scholarly journals Coercion and the Prima Facie Duty to Obey the Law

2020 ◽  
pp. 11-29
Author(s):  
Jhonatan Crowe
Keyword(s):  
Social Norms ◽  
Moral Hazard ◽  
Legal System ◽  
Legal Status ◽  
Prima Facie ◽  
Moral Obligations ◽  
Positive Law ◽  
Social Coordination ◽  
Prima Facie Duty

This article examines the role of coercion in grounding a prima facie duty to obey the positive law. I argue that there is at least a weak prima facie duty to obey the positive law in a minimally effective and just legal system. The fact that a norm holds positive legal status within a minimally effective and just legal system gives people presumptive reason to believe that the norm is a salient and reasonable means of social coordination and therefore that they have pro tanto reason to follow it. Coercive sanctions may bolster the salience of social norms by giving people incentive to follow them. They also make it more likely that an agent’s decision to follow a particular norm will be reasonable, by creating the prospect that the reasons supplied by the sanctions will override any deficits in the salience or reasonableness of the norm itself. A legal system with strong coercive enforcement is therefore more likely than a less coercive system (other things being equal) to present its subjects with both prima facie and pro tanto moral obligations. This reliance on coercion, however, carries a significant moral hazard, since it may bootstrap inefficient or unreasonable norms into a position of epistemological and moral weight.

Intrafamilial Organ Donation Is Often an Altruistic Act

2003 ◽  
Vol 12 (1) ◽  
pp. 116-118 ◽  
Author(s):  
Aaron Spital
Keyword(s):  
Young Children ◽  
Organ Donation ◽  
Genetic Relationship ◽  
Recent Article ◽  
Family Members ◽  
Prima Facie ◽  
Moral Obligations ◽  
Logical Conclusion ◽  
Prima Facie Duty

In their recent article, Glannon and Ross remind us that family members have obligations to help each other that strangers do not have. They argue, I believe correctly, that what creates moral obligations within families is not genetic relationship but rather a sharing of intimacy. For no one are these obligations stronger than they are for parents of young children. This observation leads the authors to the logical conclusion that organ donation by a parent to her child is not optional but rather a prima facie duty. However, Glannon and Ross go a step further by suggesting that because parent-to-child organ donation is a duty, it cannot be altruistic. They assert that “altruistic acts are optional, nonobligatory…supererogatory…. Given that altruism consists in purely optional actions presupposing no duty to aid others, any parental act that counts as meeting a child's needs cannot be altruistic.” Here I think the authors go too far.

scholarly journals Determinants of Legal Behaviour

2021 ◽  
Vol 3 (3) ◽  
pp. 33-50
Author(s):  
Andrey V. Scorobogatov ◽  
Keyword(s):  
Legal Status ◽  
Social Role ◽  
Global Scale ◽  
Subjective Perception ◽  
Legal Tradition ◽  
Positive Law ◽  
Role Of The State ◽  
The Social ◽  
The Individual

Introduction. This article is devoted to the research of essence and the legal behaviour of the person. The purpose of article is the identification of the factors influencing formation, development and content of legal behaviour. Theoretical Basis. Methods. The article is based methodologically on the post-classical anthropological paradigm which allows consideration of legal behaviour through a prism of subjective perception by the person. The studying of fundamental bases of legal behaviour is impossible without identification of their valuable basis. Results. It is proved that the commission by the person of certain actions in the legal sphere depends on the individual and the social system of legal values, the individual and society (social group) relation to them, legal status of the personality and the social role which is carried out by it. The classification of legal behaviour on the basis of an axiological approach assumes an allocation of the person which is active, ordinary and passive depending on degree of readiness to carry out the legal actions, being guided by the valuable orientations and installations determined by legal socialisation and the system of legal values of group with which the subject identifies themselves. At the same time, it is insignificant how these actions meet the standards of positive law. However, the legal behaviour often has situational character. In this case its contents are defined by the system of so-called individual person law. The behaviour of the person is the result of operation of the special mechanism consisting of consistently realised elements that connected among themselves not only cognitively but also functionally including legal requirement, legal interest, legal motive, legal orientation, legal installation, legal decision, and legal act. These elements consistently replace each other, providing an interrelation of legal behaviour with legal awareness. The role of the state in formation of the person’s legal behaviour, though is very considerable, but it is not defining. In the process of legal socialisation the cognitive elements of the mechanism of legal behavior determined by legal tradition in combination with social and individual legal experience are formed. Discussion and Conclusion. The analysis of legal behaviour is aimed at expanding the value ideas of legal reality. This will allow a deeper look at legal development on a global scale.

Expanding a Formal Role for Islamic Law in the Indonesian Legal System: The Case of Mu’Amalat

2007 ◽  
Vol 23 (1) ◽  
pp. 249-270
Author(s):  
Alfitri
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Islamic State ◽  
Specific Question ◽  
Legal Code ◽  
Positive Law ◽  
Islamic Jurisprudence ◽  
Personal Law ◽  
Religious Courts

Contemporary conflicts over efforts to expand the role of Islamic law in the national legal system of Indonesia are so intense that they undermine reasoned public debate about this question. They are part of a long-standing polemic, not only about the role of Shariah in Indonesia generally but about the specific question of whether the Jakarta Charter, which references obligations to obey Islamic law, should be restored as part of the Constitution. This article is an attempt to revive the neglected academic discourse on the role of Islamic jurisprudence in Indonesian law, and to move beyond the confused polemics to a thoughtful consideration of where Islamic law fits in a non-Islamic state such as Indonesia. Because Indonesia is a secular state, the Shariah as a whole is not enforced by the state, but the Shariah has a significant meaning for Muslims in Indonesia because it provides the norms distinguishing the obligatory and recommended from those actions which are neutral, disapproved and prohibited in Muslims' lives. Moreover, some elements of Islamic jurisprudence in personal law have been absorbed into positive law in Indonesia through the decisions of religious courts, which have existed since the Dutch colonialism,3 as currently regulated by Law No. 7/1989. The Compilation of Islamic Law No. 1/1991 essentially functions as the legal code for all Muslims who must resort to the religious courts for the adjudication of disputes involving marriage, divorce, inheritance and waqf. Thus, consideration of the propriety of attempts to extend Islamic law to matters of property and of contract is appropriate at this time.

scholarly journals Aktualisasi Pancasila sebagai Sumber Hukum dalam Pembentukan Undang-Undang

2020 ◽  
Vol 3 (2) ◽  
pp. 377-407
Author(s):  
Arfa'i Arfa'i ◽  
Bahder Johan Nasution ◽  
Febrian Febrian
Keyword(s):  
Legal System ◽  
Vital Role ◽  
Positive Law ◽  
The Law

In the Indonesian legal system, Pancasila is the source of all sources of law, the basis of the national law, and functions as rechtsidee. With such a position, all positive laws should reflect and be in line with Pancasila values. This article aims at exploring how Pancasila values actualized in the legislation of law. This article demonstrates that despite the vital role of Pancasila as long the legislation of law  is concerned, there are no clear indicators and variables indicating that a law has reflected and been in line with Pancasila values. It is also found that there is no model or mechanism for testing whether the law which under legislation has been appropriate and conformed with Pancasila. The current indicators and variables are the ones set by the Agency for National Law Development (BPHN) and the Agency for Pancasila Ideology Education (BPIP), and are used to evaluate a positive law. In fact, they are not the ones intended to to evaluate a law which is currently in the level of legislation. This article argues that in order to actualize Pancasila values in the established law, indicators and variables regarding Pancasila values need to be regulated in a law. Besides, it is encouraged that the evaluation and testing mechanisms be implemented during legislation process. Abstrak Dalam sistem hukum Indonesia, Pancasila merupakan sumber dari segala sumber hukum, dasar hukum nasional, dan cita hukum. Dengan kedudukan yang demikian itu, maka sudah seharusnya semua hukum yang dibentuk mencerminkan atau selaras dengan nilai-nilai Pancasila. Artikel ini bermaksud menelusuri bagaimana nilai-nilai Pancasila diaktualisasi dalam pembentukan suatu undang-undang. Dalam artikel ini ditunjukkan, sekalipun Pancasila memiliki peran yang sangat penting bagi suatu undang-undang yang dibentuk, ternyata belum ada indikator dan variabel tentang undang-undang yang mencerminkan atau selaras dengan nilai-nilai Pancasila. Artikel ini juga menunjukkan, belum ada model atau mekanisme pengujian apakah undang-undang yang sedang dalam tahap pembentukannya telah sesuai dan selaras dengan Pancasila. Indikator dan variabel yang ada sejauh ini ialah yang ditetapkan oleh Badan Pembinaan Hukum Nasional dan Badan Pembinaan Ideologi Pancasila, dan digunakan untuk mengevaluasi suatu undang-undang yang telah berlaku, bukan yang sedang dalam tahap pembentukannya. Karena itu, agar nilai-nilai Pancasila semakin teraktualisasi dalam undang-undang yang dibentuk, maka indikator dan variabel tentang nilai-nilai Pancasila perlu diatur dalam undang-undang, dan mekanisme evaluasi dan pengujiannya perlu didorong agar dapat dilakukan pula pada saat undang-undang sedang dalam tahap pembentukannya.

Covert Positive Incentives as an Alternative to War

2018 ◽  
Vol 32 (3) ◽  
pp. 293-303 ◽  
Author(s):  
James Pattison
Keyword(s):  
Human Rights ◽  
Public Opinion ◽  
Moral Hazard ◽  
International Society ◽  
Prima Facie ◽  
Weapons Of Mass Destruction ◽  
Mass Destruction ◽  
Human Rights Abuses ◽  
Military Action ◽  
Prima Facie Duty

AbstractAlthough often overlooked, positive incentives can play a key role in tackling aggression, human rights abuses, and the spread of weapons of mass destruction. In this essay, I focus on one form of positive incentives: covert incentives. First, I argue that covert incentives are preferable to overt incentives since they enable policymakers to eschew the shackles of public opinion and avoid worries of moral hazard and the corruption of international society. Second, I argue that covert incentives are often more justifiable than covert force since they do not involve problematic methods and do not make it easier to undertake military action. Accordingly, I conclude that there is a prima facie duty to employ covert positive incentives as opposed to overt incentives and covert force.

scholarly journals The Many Faces of "Prima Facie"

Refuge ◽  
2008 ◽  
Vol 25 (2) ◽  
pp. 151-163
Author(s):  
Jean-François Durieux
Keyword(s):  
Legal Status ◽  
Prima Facie ◽  
Point Of View ◽  
Refugee Status ◽  
Value Judgments ◽  
International Protection ◽  
Decision Making Processes ◽  
The Many ◽  
Evidentiary Standards

The majority of the world’s refugees have secured a legal status without resort to an individual examination of their claims. The practice of “group” determination, particularly in Africa, is interesting in several aspects, not least in that it allows a real-time assessment of a need for international protection. While these positive aspects should not be lost as many jurisdictions in the developing world are equipping themselves with individual asylum procedures, it is equally important to clarify, and hopefully to harmonize, the procedural and evidentiary standards applicable to group determination. How presumptions operate—including their rebuttal or removal—is a question worth examining, and not only with regard to refugee status determination (RSD) in mass influx situations. Legal presumptions and other evidentiary shortcuts have also been introduced into individual RSD procedures in industrialized states. These include mechanisms that are highly problematic from a protection point of view, such as the “safe country of origin” presumption of a “manifestly unfounded” claim. However, administrative bodies and courts have also, from time to time, used some form of prima facie admission of evidence in order to lighten the burden of asylum applicants, while speeding up the RSD process. Furthermore, this article argues that extralegal presumptions, based on implicit value judgments about national or subnational groups, almost invariably colour the interviewing and decision-making processes in individual cases. Th is finding makes it all the more necessary : to (i) to re-assess the signifi cance of “risk-group affi liation” as an element of the refugee defi nition; and (ii) formally recognize the role of evidentiary shortcuts in RSD, and recommend appropriate standards for their operation.

The Role of Imaginary Cases in Ethics

2021 ◽  
pp. 62-74
Author(s):  
Jonathan Dancy
Keyword(s):  
Prima Facie ◽  
Real Case ◽  
Standard Practice ◽  
The Real ◽  
Correct Account ◽  
Prima Facie Duty

This paper examines the rationale for the standard practice in ethics of arguing from imaginary cases to real ones. Challengeable aspects of this practice are exposed. One question is whether an imaginary case is being taken to establish a Rossian prima facie duty or a duty proper. Another is whether, once we have established the correct account of an imaginary case, we can be sure that another case similar to the first in all respects relevant to our account of the first must be given the same account, irrespective of other differences. A generalist will try to extract principles from the imaginary case and apply them to the real case. This paper argues that this is hopeless. Is particularism in a better situation? A possible line is that what the imaginary case reveals is the importance that certain features can have and may have in the real case before us. No more can be expected.

1 International Investment in China and the Bit Programme

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Legal System ◽  
Foreign Investment ◽  
Legal Status ◽  
Historical Review ◽  
International Investment ◽  
Chinese Investment ◽  
Investment Treaties ◽  
Investment In China ◽  
Changing Role

This chapter examines the changing role of China in international investment, including a historical review followed by a discussion of the main forms of foreign investment in China. It then analyzes aspects of the Chinese investment treaties, focusing on the evolution and features of the BIT programme and the legal status of investment treaties within the Chinese legal system. The chapter ends with a brief introduction to the book.

The Spanish Translation of Les Leçons de chimie élémentaire: On the Legal Status of Translation and its Various Values

2019 ◽  
Vol 16 (2-3) ◽  
pp. 201-215
Author(s):  
Tania P. Hernández-Hernández
Keyword(s):  
Complex Network ◽  
Latin American ◽  
Legal System ◽  
Legal Status ◽  
Spanish Translation ◽  
Cultural Economic ◽  
Translation Rights ◽  
International Legal System ◽  
Latin American Countries ◽  
Legal Battle

Throughout the nineteenth century, European booksellers and publishers, mostly from France, England, Germany and Spain, produced textual materials in Europe and introduced them into Mexico and other Latin American countries. These transatlantic interchanges unfolded against the backdrop of the emergence of the international legal system to protect translation rights and required the involvement of a complex network of agents who carried with them publishing, translating and negotiating practices, in addition to books, pamphlets, prints and other goods. Tracing the trajectories of translated books and the socio-cultural, economic and legal forces shaping them, this article examines the legal battle over the translation and publishing rights of Les Leçons de chimie élémentaire, a chemistry book authored by Jean Girardin and translated and published in Spanish by Jean-Frédéric Rosa. Drawing on a socio-historical approach to translation, I argue that the arguments presented by both parties are indicative of the uncertainty surrounding the legal status of translated texts and of the different values then attributed to translation.

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