Showing papers on "Doctrine published in 2020"

The political economy of socialism : a Marxist social theory

Abstract: This book is an exploration into the uncharted territory of social reality. It explores social relations and politics, presenting a critique of contemporary socioeconomic systems and discussions on the Marxist Doctrine of Transition. The book is intended to meet Robert Heilbroner's request.

The Past, Present, and Future of Russia’s Cyber Strategy and Forces

Abstract: Russian cyberattacks against military and civilian infrastructure in the West have become a persistent challenge. Despite the importance of this topic and the excellent scholarship already published on these issues, there is a need for more detailed data and analysis on the role of cyberattacks in Russia’s security strategy and its reflection in the evolution of Russia’s cyber forces. A better understanding of Russia’s strategy and cyber actors, particularly the growing role of the military in these issues, can facilitate an improvement in Western governments’ policies to defend against future Russian activity. To address this issue, this article will outline the role of information and cyber operations in Russia’s information warfare doctrine and will analyze the recruitment efforts and modus operandi of Russia’s cyber departments, particularly psychological and cyber operations units within military intelligence. The paper will conclude by examining the likely future of Russia’s behavior in cyberspace and how various state-sponsored actors might influence it. The paper asserts that although Russia’s doctrine suggests a defensive and cooperative posture in response to threats in the information space, officials’ promulgations and military literature reveal a predilection for the development of offensive cyber capabilities and operations, which are shaped by Russia’s threat perceptions and doctrine, and the institutional cultures of the departments within the military conducting them.

Methodological naturalism in the sciences

Abstract: Creationists have long argued that evolutionary science is committed to a dogmatic metaphysics of naturalism and materialism, which is based on faith or ideology rather than evidence. The standard response to this has been to insist that science is not committed to any such metaphysical doctrine, but only to a methodological version of naturalism, according to which science may only appeal to natural entities and processes. But this whole debate presupposes that there is a clear distinction between the natural and the supernatural, and thus that naturalism is a meaningful doctrine. I argue that this assumption is false. The concepts of the natural and the supernatural are in fact hopelessly obscure, such that the claim that science is committed to methodological naturalism cannot be made good. This is no victory for anti-naturalists however; explicitly supernaturalist theories, such as Creationism, can be ruled out of scientific consideration as a priori incoherent, given that they presuppose for their intelligibility that there is a meaningful natural-supernatural distinction. This is not the case for standard scientific theories however, as they are not explicitly naturalistic theories; they do not postulate natural or physical entities or processes as such.

Informed Consent and Medical Artificial Intelligence: What to Tell the Patient?

Abstract: Imagine you are a patient who has been diagnosed with prostate cancer. The two main approaches to treating it in the United States are active surveillance versus the surgical option of radical prostatectomy. Your physician recommends the surgical option, and spends considerable time explaining the steps in the surgery, the benefits of (among other things) eliminating the tumor and the risks of (among other things) erectile dysfunction and urinary incontinence after the surgery. What your physician does not tell you is that she has arrived at her recommendation of prostatectomy over active surveillance based on the analysis of an Artificial Intelligence (AI)/Machine Learning (ML) system, which recommended this treatment plan based on analysis of your age, tumor size, and other personal characteristics found in your electronic health record. Has the doctor secured informed consent from a legal perspective? From an ethical perspective? If the doctor actually chose to “overrule” the AI system, and the doctor fails to tell you that, has she violated your legal or ethical right to informed consent? If you were to find out that the AI/ML system was used to make recommendations on your care and no one told you, how would you feel? Well, come to think of it, do you know whether an AI/ML system was used the last time you saw a physician? This Article, part of a Symposium in the Georgetown Law Journal, is the first to examine in depth how medical AI/ML interfaces with our concept of informed consent. Part I provides a brief primer on medical Artificial Intelligence and Machine Learning. Part II sets out the core and penumbra of U.S. informed consent law and then seeks to determine to what extent AI/ML involvement in a patient’s health should be disclosed under the current doctrine. Part III examines whether the current doctrine “has it right,” examining more openly empirical and normative approaches to the question. To forefront my conclusions: while there is some play in the joints, my best reading of the existing legal doctrine is that in general, liability will not lie for failing to inform patients about the use of medical AI/ML to help formulate treatment recommendations. There are a few situations where the doctrine may be more capacious, which I try to draw out (such as when patients inquire, when the medical AI/ML is more opaque, when it is given an outsized role in the final decision-making, or when the AI/ML is used to reduce costs rather than improve patient health), though extending it even here is not certain. I also offer some thoughts on the question: if there is room in the doctrine (either via common law or legislative action), what would it be desirable for the doctrine to look like when it comes to medical AI/ML? I also briefly touch on the question of how the doctrine of informed consent should interact with concerns about biased training data for AI/ML.

Drafting Copyright Exceptions: From the Law in Books to the Law in Action

Abstract: How should copyright exceptions be drafted? This is a question of ongoing concern in scholarly and law reform debates. In Drafting Copyright Exceptions, Emily Hudson assesses drafting options using insights from the standards and rules literature, and case studies from cultural institutions in Australia, Canada, the UK and the US. Drawing on thousands of hours of fieldwork conducted over fourteen years, the book describes how staff engage with and interpret the law. Whilst some practices are guided strongly by copyright doctrine, others are influenced by the factors such as ethical views, risk assessment, and prosaic matters related to collection management. This work should be read by anyone interested in a detailed account of interpretative practices related to the drafting of copyright exceptions, but it also speaks to broader debates about the relationship between the 'law in books' and the 'law in action'.

Mazdeans and Christians Facing the End of the World. Circulations and Exchanges of Concepts

Abstract: This contribution offers a conspectus of the parallel treatment of some escha­tological subjects in the comparative framework of Mazdean and Christian sources. Although some impact of the Judeo-Chris­tian tradition on Iranian apocalypticism has been fittingly detected in previous studies, the author in­sists on evidence showing a sort of circular exchange between Chris­tians and Mazdeans, where, for in­stan­ce, chiliasm presents some Iranian (and not only Ba­by­lonian) resonances, while the well-known Zo­ro­as­trian doctrine of universal mercy and of the *apokatastasis* shows impressive correspondences with the Ori­genian doctrines. What distinguishes the Iranian framework is the fact that millenarianism, apocalypse and *apokatastasis* did not directly contrast, as it happened in the Christian milieu. These Christian doc­trines played a certain influence in Sasanian Iran, although their diffusion and acceptance was pro­bably slow and progressive, and became dominant among Zoroastrians only after the fall of the Sasanian period, when the Mazdean Church was no longer the pillar of the state and the social and legal order. The diffusion of the doctrine of universal mercy was a later acquisition, as shown from the evidence that earlier Mazdean doctrines did not assume a complete salvation for the wicked but prescribed a harsh and eternal punishment for them. Fur­ther­more, the author focuses on his own research on these sub­jects and summarises some results concerning a new and original presentation of the Mazdean concept of evil as a manifestation of suffering, comparable to a state of mental 'sickness.'

Human Capital Driven Acquisition: Evidence from the Inevitable Disclosure Doctrine

Abstract: We present evidence that the desire to gain human capital is an important motive for corporate acquisitions. Our tests exploit the staggered recognition of the Inevitable Disclosure Doctrine by U.S. state courts, which prevents a firm’s employees from working for other firms. We find a significant increase in the likelihood of being acquired for firms headquartered in states that recognize such a doctrine relative to firms headquartered in states that do not. Heterogeneous treatment effects confirm the human capital channel: our result is stronger for firms with greater human capital and for firms whose employees have better ex-ante employment mobility.

Unilateral Remedies to Cyber Operations: Self-Defence, Countermeasures, Necessity, and the Question of Attribution

Abstract: Addressing both scholars of international law and political science as well as decision makers involved in cybersecurity policy, the book tackles the most important and intricate legal issues that a state faces when considering a reaction to a malicious cyber operation conducted by an adversarial state. While often invoked in political debates and widely analysed in international legal scholarship, self-defence and countermeasures will often remain unavailable to states in situations of cyber emergency due to the pervasive problem of reliable and timely attribution of cyber operations to state actors. Analysing the legal questions surrounding attribution in detail, the book presents the necessity defence as an evidently available alternative. However, the shortcomings of the doctrine as based in customary international law that render it problematic as a remedy for states are examined in-depth. In light of this, the book concludes by outlining a special emergency regime for cyberspace.

Devil’s Advocate: ʿAyn al-Quḍāt’s Defence of Iblis in Context

Abstract: The writings of ʿAyn al-Quḍāt Hamadānī (d. 525/1131) anticipate some of the major trends that characterize the post-Avicennan ḥikmat tradition. But modern scholarship has as of yet not completely come to grips with the far-reaching implications of ʿAyn al-Quḍāt’s teachings, many of which are framed in terms of the symbolic language and imagery of the Persian Sufi school of passionate love (madhhab-i ʿishq) and the defence of the devil’s monotheism (tawḥīd-i Iblīs). The focus in this article will be upon this latter aspect of ʿAyn al-Quḍāt’s Sufi doctrine. Upon closer inspection, his “Satanology” (for lack of a better term) turns out to not only be concerned with a defence of the devil as a tragic, fallen lover of God; it is also intimately related to our author’s robust theodicy, as well as his theory of human freedom and constraint. At the same time, ʿAyn al-Quḍāt’s defence of Iblis demonstrates his understanding of philosophical and theological discourse as themselves symbolic representations of another, higher form of being and knowing.

The American Way of Irregular War: An Analytical Memoir

Abstract: The United States has failed to achieve strategic objectives in nearly every military campaign since Vietnam. This memoir concludes that this is because America lacks the concepts, doctrine, and canon for irregular warfare and is structured to fail in proxy and population-centric conflicts favored by U.S. adversaries. Action by Congress and the President could build the American way of irregular war needed for success in modern conflict.

The Contest on Corporate Purpose: Why Lynn Stout was Right and Milton Friedman was Wrong

Abstract: It is now 50 years since Milton Friedman set out his doctrine that “The Social Responsibility of Business Is to Increase Its Profits.” This paper seeks to add fresh and compelling new evidence of why Lynn Stout was correct in her resolute critique of the thesis of shareholder primacy at the heart of the Friedman doctrine, and how this doctrine remains profoundly damaging to the corporations that continue to uphold this belief. It is argued that the Friedman doctrine has had a catastrophic impact upon American business and society beginning with General Motors failure to respond to investor calls for increased concern for safety and pollution at the time of Friedman’s intervention in 1970, stretching all the way to the recent fatal errors of Boeing in placing a higher priority in getting the new Boeing 737 MAX into the market than ensuring the soundness of software controls on the flight deck which led to two horrific plane crashes in 2018 and 2019 with the loss of 346 lives. These tragic errors in corporate judgement are ultimately related to the constricted sense of corporate purpose imposed by Milton Friedman and taken up with enthusiasm by agency theorists focused upon maximising shareholder value. This reckless single-mindedness has privileged the pursuit of the narrowest of financial measures of performance above fundamentals including passenger safety and environmental emissions controls. As a result, innocent lives have been lost, brands have been tarnished, and ultimately the strategic future of significant corporations endangered, and the ecology of the planet imperilled. There is now emerging a new sense of the purpose of the corporation that defines a rationale for corporate social and environmental responsibility in a way similar to Lynn Stout’s more inclusive stakeholder approach. The question remains open whether this will lead to the development of fiduciary duties, governance, strategies, targets, measures, transparency and disclosure that might deliver the sustainable corporation.

The silicon doctrine

Abstract: This article explores and theorises what is here termed the Silicon Doctrine (SD), that is the legal ideology underpinning the libertarian version of the digital economy promoted (among others) by Facebook, Uber, Apple, Amazon, Netflix and Google. The first part of the text explores the Silicon Doctrine’s Frankensteinian ideological roots. The second part of the text scrutinises three dimensions of the Silicon Doctrine: 1) data extraction; 2) domination of the informational infrastructure; and 3) labour exploitation. This article examines the social contract proposed by Silicon Valley, evaluating its two-sided role as a disruptive breakout from the twentieth century social model, and as a continuation of the neoliberal shock doctrine.

The turn to history in international law and the sources doctrine : Critical approaches and methodological imaginaries

Abstract: Expanding now familiar debates about the impact of the 'historical turn' upon the field of international law, this article considers some of the different ways in which 'turn to history' scholars have confronted the methodological and theoretical tensions arising from the central, yet paradoxical, role occupied by the sources doctrine in international law. We suggest that the anxiety over the sources of international law as the basic methodological precepts of the discipline has been a catalyzing element for a radical reengagement with the canon of international law, one with a significant impact on the field's existing parameters and doctrinal limits. Within the three streams of scholarship we explore here, history has become a site of creative engagement for scholars in opening up the discipline to diverse ends, one in which a new doctrinal universe can be created, and new issues, sources, subjects, and approaches can be explored. Yet, by opening up international law's sources doctrine, reactionary causes and unjust ends may equally well be the result. This account is an attempt at diversifying the narrative surrounding the causal relationship between history and the ongoing changes to the field of international law, along with the differential practices, techniques and epistemological foundations behind the history of international law as an evolving discipline, and of the different scholarly motivations of its specialists. (Less)

Principles of Human Knowledge and Three Dialogues Between Hylas and Philonous

Abstract: One of the greatest British philosophers, Bishop Berkeley (1685 1753) was the founder of the influential doctrine of Immaterialism the belief that there is no reality outside the mind, and that the existence of material objects depends upon their being perceived. The Principles of Human Knowledge eloquently outlines this philosophical concept, and argues forcefully that the world consists purely of finite minds and ideas, and of an infinite spirit, God. A denial of all non-spiritual reality, Berkeley's theory was at first heavily criticized by his contemporaries, who feared its ideas would lead to scepticism and atheism. The Three Dialogues provide a powerful response to these fears.

The Russian Stand on the Responsibility to Protect: Does Strategic Culture Matter?:

Abstract: Though Russia has approved the doctrine of responsibility to protect (R2P) in the UN platforms it has often been placed rightly in the ‘sceptics group’ of states that are not at ease with the premi...

The promise of precommitment in democracy and human rights : the hopeful, forgotten failure of the Larreta Doctrine

Abstract: Although international precommitment regimes offer a tool to escape the apparent contradiction between sovereignty and the international protection of democracy and human rights, they raise theoretical and practical questions. This article draws on multinational archival research to explore an overlooked historical episode and suggest new thinking regarding the logjams over sovereignty, incapacity of global decision making, and humanitarian imperialism. In 1945 and 1946, the American states engaged in a debate over the Larreta Doctrine, a Uruguayan proposal about the parallelism between democracy and human rights, and the regional rights and duties to safeguard these values. In the ensuing debate, the Uruguayan foreign minister elaborated a tripartite precommitment mechanism to create a web of national commitments to democratic governance and the domestic protection of human rights, to establish a regional insurance policy against failures to maintain those commitments, and to obligate the great power and neighboring states to precommit to working through the regional system instead of unilaterally. As a proposal that emerged from a weak state—and garnered support from states that faced internal and external threats to democracy and rights—the Larreta Doctrine offers insights on the central tension between state sovereignty and international commitments.

Objecting to objectivity: the radical challenge to legal liberalism

Abstract: This chapter considers a number of critical theories 1 of law which provide alternative explanations of the function and position of law in (post)modern, (post)liberal states. These approaches can be distinguished from the models discussed in the previous chapter by their refusal to accept that law is essentially a benign, neutral and autonomous institution. The critical theorists discussed are particularly opposed to the conceptions of law considered in chapters 2 and 3 (favoured by liberal scholars and lawyers) which assume certainty and stability in legal doctrine and a degree of consensus within the society on which it acts. The approaches to law outlined here are reactions against the accepted, traditional mythology about the nature of law that is imbibed by law students, expounded by judges and legislators, assumed by practitioners and which comforts the general public. According to this mythology, the legal system can be differentiated from the political system or its cultural setting because, in contrast to activity in these spheres, law operates on the basis of abstract rationality and is thus universally applicable. 2 The durability and appeal of law can be accounted for within this mythology partly by its apolitical appearance. This account of the nature of law argues that law is above politics (or at least distinguishable from it) and merely resolves the competing claims of equal members of society. Accordingly, law involves the application of principles and rational argument. Logic and doctrine rather than power and influence are considered decisive.

Striving for achievement in a new era: China debates its global role

Abstract: Since the doctrine of ‘keeping a low profile (KLP), attaining some achievement (ASA)’ was developed, there has been much attention and study of the KLP, but little discussion of the ASA. However, i...

An Examination of the Relevance of the Codification and Application of the American Business Judgment Rule to Nigerian Corporate Law

Abstract: The business judgment rule is an ancient doctrine that was developed in the US. It seeks to prevent courts from reviewing directors’ decisions, on the basis that directors have the capacity and expertise to make business decisions. This article examines the desirability of applying the US business judgment rule in Nigeria. Through a comparative analysis, it argues that the peculiarities of Nigeria's corporate law and environment do not justify the application of the rule. More specifically, it contends that differences in the legal regime for derivative suits, standards of duty of care and skill, corporate law culture, and the distinct epoch in which the business judgment rule and the duty of care and skill were recognized in the US, make its application unnecessary in Nigeria. It concludes that the current statutory duty of care and skill should be retained to hold directors accountable for reckless business decisions.

A challenge for Super-Humeanism: the problem of immanent comparisons

Abstract: According to the doctrine of Super-Humeanism (Esfeld in Synthese. https://doi.org/10.1007/s11229-017-1426-8 , 2017), the world’s mosaic consists only of permanent matter points and changing spatial relations, while all the other entities and features figuring in scientific theories are nomological parameters, whose role is merely to build the best law system. In this paper, I develop an argument against Super-Humeanism by pointing out that it is vulnerable to and does not have the resources to solve the well-known problem of immanent comparisons. Firstly, I show that it cannot endorse a fundamentalist solution a la Lewis, since its two pillars—a minimalist ontology and a best system account of lawhood—would generate, together, a tedious problem of internal coherence. Secondly, I consider anti-fundamentalist strategies, proposed within Humeanism, and find them inapplicable to the Super-Humean doctrine. The concern is that, since it is impossible to choose the best law system within Super-Humeanism, this doctrine may be charged with incoherence.

A History of Food Security and Agriculture in International Trade Law, 1945–2017

Abstract: One common assumption about international trade law is that its main function as a regulatory system is to reduce the occurrence of trade distortions. Another related assumption is that the development of the contemporary regime of international trade, historically, has been driven by one single overarching doctrine, the principle of trade liberalisation. This article seeks to dispute these assumptions by showing that the contemporary regime of international trade is, in fact, the product of interaction involving three closely related but analytically distinct doctrines: the principle of market stabilization, the doctrine of freer trade, and the principle of food security. Proceeding from this starting point, this article aims to map out an alternative way of approaching the history of international trade law, by exploring how the interaction between these three doctrines has influenced the construction of the contemporary international trade regime, how each of them has come to be defined at different moments, and how these definitions have changed and evolved over time. In doing so, it also offers an alternative understanding of the institutional reality of international trade regulation by placing at the centre of the last seven decades of international trade law history the question of agriculture and by including FAO, UNCTAD, and international commodity agreements alongside the GATT and the WTO.

Exploring Devolved Decision Authority in Performance Management Regimes: The Relevance of Perceived and Actual Decision Authority as Elements of Performance Management Success

Abstract: According to performance management doctrine, successful performance management requires devolved decision authority—that is, meaningful decision authority must be placed in the hands of ma...

Development of the Doctrine on Certain Personal Incorporeal Rights in European Countries

Abstract: The article considers the main aspects of the development of doctrines on personal incorporeal rights in European countries. The conceptual approaches of researchers to such rights have been analyzed. A comparative legal analysis of the legal regulation of personal incorporeal rights in European countries has been conducted as well. The trends and approaches to the ways of consolidating such countries in the system of private law have been studied.

Beginnings: Why the Doctrine of Creation Matters for the Integration of Psychology and Christianity:

Abstract: This article considers what integration efforts in psychology would look like if informed by a trinitarian account of creation. Further theological reflection about the doctrine of creation reveals...

Qualified Immunity: A Legal, Practical, and Moral Failure

Abstract: Accountability is an absolute necessity for meaningful criminal justice reform, and any attempt to provide greater accountability must confront the doctrine of qualified immunity. This judicial doctrine, invented by the Supreme Court in the 1960s, protects state and local officials from liability, even when they act unlawfully, so long as their actions do not violate “clearly established law.” In practice, this legal standard is a huge hurdle for civil rights plaintiffs because it generally requires them to identify not just a clear legal rule but a prior case with functionally identical facts. Qualified immunity is one of the most obviously unjustified legal doctrines in our nation’s history. Although it is nominally an interpretation of our primary federal civil rights statute, that statute says nothing about any immunities, qualified or otherwise. And the common-law background against which it was passed also contained nothing like the across-the-board immunity for public officials that characterizes the doctrine today. Qualified immunity has also been disastrous as a matter of policy. Victims of egregious misconduct are often left without any legal remedy simply because there does not happen to be a prior case on the books involving the exact same sort of misconduct. By undermining public accountability at a structural level, the doctrine also hurts the law enforcement community by denying police the degree of public trust and confidence they need to do their jobs safely and effectively. The most straightforward and sensible solution to this problem is complete abolition of qualified immunity. This could be appropriately accomplished either through the Supreme Court reversing its own precedent or through congressional legislation clarifying that our civil rights laws do not include any such defense to liability. Notably, even if qualified immunity is abrogated, municipalities would still have the option to indemnify state agents under appropriate circumstances. But there are also alternatives to total abolition that would eliminate qualified immunity in the typical case while still preserving a modified kind of immunity in a few safe harbors.

The ‘Abe Doctrine’: Japan’s new regional realism

Abstract: Since 2012, Japan’s Prime Minister Abe Shinzō has sought to remake the country’s foreign and security policy. Abe’s agenda, which is increasingly called an ‘Abe Doctrine’, has prompted considerable debate as to its true nature. Is the Abe Doctrine nationalist, revisionist, or realist? This article contributes to these debates by tracing the competing characterizations of an Abe Doctrine’s policy ideas and assessing these against the doctrine’s policy prescriptions. It argues that the Abe Doctrine–situated within the long-term evolution of Japanese policymaking – is chiefly realist rather than nationalist in its policy prescriptions. In fact, where the doctrine does constitute a major departure from past policy practice, largely unrecognized until now, is not so much in how it expands Japan’s international role but in how it narrows this role. The underlying logic of the Abe Doctrine may therefore be pushing Japan towards a new form of regional realism.