This paper examines the limitations of the traditional legal binary between persons and things, with particular attention to human remains. Rooted in Cartesian dualism, this framework shaped modern legal systems to safeguard human dignity and prevent the commodification of bodies, notably in contexts such as slavery and organ trafficking. Yet, the rigid dichotomy proves inadequate when addressing entities that resist classification, especially the deceased body. The paper argues for a continuum model of legal status. Unlike the binary, the continuum acknowledges a spectrum between personhood and objecthood, allowing recognition of intermediate categories. Human remains illustrate this ambiguity: while the living body is a legal person, the corpse is often treated as property, subject to burial, inheritance, or museum regulations. Such treatment, however, conflicts with the enduring cultural, emotional, and religious significance of the dead. The continuum seeks to move beyond the proprietary grammar that limits Western legal thought. It offers vocabulary for nuanced recognition of entities such as animals, nature, or artificial intelligence, which similarly challenge existing classifications. Models such as the "cultural commons" or the "thing-person" illustrate how remains might be governed as shared heritage or liminal entities. Ultimately, the continuum provides a more flexible and ethically sensitive framework. By transcending the person-thing divide, it opens pathways toward a relational and inclusive legal system better attuned to evolving notions of personhood, property, and rights.
The merging of agency into legal personhood in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is a fundamental change seeking to construct the status of legal actors as necessarily including their actions. The most significant practical implication of this universal legal capacity for national legislators is the move from systems of substituted decision-making to new mechanisms of supported decision-making to scaffold individual agency. People with profound intellectual disabilities confront both the meaning and practice of the UNCRPD construction of personhood/agency. This paper critiques universal legal capacity and supported decision-making by exploring two challenges posed by the profound difference and radical dependence of people with profound intellectual disabilities. Firstly, legal agency is not a necessary condition for recognising legal personhood: Article 12, while seeking to counter legal and philosophical traditions that condition personhood on cognition, merges the ability to act in the world with innate humanity, a conflation that leaves little space for the humanity of those who cannot act or decide in legally recognised ways, even with every possible support. Secondly, this reframing requires a level of 'support' for individual decision- making that renders it a legal fiction, one that obscures who is actually deciding and fails to provide the intended safeguarding of rights. For people with the most profound intellectual disabilities, much of the theory and practice around universal legal capacity and supported decision-making does not apply to the embodied realities of their lives. This paper contributes to the ongoing debate by making visible those whom current frameworks inadvertently exclude, and calling for honest engagement with the fundamental challenges to legal personhood, agency, and capacity that people with profound intellectual disabilities represent.
This article explores how emergency powers can become a permanent feature of governance, using the United Kingdom's Anti-Terrorism, Crime and Security Act (ATCSA) of 2001 as a case study and drawing on Giorgio Agamben's theory of the state of exception. It begins by outlining the historical and theoretical background of emergency measures, with particular attention to the enduring tension between protecting national security and safeguarding constitutional principles. Agamben's argument is then introduced: that the suspension of law during crises can gradually shift from being an extraordinary response to becoming a normal tool of government. The ATCSA illustrates this dynamic. Passed in the aftermath of 9/11, it authorised indefinite detention without trial and granted wide-ranging new powers to the executive. While judicial challenges, most notably the Belmarsh case, placed some limits on these measures, similar powers soon resurfaced in the form of control orders and later Terrorism Prevention and Investigation Measures (TPIMs). The article argues that these developments highlight the fragility of liberal constitutionalism. Mechanisms such as sunset clauses and judicial review may constrain emergency powers, but only partially. The British experience shows how the line between normal governance and exceptional measures can blur, supporting Agamben's concern that once institutionalised, emergency powers fundamentally reshape democratic rule.
The recognition of children's legal capacity under international law constitutes an ambiguous issue, whereas the conditions of its exercise remain mostly unregulated. Their recognition as 'persons' before the law has resulted in their recognition as rights-holders. However, this has not resulted in their recognition as persons who can also exercise their legal agency. This paper discusses how the right to legal capacity of children can be reconceptualised through the lens of Article 12 of the Convention on the Rights of Persons with Disabilities. It argues that children's personhood should be understood as an indivisible concept with their agency and, therefore, a right to exercise this agency should be recognised, through the right to legal capacity.
The core claim of constitutivist ethics is that moral principles are necessarily present within the concept of what it means to be an agent. Though recent publications have attempted to apply this claim to issues of contemporary legal theory, there has been no comprehensive attempt to develop an account of legal status grounded in the constitutivist position. The purpose of this article is to fill that gap, with emphasis on the role of the legislator. The argument will proceed in three parts, the first of which will demonstrate the need for such an account. It will be suggested that existing approaches see recognition of legal personality as a social fact separable from moral considerations, and thus assume a legal positivist understanding of legal validity. Part two will then use Gewirthian theory to demonstrate why such an approach is unacceptable to the constitutivist, before offering an alternative built around the maxim that agency is a sufficient, though not necessary condition for the ascription of legal personality in any legal system where this status is an instrumentally necessary pre-requisite for legal rights-bearing. From this position, legislators faced with the task of ascribing legal personality must work within the following two-tiered approach: (1) Core legal persons: beings/entities considered moral patients by the constitutivist, whose legal personality legislators have a positive obligation to recognise; and (2) Penumbral legal persons: beings/entities not considered moral patients by the constitutivist, and the recognition of whose legal personality remains at the discretion of legal officials. The final part of this chapter will introduce case studies to explore the practical workability of the mind-independent aspect of legal personality that this account requires us to accept.
The regulation of wicked problems, such as the energy transition, requires strategies that reflect the diversity of actors whose behaviour must be influenced. Existing approaches too often treat stakeholders as homogeneous categories - citizens, industry, or consumers - overlooking crucial differences in both willingness to act and resources to do so. This paper introduces a quadrant model that maps stakeholders along these two dimensions and employs it as a heuristic for regulatory design. The model explains why uniform strategies frequently fail and provides guidance for calibrating instruments to distinct actor types. Using examples from EU energy regulation, the paper shows how regulatory tools - ranging from facilitation and subsidies to binding obligations, market-based instruments and experimental sandboxes - can be aligned with actor characteristics. Distinct constellations of willingness and resources call for differentiated responses: facilitation where both are present, enabling support where willingness exists but capacity is lacking, binding obligations where resources are abundant but motivation is weak; and combined incentives and sanctions where neither condition is met. The quadrant thus provides a structured framework for matching regulatory instruments to heterogeneous social realities. While developed here with reference to the energy transition, the model offers a generalisable approach to wicked problems, helping regulators design interventions that are more effective, efficient and fair.
This article examines a novel approach in studies of symbolic politics and legislation, termed 'legislative placebo', through the lens of Polish legislative actions during the COVID-19 pandemic. It explores how legislators, despite recognising the flaws in proposed measures, may still enact legislation driven by motives other than those officially stated. The study uses regulatory impact assessment and explanatory memorandum for the Polish Coronavirus Specialist Law as key tools for understanding the intended versus real goals of legislative actions. By analysing a specific legislative intervention during the crisis, the article outlines the theoretical foundation of legislative placebo, investigates the context and development of selected legislation and evaluates how these measures work. Drawing on Poland's legislative experiences from the COVID-19 era, these research findings aim to enhance the understanding of legislative placebo and suggest directions for future research.
This article offers an initial view on constructing an inner morality of legislating. Inspired by the framing of Lon Fuller's theory of law, this article seeks 'a morality that makes legislating possible'. This article builds on Fuller's framing to identify normative directives in legislating. It aims to provide insight on how to legislate properly by aligning with contextual demands. The points normatively guide towards good practice. Each is articulated and exemplified with recent legislative history to illustrate the issue and its impact. This inner morality brings attention to five points that condition proper legislating: being cognizant of form, being attuned to questions of time, ensuring parliaments have adequate independence, making sure the legislation being produced is not precluded from its potential, and exhibiting self-scrutiny. This list is meant to be open and creates a checklist of concerns that legislators should consider to craft legislation in the best possible form.
In recent decades, the call for regulatory innovation has increasingly become louder. Practitioners and academics press for more flexibility, less complexity, less regulatory burden, and more freedom and room for innovation for regulatees. One of the tools that is seen as potentially responding to these needs, is goal-based regulation (GBR). GBR describes the goal that regulatees should achieve, without specifying how they must achieve it. This is usually contrasted with rule-based regulation (RBR), which prescribes detailed instruments and behaviours. An important distinction between the two is how much discretion regulatees have on how to reach the regulatory goal: with GBR, regulatees have a lot of discretion, with RBR they have little discretion. While GBR has already received quite some scholarly attention over the last few years, much research on GBR only discusses 'goal-based regulation' as if it were a homogeneous phenomenon. However, most regulation is not purely goal-based or rule-based but rather takes some hybrid form. Hybrid forms of regulation leave some elements to the discretion of regulatees and restrict others. This paper aims to find a method for evaluating the discretion that regulation grants to regulatees in a way that allows us to identify various forms and degrees of GBR. It does so by combining insights from existing literature with a rule design analysis of Flemish environmental and welfare regulation. The result is a 'discretion index' that can be applied to determine how much discretion the regulation in any regulatory regime leaves to a particular regulatee. It allows for the categorisation of 'hybrids' as fundamentally GBR or RBR. And it enables the systematic mapping of developments and the identification of strategies for modulating GBR without losing its advantages.
This paper critically examines the ambiguous concept of symbolic legislation. Within the field, three distinct but overlapping approaches can be identified: those focusing on the expressiveness, inconclusiveness, and deceitfulness of legislation. In this light, symbolic legislation appears as a concept that cannot be captured by a single definition specifying necessary and sufficient conditions for categorising a statute as 'symbolic'. Instead, it should be viewed as a prototypical category. Drawing on prototype theory and the notion of family resemblance, the paper explores the fluid boundaries and varying degrees of typicality within symbolic legislation. Although a full unification of the various approaches appears unfeasible, it is nevertheless worthwhile to examine what they share without overlooking their differences. For example, symbolic legislation generally operates against the associations that people attach to law, and its symbolic features are not entirely within the legislator's control. The paper calls for continued integrated analysis across traditions, suggesting that symbolic legislation reveals more about the nature of legal communication than its critics often allow.
For many years, scholars have been debating the extent to which governments can deviate from law-making procedures in times of crisis. There is a fairly large consensus that some flexibility in the application of laws is necessary or desired in exceptional times, like crises, to enhance effectiveness. We want to put the assumption to the test according to which efficiency concerns trump legality concerns in times of crisis. More specifically, we ask how citizens perceive law-making procedures in times of crisis, and how this might affect their political trust, which is often associated with citizens' compliance with crisis measures. To answer these questions, we analyse unique survey data on citizens' legality perceptions and trust obtained in six EU member states, provide a typology of emergency responses based on the efficiency vs. legality balance, and perform a comparative analysis of the legal response to the COVID-19 pandemic in Belgium and Austria. Our analysis also leads us to an inevitable discussion of the role of courts in times of crisis. This paper thus aims to contribute to the literature on legality as a criterion in crisis governance, particularly compared to the more often-cited criterion of efficiency.
AI is already transforming medicine by improving diagnosis accuracy and opening an abundance of new medicinal options. However, behind the great benefits of AI, there are potential risks such as inaccurate diagnoses, improper use of personal information, and the elimination of algorithmic bias. This research aims to identify regulatory issues regarding AI in healthcare and formulate a regulatory framework to minimise the negative risks of using AI in healthcare. The method adopted in this research is qualitative legal research with a comparative approach and conceptual approach. The legal materials used are regulations in the United States (US), United Kingdom (UK), and Indonesia related to AI in healthcare. This research identifies the risks of using AI in healthcare from a legal perspective. The comparison of AI regulations was carried out by comparing regulations from the US, UK and Indonesia. The research results show that the use of AI in healthcare has potential risks that need to be mitigated. Based on the theory of the rationalistic model in lawmaking, laws are created as a rational way to protect members of society from social harm so that the use of AI in healthcare needs to be regulated. In the US, AI regulation in healthcare is carried out using a decentralised approach, allowing flexibility and involvement of all parties. In the UK, the existence of an institution that specifically regulates and supervises the use of AI in healthcare facilitates more effective oversight and coordination between regulators. Furthermore, harmonised AI standards are fundamental to the implementation of the AI Act in healthcare because they influence governance and quality standards designed to address risks.
This article examines the role of the filibuster as a procedural tool in the constitutional law-making process. In parliamentary systems, especially those operating under uncodified constitutions or where the constitution drives the constitutional law-making process but lacks sufficient temporal procedural safeguards, the filibuster is often one of the few mechanisms available to minorities in parliament to delay proceedings, raise objections and foster participation and deliberation. While commonly viewed as a merely abusive tactic, this article argues that the filibuster can, under certain conditions, enhance the law-making process by promoting compromise, extending parliamentary debate, and counterbalancing the absence of formal and informal time limitations or other obstructions and vetogates in the legislative procedure. The analysis illustrates these dynamics through the Israeli context, where the Knesset enacts Basic Laws, serving as a substitute for a formal constitution, according to the same rules that govern the ordinary law-making process. This institutional design, combined with recent episodes of democratic backsliding, reveals a troubling procedural gap: the absence of mechanisms to distinguish between ordinary and constitutional legislation in terms of process. The article contends that the filibuster, though limited and vulnerable to political override, has emerged as a de facto procedural safeguard in constitutional legislation, especially for the parliamentary opposition. While prolonged debate does not automatically lead to high-quality deliberation, this article argues that the availability of extended timeframes, often made possible through filibustering, can serve as a necessary precondition for fostering meaningful deliberative engagement where other procedural options are not sufficient or available. Accordingly, the article calls for developing stronger procedural frameworks in constitutional law-making process, reconceptualizing the filibuster not merely as an impediment to legislative efficiency but as a tool for enhancing the quality of legislation and strengthening democratic resilience in vulnerable constitutional settings as part of better law-making.
This study discusses the jurisdiction charged with receiving the resignation of members of parliament in Iraq and the legal and procedural mechanisms which regulate this procedure and the effects of resignation on the future of parliament and its parliamentary and oversight roles. The foundation that determines the authority of the council to receive member resignations is the Iraqi Constitution of 2005 and the Internal Regulations of the House of Representatives. The main problem is the issue of accepting resignations is delicate and directly concerns the stability and efficacy of parliament in the execution of its legislative and oversight functions. Major issues in this respect are the implications of political and partisan influences and the members may not have a voluntary option of resignation sensed by influence of political blocks or circumstances around the issue. Also, utilisation of resignations as political leverage results in parliament in serious situations that may tend to derail the legislative process as well as produce an imbalance in institutional stability. Another important point is to define the competent body to receive the resignations, a balance should be created between respecting the autonomy of the members and preserving the power of the legislative institution. The specific measures must, therefore, exist to insulate members against political influences and to offer a legal framework stipulating the exact qualifications of accepting resignations. Finally, the study indicates the necessity to improve the process of accepting the parliamentary resignations to guarantee the stability of the legislature and achieve the democratic outcomes.
The integration of artificial intelligence (AI) into legislative drafting offers significant potential to enhance the quality, clarity, and coherence of legal texts while addressing key challenges in the legislative process. This paper explores AI's role in legislative drafting by examining three main aspects: the foundational principles of proper legislation, the challenges faced by drafters, and AI's practical applications in improving legal text quality. First, the paper outlines the core legal principles that legislative drafting must uphold, establishing a framework for assessing AI's contributions. Second, it discusses common drafting challenges, including complexity, inconsistencies, and information overload, and how AI can mitigate these issues by improving efficiency, accuracy, and coherence. Third, it explores AI's practical applications, particularly in enhancing legal research through advanced information retrieval and classification, as well as detecting ambiguities, inconsistencies, and structural deficiencies in legal texts. AI-powered natural language processing (NLP) models can further refine legal language by improving readability and precision. Machine learning and knowledge graph technologies can help identify conflicts, redundancies, and gaps in legal frameworks, ensuring greater consistency and accessibility. While AI does not replace human expertise, it serves as a powerful tool to support legislative drafters, fostering more transparent, reliable, and equitable legislative processes. The paper concludes by addressing the prospects of AI-assisted legislative text generation and the ethical risks associated with its use.
The procedural treatment of parliamentary amendments is of crucial importance in parliamentary rules and practices. The admissibility of amendments and the way they are ordered and voted upon have a direct impact on the outcomes of legislative processes. Consequently, political theorists and legal scholars have been engaging in discussions regarding how best to maximise the rationality of procedural rules since the establishment of parliamentary assemblies. While the insights of thinkers such as Jeremy Bentham remain valid and applicable today, parliaments worldwide have continuously refined their methods for handling amendments, including how to respond to filibustering tactics. In the latter half of the twentieth century, advancements in legal informatics led many parliaments to incorporate a degree of automation into these processes. The emergence of generative Artificial Intelligence offers numerous potential applications, ranging from the redrafting of legislative texts, including amendments, to improve legislative quality, classify amendments, and cluster identical or similar proposals. After providing a historical overview, this article explores how Artificial Intelligence can be harnessed to enhance the rationality and efficiency of the legislative process, and the significant challenges its adoption poses for contemporary parliamentary democracies.
This article is devoted to the signs of crisis in contemporary legislation - observed in Poland and other countries of continental Europe, as well as in the Anglo-Saxon countries - and their consequences for the practice of applying law and general legal knowledge. The authors, analysing a number of various shortcomings of contemporary statutory law, including degradation of legal language, failure to comply with legislative technique, the flood of new legal provisions, inconsistencies and internal contradictions within the legal system, inflation of law, multicentricity of legal orders, new sources of law of doubtful status or even problems related to the promulgation of legal provisions - put forward theses on the uselessness of classical methods of interpretation and even assumptions such as the maxim ignorantia iuris nocet, rationality of the legislator or constitutional principles of the separation of powers or the hierarchy of sources of law. Consequently, referring to both practical examples and theoretical and legal findings, they reflect on the relationship between the legal text and the role of the interpreter, concluding the importance of the law of interpretation in today's world.
