Cryptocurrency, or crypto assets, are virtual commodities emerging from technological advancements in commodity futures trading. To strengthen regulatory frameworks, it is essential to examine their characteristics as property, particularly their eligibility for property rights and use as collateral. This normative legal study employs a dogmatic approach, utilizing secondary data analyzed qualitatively. The findings indicate that crypto assets constitute intangible movable property with economic value, fulfilling property criteria in both Islamic and civil law. As such, property and ownership rights can be attached to crypto assets, allowing them to serve as collateral akin to shares. In cases of debtor default, execution through the sale of pledged crypto assets on an exchange is legally feasible.
Law in general. Comparative and uniform law. Jurisprudence
AbstractOn 1 September 2023, the Standing Committee of the National People’s Congress amended the Chinese Civil Procedure Law which will come into effect on 1 January 2024 (‘the 2024 CPL’). The 2024 CPL brings significant changes to the entire procedure of transnational civil and commercial litigation in China covering jurisdiction, service of process, the taking of evidence abroad, and the recognition and enforcement of foreign judgments. It is critical for foreign states, courts, and parties which conduct business in China to understand this new legal development and to prepare for the changes. Adopting comparative-law and empirical research methods, this commentary aims to explain the new provisions for transnational civil litigation in the 2024 CPL and how they may be implemented in practice.
Objective: to perform typologization of organizations in the aspect of counteracting corruption based on generalization of approaches to understanding organizations and highlighting their types in the system of scientific knowledge.Methods: general scientific method of dialectical cognition, as well as a number of specific scientific methods, such as legal, systemic-structural, formal-logical, etc.Results: a significant obstacle in building a system of corruption counteraction in organizations is the lack of fundamental intersectoral scientific research ranking organizations depending on the degree of influence of their activities on national security. The typologization of organizations in the aspect of corruption counteraction is of great methodological importance, since it allows establishing the basic scientific and practical approaches to ensuring anti-corruption activities, depending on the degree of corruption-related danger of such organizations. Generalization of approaches to the understanding of organizations and the identification of their varieties allowed establishing the dominance of civil law in the knowledge of organizations. At the same time, the classifications of organizations used in this branch of law do not enable to achieve the goal of this study. In this regard, within the framework of this work, the need for interdisciplinary scientific knowledge of the essential characteristics of organizations is actualized, the identification of signs for the typologization of organizations is problematized, and a working typology of organizations in the aspect of combating corruption is proposed. The further scientific cognition of corruption manifestations and mechanisms of their reproduction in the activities of various types of organizations will make it possible to reveal the reserves of anti-corruption activities and provide a systematic multilevel approach in their implementation.Scientific novelty: the paper substantiates the need for typologization of organizations in interconnection with the influence of their corruptiogenity on the security of society and the state to build a multilevel system of counteracting corruption in organizations of various types.Practical significance: the research results can be used in determining the directions for improving state policy in the field of corruption counteraction, as well as anticorruption activity of organizations.
Economics as a science, Law in general. Comparative and uniform law. Jurisprudence
INTRODUCTION. The 1982 United Nations Convention on the Law of the Sea imposes obligations on states to protect and preserve the marine environment. They are responsible under international law. In order to ensure prompt and adequate compensation for all damage caused by marine pollution, states shall cooperate in implementing existing international law concerning liability and in developing procedures for adequate compensation, such as liability insurance or compensation funds MATERIALS AND METHODS. In the article the author analyzes international treaties that form the basis of the regime of international legal liability for marine pollution from ships, such as the Oil Pollution Damage Convention 1969, the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996, the International Convention on Civil Liability for Bunker Fuel Pollution Damage 2001. The research is based on general scientific methods of knowledge (system and structural approaches, analysis and synthesis, induction and deduction), as well as special methods used in legal science (comparative legal, historical legal and formal dogmatic). RESEARCH RESULTS. Based on the analysis carried out, the author came to the following research results: Together the three conventions - the CSA, the COW and the Bunker Convention - form a single regime of liability for marine pollution, the source of which are ships, and strive for identity of all definitions in order to avoid inconsistencies in their interpretation. DISCUSSION AND CONCLUSIONS. In the course of the analysis, the author referred to the debatable points expressed in the scientific literature concerning the completeness of the legal regulation of liability for marine pollution from ships. After which the author made a conclusion that, although a significant amount of marine pollution accounts for pollution from ships, the existing international legal mechanisms for regulating liability issues in this area can be regarded as sufficient.
Law of nations, Comparative law. International uniform law
The purpose of the study is to analyze some systemic problems in the organization and activities of the institution of the Human-Rights Ombudsman in Russia, bodies of the Prosecutor’s Office, the Investigative Committee of Russia, as well as the conditions of interaction between the Human-Rights Ombudsman and law enforcement and human rights bodies. The methodological basis of the study was the use of system-structural and dialectical methods of scientific knowledge. For a more detailed study of the problems, the methods of analysis, synthesis, and generalization were applied. For the study of normative legal regulations, special methods of document analysis in the field of knowledge under study were applied. The result of the study was the conclusion that the protection of human and civil rights and freedoms is an integral part of a developed democratic state governed by the rule of law. The authors believe that in order to improve the quality of protection of human and civil rights and freedoms it is necessary, first, to reform a large number of elements of the state system. Particular attention in all this must be paid, first and foremost, to the organization, activities, and legal status of the institution of the Human-Rights Ombudsman in Russia, as well as the bodies of the Russian Prosecutor’s Office and the Russian Investigative Committee. The second stage should be the creation of optimal conditions for interaction between the Russian Human-Rights Ombudsman and the Russian Prosecutor’s Office, the Russian Investigative Committee, and other law enforcement agencies in order to protect human and civil rights and freedoms. The novelty of the study is in the author’s approach to the consideration of these problems, as well as in the development of appropriate proposals to address them.
The authors underline that the greatest difficulties in understanding and applying the rule on the execution of an order arise when establishing the fact that the executor of the order understood the illegal nature of the latter. As we know the execution of orders is important for the functioning of state institutions and organizations, originally built on the principle of one-man management (army, navy, other legitimate armed groups, police and other law enforcement agencies). According to article 42 of the Russian Criminal Code the performer who refused to execute the illegal order is exempted from criminal liability. The legal «roots» of the execution of the order as a circumstance that excludes the crime of an act under national law are «rooted» in the provisions of international law -first of all, in the materials of the «Nuremberg Legacy». The Statute of the Nuremberg Tribunal and its Verdict for the irst time formulated a generally binding rule that the exe- cution of a criminal order does not exempt the performer from criminal liability, although it can be regarded as a mitigation sentence. This imperative order was later duplicated in many key documents of international law and national criminal law. The authors note that among such acts of international law, the Charter of the International Tribunal for the Former Yugoslavia and the Charter of the International Tribunal for Rwanda are valid for Russia. During the functioning of the international tribunals for the former Yugoslavia and Rwanda, their decisions formulated special rules for establishing limits on criminal liability for crimes committed pursuant to an order. And this experience should be used in the application of the relevant norms of national criminal law, in particular - in the application of article 356 of the Russian Criminal Code on prohibited methods and means of warfare. This circumstance is very important due to the fact that the Investigative Committee of Russia initiated a number of criminal cases on the commission of war crimes during the civil armed conflict in Eastern Ukraine. Based on the decisions of international tribunals for the former Yugoslavia and Rwanda, which are valid for Russia, the article deines a list of acts considered war crimes and falling within the scope of article 356 of the Russian Criminal Code, in respect of which a reference to the execution of an order cannot be recognized as acceptable. The crime of such acts is always recognized as obvious to the performer. Accordingly the provisions of article 42 of the Russian Criminal Code in the situation of committing any of these acts cannot be applied initially.
Law, History of scholarship and learning. The humanities
The article discusses the issues of historical validity of creating a collective subject of law in the form of a legal entity construction. The dual nature of a legal entity as a legal fiction and as a subject of legal relations is shown, which also determines the specificity of the liability of a legal entity and the grounds for its occurrence. This is especially true for such a reason as the presence of guilt, because by virtue of the artificial nature of the legal structure of a legal entity, the rules for determining its guilt differ from the rules applicable to an individual. The risks of ineffective punishment of individuals hiding behind the "screen" of an artificial subject of law are analyzed; use of a legal entity as an instrument for committing unlawful acts by individuals. A comparison is made of the features of holding a legal entity liable for committing acts in civil and public law spheres, as well as measures of this responsibility. The ideas on the possibility of a criminal procedure investigation of offenses of legal entities are considered, on the categorization of types of administrative responsibility and the amount of administrative fines in relation to legal entities.
Oleksandra Yanovska, Mykhailo Vilhushynskyi, Anna Bitsai
In the democratic countries, one of the main properties of public policy is to ensure the functioning of a stable economy; it requires special attention to the investigation and prevention of economic crime. However, the economic crime investigation can cause certain side effects, such as restriction or deprivation of property rights of individuals and legal entities. That is why the analysis of the peculiarities of the protection of property rights in the economic crimes investigation is particularly relevant. The purpose of the research is to generalize approaches for understanding the economic crime's nature and structure, analysing effective ways to protect property in the economic crimes investigation, as well as the specifics of releasing property from arrest as a way to protect third party property violated in the economic crimes investigation. Materials and methods: a set of general and special scientific methods was used in a study, in particular, the dialectical method; comparative legal method; methods of analysis and synthesis; formal logical (dogmatic) method; statistical method and generalization method. The empirical basis of the study is the cases of the Supreme Court (Ukraine) and the European Court of Human Rights, statistics of the State Judicial Administration of Ukraine for 2017-2019, as well as the authors' own experience as judge of the Supreme Court and the High Specialized Court of Ukraine for Civil and Criminal Cases. Results: there are two main approaches to understanding the essence of the concept of “economic crime” defined, its main features are identified and the system of economic crimes in Ukraine is characterized. It is argued that the application of such types of punishment for serious and especially serious profit-motivated crimes as special confiscation and confiscation of property is consistent with the practice of the ECHR. The case law of the Grand Chamber of the Supreme Court on determining the jurisdiction of legal disputes on the release of distrained property, used in the investigation of economic crimes, is summarized. Conclusions: for correct protection of the property rights of individuals and legal entities violated during the investigation of economic crimes, the state must ensure the proper functioning of effective legal means of protection of property rights.
Certain legal instruments have been developed in business transactions in order to facilitate the conclusion of an agreement under negotiation. The instruments of this kind are called precontractual agreements. They play an important role in shaping the legal situation of entities involved in the negotiation process. The basis for concluding precontractual agreements is the main principle of civil law, namely, the principle of freedom of contract. The most often mentioned precontractual agreements include a letter of intent and an agreement to negotiate. A letter of intent is a statement of intent to conclude an agreement in the future, although at a later stage of the letters exchange, they may also include statements of intent to continue negotiations. Legal doctrine has not developed a consistent categorization of letters of intent. Such attempts are limited to separating a number of terms, which intrinsically describe similar legal instruments. furthermore, an agreement to negotiate is a separate type of unnamed agreement, which aims to prepare the procedure of concluding the final contract through negotiation. It is a temporary contract related to a specific agreement which it concerns. An agreement to negotiate is a due diligence agreement. The infringement of provisions of an agreement to negotiate will result in contractual liability. The aim of the article is to answer the question whether, at the current stage of shaping legal relations, it is necessary to regulate precontractual agreements at the level of Eu legislation in order to harmonize them in the European union.
João Bosco Coura dos Reis, Liana Oighenstein Anderson, Eymar Silva Sampaio Lopes
et al.
Wildfires are responsible for great socio-economic and environmental damages every year. In the Amazon, fire occurrences are associated with land clearing and management practices and during the process of deforestation and agricultural expansion. Fire frequency, on the other hand, is related to the hydrological regime, and it is higher in the end of the dry season. There is also a direct relationship between extreme dry events with the number of large wildfires occurrences in the Amazon. During extreme drought conditions, fire-related gross carbon dioxide emissions can account for more than half of emissions related to land use and land cover change. Moreover, recent studies indicate a high probability of increasing the intensity and frequency of extreme droughts, leading the region to a fire-prone system. Supported by the National Policy on Protection and Civil Defense (PNPDEC) (Law No 12608), the development of monitoring systems can integrate the wildfire risk management, promoting the identification and evaluation of hazards and thus guide the decision-making. The objective of this work is the technical-scientific development of a monitoring and warning system of fire risk and impacts. In its first phase, we aim to develop the integration of fire occurrences from remote sensing data and geodata of rural properties of the Rural Environmental Registry (CAR), for the Acre State. The proposed system currently generates automatic and near-real time information about fire location, identification of rural properties, their owner, and land use and land cover of where fire is occurring. As well as providing a website to monitor the alert situation by the users, the system automatically generates warning bulletins, which can be used by environmental and control agencies to subsidize and coordinate response plans to prevent fire spread. The system is being tested in the Acre state situation room. Currently in its evaluation phase, we are now collecting stakeholders' feedback for the tailoring of the final information to be produced. The development of this project generated a methodology for the construction of a fire monitoring and warning system adequate for local and regional use, which will be replicated in other areas in Brazil, and potentially worldwide.
The basis for procedural protection of environmental rights is found in administrative procedure. In order to establish guarantees of an adequate and effective legal protection in environmental matters by administrative law instruments, the general administrative procedure should be transformed. Traditionally a one-party procedure, the administrative procedure necessarily becomes a two-party procedure, involving the participation of the public concerned. The legal framework for the protection of property rights which endanger or jeopardize the state of the environment is contained in the substantive law. The Serbian legal system provides such protection by envisaging general institutes in the field of compensation for damage and regulation of property rights. The case law provides many examples that point to numerous inconsistencies in the system of environment protection in civil and administrative proceedings. Thus, for example, operators of general-purpose activities are obliged to compensate injured persons only for damage exceeding normal limits. On several occasions, the case law has shown that the compensation of non-material damage for sustained physical pain, due to the negative impact of industrial and adjacent objects on the environment, can only be granted if the existence of property damage exceeding the "normal limits" is established. In doing so, emissions must be of such intensity as to cause continuous physical pain. According to the case law, periodic emissions, even when they exceed the limit values during certain intervals, do not justify the compensation of non-material damage. The reasons for the underdeveloped legal institutes that provide environment protection are found not only in the fact that the issues of protection of a healthy or adequate environment of certain quality fall into a branch of law that has been developing since the 1970s but also in the fact that there is insufficient understanding of the principles on which environmental law is based and whose implementation entails the necessary and essential change of legal instruments in both public and private law. The plaintiffs in public or private proceedings concerning environmental issues do not only protect their own rights and interests but also the general interest of environment protection. Infringement of the rights or interests of an individual caused by increased environment pollution would never remain a hindrance only to the protection seeker. New legal institutes that would ensure a more efficient, economical, timely and substantive protection of environmental rights should regulate issues of relevance to protection when an individual or group's interest is endangered or jeopardized, as well as in the event of a violation of the right to healthy environment as a object of special public interest and value. Linking the protection of this right to the public interest raises the issues of importance that environment protection has in a society and the way in which public interests are graded, including the interest of environment protection. Starting from this assumption, the paper points to the principles of environmental law and the dominant features of public law which have a significant impact on environmental protection in cases where legal institutes of private law are applied.
The article discusses the issues of historical validity of creating a collective subject of law in the form of a legal entity construction. The dual nature of a legal entity as a legal fiction and as a subject of legal relations is shown, which also determines the specificity of the liability of a legal entity and the grounds for its occurrence. This is especially true for such a reason as the presence of guilt, because by virtue of the artificial nature of the legal structure of a legal entity, the rules for determining its guilt differ from the rules applicable to an individual. The risks of ineffective punishment of individuals hiding behind the "screen" of an artificial subject of law are analyzed; use of a legal entity as an instrument for committing unlawful acts by individuals. A comparison is made of the features of holding a legal entity liable for committing acts in civil and public law spheres, as well as measures of this responsibility. The ideas on the possibility of a criminal procedure investigation of offenses of legal entities are considered, on the categorization of types of administrative responsibility and the amount of administrative fines in relation to legal entities.
The article considers the issue concerning the international legal problem of using armed forces to counter the threats posed by the misuse of civil aircraft, in particular, the use of civil aircraft as a weapon to kill people and destroy objects on the territory of States (the events of 11th September 2001 in the USA). It proves the need for universal international legal norms regulating the actions of States to prevent and suppress acts of the misuse of civil aircraft.
Major events ranging from sporting events to major international conferences too often result in disorder, deployment of riot squads, and mass arrests. Events surrounding a meeting of the G20 in Toronto and those at Vancouver’s Winter Olympics provide insight into the ways in which things can go wrong and the ways in which they can go well at major events. This article employs a “thick history” of events in order to explore gaps in Canadian law, including gaps between “law in the books” and “law in action.”
The legal frameworks governing large-scale events affect the likelihood of success measured in public safety, minimization of disorder, and protection of basic liberties. Surprisingly, large events often proceed without the benefit of a developed legal framework, leading to confusion among federal police, local police, and civil authority. We assess past reliance on the common law, a Vancouver City bylaw, Ontario’s Public Works Protection Act [PWPA], and the policing and security provisions of the federal Foreign Missions and International Organizations Act (Foreign Missions Act) in order to determine which sorts of legal arrangements are most conducive to successful event management. Since major events in Canada are most often developed in law’s penumbra, without the benefit of clear legal authority or statutory direction governing the measures that are required, both effective management and ordinary liberties are compromised. A “worst of both worlds” outcome destabilizes police–citizen relationships and leaves individuals uncertain as to the durability of their rights of property, speech, assembly, movement, and personal integrity. Equally, police forces are left insecure as to the lawful means by which they should perform their duties. A comparison of the two events provides the pathology and a prescription, illustrating the need for legislation to govern the management of major events.
Law, Law in general. Comparative and uniform law. Jurisprudence
Michael Bloomberg has been touted as the nation’s first “public health” mayor. Mayor Bloomberg’s final term as New York City’s mayor has now come to a close, and it is important to reflect on the accomplishments and challenges he has faced in leveraging law as a tool to promote public health efforts.
In a 2006 address, Bloomberg boldly stated that law is the principal instrument of public health policy. Throughout his time in office, Bloomberg has been forthright about taking legal measures to improve public health in the city. His initiatives include banning trans fat, forbidding smoking in restaurants, and putting a cap on soda sizes. Bloomberg has received both praise for his work in public health and condemnation for his policies that may place restrictions on individual liberty and create a “nanny state.” Some argue that legal coercive measures should be substituted for lesser restrictive alternatives, such as persuasion through public information campaigns. Critics, like Richard Epstein, see modern public health law as overly inclusive, intrusive, and unduly infringing on individual freedom.[1] While less intrusive measures are certainly preferred as the first line of defense in public health, coercive measures such as laws are necessary to ensure the health and safety of the population. As Thomas Friedan posits, “When government fails to protect and improve people’s health, society suffers.”[2] Accordingly, governments are faced with the challenge of taking the most effective, yet least restrictive, means to maximize health benefit, even if it means taking coercive measures at the expense of individual liberty.
Salus Populi Suprema Lex: The Well-Being of the Public Is the Supreme Law
Democratically elected governments have legal authority to protect the public’s health.[3] It has been long established through Jacobson v Massachusetts that the state has the police power authority to create legislation to protect the health, safety, and general welfare of the population.[4] While public health action is sometimes characterized as inappropriately intrusive, the population’s reliance on the state for protection implies an ethical obligation for the government to exercise its authority to ensure health and safety. Individual liberty must be subordinated to protect the common public health good. Accordingly, the state is justified to use public force to achieve this end.[5]
Be that as it may, regulation of individual behavior through laws and other coercive measures is often met with opposition. Under the Millian harm principle, which holds that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others,” intervention and regulation on individual behavior is justified so long as it prevents harm and risk to others.[6] Liberalism, a dominant philosophy in the United States, centers on the values of freedom, self-determination, personal responsibility, and limited government. Champions of autonomy would argue that competent individuals should be free from controlling interferences. Any infringement on liberty, privacy, individual choice, and economic freedom can be seen as a violation of rights.Similarly, Kantian philosophers would argue that an individual cannot be used to further another’s objectives without regard to his own goals, or in other words, a man should not be used as a means to an end. Accordingly, interventions that intrude on individual freedom and do not offer any direct benefit to the individual can be viewed as unethical, regardless of the beneficent intent.
Regardless of these ethical concerns, public health laws are still created and generally accepted with the understanding that people enter into a social contract and willingly forgo some self-interest in exchange for protection, or otherwise face a tragedy of the commons.[7] The tragedy of the commons is a dilemma that arises when multiple individuals, each acting independently and rationally according to their own self-interest, ultimately deplete a shared limited resource even when it is clear that it is not in anyone's long-term interest for this to happen.[8] One case that illustrates public health efforts to avoid the “tragedy of the commons” is the case of mandatory vaccination laws and herd immunity. Herd immunity occurs when a significant portion of a community is immunized against a contagious disease, thereby protecting most members of the community against that disease because there is little opportunity for an outbreak. Once a certain proportion of the community is immunized, those who are not eligible for certain vaccines, including infants, pregnant women, and immunocompromised adults, have some protection because the spread of contagious disease is contained. This is also known as community immunity.
While opinions vary about whether different health behaviors should be regulated, one need only look at the success of the New York City series of anti-smoking laws to understand the success of law-based public health campaigns. While these laws were first seen as an infringement on individual liberty and potentially detrimental to business, they gained wide public acceptance throughout the years as they proved to be efficient, cost-effective, and life saving.
Persuasive and Coercive Measures in Public Health
All public health measures aiming to affect individual behavior lie on the spectrum between persuasion and coercion. Law is essentially an act of coercion, as laws limit, by threat or penalty, individual choice through eliminating, restricting, or burdening an option, thereby diminishing autonomy.[9] On the other hand, acts of persuasion, such as public information campaigns, are intended to change individual action through appeals to reason.[10]
Critics like Epstein argue in favor of a narrower conception of public health and limiting the scope of coercive government intervention.[11] Persuasive measures, such as educational public health campaigns, are certainly less restrictive than laws. However, it is important to consider whether these campaigns are as efficacious or cost-effective. While intervention through public health communications is effective in raising awareness of health risks and promoting the adoption of recommended treatment regimens, interventions alone often do not have enough clout to change health behavior on a mass scale.[12] Furthermore, education-based campaigns in public health are not without ethical concerns. Such campaigns are often sullied by issues of manipulation, stigma, responsibility, and stereotyping, thereby compromising individual autonomy in persuasive health measures.[13]
While persuasion is preferable over coercion from a bioethics and human rights perspective, it is not without ethical concerns. Persuasive public health campaigns may contain elements of manipulation or nonargumentative influence through reason countering or reason bypassing, causing the campaigns to have undue influence on autonomy. Reason-countering nonargumentative influence occurs when methods of manipulation change one’s affective state, including playing on social pressures and personal desires. Similarly, reason-bypassing nonargumentative influence occurs when a person's reasoning capacities or awareness through framing (setting up an environment a certain way) is primed using subconscious cues.[14]
Beyond the ethical concerns that accompany persuasive public health campaigns, it is said that persuasion alone through educational public health campaigns is not enough for effective change in health behavior on a mass scale. As Willard Gaylen and Bruce Jennings posit, “Coercion is usually quicker and surer than education.”[15] In other words, law is more effective and efficient in achieving public health goals than public health campaigns.
Risk Proportionality, Least Restrictive Means, and Public Trust
The state’s fundamental authority to protect the population’s safety and welfare is limited by the individual’s legally protected rights to autonomy, privacy, liberty, and property. To intrude on individual liberties, the state must first demonstrate a rational and legitimate interest in intervention. Accordingly, one must assess the nature, duration, probability, and severity of the risk at hand. For example, in the case of bioterrorism, there is uncertain risk but potentially high magnitude of harm.[16] In cases where public health risks may be unknown, responses must be swift and bold. In such cases, it is best to adhere to the precautionary principle. In the absence of certainty, coercive action is acceptable to protect the public, so long as the action is proportional to the suspected risk of harm.
According to the principle of proportionality, the least restrictive means should be exercised so as not to unduly compromise the rights and liberties of an individual. While persuasive measures, such as public health campaigns, are certainly less restrictive, it is difficult to demonstrate efficacy or cost-effectiveness compared to coercive measures. Many would argue that if a persuasive measure is proven to be equally effective and cost-efficient as a coercive measure, it should be taken over a coercive measure. Similarly, the principle of proportionality purports that in nonemergency cases, measures should be made voluntary before legal mandates or sanctions are issued. This theory rests on the concept that if a government requires citizens to sacrifice their own liberties for the good of others, then the government has a reciprocal obligation to provide a safe, habitable environment. Moreover, it is essential that public health policies are applied across society equally, in a nondiscriminative fashion.[17] This is essential for maintaining public trust and cooperation.[18] With only 40 percent of Americans reporting trust in public health officials, this will be no easy task.[19] At minimum, authorities should clearly communicate measures and their justifications in a timely fashion and allow for a process of appeal.[20] Low levels of trust translate into low rates of public cooperation, which may make a community more vulnerable to harm during states of public health emergencies. These concerns call for public discourse on coercive measures by the majority affected so that the laws are mutually agreed upon within the community.
Conclusion
Achieving a just balance between maintaining individual liberties and ensuring health and safety of the population is an enduring problem for public health authorities. Champions of autonomy see public health law as an unwarranted violation of one’s autonomy and personal liberties. On the other hand, utilitarian thinkers consider law as a way to ensure the health and welfare of the community. As public health threats become increasingly complex, it is important to ensure that new laws keep pace with ethical principles. Trade-offs must be made to ensure that collective benefits of population health warrant infringement on individual rights, while balancing competing ethical, health, economic, and political concerns. As New York City says goodbye to Mayor Bloomberg, we reflect on the progress made in public health policy during his tenure as mayor. Much has changed in the field of public health in the last decade, but it stands that fair and effective law remains the cornerstone of successful public health policy.
References:
[1] Richard Allen Epstein, “Let the Shoemaker Stick to His Last: A Defense of the "Old" Public Health,” Perspectives in Biology and Medicine 46 (2003): S138-S159.
[2] Thomas Frieden, “Government's Role in Protecting Health and Safety,” N Engl J Med. 368 (2013): 1857-1859.
[3] Lawrence Gostin, “Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension,” Am J Public Health 95, no. 4 (2005): 576–581.
[4] Jacobson v. Massachusetts, 197 U.S. 11 (1905).
[5] Epstein, Perspectives, S138-S159.
[6] Gostin, Public Health Law: Power, Duty, Restraint (2009).
[7] Gaylen and Jennings, “The Perversion of Autonomy, Revised and Expanded Edition: The Perversion of Autonomy: Coercion and Constraints in a Liberal Society,” (2003).
[8] Garrett Hardin, “Tragedy of the Commons,” Science 162, no. 3859 (1968):1243-1248.
[9] Gaylen and Jennings, “The Perversion.”
[10] Ruth Faden, “Ethical Issues in Government Sponsored Public Health Campaigns.”
[11] Blumenthal-Barby, “Between Reason and Coercion: Ethically Permissible Influence in Health Care and Health Policy Contexts,” Kennedy Institute of Ethics Journal, 22, no. 4 (2012): 345–366. By The Johns Hopkins University Press.
[12] Gaylen and Jennings, “The Perversion.”
[13] Epstein, Perspectives, S138-S159.
[14] Nurit Guttman, “Guilt, Fear, Stigma and Knowledge Gaps: Ethical Issues in Public Health Communication Interventions,” Bioethics 18, no 6 (2004): 531-52.
[15] Ruth Faden, “Ethical Issues,” 27-37.
[16] Lawrence Gostin, “Jacobson,” 576–581.
[17] Lawrence Gostin, “Ethical and Legal Challenges Posed By Severe Acute Respiratory Syndrome,” JAMA 290, no. 24 (2003): 3229-37.
[18] RJ. Blendon, “Attitudes Toward The Use Of Quarantine In A Public Health Emergency In Four Countries,” Health Affairs 25, no. 2 (2006): 15-25.
[19] Ibid.
[20] Lawrence Gostin, “Ethical,” 3229-37.