The Institutions of Privacy: Data Protection Versus Property Rights to Data

This paper investigates the conceptual possibility for, and the institutions relating to a positive right of private property to data. To do so, it distinguishes between structured data, as a designator, and datapoints, which are data embedded in the timeline. The reasoning being explored here is: the agents generating datapoints – he source of the data – have a right to private property to the datapoints they generate. The agents, then, can choose to retain the datapoints or to sell them to data-users, aggregators, etc. Once these data-users render property of data themselves, they can further market it. There are, however, challenges to this view. One is the relative high cost of managing private property to data versus the relative low cost of misappropriating data and datapoints. The other is network effects: more precisely, data created or enriched in networks.

DECOLONISING THE UNIVERSITY: A LAW PERSPECTIVE

Decolonisation has been said to be “working toward a vision of human life that is not structured by the forced imposition of one ideal of society over those that differ”. This paper argues that political independence, responsive to the “dialectics of identity, liberation, recognition and distribution”, is not a sufficient condition for decoloniality of being as well as decoloniality of power and knowledge; and that political independence addresses coloniality of being without confronting coloniality of power and knowledge. Scholars committed to substantive decolonisation are bound to decolonise knowledge. Decolonisation of knowledge presents at least the conceptual possibility of a decoloniality of power. Decoloniality of knowledge itself, and thus the true liberation of the academy, becomes a realistic operational possibility, though requiring considerable application. This effortis vitally important given the deep alienation of South African university students. The trend to mimic exogenous experts and sages accentuates this imperative. Apart from the trend being futile, wasteful and dreary, it forecloses fresh insightand impedes the search for truth. The aim of this paper is to fill a gap in the sparse South African legal scholarship on decolonisation, principally the lack of definitional clarity

Creoles of the Mountains: Race, Regionalism, and Modernity in Progressive Era Appalachia

This article investigates how Progressive Era writers, both popular and scientific, helped to construct multiracial identities alongside competing efforts to enshrine race into strictly black and white terms. Existing scholarship on race in the Progressive Era has not sufficiently analyzed the presence of multiracial populations. Instead, scholars have treated state and federal efforts to police racial boundaries, namely through anti-miscegenation laws and the census, as evidence that multiracial persons were a legal impossibility. However, scientific and popular writing on Appalachia provides a conceptual space in which multiracialism was not only a conceptual possibility, but was engendered. Appalachia took on increased importance during the Progressive Era as both intellectuals and reformers used the region to frame their anxieties about the limits of modernity and the threat of racial mixing. The region was home to white mountaineers who appeared arrested in time, existing in uncomfortable proximity to newly discovered groups with white, black, and Native American ancestry who also seemed to have been shunned by civilization. In attempting to understand the peculiar conditions of Appalachia, these Progressive Era writers helped to advance some of the first ideas about what it meant to be mixed-race in America.

The Internal Limits on Fiduciary Loyalty

In the abstract, the limits on a lawyer’s loyalty obligations could take several forms. For example, constraints on a fiduciary’s loyalty obligations may be derived from a correct understanding of that fiduciary’s loyalty itself. Indeed, violations might count as a form of disloyalty to the client. Alternatively, such constraints could stem from obligations owed to parties other than a lawyer’s client, or even something more abstract like the rule of law. Notably, such constraints could be derived from legal principles that have nothing to do with fiduciary law. Each of these options is a conceptual possibility, contingent on the choices made by a given legal system. Constraints on a loyalty obligation that are implications of that loyalty obligation itself are defined here as internal. Constraints imposed from outside a given fiduciary loyalty obligation are defined as external. This paper seeks to deepen our understanding of a particular type of fiduciary loyalty (the loyalty owed by lawyers) by focusing on the role of such internal constraints, and in the process to elaborate on the scope of loyalty obligations more generally. This paper will also indicate why we should care about the internal/external distinction. Among other things, this distinction helps determine whether lawyers are better seen as private or public fiduciaries, and in practice it may bear on both judicial reasoning and legal compliance.

Emergence and the Failure of Reduction

This chapter explores the different ways in which the reductive method of explanation might fail, and asks what such failures might tell us about the world. In particular, the chapter investigates possible situations in which one or more of the assumptions identified in previous chapters fails. It is argued that the failure of one of these assumptions will give rise to something that is recognizable in the traditional notion of ‘ontological’ or ‘strong’ emergence. This understanding is then used to defend the conceptual possibility of such ontological emergence against the influential arguments of Jaegwon Kim. It is further argued that the failure of a different assumption gives rise to a relatively unrecognized form of ontological emergence related to the way that causal influences combine. Thus, an understanding of the reductive method gives us a way to grasp the notoriously slippery metaphysical concept of emergence.

Love and Enhancement Technology

Chemical and other interventions into the biological dimensions of love are currently possible and will likely become more powerful in years to come. This chapter explores some of the conceptual issues surrounding what it would mean to change love with biochemical agents, and presents a handful of case studies of individuals and couples who might desire to use such agents as a way of enhancing their love and relationships. The chapter then discusses a number of ethical and other worries that would likely be raised by the development or use of such biotechnologies and offers some tentative responses. Ultimately, it is argued that love-enhancing biotechnology is not just a conceptual possibility, but may already be practically feasible, and is likely in some cases to be morally desirable.

The Conceptual Possibility of Moral Criteria of Legal Validity

This chapter gives a positive argument for the claim that the criteria of validity can incorporate moral constraints on the content of law. It thus concludes the defense of the Incorporation Thesis undertaken in the last two chapters. The argument in question constructs a model of an institutional normative system that validates all and only mandatory moral norms in a possible world. The chapter argues that we must do two things to show the conceptual possibility of a legal system with moral criteria of validity. First, we must produce a model of an institutional normative system in a world resembling this one that can plausibly be interpreted as having moral criteria of validity that clearly satisfies every condition plausibly thought to be necessary for the existence of law. Second, to ensure that the model establishes the Incorporation Thesis, it should be incompatible with an exclusivist interpretation.

Morality and the Nature of Law

This book is concerned with explicating the conceptual relationships between law and morality. In particular, it explores the conceptual relationship between morality and the criteria that determine what counts as law in a given society (i.e. the criteria of legal validity). Is it a necessary condition for the existence of a legal system that it includes moral criteria of legal validity? Is it even possible for a legal system to have moral criteria of legal validity? The book considers the views of natural law theorists ranging from Blackstone to Dworkin and rejects them, arguing that it is not conceptually necessary that the criteria of legal validity include moral norms. Further, it rejects the exclusive positivist view, arguing instead that it is conceptually possible for the criteria of validity to include moral norms. In the process of considering such questions, this book considers Joseph Raz’s views concerning the nature of authority and Scott Shapiro’s views about the guidance function of law, which have been thought to repudiate the conceptual possibility of moral criteria of legal validity. The book, then, articulates a thought experiment that shows that it is possible for a legal system to have such criteria and concludes with a chapter that argues that any legal system, like that of the United States, which affords final authority over the content of the law to judges who are fallible with respect to the requirements of morality is a legal system with purely source-based criteria of validity.

Unconstitutional Constitutional Amendments: Between Contradiction and Necessity

In Unconstitutional Constitutional Amendments, Yaniv Roznai seeks to unscramble the apparent contradictions in the idea of an unconstitutional constitutional amendment. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit. In this short essay, I will argue that the form of argument deployed by Roznai cannot fully justify the doctrine of unamendability as Roznai elaborates upon it. It allows Roznai to establish that unamendability is a conceptual possibility but it does not follow, as he seeks to argue, that unamendability is a necessary consequence of constitutionalism.

Theophanic Materiality: Political Ecology, Inhuman Touch, and the Art of Andy Goldsworthy

This chapter pursues the queerly constructive task of rethinking the strange entanglements of divinity and matter in the wake of the ecological crises of the anthropocene. Seduced simultaneously by the “land art” (especially cairns) of Andy Goldsworthy, the “new materialisms” of Karen Barad and Jane Bennett, and the theophany traditions of Christian thought, this chapter constructs a concept of “theophanic materiality,” where divine energy is entangled in the performance of indeterminate material agencies. Goldsworthy’s artistic process of collaboration with and in place helps theology think anew the fluid possibilities of creativity. That is to say, placing land art in conversation with new materialisms and theologies of creation creates at least one conceptual possibility for the queer intimacy of divinity and earth. To construct such a theology, therefore, might help to effect a reimagined political response to the exploitative systems of human power that bring about our contemporary ecological crises.