bluuebunny/crossref_metadata_2025_split huggingface dataset:
Unspeakable Subjects, Impossible Rights: Sexuality, Integrity and Criminal Law
Authors: Lacey Nicola 
Published: July 2016

As Michel Foucault famously observed, the Nineteenth Century’s construction of sexuality as an unspeakable subject paradoxically generated an extraordinary amount of talk about sex. This paper engages with another paradox in the same field: for my main thesis will be that the criminal law which purports to regulate sexual behaviour has, in an important sense, very little to do with sex at all.Perhaps this rather startling aspect of my argument explains the difficulty which I had in writing the paper. It probably had more to do, however, with the fact that it was originally written as an inaugural lecture. I hope that you will bear with me if I begin by describing the history of the lecture—for this history is, I think, an integral part of the present paper’s argument.Writing and delivering an inaugural lecture is, in my experience, a uniquely challenging process, which forces one to think in a particular way about the place one sees one’s work as having in and beyond the academy. For a woman, there is an added complication which probably (though subconsciously) informed the reference to ‘unspeakable subjects’ in my title. The delivery of a lecture is an authoritative activity culturally marked as masculine. This issue about, as it were, the sex of lecturing came home to me very forcefully when I asked a friend to read a draft of the lecture: a few pages into the text, she observed: ‘so far, the tone is more woman than professor….’ Having completed my higher education without once being taught by a woman, it perhaps wasn’t surprising that I was having trouble finding a feminine professorial voice. But my friend’s comment touched also on a deeper issue. This lies in the controversial philosophical and psychoanalytic literature which equates the feminine with a state of lack, abjection and silence. If a woman professor is in some sense ‘speaking as a man,’ and if, as a feminist and a woman, one wants to find an authentic voice and style, the inaugural lecture presents at once the forum in which one’s responsibility to do so is greatest, and that in which success is most elusive. I spoke, then, as a subject of the unspeakable sex, exercising the apparently impossible right of speaking on the unspeakable subject of sex.
The Social Origins of Property
Authors: Singer Joseph William , Beermann Jack M. 
Published: July 2016

It was easier to make a revolution than to write 600 to 800 laws to create a market economy.Jiri Dienstbier, Foreign Minister of Czechoslovakia (1990)[I]t would be as absurd to argue that the distribution of property must never be modified by law as it would be to argue that the distribution of political power must never bechanged.Morris Cohen (1927)The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use. When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves “to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole.” To determine when a regulation amounts to a “taking” of property requiring compensation, the Court has rightly stated that the ultimate question is whether the burden of regulation has been unfairly placed on a small class of individuals rather than the public at large. To answer this question, the Court has identified a variety of factors to consider, including the character of the governmental action, (whether the regulation effects a permanent physical invasion, destroys a core property right, or is intended to prevent public harm), whether the regulation interferes with reasonable investment-backed expectations, and the extent of the diminution in value of the property (particularly whether the regulation deprives the owner of any economically viable use of the property).
Revisionist Theories of Rights: An Unwelcome Defense
Authors: Harel Alon 
Published: July 2016

Disputes over the scope of specific rights, e.g., over the right to free speech, the right to property, or the right to equality, often originate in differing assumptions concerning the reasons that justify the protection of these rights. Thus, those who believe that reasons of autonomy justify the right to free speech will identify the scope of this right differently from those who justify this protection through, say, appeal to the marketplace of ideas. Despite the diverse subject matter of these disputes, there is a uniform structure characterizing them. Some supporters of rights, call them “traditionalists,” locate the reasons that justify the protection of rights within individualistic concerns. Others, call them “revisionists,” deny this traditional claim and argue that rights can be partially or exclusively grounded in societal interests.Traditionalism’ and ‘revisionism’ are terms stipulated to clarify the conceptual difference between two different understandings of rights. These understandings are often implicit in the way the term ‘rights’ is used in political or legal debates concerning the scope of particular rights. At other times, these implicit understandings of the term ‘rights’ are articulated more or less explicitly by moral or political philosophers investigating the nature of rights. Thus, when the terms ‘revisionist’ or ‘traditionalist’ are used in this article, they are used in two different ways. Sometimes, they denote implicit fundamental presuppositions about the nature of rights—presuppositions which underlie many of the contemporary debates over the scope of particular rights. At other times, they denote philosophical theories exploring systematically the nature of rights and the reasons underlying them.
Responsibility and the Young Person
Authors: Micucci Lisa 
Published: July 2016

In 1993, two young boys were convicted for the murder of a two-year-old toddler, James Bulger. Both boys were ten years old when the murder was committed. Such a violent act raises the timeless question: At what age should a child be held fully responsible by a nation’s criminal justice system for criminal conduct? Serious crimes are being committed by young persons and the public seems to have the impression that such acts are being committed at an increasingly young age.Generally, the age of criminal responsibility (or legal responsibility) refers to the age at which a person becomes subject to the full penalties provided by the criminal law and this age varies greatly from country to country. In the Bulger case, at the age of ten, both boys had reached the age of criminal responsibility in England. Yet in other countries, this would not have been the case. In Canada, for example, the young persons would not have been subject to the criminal law since the minimum age of legal responsibility is twelve years. Historically, young persons have been given special treatment under the criminal law. Under the doli incapax (incapable of committing a crime) standard, a child’s capacity to commit a crime was questioned when attempting to affix criminal responsibility. Some countries still adhere to this common law doli incapax rule. In the first section of this paper, I will outline both the historical and present diversity between countries in relation to the age of criminal responsibility, as well as the associated advantages and disadvantages of these various systems.
Terminating Wars and Establishing Global Governance
Authors: Orend Brian 
Published: July 2016

When we think of recent armed conflicts, such as those in the Persian Gulf, Bosnia or Rwanda, we realize that one profound difficulty shared by them was how they ended. The process of war termination—of resolving successfully serious outbreaks of armed conflict between national groups—is fraught with fragility and complexity, featuring often competing claims of security and justice.Only recently have we begun to understand how crucial the issue of war termination is, with regard not only to bringing particular conflicts to an end but also to mitigating further devastations in the future. Whereas past attention focused obsessively on the beginning of war, and/or on proper conduct during wartime, it is becoming clear that the ending of war deserves equal time with regard to critical analysis, historical application and the creative construction of proposals for amelioration. There are only a handful of works on this important and topical, yet neglected, issue.This article proposes to contribute to the sparse literature by constructing a theory of war termination. The article will offer reasonable responses to questions of what constitutes justice, security and legality in the aftermath of war. The inquiry will proceed first by examining the status quo with regard to war termination, undertaking an examination of its few strengths and many weaknesses. Then, the account will fashion a more satisfactory set of laws to regulate state conduct during the immediate aftermath of a particular war. These universal and abstract norms, once constructed, will be applied to a recent and concrete case, namely, that of the lengthy termination process of the Persian Gulf War of 1991. The theory will next shift its attention away from short-term principles, regulating the endings of particular wars, towards those longer-term rules and institutional reforms required to transform the international system itself into one in which the incidence and destructiveness of war will be diminished. Before concluding, attention will be paid to defeating doubts about the laws forwarded as a plausible theory about securing justice and peace when wars end.
Property as Ontology: On Aboriginal and English Understandings of Ownership
Authors: Bryan Bradley 
Published: July 2016

A critical knowledge of the evolution of the idea of property would embody, in some respects, the most remarkable portion of mental history of mankind.– L.H. MorganNow you try and say what is involved in seeing something as something. It is not easy.– Ludwig WittgensteinIn this paper I argue that a comparison of English and Aboriginal conceptions of property yields insight into the ontologically specific grounds that inform institutionalized socio-cultural practices like property. Where the foundations of English conceptions of property are highly rationalistic, Aboriginal conceptions eschew categorization and are indicative of a highly nuanced and different way of understanding the worldliness of a human being. As such, a comparison of such conceptions becomes not simply a comparison of ways of owning and possessing, but a cross-cultural comparison of ways of relating to the world at large for what are ostensibly economic purposes.To argue this is to assume that there is much more going on within culture that is determinative of ways of being than to simply assume that all cultures share universal cultural traits. In this paper I therefore discuss some of the philosophical foundations that underlie Western conceptions of the human’s relation to the world as embodied in principles of property law, as well as looking at the philosophical significance of that view. I also look at the way various Aboriginal peoples in Canada understand their own relationship to the world-at-large as it is expressed in what they understand as the property regimes of their society.
Between Neutrality and Perfectionism
Authors: Cohen-Almagor Raphael 
Published: July 2016

It has been argued that the difference between liberal states and theocratic, communist or fascist states is not that the liberal states promote different ideals of the good, but that they promote none. Unlike illiberal states, which regard it as a primary function of the state to prescribe the moral character of society, liberal states shun such attempts and allow freedom to citizens to develop their own conceptions.The aim of this paper is to analyze the notions of “conception of the good” and “neutrality” and to suggest a perspective which provides a middle ground between strict perfectionism, on the one hand, and complete neutrality, on the other. This perspective would allow plurality and diversity without resorting to absolute neutrality. It would involve some form of perfectionism without resorting to coercion. I will assert that liberal states do resort to some forms of perfectionism in conducting their policies. I will further argue that the policy they should adhere to is one of impartiality rather than one of neutrality.
Sexuality, Authenticity, and Modernity
Authors: Green Leslie 
Published: July 2016

In his Journals for 26 December 1921, André Gide wrote:The borrowed truths are the ones to which one clings most tenaciously, and all the more so since they remain foreign to our intimate self. It takes much more precaution to deliver one's own message, much more boldness and prudence, than to sign up with and add one's voice to an already existing party .... I believed that it is above all to oneself that it is important to remain faithful.This celebration of fidelity to oneself gives voice to a central theme of modern consciousness: the search for authenticity. The idea that there is an ‘intimate self’ whose needs cannot be fulfilled by following ‘borrowed truths’ is a familiar modern notion and one that contrasts sharply with traditional outlooks. In many pre-modern societies value was believed to be less responsive to the individual: gods, natures, or history were the sort of things that inscribed value on states of affairs, and thus on our lives. Living well was not, therefore, a matter of being true to ourselves, but being true to our creators, natures, or traditions. Moral truths were precisely those things that were borrowed; that was what made them true
Risking One’s Life: ‘Soft Paternalism’ and Feinberg’s Account of Legal Liberalism
Authors: Hunt Ian 
Published: July 2016

In his The Moral Limits of the Criminal Law: Harm To Self, one volume in what is arguably the most impressive and thorough statement of liberal political philosophy to date, Joel Feinberg claims that there is a problem of reconciling the reasonableness of our concern for people who endanger themselves with our repugnance for paternalism:preventable personal harm (setback interest) is universally thought to be a great evil, and... such harm is no less harmful when self-caused... If society can substantially diminish the net amount of harm to interests from all sources, that would be a great social gain. If that prospect provides the moral basis underlying the harm to others principle, why should it not have application as well to self-caused harm and thus support equally the principle of legal paternalism?... On the other hand, we are challenged to reconcile, somehow, our legitimate concern with diminishing overall harm with the threatened proliferation of criminal prohibitions enforcing a “Spartan like regime” of imposed prudence
Nonconstitutional Amendments
Authors: Albert Richard 
Published: July 2016

The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitutional.In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional states, I deploy those contrasts as a springboard to substantive insights about fundamental principles of statehood, namely sovereignty and legitimacy.
Improperly Collected Taxes: The Border Between Private and Public Law
Authors: Peari Sagi 
Published: July 2016

In recent years, Professor Birks’ doctrine of constitutional right to restitution has become a new normative rule with respect to the issue of restitution of improperly collected taxes. Nevertheless, the new doctrine has puzzled academic scholars. Profound questions regarding the conceptual “private law-public law” location of Professor Birks’ doctrine and the current status of traditional law doctrines have arisen.This study challenges Professor Birks’ doctrine and demonstrates that despite its universal adoption, the doctrine was based on weak premises. Furthermore, based on Professor Weinrib’s legal philosophy, this study develops an alternative framework to analyze the issue of improperly collected taxes. The study shows that the “private-public” puzzle and the doctrines traditional to improperly collected taxes may be coherently explained within this legal philosophy.
What is Critical Research in International Law? Celebrating Structuralism
Authors: KOSKENNIEMI MARTTI 
Published: July 2016

AbstractThis essay is a friendly response to the colloquium on From Apology to Utopia (FATU). It restates the way critical research examines the exercise of power through analysis of (legal) language. Attention is directed especially to the empowering and enchanting effects of the law. The main point has to do with the continuing power of structuralism as a form of legal analysis.
Logic in the 1930s: Type Theory and Model Theory
Authors: Schiemer Georg , Reck Erich H. 
Published: July 2016

AbstractIn historical discussions of twentieth-century logic, it is typically assumed that model theory emerged within the tradition that adopted first-order logic as the standard framework. Work within the type-theoretic tradition, in the style ofPrincipia Mathematica, tends to be downplayed or ignored in this connection. Indeed, the shift from type theory to first-order logic is sometimes seen as involving a radical break that first made possible the rise of modern model theory. While comparing several early attempts to develop the semantics of axiomatic theories in the 1930s, by two proponents of the type-theoretic tradition (Carnap and Tarski) and two proponents of the first-order tradition (Gödel and Hilbert), we argue that, instead, the move from type theory to first-order logic is better understood as a gradual transformation, and further, that the contributions to semantics made in the type-theoretic tradition should be seen as central to the evolution of model theory.
Interpretability in Robinson's Q
Authors: Ferreira Fernando , Ferreira Gilda 
Published: July 2016

AbstractEdward Nelson published in 1986 a book defending an extreme formalist view of mathematics according to which there is animpassable barrierin the totality of exponentiation. On the positive side, Nelson embarks on a program of investigating how much mathematics can be interpreted in Raphael Robinson's theory of arithmetic. In the shadow of this program, some very nice logical investigations and results were produced by a number of people, not only regarding what can be interpreted inbut also what cannot be so interpreted. We explain some of these results and rely on them to discuss Nelson's position.
Objectively measured physical activity predicts subsequent energy intake in 300 women
Authors: Tucker Larry A 
Published: July 2016

AbstractObjectiveTo determine if 7 d physical activity (PA) predicts energy intake over the same days and if PA on a given day predicts energy intake on the same day, the next day or subsequent days.DesignA 7 d prospective investigation. PA was measured using accelerometers worn for seven consecutive days. During the same week, total energy intake (including alcohol) was assessed using weighed food records.SettingTwenty cities in the USA.SubjectsThree hundred middle-aged women.ResultsAfter controlling for the covariates, energy intake was 36 (se8) kJ higher for each additional 100000 activity counts (F=19·0,P<0·0001), based on the entire week of monitoring. Women with Low PA (n75) had a mean energy intake of 8364 (sd1235) kJ/d (1998 (sd295) kcal/d), those with Moderate PA (n150) consumed 8523 (sd1264) kJ/d (2036 (sd302) kcal/d) and those with High PA (n75) consumed 9079 (sd1473) kJ/d (2169 (sd352) kcal/d;F=6·4,P=0·0019), a 5023 kJ/d (1200 kcal/d) difference between the High and Low PA groups. PA on a given day was predictive of energy consumption on the same day on four of the seven monitored days, and was predictive of energy intake the next day, with five of six associations significant. PA was not consistently predictive of energy intake on days beyond the next day.ConclusionsOver 7 d, PA and energy consumption tend to be positively related. Considered day to day, increased PA is weakly associated with increased energy intake the following day and, to a lesser extent, the same day. Therefore, managing weight by increasing PA may not result in the energy deficit expected.
II. Recent Work in Italian Medieval History
Authors: Previté-Orton C. W. 
Published: July 2016

The study of medieval Italian history in England has always tended to the picturesque in character. This is an old tradition; we see it already in Elizabethan plays; and may trace it through Byron and Browning to modern writers of biographies and histories of a time or of a city. Stodgily virtuous in Dennistoun, rhetorically philosophical in Symonds, stirring and graphic in Heywood, Clio has here had the opportunity to be a melodramatic muse, and has used it to the full. The moving accident has been almost all her theme, and she seems at times to have found in it the pleasure that Charles Lamb did in Restoration plays, the escape to the country “where no cold moral reigns.” This attitude is natural enough when we consider that Italian history comes to us in the light of the Renaissance and of Dante, of a time when personality in its most exuberant forms not only had free play in life, but full record, and record which is living literature and not a mere “source.”From the confessionals “we” hear ariseRehearsals of forgotten tragedies.
IV. Pacta Sunt Servanda or International Guarantee
Authors: Satow E. 
Published: July 2016

At an early period it was seen to be necessary that the observation of treaties should be ensured by the adoption of various sanctions besides the signatures of the high contracting parties.A probably complete list of the expedients employed for the confirmation and execution of treaties up to, say, the end of the sixteenth century would include the following:An oath taken by the high contracting parties, as well as by their plenipotentiaries and other persons of importance.
Beyond the Control Paradigm? International Responsibility and the European Union
Authors: Hernández Gleider I 
Published: July 2016

Abstract
From the perspective of public international law, the legal personality of the European Union (EU) carries with it the possibility for it to exercise rights and to bear obligations on the international plane. Its quasi-federal structure, however, requires consideration as to how these rights and obligations may be exercised. In this chapter, two regimes are compared: the EU’s rights and obligations as an international organisation and the possibility that its internal structures might be recognised on the international plane, thus leading to more complex notions of subsidiary responsibility, shared between the various levels of European governance.