Federal Responses, 1984–2014

The chapter analyzes significant federal attempts to challenge pornography production and distribution in 1984–2014. The empirical, harm-based legal argument of the 1986 Attorney General’s Commission on Pornography and its endorsement of the MacKinnon-Dworkin civil rights ordinance are assessed. The million-dollar P.R. campaign to discredit the Commission’s work is discussed. Congressional civil rights bills introduced in 1984–1992 are examined, including amendments by Senators Heflin, Specter, and Biden that watered down the bills’ potential. Renewed Department of Justice efforts in 2002–2014 to indict high-profile producers/distributors of violent and degrading pornography under obscenity statutes are studied. Their legal concepts of obscenity and contemporary community standards, and the documented desensitization to women’s subordination fueled by pornography, are shown to exclude from legal action all but the most extreme materials. The strategy’s underlying frailty is exposed through an analysis of its constitutional litigation. The chapter concludes by comparing the obscenity approach with the civil rights approach and presenting alternative combinations.

The Anti-pornography Civil Rights Ordinances, 1983–1991

The chapter analyzes attempted civil rights legislation against pornography (the “MacKinnon-Dworkin” ordinance). It delineates its underlying hierarchy theory: consciousness-raising, group representation, and intersectional legal analysis—a commanding approach to end oppression through civil lawsuits against producers and disseminators, avoiding criminal law. The contemporaneous critics’ charges of “rigidity” and “one-sidedness” are found wanting, inadequately apprehending hierarchy and subordination. The ordinances’ definitions are shown to target provably harmful material only, preventing overbreadth and vagueness. A legal argument is advanced that the ordinances are narrowly tailored to serve a compelling interest, the incidental restrictions on alleged First Amendment freedoms are no greater than is essential to further their interest, and the definitions are sufficiently analogous to other unprotected expressions (e.g., obscenity and group libel). The Seventh Circuit’s judicial invalidation in American Booksellers Association v. Hudnut (1985) is found based on ideology rather than law, political ideas rather than legislated rules.

Virtual Property Pada Game Online Dalam Perspektif Hukum Ekonomi Syariah

The development of technology has brought a variety of high-tech entertainment, one of which is developing games (games) both offline and online. Online games are games that are widely enjoyed, especially by children and teenagers. Today's online game play is not just a game, but in it there are economic activities in the form of buying and selling which have an effect on ownership of virtual objects (Virtual Property. The conclusion of this study is that Virtual Property can be recognized as a treasure in Islam. Although it does not have a real form, there is a value that is recognized by the community so that it becomes part of the property. Because it is recognized as property, buying and selling with this object is permissible and lawful. Recognition of the existence of virtual property is based on the theory of urf, namely that everything that is considered good and permissible by the community can then be a legal argument.

The Construction of Constitutional Rights

This chapter calls for the construction of constitutional rights as principles rather than as rules. The rule construction conceives subsumption or classification as the appropriate form for the application of constitutional rights. In this way, it attempts to avoid the problems associated with balancing. By contrast, the principles construction argues that balancing is inevitable and unavoidable. Balancing is at the very core of the proportionality test. The debate over the construction of constitutional rights is, therefore, first and foremost a debate over proportionality analysis. The central objection to the principles construction is that balancing, and by the same token, the proportionality test, is irrational. This irrationality objection is countered by analysis of the formal structure of balancing; the analysis shows that balancing is a case of rational legal argument that is explicated by means of an arithmetic formula: the Weight Formula. The Weight Formula provides a demonstration of how and why balancing is possible as a form of rational legal argument. It also makes it possible to show that proportionality analysis does not endanger the power of constitutional rights.

International law, politics and opposition to the Iraq War

A key feature of the Iraq war was the prominence of international legal argument. This article argues that the motif of the ‘illegal war’ was crucial in mobilisations against the war. It traces the reasons for the prominence of this ‘illegal war’ motif and the wider political consequences of its adoption.

Russia, the Right to Self-Determination and Annexation

Chapter 4 is the last of three chapters analysing Russia’s post-Soviet state practice with regard to the right to self-determination. It shows how Russia (ab)used the right of peoples to self-determination as a pretext to justify territorial acquisitions by the threat and use of force, in particular in the context of Russia’s annexation of Crimea in 2014, but also in its retrospect evaluation of the Soviet Union’s annexation of the Baltic states in 1940. Apart from a ‘referendum’, Russia’s main legal argument for the legality of Crimea’s incorporation into the Russian Federation was based on the reading that the Ukrainian Revolution had created an ‘extreme situation’ in which Crimea’s right to self-determination could not be exercised any longer in the constitutional framework of Ukraine. As in the cases of South Ossetia and Abkhazia, the claim of a right of secession had however no sufficient factual basis, although the underlying legal view—that the right of peoples to self-determination may confer a right of secession in ‘extreme situations’—was consistent with earlier state practice. ‘Crimea’ arguably marked a shift away from legal argumentation towards recourse to eclectic historical claims and restoration of hegemonic power, in which the right of peoples to self-determination continues to function as a central legal argument, but legal reasoning more generally loses its dominant position in the official justification of Russia’s state practice in the post-Soviet space.

Changing Climate, Unchanged Mandate: bric Countries in the UN Security Council

The UN Security Council has turned its attention to the link between climate change and security several times. Its members and other UN member states participating in discussions have remained divided over the Council’s engagement. Among vocal opponents are the bric countries: Brazil, Russia, India, and China. This article examines the argumentation of these countries during seven UN Security Council meetings between 2007 and 2020. The bric countries often concede that climate change is a threat, but they strongly resist the idea that such a threat could be addressed by the Council. I use a Critical Legal Studies approach to analyse how the bric countries bolstered their key argumentation before the Council. I find that the bric countries exploited a ‘background rule’ concerning the unsc mandate and used it to reaffirm the limits on the Council’s action. They were thus able to avoid self-contradiction and strengthen their political position through a legal argument. This complemented other objections they raised against the Council’s involvement: its insufficient expertise, inefficient tools, and the inapplicability of the principle of common but differentiated responsibilities to its decision-making.

Sanksi Pidana oleh Tindak Pidana Mengedarkan Simpanan Farmasi Kosmetika Tanpa Izin Edar (Studi Kasus Putusan Pengadilan Negeri Denpasar No. Perkara 491/Pid.Sus/2018/PN DPS)

This study aims to identify and explain criminal sanctions for cosmetic producers or sellers who do not have this distribution license. The type of research used is normative legal research by analysing cases using the Denpasar District Court Decision Case Number 491/Pid.Sus /2018/ PN DPS. This study uses a statutory approach by examining all laws related to this case, conceptually by combining the opinions of experts so that it becomes the author's legal argument, and the case approach is by using a court decision. The results of the study show that there must be elements that indicate that a person has committed a criminal act, and in this writing there are 3 (three) elements that explain that the defendant committed a criminal act. Imposition by the criminal sanction of distributing cosmetic pharmaceutical deposits that do not obtain a distribution permit as regulated in Law Number 36 of 2009 concerning health is regulated in articles 197-201. In this case, the Panel of Judges considered Article 197, namely a maximum imprisonment of 10 (ten) years and a maximum fine of 1,000,000,000 (one billion rupiah). However, the defendant here does not need to undergo the sentence unless later there is another order from the Judge's decision that he has been guilty of committing a criminal act during the probation period has not ended.