Published by De Gruyter

Volume 21 Issue 1

April 2021

Issue of Global Jurist

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Contents
Journal Overview

Publicly Available March 22, 2021

Research Articles

Publicly Available August 3, 2020

The Chinese Advantage in Emergency Law

Ugo Mattei, Liu Guanghua, Emanuele Ariano

Page range: 1-58

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Abstract

This Article has a twofold purpose. On the one hand, it offers comparative materials for an informed discussion of COVID-determined emergency law in China and Italy by assessing its normative implications and political genealogy. On the other hand, it explores the essential contiguity between the ‘state of exception’ triggered by the pandemic and the possible geopolitical shifts in global legal hegemony in the actual phase of surveillance capitalism which is witnessing a decline of law as a form of social organization and its replacement by the predictive models elaborated by technology. In this respect, the traditional Western iconography has long described the Chinese legal tradition as a “law without law”, a despotic regime with intrusive population surveillance whose distance from the Western paradigm is deemed almost unbridgeable. And yet the legal response to coronavirus both in Europe and in the U.S. somewhat replicates the allegedly distant Chinese model in terms of restrictions and surveillance mechanisms which are being deployed to counter the crisis in the face of a formal commitment to the rule of law. This Article concludes that the emerging pre-eminence of the “rule of technology” over the “rule of law” in a critical event of historic proportions like a pandemic should and will set the future agenda of comparative studies in a double direction. On the one hand it calls for a truly critical reconsideration of role of law in society which in turn impels to rethink the hold of the liberal constitutional model and the obsolescence of traditional legal taxonomies. On the other hand, it might point to the emergence of an unexpected Chinese legal leadership, determined by the progressive undoing of the Western legal and political narratives whose backbone has been relentlessly eroded by decades of neoliberalism and populism.

Publicly Available October 26, 2020

The Right to Health and Resource Allocation. Who Gets What and Why in the COVID-19 Pandemic

Guido Smorto

Page range: 59-72

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Abstract

The COVID-19 outbreak has led to a worldwide, substantial increase in the demand for pharmaceuticals, hospital beds, ventilators, and medical supplies. When needs suddenly exceed demand worldwide, resources may quickly become scarce in relation to potential demand, so that strict rationing is the only viable response. Against this backdrop, this paper scrutinizes the rationales for prioritization of scarce resources, and it questions the actual role and reach of the market with regard to resources that are essential to deliver health care, especially in times of severe shortage, such as during a global pandemic.

Publicly Available November 6, 2020

Who is Going to Pay for Causing Pandemics?

Federico Regaldo

Page range: 73-100

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Abstract

In the modern, globalized, world, millions of laws and statutes are applicable to humankind, in order to curb and regulate the activity of every individual. Within the last decades, sanctions multiplied and aggravated, but who is going to pay for having caused a catastrophic pandemic? Actually, it seems that the answer is: “nobody”. However, the article gives some suggestion, by applying new “eco-tort” and civil liability principles to this new and unprecedented crisis. Furthermore, it gives some urgent public policy guidelines to minimize the risk of new pandemics. It also advocates a new world order, based on the promotion of anti-speciesism, non-violence, environmental protection and fair sharing of natural resources, while rejecting the free market theories: it seems the best way for finally overcoming the crisis and preventing new ones.

Publicly Available December 14, 2020

Experiences of a Little Cuban Town in Quarantine Because of Covid-19: Trade of Agricultural Products in the Search for Food Security

Jorge Freddy Milian Gómez, Yanelys Delgado Triana

Page range: 101-110

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Abstract

Food systems and trade of agricultural products have been affected by States measures in response to the evolution of the Covid-19 pandemic. Cuba, a Caribbean island, is equally hard hit by Coronavirus pandemic. Cuba’s reality becomes much more complex when it has to face the economic and financial blockade imposed as a unilateral coercive measure by the US government, causing the impossibility of buying raw materials abroad to produce first need products and food. This essay, framing the global problem of Covid-19, aims to understand how trade of agricultural products is regulated in Cuba in times of pandemic for quarantine areas, taking specific municipality experiences as a model. It is necessary to disseminate the good experiences following three main constitutional principles: right to adequate food, food safety and municipal autonomy. Main results are based on demonstrating if there is an appropriate articulation between local government, producers and trader’s direct benefits to strengthen the food security of population will be obtained.

October 13, 2020

Enhancing the Transformative Potential of the Sustainable Development Goals (SDGs)

Katerina Akestoridi, Francesco Seatzu

Page range: 111-141

Abstract

This work consists in a critical examination of an argument which purports to prove that unless the mainstream model which dominates the development industry changes, the Sustainable Development Goals (SDGs) will become a missed opportunity to eradicate poverty. The work is structured into three sections (plus an introduction and a conclusion) as follows: section one provides an overview of the previous UN policy agenda, the Millennium Development Goals; section two examines the SDGs framework as articulated in the 2030 Agenda. Building upon the latter, section three inquires why socio-economic growth should be the sole measure of human progress.

August 27, 2020

The Effectiveness of Administrative Detention of Migrants in Relation to Return Rates: A Compared Analysis along States of EU South Frontier: Italy, France, Greece and Spain as Cases Study

Luca Falsone

Page range: 143-164

Abstract

Administrative detention has gradually become a fundamental instrument in migration policies of European States. The law generally assigns to this measure a key role in supporting removal procedure. On the other hand, administrative detention has been recognised as a symptom of the crimmigration crisis. This article aims to challenge the expected benefits of administrative detention as an effective measure to guarantee the enforcement of removal procedures, analysing available data of imprisonments and removals relative to Italy, France, Spain and Greece in the period of time 2014–2019.

September 24, 2020

Knowledge and Property in John Locke

Isabel Ruiz-Gallardón García De La Rasilla

Page range: 165-180

Abstract

In this paper, an analysis is performed on the concepts of knowledge and property employed by John Locke to demonstrate the possibility of attaining certainties in moral knowledge and to legitimise private property. His thought was characterised by his desire to trace a connection between the moral, intellectual and material worlds, for the purpose of establishing methodological grounds for a true knowledge of practical principles. Inquiring into the processes of knowledge and into the motivational workings of human behaviour, the English philosopher arrived at the conclusion that thanks to the exercise of his knowledge and will, man acquires, with effort, the ownership of his person and the external world surrounding him, and is capable of attaining knowledge of the content of natural law with a certainty as absolute as that deriving from mathematical knowledge.

Open Access September 23, 2020

An Alternative to Data Ownership: Managing Access to Non-Personal Data through the Commons

Tommaso Fia

Page range: 181-210

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Abstract

In today’s algorithmic society, access to large-scale datasets is the sine qua non for any economic actor to reap the benefits of data-driven innovation (DDI). This article explores alternative mechanisms of data management in large-scale processing environments which can bolster access in view of the shortcomings of the existing data ownership-centric system. The scope of the analysis is limited to non-personal data. First, this contribution elaborates on the features and shortcomings of the data ownership-centric system and the existing legislation on data access. In fact, despite its ground-breaking potential, data access is not a widely available resource. It is subject, meanwhile, to the ability of several actors to control it, originating from data holders’ position of de facto control over data (“data ownership”), which is mostly anchored in technological, behavioural, and legal access barriers. This ownership-oriented setting thus stifles data sharing and opportunities for novel reuses of data. Despite these concerns, EU secondary legislation and case law (including the “essential facilities doctrine” of competition law) have not yet offered appropriate means to enable data access across society. Second, this article investigates whether alternative systems of data management based on the commons is a viable solution to open up access to raw non-personal data (RNPD). The commons as a conceptual notion and institutional mechanism values access and freedom to operate, instead of power to appropriate. The article homes in on two main reasons which substantiate why commons management of RNPD can be desirable. On the one hand, RNPD can be deemed a cooperative infrastructural resource that calls for being pulled out of its factual enclosure (“structuralist approach” of the commons). On the other hand, grasping RNPD as a commons means valuing its functional nature, making data available to a wide number of actors for the fulfilment of fundamental rights and enhancing human flourishing (“functionalist approach”). The article concludes with some thoughts on the lines of research which are still to be explored to put the commons-based vision of data management into practice.

Open Access September 9, 2020

Procedural and Judicial Guarantees Against the Punitive Power of Public Bodies

Giovanni Martini

Page range: 211-246

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Abstract

The scope of this analysis is to reconstruct, with a brief look to the Italian case, the ‘frame of reference’ within which the rulings of the ECtHR on the Art. 6 of the ECHR, due to the particular strength that Article 46 of the Convention attributes to them, are made, to understand, at the outcome, how, and to what extent, the sanctioning activity of public bodies can be influenced by the principles of the ECHR as enforced by the Judges of Strasbourg. To this aim the focus will be addressed on the following, and more complex, profiles: (a) independence, impartiality and separation of functions; (b) sanctioning activity and discretionary powers; (c) sufficient judicial review and full jurisdiction, to conclude the investigation trying to verify, in the light of the latest directions taken by the ECtHR; (d) whether, and how, the types of sanctions can affect the conditions of the judicial protection.

September 18, 2020

Forms of Supervision and Control Over Compliance with Labor Legislation and Labor Standards in Ukraine

Mykola Inshyn, Tetiana Vakhonieva, Andrii Korotkykh, Anatolii Denysenko, Oleh Deneha

Page range: 247-272

Abstract

The article analyzes forms of supervision and control over the compliance with labor legislation and labor standards in Ukraine in relation to the concept of inspection. The procedure for exercising control and supervisory functions is investigated and the powers of the entities exercising them are determined. The article analyzes theoretical and legal nature of the state and public supervision and control over the compliance with the labor legislation of Ukraine. The study reviews foreign legislation in the sphere of supervision and control over the compliance with labor legislation and legislation on labor protection. The study also correlates the latter with Ukrainian labor legislation. In the course of the research, the modern tendencies and problems arising in the process of improving Ukrainian legislation are identified, along with ways of overcoming them. Namely, the temporal legal conflict is identified, characterized by the simultaneous effect of two acts of equal legal force.

November 2, 2020

Issue on “Small” and Indisputable Cases in Russian Courts

Andrey Kashanin, Vladimir Churakov

Page range: 273-303

Abstract

Nowadays the growth of courts’ caseload is usual for most jurisdictions. However, post-socialist countries have extremely high rates of caseload. Authors prove that main reason of such caseload is more ineffectiveness of legal system and court organization as well as unjustified access to justice. This article focuses on the indisputable and small cases in Russian courts. The court system is overloaded as a result of necessity to engage in non-targeted activities. Thus, the judicial system is largely idle to the detriment of its primary purpose.

About this journal

Objective
Global Jurist offers a forum for scholarly cyber-debate on issues of comparative law, law and economics, international law, law and society, and legal anthropology. Edited by an international board of leading comparative law scholars from all the continents, Global Jurist is mindful of globalization and respectful of cultural differences. We will develop a truly international community of legal scholars where linguistic and cultural barriers are overcome and legal issues are finally discussed outside of the narrow limits imposed by positivism, parochialism, ethnocentrism, imperialism and chauvinism in the law. Submission is welcome from all over the world and particularly encouraged from the Global South.

Topics
Global Jurist publishes articles on issues of:

comparative law
law and economics
international law
law and society
legal anthropology
law and humanities

Article formats
Editorials, Forewords, Research articles

> Information on submission process

Volume 21 Issue 1

Issue of Global Jurist

Frontmatter

The Chinese Advantage in Emergency Law

Abstract

The Right to Health and Resource Allocation. Who Gets What and Why in the COVID-19 Pandemic

Abstract

Who is Going to Pay for Causing Pandemics?

Abstract

Experiences of a Little Cuban Town in Quarantine Because of Covid-19: Trade of Agricultural Products in the Search for Food Security

Abstract

Enhancing the Transformative Potential of the Sustainable Development Goals (SDGs)

Abstract

The Effectiveness of Administrative Detention of Migrants in Relation to Return Rates: A Compared Analysis along States of EU South Frontier: Italy, France, Greece and Spain as Cases Study

Abstract

Knowledge and Property in John Locke

Abstract

An Alternative to Data Ownership: Managing Access to Non-Personal Data through the Commons

Abstract

Procedural and Judicial Guarantees Against the Punitive Power of Public Bodies

Abstract

Forms of Supervision and Control Over Compliance with Labor Legislation and Labor Standards in Ukraine

Abstract

Issue on “Small” and Indisputable Cases in Russian Courts

Abstract