Hasil untuk "Public law"

J. Habermas, William Rehg

Translatora s Introduction. Preface. 1. Law as a Category of Social Mediation between Facts and Norms. 2. The Sociology of Law versus the Philosophy of Justice. 3. A Reconstructive Approach to Law I: The System of Rights. 4. A Reconstructive Approach to Law II: The Principles of the Constitutional State. 5. The Indeterminacy of Law and the Rationality of Adjudication. 6. Judiciary and Legislature: On the Role and Legitimacy of Constitutional Adjudication. 7. Deliberative Politics: A Procedural Concept of Democracy. 8. Civil Society and the Political Public Sphere. 9. Paradigms of Law. Postscript (1994). Appendices. Notes. Bibliography. Index.

R. Porta, Florencio Lopez‐de‐Silanes, A. Shleifer et al.

J. Sunshine, T. Tyler

Mingwei Su, Yunbo Zheng

Abstract The purpose of this paper is to understand the spatial and temporal evolution of the level of rule of law government construction in China and the mechanism of influence, in an attempt to expand the research direction of legal geography, and to provide empirical cases for how developing countries can promote the rule of law construction under unbalanced geographic, economic and institutional conditions. The study investigates the spatiotemporal variations and influencing factors of law-based government construction levels in each of China’s 31 provincial administrative regions from 2015 to 2022, employing the Moran index and geographic detectors. The results show: (1) The construction level of law-based government in each provincial administrative region has exhibited a clear upward trend, shifting from predominantly “low” and “medium-low” levels to predominantly “medium-high” and “high” levels. (2) The construction level of law-based government and its development type exhibit clear spatial aggregation in each region. The spatial distribution of the four categorized types shows continuity and obvious characteristics of agglomeration. (3) The construction of a law-based government is influenced by economic, social, environmental, and political factors. The basic economic system, level of economic development, and resources per capita available to the administration have the greatest impact. The interaction between these factors significantly enhances their influence on the level of law-based government construction. The improvement of the level of rule of law government construction not only depends on the economic foundation and institutional resources, but is also affected by multiple factors such as urbanization development, demographic structure, public service provision, and institutional innovation path.

Ugur Korkut Pata, Mustafa Tevfik Kartal, Zahoor Ahmed et al.

Abstract This study analyzes the influence of green bonds on carbon neutrality. It examines the daily data of sectoral CO2 emissions of the top five CO2-emitting nations from January 2, 2019 to December 30, 2022 using wavelet transform coherence, quantile-on-quantile regression, Granger causality in quantiles, and quantile regression approaches. The results revealed that (i) green bonds are strongly related to sectoral CO2 emissions; (ii) green bonds reduce transport sector CO2 emissions in China, the US, and Japan while causing an upsurge in India and Russia; (iii) green bonds reduce industrial sector CO2 emissions only in the US; (iv) green bonds have a declining influence in energy sector CO2 emissions at lower quantiles in India, China, and the US, whereas the impact increases at higher quantiles; and (v) green bonds decrease residential sector CO2 emissions in the US, Russia, and Japan. The study revealed that green bonds help reduce CO2 emissions in the residential sector in various quantiles. Therefore, the US, Russia, and Japan should raise household awareness of green energy utilization by promoting them with green bonds. In addition, green bonds can effectively reduce transportation sector CO2 emissions in China and the US. Therefore, the policymakers of the two global powers should contribute to global CO2 reduction by promoting green transportation and clean energy transition in the transportation sector through green bonds. Thus, green bonds can play an effective role in the fight against global warming.

I. A. Danilov

This study explores the functioning of the Yakut language in the conditions of the northern industrial monotown Mirny (Republic of Sakha (Yakutia)). The study identifies the features of linguistic distribution in the speech repertoire of ethnic Sakha based on data from a sociolinguistic survey and interviews (n=279). Descriptive statistical methods and content analysis are employed. The results reveal an asymmetric nature of Yakut-Russian bilingualism with Russian language predominance in public communication. While Sakha individuals exhibit a high level of language competence in the Yakut language, its application is limited. In familial and friendly communication, the Yakut language maintains significant positions; however, its demand is minimal in the professional-business sphere, especially in industry. Among individuals with higher education, the percentage of Russian speakers at work reaches 68.34% compared to 55.77% among those with only secondary vocational education. Russian language dominates in management, service sectors, and law enforcement (75—100%). Only in fields such as healthcare, education, and culture does the Yakut language maintain strong positions. The native language is primarily perceived by Sakha as a symbolic marker of identity, yielding to Russian in social prestige and communicative power. The vitality prospects of the Yakut language in the city are assessed ambiguously and are linked to the effectiveness of language policy in key institutional contexts (education, media, government).

Muhammad Arham Yusuf

The issue of tender offers has gained prominence due to several high-profile cases involving the takeover of public companies, which have led to significant losses for shareholders, particularly public shareholders. The regulatory framework governing takeovers and tender offers is primarily established by Law No. 8 of 1995 concerning the Capital Market and Government Regulation No. 27 of 1998. The enactment of Law No. 21 of 2011 concerning the Financial Services Authority (OJK) in 2011 marked a significant shift in regulatory oversight, transferring authority over macroeconomic matters, including takeovers and tender offers, from Bank Indonesia to OJK. A notable example is the 2020 takeover of PT Garudafood Putra Putri Jaya Tbk. of PT Mulia Boga Raya Tbk. This study seeks to analyze the regulatory arrangements for tender offers in Indonesia and evaluate the impact of such takeovers on the public companies involved. The research employs normative legal research methodologies with a statutory approach, utilizing both primary and secondary legal materials.

Raphael Boldt

A partir de uma abordagem criminológico-crítica que se projeta desde o trabalho pioneiro dos frankfurtianos (Rusche e Kirchheimer), o presente artigo analisa os principais reflexos no campo do controle penal decorrentes do capitalismo de vigilância, reconfiguração produzida pela chamada revolução digital, compreendida como mais uma das etapas da modernidade, consistente, sobretudo, na glorificação das novas tecnologias, ideologia que autoriza a emergência das novas fronteiras e conquistas da técnica moderna.

Naomi Holbeach, Ian Freckelton AO QC, Ben W Mol

As the burden of misconduct in medical research is increasingly recognised, questions have been raised about how best to address this problem. Whilst there are existing mechanisms for the investigation and management of misconduct in medical literature, they are inadequate to deal with the magnitude of the problem. Journal editors and publishers play an essential role in protecting the veracity of the medical literature. Whilst ethical guidance for journal editors and publishers is important, it is not as readily enforceable as legal obligations might be. This article questions the legal obligations that might exist for journal editors and publishing companies with respect to ensuring the veracity of the published literature. Ultimately, there is no enforceable legal obligation in Australia, the United Kingdom, or the United States. In light of this, more robust mechanisms are needed to deliver greater confidence and transparency in the investigative process, the management of concerns or findings of misconduct and the need to cleanse the literature. We show that the law disincentivises journals and publishers from ensuring truth in their publications. There are harmful consequences for medical care and public confidence in the medical profession and health care system when the foundations of medical science are questionable.

Viorel ROȘ, Andreea LIVĂDARIU

The existence of signs registered as trademarks (national, European, international) is necessary in the public interest, as they serve producers of goods and services and consumers alike. While any sign may in principle constitute a trademark if it is capable of distinguishing the goods and services of one undertaking from those of other undertakings and if it can be represented in a register (of trademarks) in such a way as to enable determination of the subject-matter of the protection conferred, the scope of registrable signs is limited by two categories of grounds established by law (EU Regulation) with a view to: (i) the effective protection of the rights previously acquired by other persons and the prevention of the risk of confusion/association between the goods/services of different traders, which are „relative grounds for refusal of registration”, and (ii) the prevention of registrations and, where appropriate, the invalidation of registrations of the signs which, objectively, cannot constitute trademarks for intrinsic reasons (impossibility of representation, lack of distinctiveness, shape required by the nature of the goods, shape necessary to obtain a technical result, shape which gives substantial value to the product), or extrinsic ones (they must be available to everyone because they are of use to trade in general, or are misleading as to the nature, quality or geographical origin of the product/service, are protected against use in trade as being „of special public interest” and belong to, and are used by, the states, international organizations, and/or other public entities, including coats of arms, logos, seals, Olympic signs, but also those which are contrary to public order and public morality), which qualify as „absolute grounds for refusal of registration”. The grounds for refusal of registration and/or, where appropriate, for declaration of invalidity of registered trademarks on account of coming into conflict with public order or public morality in the European Union and in the USA are not few, quite the opposite, but the relevant jurisprudence is not uniform. For example, of the 81 applications for registration as trademarks of a number of signs, among them the word „mafia”, 51 were rejected, 20 were granted, and 5 are under examination, one of the applications (for the Coffemafia trademark) was granted in 2020, although in 2016-2018, the Boards Appeal and Revocation (Cancellation) of the EUIPO, and subsequently the EU Court, at the request of the Italian Republic, ruled the „La Mafia se sienta a la mesa” trademark to be invalid on the grounds that the word „mafia” was contrary to public order and its use was detrimental to public interest. However, despite the „Fack Ju Göhte” trademark being ruled to be contrary to public morality by the EUIPO and the EU Court, the Court of Justice of the European Union allowed its registration by ruling it was not contrary to public morality. In the USA, which seems to have an extremely interesting and well-reasoned jurisprudence, things aren’t any different. A number of six trademarks containing the word „Redskins” (red skin) belonging to the Washington Redskins football team (currently under a different name), registered in the 60s and 70s, challenged at registration in 1992, then in 2014, after a first decision rejecting the application, following a second application (supported by the US President and 50 senators), were revoked on the grounds of being discriminatory against the Native Americans. However, the „The Slants” (from „slanted-eye”, a pejorative term used to describe Asians) walked an entirely different path. The application (filed in 2006) to register it as a trademark for entertainment services by an all-Asian band of the same name (The Slants) was rejected by the U.S. Patent and Trademark Office - USPTO. Then, after a lengthy legal battle it was allowed for registration, with the courts, including the Supreme Court, ruling that the Lahman Act (i.e., the U.S. trademark law) provisions on the discrimination clause are contrary to the Constitution and the fundamental right to free speech. These judgments, plus another one on the sign for which registration was requested, and refused, as „CANNABIS STORE AMSTERDAM”, an EU trademark, are underlying our examination of such notions as „general/public interest”, „public order” and „public morality”, based on the finding that while important and used frequently, they are neither defined nor analysed in the legal doctrine and jurisprudence, and are used as something that needs no explanation. Such a need exists, though. After analysing them, we were able to issue our (rather critical) opinions on the EU Court judgment of 15 March 2018 that ruled the invalidity of the „La Mafia se sienta a la mesa” trademark, which we find to be wrong on the merits and, in any case, to be lacking the necessary supporting documents, while also infringing the fundamental right to free speech. However, we also found that the revocation of the „La Mafia se sienta a la mesa” trademark on the grounds of conflicting with the public order did not serve its purpose because it is not possible to prohibit the use of the sign as an unregistered trademark, because that sign is still successfully in use, because the network of restaurants that continue to use it is thriving and will even expand to other countries, and because the EU Court's decision (which probably would not have been upheld by the CJEU if appealed, as we could conclude from analysing the judgment issued in the „Fack Ju Göhte” trademark) has contributed to its growing reputation, so it may be claimed as a well-known trademark in the future, which makes the victory of the Italian Republic, which filed the application for declaration of invalidity, a bitter one. And also because the word MAFIA is at the centre of the debate, we considered it important and sought to identify its origins and uses, as well as denotations and connotations.

Mohsen Abbaszadeh Marzbali

As one of the most visible aspects of political life in recent years, the populist rises imply the ‘crisis of representation’ that means the existing institutional mechanism of representative democracy is ineffective in representing the variety of social demands. While this situation, according to the liberal democratic approach, warns of the revival of mass society and new versions of authoritarianism, the radical democratic approach considers it a possibility to retrieve democracy. Which variables determine the contending evaluations of the impact of populism on democracy? The present paper presupposes that the contending evaluations are driven by different conceptions of the principal constituent of democracy (rule of law or general will?) and the populism entity (a manner of governance or a movement constructing collective will?). Given the postulates of the contending democratic theories (liberal and radical), the paper hypothesizes that evaluating the effects of populism on democracy depends on the way of interaction of some variables: a) the content of the populist discourse (egalitarian articulation of plural demands or discriminatory one?); b) the context in which the populist movement arises (democratic structure of opportunity or authoritarian one?) c) the mutual strategy of political actors whether from opposition or in position ones (the connection between street politics and institutional one or disconnection?). Taking advantage of the contending democratic theories (liberal and radical) in a combinative theoretical framework, the paper attempts to justify the hypothesis by highlighting the fact that both democratic theories are built on one aspect of the conception of democratic order. Marking the elements such as individual subjectivity, rationality, the rule of law, pluralism, etc. as characteristics of democratic order, a liberal democratic approach considers populist popular and exclusionary (i.e., determined by populists’ particular definition of the people) orientation as a threat to democracy. It is because such orientation restricts public debates and leads to weakening democratic institutions, the opposition’s rights, and the plurality of society. On the contrary, the radical democratic approach points to the significance of the populist mobilization for the democratization of status quo democracies owing to re-politicization of the issues neglected by the sovereign elite, provided that to articulate accumulated demands around a democratic egalitarian nodal point. Such evaluation emanates from the fact that this approach identifies democracy with collective subjectivity, general will, participation, and so on. It seems that a non-paradoxical and justifiable reference to both the above-mentioned approach in an analysis of the effect of populism on democracy entails taking their different concentrations into account. It means ‘populism-in-power’ (as a way of governance) puts the structural foundations of democracy in danger and facilitates the emergence of authoritarianism due to its anti-institutionalism, anti-pluralism, and tendency to mass politics. It is whilst, in the status of ‘opposition’ (a mobilizing movement), populism might be an opportunity to revive democratic politics. This argument resorts to the action of constructing a new collective will, in populist strategies of mobilizations, which reveals shortages of representative systems such as the monopoly of a minority, technocratic elitism, and so on. Nevertheless, the actualization of the progressive effects of the populist movements on democracy depends heavily on the interaction of variables which are as follows.   a) If the populist discourse articulates accumulated social demands around a democratic egalitarian will, then the populist moment (as the moment of crisis in a representative democracy) can be of progressive connotations for democracy-deepening. Conversely, discriminatory articulation (like racist or class populism) paves the way for authoritarianism. Hence in terms of democratization and de-democratization, various populisms can be imagined; ranging from democratic populism to authoritarian, leftist to far-right. b)  Realization of the above-mentioned progressive version of populism depends on the ‘democratic structure of political opportunity’. The possibility of mobilization by democratic egalitarian populism is only imaginable where the rules of the democratic competition are guaranteed. In other words, if there is no equal and fair opportunity to declare the policies in electoral campaigns and implement them after taking into power, then there can be just governmental types of populism that mobilize the mass for advocating governmental policies and decisions. Here, populism appears in its authoritarian face in a mass society. c) The third variable is the strategy that political actors of both realms, movement, and institution, in a political structure adapt. If the populist movement ties its street activism with institutional bargaining (e.g. by resorting to parliamentary parties) and, mutually, the government opens up the policy-making input to populist demands (rather than rejecting them), then the rise of a democratic egalitarian populist movement might result in democracy- deepening. Otherwise, populism can bring about some contending de-democratizing mass mobilizations, whether in the shape of authoritarian up-to-down governmental populism or fruitless gross-root radical populism. In brief, the paper maintains that by vindicating ‘popular sovereignty’, populism has double-edged effects in terms of weakening or strengthening democracy; ranging from an infertile radicalism leading to authoritarianism to radical reformism containing the possibility of retrieval of democracy. Hence democratic theory needs to develop an order that balances the rule of law and public will as two sides of democracy. It calls for a new social contract based on a balanced relationship between specialism and democratic responsibility. To reach such a situation, more inclusive politics should be targeted by current-day democracies. The key, however, is hearing the demands of populist advocators rather than populist leaders’ programs.

Jennifer Cobbe

Abstract The future is likely to see an increase in the public-sector use of automated decision-making systems which employ machine learning techniques. However, there is no clear understanding of how English administrative law will apply to this kind of decision-making. This paper seeks to address the problem by bringing together administrative law, data protection law, and a technical understanding of automated decision-making systems in order to identify some of the questions to ask and factors to consider when reviewing the use of these systems. Due to the relative novelty of automated decision-making in the public sector, this kind of study has not yet been undertaken elsewhere. As a result, this paper provides a starting point for judges, lawyers, and legal academics who wish to understand how to legally assess or review automated decision-making systems and identifies areas where further research is required.

G. Samuel, D. Kennett

Genetic genealogy databases have become particularly attractive to law enforcement agencies, especially in the United States (US), which have started to employ genealogists to search them with unknown origin DNA from unidentified human remains (suicides, missing persons) or from a serious crime scene, to help identify the victim, or a potential suspected perpetrator, respectively. While this investigative genetic genealogy (IGG) technique holds much promise, its use – particularly during serious criminal investigations – has sparked a range of social and ethical concerns. Receiving consent for IGG from genetic genealogy database users has been argued as a way to address such concerns. While critiques of the importance of consent are well documented in the biomedical and forensic biobanking literature, this has not been explored for IGG. We sought to address this gap by exploring the views of UK stakeholders. Our research question was: what are UK public and professional stakeholders’ views about the importance of the consent process for IGG when used for serious criminal cases? The methodological approach was interview-based and exploratory. Our analysis identified that all interviewees stressed the importance of consent, though interviewees’ narratives pointed to inadequacies of individual-based consent as an ethical panacea for IGG.

Gesine Richter, Christoph Borzikowsky, Bimba Franziska Hoyer et al.

Abstract Background The SARS-CoV-2 pandemic has highlighted once more the great need for comprehensive access to, and uncomplicated use of, pre-existing patient data for medical research. Enabling secondary research-use of patient-data is a prerequisite for the efficient and sustainable promotion of translation and personalisation in medicine, and for the advancement of public-health. However, balancing the legitimate interests of scientists in broad and unrestricted data-access and the demand for individual autonomy, privacy and social justice is a great challenge for patient-based medical research. Methods We therefore conducted two questionnaire-based surveys among North-German outpatients (n = 650) to determine their attitude towards data-donation for medical research, implemented as an opt-out-process. Results We observed a high level of acceptance (75.0%), the most powerful predictor of a positive attitude towards data-donation was the conviction that every citizen has a duty to contribute to the improvement of medical research (> 80% of participants approving data-donation). Interestingly, patients distinguished sharply between research inside and outside the EU, despite a general awareness that universities and public research institutions cooperate with commercial companies, willingness to allow use of donated data by the latter was very low (7.1% to 29.1%, depending upon location of company). The most popular measures among interviewees to counteract reservations against commercial data-use were regulation by law (61.4%), stipulating in the process that data are not sold or resold (84.6%). A majority requested control of both the use (46.8%) and the protection (41.5%) of the data by independent bodies. Conclusions In conclusion, data-donation for medical research, implemented as a combination of legal entitlement and easy-to-exercise-right to opt-out, was found to be widely supported by German patients and therefore warrants further consideration for a transposition into national law.

Auke van Dijk, V. Herrington, N. Crofts et al.

Public security and law enforcement have a crucial but often largely unacknowledged role in protecting and promoting public health. Although the security sector is a key partner in many specific public health programmes, its identity as an important part of the public health endeavour is rarely recognised. This absence of recognition has resulted in a generally inadequate approach to research and investigation of ways in which law enforcement, especially police at both operational and strategic levels, can be effectively engaged to actively promote and protect public health as part of a broader multisectoral public health effort. However, the challenge remains to engage police to consider their role as one that serves a public health function. The challenge consists of overcoming the continuous and competitive demand for police to do so-called policing, rather than serve a broader public health function-often derogatively referred to as social work. This Series paper explores the intersect between law enforcement and public health at the global and local levels and argues that public health is an integral aspect of public safety and security. Recognition of this role of public health is the first step towards encouraging a joined-up approach to dealing with entrenched social, security, and health issues.

M. Oswald

This article considers some of the risks and challenges raised by the use of algorithm-assisted decision-making and predictive tools by the public sector. Alongside, it reviews a number of long-standing English administrative law rules designed to regulate the discretionary power of the state. The principles of administrative law are concerned with human decisions involved in the exercise of state power and discretion, thus offering a promising avenue for the regulation of the growing number of algorithm-assisted decisions within the public sector. This article attempts to re-frame key rules for the new algorithmic environment and argues that ‘old’ law—interpreted for a new context—can help guide lawyers, scientists and public sector practitioners alike when considering the development and deployment of new algorithmic tools. This article is part of a discussion meeting issue ‘The growing ubiquity of algorithms in society: implications, impacts and innovations'.

S. Burris, M. Ashe, D. Levin et al.

Oluwagbenga Michael Akinlabi

Lorenzo Bianchi

In his Bibliographia politica (Venice 1633) Naudé reviews in about one hundred pages authors and works that have dealt with politics, from the Antiquity to the first decades of the Seventeenth Century. In few enlightened pages on the ordinary and extraordinary administration of the State, Naudé elaborates his own idea of Reason of State, including the use of an extraordinary administration in the name of the public benefit. We can find a continuity between his Bibliographia politica and his Considérations politiques sur les coups d’Estat (1639). In both his political works Naudé gives to the category of wisdom, derived from Aristotle, a new practical and political value, which goes back to authors such as Machiavelli or Cardano, Lipsius or Charron. Naudé’s political wisdom uses dissimulation and any form of justice, also against common law, to act in extraordinary administration of the State or to carry out “coups d’État.”

P. Zubakha

This article is devoted to the analysis of legislation in the field of public-private partnership (PPP). The article substantiates the importance of an effective regulatory and legal framework for the development of PPP in Russia. A negative evaluation of this normative and legal framework from point of view of market participants was revealed. The analysis of the main regulatory and legal framework in the sphere of implementation of public-private partnership projects is carried out. Deficiencies were found in the current drafts of the law on concession and the law on PPP. Recommendations are proposed to eliminate these shortcomings and increase the effectiveness of legislation in the field of public-private partnership.