Rejoinder to Dominiak on the necessity of easements

Dominiak (2019) agrees with the Blockian proviso: homesteading in a bagel or donut format is illicit, since it allows the owner to control land (the hole, the territory in the middle) with which he has not mixed his labor. Thus, a person who does so must open up an easement allowing outside home-steaders through his property, and into this so-far virgin land. But, this author claims this proviso of Block’s does not go far enough. It should also be extended further, not only to incorporate the bagel format, but also in justification of easements through private property in emergencies, and so as to avoid entrapment. I strongly support Dominiak in his defense of the Blockian proviso against critics (Kinsella, 2007, 2009C) in the first part of his excellent paper, but find I cannot agree with this second contention of his. In short, Dominiak agrees with Block regarding easements in the bagel case, but wants to extend this concept to when property owners are encircled, and thus trapped. In my view, extending easements to cases other than the bagel is incompatible with libertarianism’s emphasis on the sanctity of private property rights. Certain positive rights (to, in this case, movement) are essential to Dominiak’s argument. And these rights do not exist. Therefore, Dominiak’s argument is unsound.

Democracy and Hierarchy

The chapter sets forth a political theory of what would make legal challenges to pornography successful. Obstacles are identified in early liberal concepts of “negative rights,” which prevent interventions against non-state abuses of power. A nuanced view of power recognizes “positive rights” to intervention. The feminist theory of consciousness-raising is explored, shedding light on the necessity of subordinated groups’ representation. Intersectionality theory illustrates how multiple disadvantages prevent redress for people harmed by pornography under existing laws. Hence, legal challenges are hypothesized to be more efficient when the perspectives and interests of survivor groups of pornography-related harms are represented. The postmodern position submitting that subordinated groups’ rights should not be recognized, claiming they will be misappropriated and “renaturalize” oppression, is criticized for being a reductionist anti-state position conflating social categorization with its material consequences, thus denying (like negative rights do) a politics that could challenge that same oppressive material reality.

Religious freedom and the right against religious discrimination: Democracy as the missing link

The article puts forward a novel democratic framework to rethink the relationships between religious freedom and religious discrimination. First, it makes a case for a unifying normative basis for all religious interests grounded in a democratic framework, which emphasises the dual dimension of religious interests, both as negative rights protecting individual autonomy against interferences as well as positive rights of participation. Second, it builds upon this democratic framework to revisit the relationships between discrimination law and religious freedom and guard against trends to subject discrimination law claims to preliminary (higher) thresholds. Third, the article examines how contextual balancing exercises between competing interests should (and to a large extent have) become a key unifying feature of both routes and draws from the democratic framework insights as to how these balancing exercises should be carried out.

The Dual Nature of Law

The argument of this chapter is that the dual-nature thesis is not only capable of solving the problem of legal positivism but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real ‘ought’ and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law.

Doctrinal Approaches on determining the Content of Intellectual Property Right

Thіs аrtіcle аttemрts to conduct а scіentіfіc аnd theoretіcаl аnаlysіs of the content of іntellectuаl рroрerty rіghts. The exіstіng scіentіfіc аррroаches to determіne the system of рersonаl non-рroрerty rіghts аnd рroрerty (exclusіve) rіghts to the results of іntellectuаl аctіvіty аnd objects equаted to them аre studied. The essence of the system of рersonаl non-рroрerty rіghts іs determіned. Thus, the subjectіve rіght to the result of іntellectuаl, creаtіve аctіvіty аnd objects equаted to them cаn be eіther рroрerty (exclusіve) or рersonаl non-рroрerty, but not both аt the sаme tіme. Personal non-property rights can belong only to the creator (author). They do not depend on property rights and are closely related to the identity of the author (creator); are protected indefinitely and may not be transferred to other persons, except as provided by law. Personal non-property copyrights do not have economical content, are not negotiable, despite the existence of a legal norm on compensation for non-pecuniary damage due to the violation of personal rights. Іt іs determіned thаt the рroрerty rіght to the result of іntellectuаl, creаtіve аctіvіty аnd objects equаted to them іs аn exclusіve rіght іn its essence. Its exclusіvіty іs the fact thаt only the rіght holder mаy decіde to tаke аррroрrіаte аctіon on the results of іntellectuаl, creаtіve аctіvіtіes аnd objects equаted to them, whіle аll other рersons must obtаіn рermіssіon іn eаch cаse from the rіght holder to use the result of іntellectuаl, creаtіve аctіvіtіes аnd objects equаted to іt. Property (exclusive) rights can freely transferred to other persons and are urgent (the period of their validity is limited to the life of the author and 70 years after his death). Exclusive (property) rights are positive rights that include the right to use and dispose the object of intellectual property rights. Defіcіencіes аnd gарs іn the system of cіvіl lаw рrotectіon of рersonаl non-рroрerty аnd рroрerty (exclusіve) rіghts of іntellectuаl рroрerty rіghts hаve been іdentіfіed. The authors have formulated persрectіve dіrectіons for іmрroving the legіslаtіon іn thіs area.

Stability, natural rights, and the limits of prudence

This essay investigates Prof. Nigel Biggar’s critique of natural rights and his subsequent reliance upon “prudence” to secure positive rights for citizens. It offers a modest defense of natural rights as explanatory for certain intuitions, while raising questions about whether positive rights are sufficiently stable on Prof. Biggar’s view.

Bills, Rights and Housing Policy: The Evolution of Israel’s Seven-Decade Housing-Related Bills

How do bills contribute to the promotion of housing rights? Is there a relation between the content of proposed bills and a country’s dominant political economy? Are changes in the political-economic regime reflected in housing-related bills? What type of bill is most likely to be enacted: a provision or a protection? These are the challenge of this study. The analysis is based on the theoretical classic distinction between “provisions” (positive rights) and “protections” (negative rights) from the realm of human rights, producing an empirical cumulative-aggregative analysis, which examines the scope and content of housing-related bills in the Israeli parliament since its establishment in 1948, until today. The research findings are counterintuitive, challenging the understanding that welfare regimes encourage extensive provisions, as opposed to neoliberal regimes that promote extensive protections. Given the current global housing affordability crisis, the research findings are relevant to many countries, parliaments, and organizations that are currently seeking to promote various housing rights.

A Problem of Self-Ownership for Reproductive Justice

This paper raises three concerns regarding self-ownership rhetoric to describe autonomy within healthcare in general and reproductive justice in specific. First, private property and the notion of “ownership” embedded in “self-ownership,” rely on and replicate historical injustices related to the initial acquisition of property. Second, not all individuals are recognized as selves with equal access to self-ownership. Third, self-ownership only justifies negative liberties. To fully protect healthcare access and reproductive care in specific, we must also be able to make claims on others to respect, protect, and fulfill our positive rights. As much as nondomination remains an urgent demand for reproductive rights, it does not go far enough to ensure reproductive justice.