2024-04-16 DOI: 10.1093/ojls/gqae012
Luke Rostill
In Property Rights: A Re-Examination, James Penner returns to and develops a project that he has been engaged in for nearly three decades: to replace the influential ‘bundle of rights’ picture of property, which he regards as irredeemably flawed, with an alternative account—one that regards property as a unified entitlement. In this review article, I expound and analyse the central features of Penner’s theory. I defend the view that, in its original iteration, Penner’s account was trebly monistic: it regarded property as a single entitlement justified by a single human interest and protected by a single duty of non-interference. I go on to critically examine one of Penner’s central ideas—that to understand property it is necessary to understand its justification. Along the way, I trace how Penner’s account has evolved and explain how certain alterations have put some problems to bed while generating others.
在《财产权:詹姆斯-彭纳(James Penner)在《财产权:重新审视》(Property Rights: A Re-Examination)一书中回到并发展了他从事了近三十年的一个项目:用另一种观点--将财产视为一种统一的权利--来取代颇具影响力的财产 "权利束 "观点,他认为这种观点存在无可挽回的缺陷。在这篇评论文章中,我阐述并分析了彭纳理论的核心特征。我认为,彭纳的观点在其最初的版本中是三重一元论的:它将财产视为一种单一的权利,由单一的人类利益所证明,并受到单一的不干涉义务的保护。我将继续批判性地审视彭纳的一个核心观点--要理解财产,就必须理解财产的正当性。在此过程中,我追溯了彭纳的论述是如何演变的,并解释了某些改动是如何在解决某些问题的同时产生另一些问题的。
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引用次数: 0
Discrimination as a Public Wrong 歧视是一种公害
IF 1.2 2区 社会学 Q1 LAW Pub Date : 2024-04-15 DOI: 10.1093/ojls/gqae011
Adi Goldiner
The enforcement mechanisms of anti-discrimination law manifest a puzzle: while the dominant view is that discrimination is a wrongdoing against individuals, which suggests that discriminatees should have the power to vindicate their rights, legal provisions sometimes authorise public officials to file claims against alleged discriminators, regardless of discriminatees’ preferences. Seeking to make sense of this puzzle, this article draws on theories of state enforcement under criminal law to explore the justification of public enforcement under anti-discrimination law and reflect on the nature of discrimination more broadly. It claims that an instrumental justification of public enforcement of anti-discrimination law is left wanting. Instead, it argues that public enforcement in this domain is warranted because discrimination is not only a private wrong against individuals, but is also a public wrong, namely a wrong against the community as a whole.
反歧视法的执行机制令人费解:虽然主流观点认为歧视是针对个人的不法行为,这表明受歧视者应有权维护自己的权利,但法律条款有时却授权公职人员对被指控的歧视者提起诉讼,而不管受歧视者的偏好如何。为了弄清这一难题,本文借鉴了刑法中的国家执法理论,探讨了反歧视法中的公共执法理由,并对歧视的性质进行了更广泛的思考。文章认为,反歧视法的公共执法缺乏工具性的正当理由。相反,它认为在这一领域的公共执法是有正当理由的,因为歧视不仅是针对个人的私人错误,也是一种公共错误,即针对整个社会的错误。
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引用次数: 0
Convicting Peaceful Protesters: Proportionality’s Proper Place at Criminal Trial 给和平抗议者定罪:相称性在刑事审判中的适当位置
IF 1.2 2区 社会学 Q1 LAW Pub Date : 2024-04-03 DOI: 10.1093/ojls/gqae009
Richard Martin
Suppose that a defendant’s conviction would amount to an interference with their right to peaceful protest, protected by articles 10 and 11 of the European Convention on Human Rights. Is a court then obliged to make a conviction turn on a fact-sensitive proportionality assessment justifying the interference? Drawing on the jurisprudence of the domestic and Strasbourg courts, this article argues that the case law has crystallised into two paradigms that provide distinct answers: the ‘justificatory paradigm’ in European human rights law and the ‘offence-centric’ paradigm in domestic law. The article exposes how and why this divergence has developed, what is at stake at the level of constitutional values and how this conflict might be resolved. It is argued that compliance with Strasbourg now depends on the integration of the justificatory paradigm into domestic law. The article imagines how this might be done in a manner sensitive to domestic constitutional values, using the mechanics on offer in the Human Rights Act 1998.
假设对被告的定罪相当于干涉其受《欧洲人权公约》第 10 和第 11 条保护的和平抗议权。那么,法院是否有义务根据对事实敏感的相称性评估来判定干预是否合理?本文借鉴了国内法院和斯特拉斯堡法院的判例,认为判例法具体化为两种范式,提供了截然不同的答案:欧洲人权法中的 "正当性范式 "和国内法中的 "以犯罪为中心 "范式。文章揭示了这一分歧的形成过程和原因、在宪法价值层面的利害关系以及如何解决这一冲突。文章认为,现在是否符合斯特拉斯堡的规定取决于国内法中是否纳入了正当性范式。文章设想了如何利用 1998 年《人权法》提供的机制,以对国内宪法价值敏感的方式实现这一目标。
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引用次数: 0
The Resurgence of Standing in Judicial Review. 司法审查中诉讼资格的复兴。
IF 1.2 2区 社会学 Q1 LAW Pub Date : 2024-03-14 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae005
Joanna Bell

It is now commonplace for courts to remark that standing to seek judicial review is 'context-sensitive'. The questions of how the courts adapt standing to context, and whether they do so appropriately, have, however, received remarkably little scholarly and judicial attention. This is perhaps because, until recently, there has been relatively little in the case law to spark scholarly interest. Standing, however, is in the midst of a resurgence. This article makes use of a distinction between three types of judicial review case-challenges to (i) favourable targeted, (ii) unfavourable targeted and (iii) non-targeted decisions-as a mode through which to explore the growing body of standing case law. In doing so, it both seeks to further understanding of how courts determine what constitutes a 'sufficient interest' and to highlight areas of the law in need of clarification or reconsideration.

法院通常会说,寻求司法审查的资格 "与具体情况有关"。然而,法院如何根据具体情况调整诉讼资格,以及这样做是否恰当,这些问题在学术界和司法界受到的关注却少得可怜。这或许是因为直到最近,判例法中引发学者兴趣的内容还相对较少。然而,诉讼地位正处于复苏阶段。本文区分了三类司法审查案件--对(i) 有利的目标判决、(ii) 不利的目标判决和(iii) 非目标判决的质疑--以此来探讨日益增多的诉讼资格判例法。在此过程中,本报告既寻求进一步了解法院如何确定何为 "充分利益",又强调了需要澄清或重新考虑的法律领域。
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引用次数: 0
Tangled Webs of Trust: A Study of Public Trust in Risk Regulation 错综复杂的信任之网:风险监管中的公众信任研究
IF 1.2 2区 社会学 Q1 LAW Pub Date : 2024-03-11 DOI: 10.1093/ojls/gqae006
Joanne Hawkins
This article provides an empirically grounded understanding of public trust in the context of risk regulation, specifically through a case study of shale gas exploration and fracking. It offers insight into the factors underpinning public trust and explores the empirical reality of the socially embedded and relational nature of trust. The article engages with the often-neglected dynamics of trust and how relationships between different levels of trust (eg institutional, interpersonal, wider system) operate. It shows how trust, far from complying with many existing linear conceptualisations, is complex and messy, involving a web of ongoing and interactive relationships within and between these levels. By mapping empirical data against our theoretical understandings, this article offers an alternative insight into the trust relationship, better positioning us to understand trust as an ongoing process, rather than an end product.
本文通过对页岩气勘探和压裂法的案例研究,以经验为基础,对风险监管背景下的公众信任问题进行了解读。文章深入分析了支撑公众信任的因素,并探讨了信任的社会嵌入性和关系性这一经验现实。文章探讨了经常被忽视的信任动态,以及不同层次的信任(如机构信任、人际信任、更广泛的系统信任)之间的关系是如何运作的。文章表明,信任并不符合许多现有的线性概念,而是复杂而凌乱的,涉及这些层次内部和之间的持续互动关系网络。通过将经验数据与我们的理论理解相映射,这篇文章提供了对信任关系的另一种见解,使我们能够更好地将信任理解为一个持续的过程,而不是最终产品。
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引用次数: 0
期刊
Oxford Journal of Legal Studies
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