Bestialitatis and the New Ethics on “Human” Animals

This article discusses how the legal systems in several Western countries, with a special focus on Italy, address our present day animal rights movement and how these legal systems can faithfully reflect the movement’s values as well as promote them in a manner that will ultimately change the rights themselves and their cultural context: this is an extremely interesting issue for the semiotic study of the “humanization of animals”. Therefore, I will summarize several semiotic arguments using the model of the four ontologies by Philippe Descola and the concept of prospectivism by Eduardo Viveiros De Castro. I expect several important changes will come about thanks to the ties between philosophical animal rights discourse and legal discourse and I also believe that the two most interesting issues will be animal labor and reproduction. I will concentrate on the debate over zoophilia laws in Denmark, Germany and Italy in order to propose a way to understand the threshold which separates humans and animals in our naturalistic ontology. Nowadays, “becoming animals” and “becoming humans” seem to be two central and open-ended semiotic processes: legal rights and animal rights philosophy help bring several issues into focus such as animal subjectivity and informed consent.     

Indian Copyright Act and new communication technologies: A special focus on webcasting

The main aim of this paper is to consider whether the Indian Copyright Act 1957 (ICA) gives protection to future technologies. It follows an earlier paper on Webcaster's protection under copyright published in [2011] 27 CLSR 479–496. By way of asking that question it is sensible to examine whether webcasting/streaming is protected by ICA or not. In order to enquire the same, we need to study the penetration of streaming/webcasting technology into the Indian market and its application. Since the technology is linked with the Internet, it is also essential to examine its penetration and the availability of bandwidth and the potential market for such communications. All these aspects are studied in the first part of this paper. In the second part a brief outline is offered of the relevant provisions of the Act. At issue is whether they give protection to the future technologies or not. This will be considered in part three. The same will be examined with the proposed amendment to the Act too. The paper concludes that the Act fails to give protection to future technologies and therefore that streaming/webcasting is not protected in India under the copyright regime.     

我国《企业破产法》上破产程序开始的效力及其反思

我国现行《企业破产法》承继1986年破产法的基本思路,破产程序开始仍然以法院受理破产案件为始点。但是,按照我国《破产法》之规定,法院受理破产案件,并非意味着一定要宣告债务人破产。但是,从整个制度设计看,只要破产案件被法院受理就要开始破产程序,而破产程序一经开始就要发生一系列效力,如指定管理人接管债务人财产、债权申报、未到期债权到期、债务人的人身自由要受到一定的限制等。如果法院不宣告债务人破产,这些已经经过的程序及损失应如何处理?本文认为,能够恢复的,就恢复;不能恢复的,应当按照过错的不同来承担赔偿责任。另外破产程序开始后对债务人的人身、财产及其他效力在三种程序中是否一致?笔者认为,三种程序有不同。     

复行为犯的着手问题

简要分析比较前一行为说、后一行为说、具体分析说之后 ,通过案例的分析 ,得出赞同前一行为说的结论 :复行为犯中 ,数实行行为都是构成行为的一部分 ,开始实施了前一实行行为 ,尽管未实施后一行为也等于开始实施了构成行为 ;与此同时 ,行为人的前一行为已经有导致危害结果发生的现实危险性 ,否则 ,刑法规范就没有必要给予前一行为“构成要件要素”这样高度的评价 ,而只需采取单一实行行为的规定方式 ;而且行为人主观上的直接犯罪目的业已确定无疑地在前一行为中得到充分表现。     

Prohibition of Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment: Some Remarks on the Operative Solutions at the European Level and their Effects on the Member States. The Case of Italy

This paper analyzes European measures against torture and inhuman or degrading treatment or punishment in order to verify their effectiveness, especially in terms of the values that are actually being protected. First, it examines the distinction between the external and internal action of the European Union, highlighting ways in which the EU appears to be more attentive to combat practices of torture in third countries than to domestic incidents and the proposals to legalize torture made at a political level in some Member States. Then, it examines the European Court of Human Rights’ ruling in the Cestaro versus Italy case, focusing specifically on the fact that Italy was in breach of its obligations under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the framework does not recognize torture as a crime and does not provide instruments of deterrence to effectively prevent the execution and the recurrence of such acts. Currently, the Italian Parliament is discussing a draft amendment to the Criminal Code and aims at introducing the concept of torture as a crime; however, in light of the comments made by the European Court of Human Rights, this project questions whether the proposed solution will be able to prevent a repeat of events similar to those that occurred in 2001 after the G8 Summit in Genoa.     

动物法律地位探析

作为一个经济大国、农业大国和畜牧大国,中国亟待加快动物福利立法。在立法推进过程中,动物的法律地位应当如何界定是个首先需要被回答的问题。通过对动物保护的法理基础、国外相关立法以及案例的考量,认为动物不能成为人类道德乃至于法律的主体,而只能是法律关系的客体。但这并不意味着我们反对保护动物。相反,为了人类的可持续发展,对动物的保护必须加强,在这方面,法律是最为重要和有效的手段。我们应当将动物作为特殊的物,在法律上将其与无生命的物加以区别对待,从而实现动物行之有效的保护。     

Locating Humour in Indian Buddhist Monastic Law Codes: A Comparative Approach

It has been claimed that Indian Buddhism, as opposed to East Asian Chan/Zen traditions, was somehow against humour. In this paper I contend that humour is discernible in canonical Indian Buddhist texts, particularly in Indian Buddhist monastic law codes (Vinaya). I will attempt to establish that what we find in these texts sometimes is not only humourous but that it is intentionally so. I approach this topic by comparing different versions of the same narratives preserved in Indian Buddhist monastic law codes. This is a revised version of a paper presented at the XVth Congress of the International Association of Buddhist Studies, Atlanta, Georgia, USA, June 23-29, 2008. I wish to acknowledge financial assistance from the Arts Research Board, McMaster University.     

Should Empathy Play any Role in the Interpretation of Constitutional Rights?

This paper explores the role that empathy can play in the interpretation of constitutional rights. It starts by analyzing the complex concept of empathy, comparing it with similar yet distinct concepts such as projection, sympathy and emotional contagion, then it discusses the widespread distrust of empathy among lawyers and legal thinkers. It will be argued that empathy can play a significant role in the interpretation of constitutional rights, mostly in identifying the interests and needs put forward in the claims and counterclaims of the parties. In the final section, the impact of empathetic judging on judicial minimalism will be briefly discussed.     

The Sooner the Better: The Arguments for the Use of Extended Welfare Assessment Grids in Animal Welfare Cases

Animals are protected under national animal welfare legislation, against intentional acts of cruelty and a failure to act, resulting in neglect and causing an animal to suffer. The Royal Society for the Prevention of Cruelty to Animals (RSPCA) bears the responsibility of investigating and prosecuting the majority of animal welfare offences in England and Wales. In recent years, how they operate has been criticised, and it has been debated whether they should be able to bring private prosecutions, and what their role should actually be. This criticism calls for a change in the way in which the RSPCA approach cases of animal welfare, to strengthen their continuing role in ensuring positive animal welfare is achieved and, where not, prosecuted. This paper outlines the need for a new approach and how it can be managed. Honess and Wolfensohn (Altern Lab Anim 38:205, 2010) have developed an Extended Welfare Assessment Grid (EWAG), a visualisation mapping tool of welfare impact, which has been useful for assessing the welfare of animals used in laboratories. This tool has proven so useful, veterinarians are now using it in veterinary hospitals to help assess whether an animal is likely to further deteriorate, due to disease and illness, and to show any short-term welfare impact on the animal (Williams in UFAW conference, Newcastle upon Tyne, 2018). This paper will explore the potential for the EWAG to be adapted to assess the welfare of animals when owners are not meeting the welfare needs of their companion animals. RSPCA can use it to support their assessments of the current welfare of an animal under a person’s ownership and whether the animal’s welfare will deteriorate should they remain under that ownership. The EWAG will be a useful tool for those working in animal welfare, such as the RSPCA, to help organisations to intervene earlier, work in partnership with an owner, and support their claims of a risk to animal welfare.

     

Corruption,Party Leaders,and Candidate Selection: Evidence from Italy

Research indicates that voters are not particularly effective at removing corrupt politicians from office, in part because voters make decisions on the basis of many competing factors. Party leaders are much more single-minded than voters and will choose to deselect implicated legislators if it means maintaining a positive party reputation and improving the odds of winning a legislative majority. We examine renominations to Italy’s legislature in two periods marked by corruption. We compare these renomination patterns with those from the prior legislature, when corruption lacked political salience. Our analysis shows that incumbent renominations are negatively associated with the number of press mentions that link the incumbent to corruption—but only when corruption is salient to the public. Our study highlights the importance of party leaders in forcing malfeasant legislators out of office—and reducing corruption—and redirects attention from voters to political elites as a critical channel in enforcing democratic accountability.     

Lord of Your Domain, But Master of None: The Need to Harmonize and Recalibrate the Domain Name Regime of Ownership and Control

The world has seen three waves of property. The first hark backcenturies and relate to ‘real and personal property’such as land and chattel, also known as immovable and movableproperty. The second gained recognition around the nineteenthcentury and relates to propertization of the ‘laboursof the mind’ or ‘intellectual property’. Thethird wave came within a much shorter period and starting togain recognition and it is what is known as ‘virtual property’.The law and policy-makers have had to surmount not only a steeplearning curve but also in some cases a foundation that is wroughtwith mistakes when it comes to the treatment that should begiven to virtual property. The Domain Name System (DNS) is thebest example of a form of virtual property that has given riseto challenges in law making and administration. The ‘landgrab’ of domain names in the World Wide Web (WWW) havegiven rise to a virtual tsunami of registrations and this hasled to the subsequent erection of levees in the form of a challengeregime. This paper will identify and consider the problems thatthe DNS is facing and suggest the changes that have to be madeto it in order for it to withstand the forces of what will bean increasingly rising sea of domain names on the WWW. This paper will begin with a look at the fissures in the seabedof the DNS by comparing how the management and policies relatingto domain name registration and challenge have shifted and divergedin different jurisdictions as well as by examining the inadequaciesof the original registration regime (ICANN) and challenge policy(UDRP). After identifying the problem, suggestions will be madeto resolve them in the best possible way, which require a revisitof the stakeholder and policy interests in the Internet andthe ownership and control of domain names that essentially functionas an important gateway to the WWW in order to rebalance theseinterests in an attempt to achieve greatest equilibrium. Amendmentswill be proposed to both the registration and challenge regimesas well as to the structure and hierarchy of domain name administrationwhich should be a globally coordinated effort just as the DNSis a common entryway to the global property that is the WWW.     

The impact of Microsoft Windows pool allocation strategies on memory forensics

An image of a computer's physical memory can provide a forensic examiner with a wealth of information. A small area of system memory, the nonpaged pool, contains lots of information about currently and formerly active processes. As this paper shows, more than 90% of such information can be retrieved even 24 h after process termination under optimum conditions.Great care must be taken as the acquisition process usually affects the memory contents to be acquired. In order minimize the impact on volatile data, this paper for the first time analyzes the pool allocation mechanism of the Microsoft Windows operating system. It describes a test arrangement, which allows to obtain a time series of physical memory images, while it also reduces the effect on the observed operating system.Using this environment it was found that allocations from the nonpaged pool are reused based on their size and a last in-first out schedule. In addition, a passive memory compaction strategy may apply. So, the creation of a new object is likely to eradicate the evidence of an object of the same class that was destructed just before. The paper concludes with a discussion of the implications for incident response procedures, forensic examinations, and the creation of forensic tools.     

Legal Pluralism and the Adjudication of Internet Disputes

No single entity-academic, corporate, governmental or non-profit-administers the Internet. (American Civil Liberties Union v Reno \[E.D. Pa. 1996] 929 F. Supp. 824, 832) The problems of regulation on the Internet are simply stated. First, it allows novel activities: e-mail, electronic discussion groups, simple transfer or viewing of text, images, sound and video. These activities may fall foul of laws of obscenity or defamation in some or all of the jurisdictions in which it is available. Second, the Internet is a distributed system that straddles geographical and jurisdictional boundaries; the regulation of such activities is likely to fall within two or more national 'legal' jurisdictions. It may therefore be difficult to choose an appropriate jurisdiction. Third, the inevitable need to choose a jurisdiction will mean that the values to be imposed upon the dispute will be the values of that jurisdiction, values that may be different from the values of those involved in the dispute. Much has been written on the first two problems and significant developments have been made in the formulation of principles to be applied to the problem of choosing a jurisdiction. In this paper, I will begin to focus on the third problem, the problem of inappropriate values being imposed upon Internet behaviour. The paper will develop the theme that the need for a single jurisdiction and, in consequence, the need for a single set of values to be imposed upon Internet activities is a fiction born out of centralist systems of western jurisprudence. The paper will review how courts have turned against pluralistic approaches in the past when dealing with clashes in cultural and religious values, particularly the clash in the English courts in the case of Salman Rushdie's 'The Satanic Verses'. Western courts have been dismissive of cultural and religious claims either treating them as 'repugnant' or contrary to public policy, or else questioning the validity of the motives of the applicants. It is evident from recent cases in the US, that judges will use similar techniques to impose their own value values upon Internet activity. The concept of legal pluralism is not recognised within westernised systems of law. The paper will then consider whether a more pluralistic strategy would provide a more satisfactory approach to dealing with such disputes on the Internet: an approach that would enable the resolution of the conflict between different cultural and religious values.     

Deaths involving buprenorphine: a compendium of French cases

Buprenorphine at high dosage became available in France in 1996, as a substitution treatment for heroin addicts. Since this date, numerous deaths were attributed to this drug. This paper reports two original series of 39 and 78 fatalities involving buprenorphine observed at the Institute of Legal Medicine of Strasbourg and at 13 other French forensic centers, respectively. The files were recorded from January 1996-May 2000. The first 20 fatalities that were previously published were excluded from this epidemiological study. From these 117 subjects, 96 were male (82%). Buprenorphine and its primary metabolite norbuprenophine were assayed in post-mortem blood by HPLC/MS (n=11 labs) or by GC/MS (n=3 labs). Blood levels for buprenorphine ranged from 0.5 to 51.0ng/ml (mean 10.2ng/ml) and 0.1 to 76ng/ml (mean 12.6ng/ml) in Strasbourg and the other centers, respectively. Blood levels for norbuprenorphine ranged from 0.2 to 47.1ng/ml (mean 8.2ng/ml) and <0.1 to 65ng/ml (mean 10.6ng/ml) in Strasbourg and the other centers, respectively. The mean values appear to be within the therapeutic range. Buprenorphine was identified in 24 of the 26 hair samples assayed in Strasbourg, at concentrations ranging from 10 to 1080pg/mg. Intravenous injection of crushed tablets, a concomitant intake of psychotropics (especially benzodiazepines and neuroleptics) and the high dosage of the buprenorphine formulation available in France appear as the major risk factors for such fatalities. In addition, two suicide-related deaths were also observed, with blood buprenorphine concentrations at 144 and 3276ng/ml.     

The impact of Microsoft Windows pool allocation strategies on memory forensics

An image of a computer's physical memory can provide a forensic examiner with a wealth of information. A small area of system memory, the nonpaged pool, contains lots of information about currently and formerly active processes. As this paper shows, more than 90% of such information can be retrieved even 24 h after process termination under optimum conditions.Great care must be taken as the acquisition process usually affects the memory contents to be acquired. In order minimize the impact on volatile data, this paper for the first time analyzes the pool allocation mechanism of the Microsoft Windows operating system. It describes a test arrangement, which allows to obtain a time series of physical memory images, while it also reduces the effect on the observed operating system.Using this environment it was found that allocations from the nonpaged pool are reused based on their size and a last in-first out schedule. In addition, a passive memory compaction strategy may apply. So, the creation of a new object is likely to eradicate the evidence of an object of the same class that was destructed just before. The paper concludes with a discussion of the implications for incident response procedures, forensic examinations, and the creation of forensic tools.     

Communism and Camorra in Naples

The town of Marano borders Naples' city boundaries to the north. With a population of nearly 60,000, it has its own local administrative structure, although in many ways it is part of the ``greater Naples' conurbation of close to three million people. One striking peculiarity of Marano is that it is the only town council in southern Italy administered by the far left party Rifondazione Comunista (Communist Refoundation, or RC). This peculiarity is compounded when one considers that Marano has one of the highest concentrations of organised criminal activity (which in Naples takes the name of Camorra rather than Mafia) in the Naples urban area, historically led by the four Nuvoletta brothers – and a far left council administering a highly criminal locality is a highly unusual occurrencein Italy. This article first presents the town of Marano and its history of Camorra activity, before analysing the national politics of RC and the activity of its members in Marano, principally as administrators of the town council. It then concludes with a brief critique of the weaknesses associated with a strategy of traditional Keynesian public sector policies being enacted on a local scale, both in terms of the corruption of local and national government, and the dominance of national and international economic trends which ultimately determine many of the major social and economic characteristics of towns such as Marano.     

Community Characteristics and Death by Homicide,Suicide and Drug Overdose in Italy: The Role of Civic Engagement

A number of recent theories suggest that high civicness, civic participation and social capital protect a community from deviant behavior. Most empirical studies of this hypothesis have been conducted in North America. This paper examines to what extent this hypothesis applies to Italy and to three forms of violent death: homicide, suicide, and drug overdose, using the Putnam concept of civicness. Official statistics on civicness, unemployment, per capita G.D.P., urbanization, couples’ separation and age group concentration from the 95 sub-regions (provinces) of Italy were used as predictors of violent death. Among regions, homicide and suicide rates were negatively correlated. Southern provinces had more homicides, while northern provinces had more suicides and deaths from drug overdose. Analyses of interactions among independent variables revealed that certain relationships, which at first sight appeared to concern the whole of Italy, in reality concern only the north or only the south. This suggests the existence of specific effects, whereby some independent variables are only triggered in the particular conditions encountered in the north or in the south of Italy. Civicness was negatively associated with homicide only in the south, where it was also positively associated with suicide. Death by drug overdose was mostly explained by wealth. The overall pattern of results was more complex than present theories suggest.     

Stuntman for the State: Loughlin's Idea of Public Law

Abstract. This paper provides a critical analysis of Martin Loughlin's pure theory of public law as developed in his more recent work. I argue that the pure theory makes a series of errors and rests on a set of assumptions that make it inappropriate to provide the legal framework for any social‐democratic polity. Specifically, the theory concedes too much latitude to the functional needs of the state and organised politics, and pays too little deference to processes of political opinion and will formation in civil society. As such, it only succeeds in establishing law's connection to the public realm, at the cost of effacing its internal relationship to the rule of law and democracy.     

Property versus political holdouts: the case of the TGV rail line Lyon–Budapest in Italy

The law and economics literature commonly justifies the state’s taking power on the grounds that it is necessary to overcome holdouts and, thus, allow efficient development projects to move forward (A development project is efficient when the benefit it generates exceeds its cost.). By permitting the government to take private property rights non-consensually, the taking power limits the ability of private property owners to engage in strategic bargaining with the government and puts a cap on their ability to extract payments from the government in exchange for agreeing to transfer their rights. In this paper, I will argue that the standard story is highly incomplete and, therefore, inaccurate. It conveniently ignores the ability of politically powerful groups to block development projects by exercising their de facto veto power over proposed projects. Such groups do not necessarily have rights in any properties directly affected by the project. Once these groups, whom I call “political holdouts”, are added to the analysis, it becomes clear that the payment of just compensation—or any other aspect of eminent domain law and regulatory takings jurissprudence—will not help to remove their opposition and, a fortiori, cannot guarantee efficient development. I will explore the phenomenon of “political holdouts” and analyze its causes. As I will show, political holdouts are ubiquitous. Political holdouts may arise with respect to most of what passes for public policy projects, under either the aegis of eminent domain or the government’s police power, and also with respect to non-NIMBY projects. This observation may seem counterintuitive at first. However, one should consider that efficient development projects create a surplus over which powerful interest groups compete. As should be clear, what is of interest to localities and political groups is not the overall utility of a particular development project, but rather their payoff from it. Municipalities may oppose projects that benefit them simply to increase their share of the overall surplus generated by the project. Hence, the problem I point out is significant and acute. In the remainder of this paper, I will discuss in depth how the problem of political holdouts affected the construction of a fast train line (the Lyon–Torino–Milano–Trieste–Khoper–Ljubljana–Budapest TGV line) in northern Italy.     

From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment

In 1989, the House of Lords first derived a ‘best interests’ test for the medical treatment of adults who lack capacity from the doctrine of necessity and, now codified, the test continues to apply today. The Mental Capacity Act 2005 sets out a non‐exhaustive checklist of relevant considerations, but it gives no particular priority to the patient's wishes. There is also no formal expectation that the patient will participate directly in any court proceedings in which her best interests are to be determined. This article will consider the advantages and disadvantages of providing additional guidance to decision‐makers in order to help them navigate both taking seriously the wishes of people who lack capacity and, at the same time, not abandoning patients who need help and support. More specifically, this article advocates formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions, or starting points.