{"title":"Heritage Strikes Back","authors":"M. Sadowski","doi":"10.14195/2184-9781_2_5","DOIUrl":"https://doi.org/10.14195/2184-9781_2_5","url":null,"abstract":"Images of genocide, mass graves and torn families come to mind when one hears the term ‘war crime’. But does cultural heritage have similar legal rights? Is it protected by the Rome Statute? What lays in the future of cultural heritage protection against destruction? And where do the boundaries of law lie with regards to the rights of cultural objects? The purpose of this paper is to answer these questions by focusing on the 2016 International Criminal Court’s (ICC) judgement in the Al Mahdi case and the analysis of the 2021 ICC’s Policy on Cultural Heritage born in its wake, which will shape our perception of the cultural heritage protection in the years to come. In the first, introductory part of the paper the author ponders upon the concept of cultural heritage, trying to understand why it matters. In turn, the second part of the article focuses on the investigation of the many faces of interactions between cultural heritage and law. The third part of the paper is devoted to the analysis of the Al-Mahdi case heard before the ICC. The author explains how the case was brought before the ICC and the way in which the Court reached its now precedential decision, showing the various ways in which it pushed the boundaries of law and our understanding of what constitutes a war crime. In the fourth part of the paper the author turns his attention to the Policy on Cultural Heritage proposed by the ICC in June 2021 in close collaboration with UNESCO, looking into the new paths it puts forward for cultural heritage. The concluding part of the paper is focused on the question of what the ICC’s Policy means for the future of the prosecution of the crimes against cultural heritage, with the author asking whether it may be an effective tool and deterrent in fighting against the destruction of world’s heritage, and wondering how the rights of monuments may be further broadened in the coming years.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123146254","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Public diplomacy, collaborative power & law community","authors":"Niedja Santos","doi":"10.14195/2184-9781_2_2","DOIUrl":"https://doi.org/10.14195/2184-9781_2_2","url":null,"abstract":"This paper argues that awareness over public diplomacy and collaborative power as relevant resources in the toolbox of the law community may be useful for overcoming barriers related to culture and values. In this context, law practitioners are encouraged to focus on shared interests to get the best solutions for solving undecidabilities. The international relations perspective rather than law studies grounds this paper. After introduction, section two contextualizes the undecidability issue in the globalization era, as well as respective challenges posed to the law community regarding culture and values. Subsequently, section three exposes the public diplomacy concept while section four highlights the role of collaborative power in this realm. Then, this paper reflects on how public diplomacy and collaborative power can become relevant instruments of law practitioners. Finally, the conclusion summarizes main thoughts and highlights findings.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129453269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The protection of cultural Identity","authors":"E. Jayme","doi":"10.14195/2184-9781_2_0","DOIUrl":"https://doi.org/10.14195/2184-9781_2_0","url":null,"abstract":"This editorial signals the legal importance of cultural identity mainly with regard to cultural objects. The issue of “nationality” of art objects is addressed in connection with the increasing claims for restitution of cultural artworks, without forgetting that pluralism is also a concept that frames the cultural identity of persons themselves.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121867609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Dynamism and deliberativeness in the interpretation of law on the example of cases concerning LGBTQ rights","authors":"B. Wojciechowski","doi":"10.14195/2184-9781_2_3","DOIUrl":"https://doi.org/10.14195/2184-9781_2_3","url":null,"abstract":"The article illustrates the numerous contexts and multifaceted nature of the right to citizenship, to have a correct civil status record, or to benefit from tax reductions or exemptions on the same basis as other citizens, e.g. those in heterosexual unions. It shows how complicated it has become to adjudicate on matters that, in view of the subject matter, should be relatively clear and predictable. Reflexive interpretation of law makes it possible to take into account its non-eliminable changeability, as well as the fluidity of the meaning of terms and phrases used in legal texts – factors which oblige the interpreter to refer to extra-linguistic contexts of interpretation, i.e. to functional and systemic arguments. The author considers that it is not possible to reach an adequate understanding of the current legal context without analysing the social and cultural context, especially when considering pluralism of values as the modus vivendi of a democratic society.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"34 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132462041","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"State legal order and polyculturality","authors":"Pierre Moor","doi":"10.14195/2184-9781_2_1","DOIUrl":"https://doi.org/10.14195/2184-9781_2_1","url":null,"abstract":"Legal Theory is incumbent to analyze the mechanisms by which legal orders deal with the problems of polyculturality. This article focuses on the issue of community norms, particularly if they are regarded as material facts or as normative facts. The question is whether polyculturality can be the source of a normative fact that must be respected even if it does not agree with the dominant social values in society, or are these values to prevail. Taking into account a wide set of cases, the Author addresses the issue of the conflict of values and how it is – or should be – solved by public powers, taking into stock their function and the concrete cases at hand.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"194 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122678753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"From Genocide to Ecocide. Essentials of a new category of international crime against humanity","authors":"Ewa Nowak","doi":"10.14195/2184-9781_2_4","DOIUrl":"https://doi.org/10.14195/2184-9781_2_4","url":null,"abstract":"The recent legislative initiative for the adoption of an amendment to the Rome Statute on ecocide as a new category of crime against humankind has an impressive normative background in the classical doctrine of international criminal law pioneered by Raphael Lemkin, in the prescriptions of the ethics, and in the discourse of an international community aware that the protection of the totality of life together with the ecosphere is currently the most urgent priority. Between 2019 and 2021, the Independent Expert Panel for the Legal Definition of Ecocide at the European Parliament developed a legal definition of ecocide. In the following article, I discuss 1) the nexus between genocide and ecocide, 2) the prescriptions of the ethics of responsibility for the future of all life on earth, further justifying the need to prosecute the perpetrators of ecocide, 3) specificities of ecocide as a comprehensive and expectedly effective category of international criminal law in comparison to the human right \"to\" a healthy and legally protected environment and in comparison to constitutional ecocentric rights, as more declarative but less effective. When adopted into the Rome Statute, the new category of crimes against humankind may equip the International Criminal Court in The Hague with an effective legal tool to prosecute perpetrators of ecocides.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131032599","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Keep Law Alive","authors":"J. White","doi":"10.14195/2184-9781_1_2","DOIUrl":"https://doi.org/10.14195/2184-9781_1_2","url":null,"abstract":"An account of the author’s recent book, Keep Law Alive, including: an assessment of the dangers which threaten law and the democracy it depends upon; an analysis of the ethically and intellectually praiseworthy methods and traditions law once enjoyed, using as examples the Model Penal Code, a pair of judicial opinions by Justice Holmes, and an essay on affirmative action; the elaboration of a way of thinking about law not as rules or policy or theory but as an inherently unstable but crucially important structure of thought and expression; and finally some attention to the question, how we might resist the corruption of law and, failing that, and using Augustine as an example, how we might live with its loss.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130089671","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Law and the Janus-faced Morality of Political Correctness","authors":"José Manuel José Manuel","doi":"10.14195/2184-9781_1_1","DOIUrl":"https://doi.org/10.14195/2184-9781_1_1","url":null,"abstract":"This introduction explores the relationship between Law and Political Correctness (PC), considering different stages (from culture wars on campus to narrative outsider jurisprudences), as well as diverse (contextually instable and often contradictory) narrative webs. This reflective path opens three main different problems: the first concerns the way how the sensitivity to political correctness is programmatically (contingently) pursued through statutory law; the second identifies the difficulties which plurality and fragmentation create, when we consider Law’s vocation for comparability; the third denounces specific institutionalizing procedures and social effects associable to the culture of political correctness. Acknowledging that the integrated discussion of these themes, in their juridical systematic implications, is fundamentally encore à faire, the last part of the text introduces in detail the seven chapters which follow, highlighting the stimulant plurality of perspectives and approaches which they manifest.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"113 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128901092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Consonances and Dissonances Between Legal Realisms","authors":"Eduardo C. B. Bittar","doi":"10.14195/2184-9781_1_8","DOIUrl":"https://doi.org/10.14195/2184-9781_1_8","url":null,"abstract":"This paper is a comparative reflection of the models of Legal Realism in the Theory of Law, considering the North-American Legal Realism, the Scandinavian Legal Realism and the Brazilian Legal Realism. This article presents the Theory of Realistic Humanism within Legal Realism with the Critical Theory of Law.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124714184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions","authors":"L. Catá Backer","doi":"10.14195/2184-9781_1_3","DOIUrl":"https://doi.org/10.14195/2184-9781_1_3","url":null,"abstract":"The concept of consent is ubiquitous in the West. It is the foundation of its construction of meaning for sovereignty (and political legitimacy), and for personal autonomy (and human dignity). Ubiquity, however, has come with a price. The making of a transposable meaning for consent that bridges political community and interpersonal relations has drawn sharply into focus the malleability of the concept, and its utility for masking a power of politics behind an orthodoxy of meaning that is both politically correct, and at the same time its own inversion. This short essay on the semiotics of “consent” considers the manifestation of the concept as object, as symbol, and as a cluster of political interpretation that itself contains within it the Janus faced morality of political correctness. It takes as its starting and end point the idea that free consent is the product of a process of management that reduces consent to the sum of status and authority over the thing assented. The exploration is framed around the recent arguments in the American Law institute’s Model Penal Code Project around the meaning of consent in sexual relations. The essay first situates the problematique of consent—as action and object that incarnates power relations and the boundaries of the taboo. It then illustrates the way that semiotic meaning making produces a political correctness that produces paradox by critically chronicling the meaning of consent respecting sexual intimacy in criminal law. It enhances sexual liberation by placing it within a cage of limitations that ultimately transfers the power over consent form the individual to the state. That meaning making suggests the way that consent as an act, and as a state of being, is transposed to the broader context of political economic relations.","PeriodicalId":122222,"journal":{"name":"Undecidabilities and Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124189317","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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