Journal articles on the topic 'Extra-legality'

Abstract Following its withdrawal from the Joint Comprehensive Plan of Action, the USA re-imposed economic and financial sanctions against Iran. Its current unilateral sanctions regime against the country contains extra-territorial sanctions which prohibit non-US nationals and non-US companies from trading with and investing in Iran. Foreign legal and natural persons who do not comply with the US extra-territorial legislation are faced with a variety of limitations, including access restrictions, fines and penalties. Thereby they not only put pressure on operators worldwide but also interfere with the sovereign foreign policy choices of states and international organisations such as the European Union (EU) who support legitimate trade with Iran. Equally problematic are the extra-territorial sanctions contained in the US sanctions regime against Cuba. The article examines the lawfulness of unilateral extra-territorial sanctions as a form of targeted sanction under international law in the relationship between the sanctioning state and other sovereign international actors affected by the extra-territorial legislation in light of the customary law on jurisdiction, the law on sanctions as well as the principle of non-intervention. The relationship between the US and the EU and its Member States will be taken as an example. It will be shown that unilateral extra-territorial sanctions may amount to an abuse of rights in case they are functionally connected to primary sanctions that violate jus cogens norms or that undermine the UN Charter system, irrespective of the strength of the exercised economic pressure.

With recourse to the poetry of Guantanamo’s detainees, this article describes the extra-legal legality that typifies the conception and activities of post-9/11 terror-suspect prison camps. It argues that the state of exception, which has become integral in the war on terror, is not a product of necessity, but a reflection of the interplay between biopolitics, biopower, and Orientalism in the post-9/11 era. By considering the ways in which Guantanamo detainees employ poetry to plead their innocence and exhibit their suffering body as political subjects and objects, this article pays careful attention to the aesthetics of Guantanamo poetry and how it reveals the poets’ individual humanity against the fabric of the brutality and illegality packaged ironically as the ‘war on terror’.

The principle of retroactiveness in The Act, Number 26 in 2000 on Human Rights Jurisdiction provokes pros and cons. In one hand, severe violence against human rights is an extra ordinary crime that requires special treatment. On the other hand, retroactive legislation is against the principle of legality. In Islamic law, an act is considered a crime if it is proven by juridical evidences. An act is not considered a crime unless there is punishment for it. Therefore, every juridical decision adheres to the principle of legality that limits the extent of a law just for the future, not retroactive. According to most Muslim scholars, the principle of retroactiveness could be implemented if a new law is more just and humane without breaking the attainment of law ends. Implementation of the principle for severe violence against human rights is not allowed because it does not meet such requirement.

AbstractNotwithstanding its defining feature of normative pluralism, the socialist state of Vietnam basically adopts a legal centralist approach to regulation. The judiciary is arguably the most illustrative of this approach, since it is the main forum where legal centralism encounters normative pluralism. Our research examines the choice of norms in judicial adjudication in Vietnam to check the effectiveness of its legal centralist approach. It finds that, despite lacking institutional support, judges managed to apply customary norms at their discretion against the state’s emphasis on top-down legal rules. A legitimacy-based analysis explains this phenomenon. It points out that judges conceptualized their legitimacy under the influence of both legal and extra-legal rules, thus making it apart from the legality. Judges attempt to bridge the gap between legitimacy and legality enabled de factor normative pluralism. In looking at the influence of customary norms over judicial adjudication, the article aims to make both theoretical and practical contributions. Theoretically, it enriches the scholarship of normative pluralism by showing how legitimacy-building keeps normative pluralism effective, irrespective of the dominating legal centralism. Practically, it proffers insightful implications for the ongoing court reforms in Vietnam based upon the findings.

The United Nations Security Council (UNSC) is, in many ways, a unique institution. It exercises legislative, judicial and executive powers; operates with few legally binding checks and balances and has even been described as being ‘unbound by law’. The UNSC represents one of the organs of the United Nations. The Council has broad powers to maintain international peace and security, most notably under Chapter VII of the UN Charter, and its decisions are binding on UN members. At the same time, some of the Council’s actions have been labelled as ultra vires and the lack of a binding, legal oversight mechanism to reign in Council action has been decried. Accepting that there is a difficulty in imposing legally binding checks and balances on the UNSC, this article argues that approaching the Council’s Chapter VII powers as a form of emergency powers may help to illuminate the role that non-legal restraints can play in curbing its power. In particular, this article uses Oren Gross’ ‘extra-legal measures model’ to show how the extra-legal measures model offers a descriptive account of UNSC action under Chapter VII and then builds on the gap in the application of the model to the Council to highlight areas for the development of better restraints. The first section provides a brief history of the United Nations as an International Institution; the second section sketches the United Nations Security Council and its powers under Chapters VI and VII of UN Charter; the third section looks at the Ultra Vires acts of the UNSC; the concluding section looked into various models and most especially “Oren Gross” model as an extra legal measure that would provide answer to the limits of legality of the UNSC. To achieve this, the work explored various relevant literatures and also using data and information retrieved from both the primary sources and secondary sources as reference bank.

Islamic banking in Indonesia has existed for a long time, namely within the 1980s whilst several Islamic activists performed research on Islamic economics who recommended Islamic banking, even working towards it on a limited scale, together with through Bait at-Tamwil Salman, Bandung. Extra intensive efforts had been made in the 1990s, which culminated in the IV countrywide Deliberation of the Indonesian Ulema Council (MUI) in Jakarta, 22-25 August 1990 which led to a mandate to form a working group for the status quo of Islamic Banking in Indonesia known as the MUI Banking group. The end result of this team’s work is what is normally referred to as the establishment of PT bank Muamalat Indonesia (BMI), November 1, 1999, with an initial capital of more than IDR 106 billion. Several years later, Islamic banks emerged which includes independent Islamic banks, BNI Syariah, Mega Syariah banks and so forth. The sharia banking regulation itself is urgently wished for numerous motives, namely: in step with Indonesia's national development dreams to attain the advent of a just and prosperous society primarily based on economic democracy, it's far necessary to broaden an economic gadget primarily based on justice, togetherness, fairness and advantage. Islamic banking is the handiest instinct that is most appropriate to translate the above country wide development goals into real existence.Keywords: Legality, Sharia Banking, Islamic economics

AbstractOccasionally, people characterise foreign military interventions as “undeclared wars”. It is not entirely clear what is the meaning and value of such a qualification, but it seems that they want to add an extra weight to their condemnation. Still, does it have legal significance? At times, international law demanded that States issued a declaration of war before the commencement of hostilities but the obligation was mostly ignored for varied reasons. Notably, between two world wars, States avoided certain legal obligations (e.g. the prohibition to use war, the rules of warfare) by not declaring or otherwise recognising a state of war. After the Second World War, considering the earlier abuses, States redesigned the international legal regulations in a way that the declaration of war became practically irrelevant when it comes to the legality or illegality of the use of armed force, or to the application of law.

AbstractWhat role do public law and liberal constitutionalism play in an era of political populism? This article approaches this question by exploring the concept of constituent power in the light of recent constitutional developments in countries with populist governments. It attempts to outline and contrast conceptions of constituent power as inherent in liberal constitutionalist and populist thinking, respectively. While constitutionalists draw heavily upon Kelsenian normativism in framing the way political power is generated, populists juxtapose this with a concept of constituent power that is inspired by Carl Schmitt’s ‘decisionist’ view. The complacency of legality inherent in liberal constitutionalist thinking is susceptible to a populist challenge that draws attention to the necessity for the social embeddedness of any legal order. Populism, it is argued, exposes a core tension inherent in constitutionalism: How do constitutionalists reconcile their democratic aspirations with the simultaneous preclusion of certain political choices from the democratic realm? Populists can attack constitutionalism also because of the deficient conception of constituent power that underlies the latter. The article concludes that, where challenged by populists, public law can at some point no longer rely on its own force to defend itself. Its authority needs to be re-established from an extra-legal, pre-positive perspective. In an era of political populism, constitutionalist public law becomes a discourse that can challenge populism by means of the powerful reasons that inhere in the former.

Though International Criminal Law evolves, its evolution needs a careful, considered and consensus among its members through either customs, treaty or other recognized source of international law. The emergence of targeted killings is not clear whether it is a legally accepted counter terrorism policy or a form of extra-judicial killing, thus leaving the jurists undecided; either to criminalize or embrace it as a defence in international criminal law. In a bid to protect national security, many governments have intensified the efforts to counter the terrorists’ threats and attacks. Resorting to employing target killings is one of such attempts of counterterrorism that has created a sharp divide between those who support and those who oppose targeted killings by contending that it is resplendent with numerous human rights abuses. This paper discusses the extent to which targeted killing has been applied in the contemporary society, the arguments for and against, as well as its legality and legitimacy under international law.

This paper addresses the issue of accessible design in the context of dementia. It is not difficult to design buildings and outside spaces for people with dementia but you do have to follow clear design principles and values. However, unlike other disabilities, accessible dementia design is still viewed as an added extra and not a vital component of facilitating citizenship. In 2015, the World Health Organisation published guidance on human rights and dementia. People living with dementia are frequently denied their human rights even when regulations are in place to uphold them. This paper will focus on accessible design from a human rights perspective using the PANEL principles. PANEL stands for Participation, Accountability, Non-Discrimination and Equality, Empowerment and Legality. We will then conclude with recommendations for policy, practice and research to ensure that accessible design for people living with dementia does not continue to be a neglected space in the equality debate.

Constitutionalising the External Dimensions of EU Migration Policies in Times of Crisis, Legality, Rule of Law and Fundamental Rights Reconsidered, Edited by Sergio Carrera, Juan Santos Vara and Tineke Strik, London, 2019, 336 p. ISBN: PB: 978 1 78897 247 5. Reviewed by João Carlos Jarochinski Silva. The book edited by Sergio Carrera, Juan Santos Vara and Tineke Strik brings essential contributions to two of the most critical challenges of the European Union today: the decrease in integration and the breakdown of institutionalism in the face of human mobility of extra-community people. Stemming from a workshop held in 2017 at the University of Salamanca, it is divided into two parts. The first, EU External Migration Policies: New and old dynamics, which has six articles; and the second, EU crisis-led patterns of cooperation in light of the EU rule of law, which is composed of nine articles. In addition to these fifteen articles, the editors wrote an introductory chapter.

The article highlights the activities of the constitutional (charter) courts of the constituent entities of the Russian Federation concerning the protection of social rights of citizens and their role in the mechanism of protection of these rights. The author provides examples from judicial practice on the issues of their respect, implementation and interpretation. Attention is paid to extra-procedural activities of constitutional (charter) courts and their contribution to the development and improvement of the theory of social rights, social norms of law, including through published and declared messages. The author focuses on their positive role in strengthening the constitutional legality and the principles of the Social State. The paper contains the statistical data concerning the consideration of cases, namely the ratio between court decisions on issues of social rights and the total number of final court acts (on the example of the constitutional courts the Volga Federal District). A number of key problems of regional constitutional proceedings are highlighted, including implementation (enforceability) of decisions of constitutional (charter) courts affecting social rights of citizens.

The essay provides an overview of a debate that has been taking place primarily on the columns of a blog symposium on the prestigious constitutional law blog Verfassungsblog on constitutional restoration in Hungary. Given that Hungary is the poster child for hybrid, illiberal regimes, the discussion transcends Hungary and gives insightful additions to the illiberalism literature, targeting an audience beyond legal scholars. The starting point of the debate pertains to the classic dilemma of legal positivism vs. natural law, and in particular whether constitutional rules of dubious democratic nature can be replaced in violation of legality, for example in an extra-parliamentary democratic process. ‘Hybrid regimes’, or ‘elective autocracies’ and the phenomenon on of ‘abusive constitutionalism’ provide the framework and specific context of the constitutional restoration debate, as it is placed in regimes institutionalize ‘hegemonic preservation’, ‘authoritarian enclaves’ and ‘bionic appointments’ hijacking the vocabulary and imagination of constitutional democracy and entrenching legal provisions which remain beyond the reach of constitutional politics. The first part provides an assessment of the Hungarian institutional and political scene. The second part first distinguishes between three dimensions of the constitutional restoration-debate: theoretical, political and procedural, and subsequently discusses two focal points of the symposium: the role of constitutions in illiberal regimes and in constitutional resurrection, and the role of international and EU law as a tool for a legal revolution.

In recent years, the sunlight vitamin has become extremely popular and almost mandatory to use, especially because of its pleiotropic effects, although until recently its use was limited to the prevention of the development of pathology of the bone system, in particular rickets in children. Being actually a fat-soluble prohormone of a steroid nature, Vitamin D participates in the endocrine, paracrine and autocrine regulation of the body. The pharmacotherapeutic renaissance of calciferol is associated with the discovery of Vitamin D receptors in most cells of the body, and the presence of enzymes synthesizing the active form of Vitamin D extrarenally, in particular, in the skin, has led to renewed interest and broad discussion in the dermatological community. Is the role of non-bone effects of calciferol, mainly its role in the pathogenesis of autoimmune skin diseases, really justified from the point of view of evidence-based medicine, and is the tendency to consume Vitamin D safe? This article presents the most up-to-date information about the role of Vitamin D deficiency in the mechanisms of immune response development, in some dermatoses. In addition to generalizing the bone and extra-bone functions of Vitamin D to the macroorganism, the mechanisms of formation of some of the most common dermatoses, such as psoriasis, atopic dermatitis and vitiligo are discussed in detail. The review details the biological effects of Vitamin D in the skin. The article analyzes the legality of the use of Vitamin D-based drugs and their effectiveness in dermatological practice.

The implementation of any business project should be preceded by activities to predict its possible impact on the environment and to obtain environmental acceptability assessments for the implementation of the corresponding project. Ecological expertise is aimed at solving these important tasks. State environmental review is the legal form of preventive environmental control; carried out with the aim of verifying the compliance of economic and other activities with environmental safety requirements; It is carried out on the principles of mandatory conduct, scientific validity and legality of its conclusions and independence, extra-departmental organization and conduct, wide publicity and public participation. The article discusses the purpose of environmental assessments, formulates their basic principles arising from foreign practice of environmental policy in developed countries that have significant experience in the development and effective application of various institutional instruments for environmental regulation, including environmental impact assessments. The article gives an analysis of the establishment of the institute of environmental expertise in Russia, shows the results achieved and the omissions in this area over the past 30 years, reveals the causes and consequences of the minimization of the state environmental review after 2000. Based on the analysis of amendments to the Russian environmental legislation introduced in the last few years concerning the procedure and procedure for conducting environmental assessments, it is shown that these changes did not contribute to the improvement of the current situation. A number of measures have been proposed which are currently ripe for reanimating approaches to state environmental expertise, including the restoration of a system of specially authorized state bodies in the field of environmental protection; strengthening legislation on the institute of environmental impact assessment; streamlining issues of their financing, etc.

This paper responds to the linchpin and central problem of jurisprudence in all its variants (legal schools) which is the task of establishing the meaning, nature and validity of law. The notion of validity and obligation is not only crucial to the concept of law, but also essentially inalienable. In the naturalist perception of law as well as in the positivist explication of law, the notion of validity is given fundamental attention. However, the point of disagreement or conflict, between legal naturalism and legal positivism (which are the two most outstanding and contending legal thoughts) revolves around the question: Where exactly does or from where does the law acquire its obligatory or binding or legal force? Differently put, in what does the validity of the law subsists? What invests a legal stamp or seal on a piece of legislation? Or what confers legality on legal norms that justifies and commands their obedience? While the naturalist appeal to some extra-legal, moral and metaphysical elements as the foundation of the binding force and validity of law (the oughts), the legal positivist took a formal and empirical approach to the explanation of the obligation and validity of law (law as it is, without recourse to metaphysical or moral oughts, is valid and commands unconditional obedience). Consequently, as an attempt towards establishing the ontological nature and justification of law, this paper defends the naturalist jurisprudence. The paper argues that to properly configure the true nature of positive laws otherwise called the jurisprudential laws in relation to law per se, the philosopher transcend the formalistic and materialistic study of law (empirical and descriptive) to the transcendental (prescriptive) examination of law not just in its ontological descriptive dimension, but most essentially in relation to its normative or prescriptive form. In lieu, the paper further argue that consequent upon the prescriptive nature of the law of nature, and the concomitant rational nature of man, positive laws cannot but inexorably be morally biased. The methods adopted by the research include the expository analytic and prescriptive methods.

The paper is devoted to the consideration of the principle of social orientation of financial activity of the state and municipal entities. Under Part 1 of Article 7 of the Constitution of the Russian Federation, the Russian Federation is recognized as a social state with the state policy aimed at creating conditions that ensure a decent life and free human development. Proceeding from this, the social orientation of financial and legal regulation is regarded as one of the principles of the legal field under consideration.The social orientation of financial activity finds its external expression in many forms. In particular, it manifests itself in the tasks of financial activity, which, among other things, are associated with the formation of centralized state extra-budgetary funds as the basis of social insurance, accumulation of funds in the budgets of public entities in order to solve social problems, development of the main directions of state financial policy in the social sphere, as well as a number of other tasks. In addition, it is concluded that each principle of the sate financial activity is in one way or another connected with the social sphere. The author traces the manifestation of the principle of social orientation within the framework of other principles of financial activity — planning, legality, publicity, federalism, unity of purpose, etc. The author also comes to the conclusion that today all sub-branches of financial law (budget law, tax law, legal regulation of the financial market and the law of monetary circulation) in one way or another are connected with the social sphere — providing a direct or indirect regulatory influence on it or being subjected to the influence of social factors. The conclusion is made about the fairness of attributing the social orientation of the financial activity of the state to the fundamental principles of financial law, as well as that financial law is a socially oriented branch of Russian law.

Since 2010 the EU has been in an 'emergency' situation due to the euro crisis, where the crisis management by the EU institutions, notably the European Central Bank, and national governments has been increasingly out of step with the EU Treaties and the natural meaning of the provisions defining the mandate of the central bank and the EU's economic policy powers. This article examines the judicial response to the euro crisis. The discussion will focus on the Pringle decision of the Court of Justice of the EU and the ESM judgment of the German Federal Constitutional Court (hereafter 'FCC'), in which both courts had to consider the compatibility of the European Stability Mechanism (hereafter 'ESM') with the EU Treaties and, in the case of the German Constitutional Court, also with the German Constitution known as the Grundgesetz. Further but less detailed consideration will be given to other decisions handed down by both courts in connection with the euro crisis since 2011. In relation to the Pringle decision, the author will summarize the key aspects of the decision and analyse the Court's legal argumentation to justify its conclusions. It is argued that the Court's general approach exhibits features which afford the Court great flexibility to take underhand account of extra-legal factors of judicial decision-making, notably political goals and institutional self-interest. In Pringle, however, the Court exploits the vagueness and norm uncertainty in its general approach to the maximum, to a point where legal reasoning no longer imposes any meaningful constraints on judicial decision-making. The author further shows that the Court of Justice's pragmatic and politically compliant response to the euro crisis is mirrored by the approach of the German Federal Constitutional Court (hereafter 'FCC') which, in its judgments on the legality of the Greek financial aid measures, the eurozone's temporary and permanent rescue funds, and the ECB's so-called Outright Monetary Transactions ('OMT') unlimited bonds buys programme effectively abandoned most central tenets of its long-established and well-considered case law on the principles governing the relationship between EU and national constitutional law and the principles of national sovereignty and the EU's supra-national authority confined by the EU Treaties.

The importance of peasant industry in the vital activity of a complex peasant economy, the basis of which was arable farming, is shown on the example of Seltinsky volost of Malmyzhsky Uyezd of Vyatka governorate. The integral branches were animal husbandry and extra-agrarian occupations, among which the main burden was borne by extractive and processing works. The role of natural-geographical, socio-economic conditions, legal norms, trade relations, the creative potential of the people in the process of forming and functioning of a sustainable, balanced, integrated peasant economy is considered. A favourable location of the volost along the Siberian tract with access to the Kama and Vyatka trade river routes contributed to the development of a periodic market sphere (bazaar, torzhok, fair), to peasant economy involvement in the system of a single national market. The zemstvo population censuses made it possible to show a relatively high level of peasants’ provision with land plots, as well as draft, horned cattle and small livestock. Different levels of ethnic groups’ economic situation are noted. There was economic differentiation in the village; the vast majority was occupied by the well-to-do and middle class of the peasantry. To serve the numerous village needs, 90 types of crafts were functioning, which were represented by a wide range of manufactured products. The semi-natural character of peasant economy determined the diversity of its economic forms: domestic industry, handicrafts, small-scale production, capitalist cooperation. Another important role of crafts in the social medium life should be noted – it is an opportunity to realize an ethnic group’s creative potential, improving production technology, honing artistic skills. Household items, traditional clothing indicate a high level and variety of folk art. People’s memory has preserved the names of the best volost masters, who contributed to further development of national folk art. The study of life activity of the peasant population in a single volost at an interdisciplinary level in a fairly new research direction “the history of everyday life”, involvement of a wide comprehensive database, including published zemstvo statistics, fundamental zemstvo studies, archival documents, materials of ethnographic expeditions enable to deeper investigate the structure of a peasant economy, interaction, interdependence of its individual branches, the important role of crafts in a village economy, as well as legality and necessity of production small forms functioning in any historical epoch.

This article raises the critical issue as to why there has been assumed to be a boundary to legal knowledge. In response to such an issue I focus upon the works of Jacques Derrida who, amongst other things, was concerned with the boundary of the disciplines of Literature, Philosophy and Law. The article argues that the boundary delimits the law as if the inside of a boundary to territorial-like legal space in legal consciousness. Such a space is not possible without the boundary. Derrida’s most insightful essay in this regard is his study of Franz Kafka’s untitled parable in The Trial. The parable represents a man who waits for an invitation to enter the Law until he nears his end. Derrida responds to the parable in his essay, “Before the Law.” This article uses the parable and Derrida’s response to it as a starting-off point for a reconsideration of the boundary of legal knowledge. In this context, Derrida asks this question: “why is Kafka’s parable categorized as Literature or Law?” Such an issue depends upon the boundary of a discipline, according to Derrida. And that focus, in turn, asks whether the boundary pre-exists any text which is represented as “Literature” or “Law” or “Philosophy.” This article claims, however, that Derrida’s theory presupposes that law, as a discipline, encloses a territorial-like space in legal consciousness. Each discipline possesses such a space. So too does the state and the university. Inside this bounded space, officials of the Law are free to consciously deliberate, reflect, and render decisions about the context of the Law. Analytically and phenomenologically before the boundary is taken for granted in an academic discipline, however, there is an unbounded non-law. The aporia of Derrida’s theory of the boundary of the Law is that the official or expert knower of the official language inside the boundary cannot assume the imagined boundary of legal knowledge without implicitly claiming to know the exteriority to the boundary. And yet, officials and expert knowers cannot know such an exterior extra-legality because, by virtue of the boundary as encircling a territorial-like space, knowledge is considered legal only when it exists inside the boundary. “The Law” is the consequence of the imagination of the expert knowers of the language as well as of the non-expert who believes in the bounded territorial-like space.

Republika Slovenija bo vedno bolj vključena v mednarodne procese, kar zahteva tudi nenehno prilagajanje Slovenske vojske. Po napovedi Nata bo prihodnje delovanje še bolj zapleteno in večdimenzionalno, kar od Slovenske vojske tudi na področju logistike zahteva visoko stopnjo mednarodne povezljivosti. Logistika Slovenske vojske bo v prihodnosti še bolj povezana z ekonomsko in Natovo logistiko. Za njeno učinkovitost so zelo pomembni predpisi, saj vplivajo na njen razvoj. Posebnosti Slovenske vojske in njene logistike morajo biti upoštevane tudi v predpisih. Zaradi razvoja družbe, vpliva globalnega mednarodnega okolja in drugih dejavnikov se bodo razmere za delovanje v prihodnosti še hitreje spreminjale, kar bo zahtevalo hitro odzivnost tudi pri nastajanju predpisov, pomembnih za učinkovitost logistike. Logistiko Slovenske vojske ureja množica različnih predpisov, vse od zakonov do ukazov, ki ji omogočajo legalno opravljanje nalog. Pri pripravi novih predpisov je treba upoštevati vse okoliščine, ki zahtevajo njihov sprejem, hkrati pa biti pozoren na postopek, po katerem nastajajo. Učinkovitost vojaške logistike je tako odvisna tudi od predpisov, s čimer sta tako povezana tudi logistika in pravo. Tako bodo predpisi v prihodnosti še pomembnejši, saj bo logistika še bolj zapletena in mednarodno bolj povezana. The Republic of Slovenia has been and will become increasingly involved in in- ternational processes. This also demands continuous adjustments of the Slovenian Armed Forces. In line with NATO projections, future operations will become even more complex and multidimensional, and will therefore require the SlovenianArmed Forces to attain a higher level of interoperability also in logistics. In the future, the logistics of the Slovenian Armed Forces will strengthen its relations with economic and NATO logistics. Logistic efficiency is influenced by the regulation in terms of its development. The regulation must reflect special characteristics of the Slovenian Armed Forces and their logistics. Owing to the development of society, influence of the global international environment and other factors, operational requirements will be subject to rapid changes in the future. This will require quick response also in the drafting of the regulations applicable to the efficiency of the Slovenian Armed Forces’ logistics. Logistics in the Slovenian Armed Forces is governed by a number of different rules ranging from laws to edicts, upholding the legality of the forces. When drafting new regulations, all circumstances, which demand their adoption, need to be taken into account. Extra focus must be put on the procedure according to which they are drafted. The efficiency of the Slovenian Armed Forces’ logistics thus relies on the regulations, which are linked to the science of logistics and juri- sprudence. In this way, the importance of regulation will increase in the future, with the operations of the Slovenian Armed Forces' logistics becoming more complex and international.

Telecommunication service providers are known to provide various benefits for airtime packages. Different packages have been introduced in order to satisfy consumer needs. The nexus between service providers and consumers are guided by terms and conditions. Under Islamic law, any condition stipulated by the parties, which involves riba is rejected ab inito and renders the transaction voidable. Therefore, this article seeks to examine the Airtime Credit Service by service providers such as extra time package known as ‘borrow me credit’ in order to determine whether it is a Shariah-compliant transaction or otherwise. The study adopts doctrinal legal research by using primary and secondary sources of Islamic law such as Qur’an, Sunnah. The study also relies on textbook, journals, and service providers’ websites. The study reveals that the use of the word ‘borrow’ in the package has triggered polemical discourse among the Islamic financial jurists. The study reveals that, although the word ‘borrow’ is used, the intention of service providers is to sell the airtime on credit sale. The article clarifies the juristic discourse of the sale based on Islamic law of contract. It recommends some clarifications on the form and structure of the sale and concludes that it is allowed for Muslims to buy airtime through the package.

Section 39(2) of the Constitution of the Republic of South Africa, 1996, recognises the existence of rights not protected in the bill of rights. The South African bill of rights protects human conduct and interests extensively. Before the AMCU judgment was delivered, no clear example of a right not protected by the bill of rights had been identified in case law and legal literature. In the AMCU case the constitutional court deviated from previous judgments by holding that the interests of employees not to be dismissed unfairly is not covered by the right to fair labour practices in section 23(1) of the constitution. The court based its finding on textual and contextual interpretive considerations. Its interpretation of section 23(1) was not sound. A narrow, grammatical approach, namely that the text of section 23(1) does not refer expressly to such a right, cannot be followed when the meaning of open-ended constitutional phrases like “fair” labour practices is determined. And an extra-textual reference to the protection of the right in ordinary law is not relevant when the meaning of a constitutional provision is determined. Aspects of human dignity and physical and psychological integrity cannot be removed from the protective ambit of the bill of rights because they are protected by ordinary rules of the law of delict and criminal law. Viewed contextually with the other provisions of the bill of rights, the constitutional right to fair labour practices, like the right to access to housing, food, health and social services, children’s rights and criminal and civil procedural rights, protects other constitutional rights in a particular field, in this case in the field of labour relations. Apart from the fact that it can hardly be contested that every employee has a vital interest not to be dismissed unfairly, many other rights, for example, to human dignity, physical and psychological integrity, economic activity, association and audi alteram partem, may be limited factually by dismissals and dismissal procedures. The scheme and ethos of the South African bill of rights is that these special rights that overlap with the general rights are guaranteed separately. Within this context one of the ironies of the artificial exclusion of a right from the protective ambit of the special right is that its violation may, like in systems without these special rights, be challenged on the basis of the unjustifiable limitation of the general rights. A rule of thumb that the protective ambit of constitutional rights should be interpreted restrictively because the application of the weak rational relationship test as part of the rule of law serves the separation of power principle better than the application of the stricter reasonable test for the limitation of constitutional rights (in the separate concurring judgment of Theron J) is questionable. Whereas legality as part of the rule of law is always complied with when the weak rationality relationship exists, reasonableness in terms of section 36 does not always amount to the application of a stricter test. The existence of a very compelling purpose (to combat a pandemic that threatens life and limb) or a factually slight limitation of a right (to stop at a stop sign) could be the basis of a conclusion that the limitation is justifiable when the weak rational relationship test is complied with. The court’s consideration of proportionality under the umbrella of the application of the weak rational relationship test causes more uncertainty in the present somewhat unruly field of the application of rationality tests.

Abstract SYNTHESIS OF THE FIRST INTERNATIONAL SYMPOSIUM FOR RESEARCH IN COMPARATIVE CRIMINOLOGY Introduction At the beginning of the development of the social sciences there was a considerable vogue for comparative research. A long period of empirical studies and almost total preoccupation with methodological problems followed. Once again, however, psychology, political science, sociology, and above all anthropology, have taken up the thread of this tradition, and the bibliography in these fields is becoming ever more abundant. The study of deviance, of various manifestations of criminality, and of social reaction against crime are, however, noticeably missing in the picture, even though there is nothing in the nature of criminology which precludes the development of comparative research. To many research workers in criminology, the time seemed ripe to take up the comparative tradition once again. Two imperatives were considered : the generalization of norms of deviance which are tied to the standard of living set by industrial civilization, thus putting the problem of criminality in a global light ; and, second, the development and standardization of methods of studying these phenomena, drawing on the experience of allied disciplines. The response of the participants in this Symposium and the results of their discussions were not unexpected. A consensus was arrived as to the problems it was thought important to study, and agreement was reached about the strategies of research to be undertaken. Priorities, however, were not established since too much depends on the availability of research teams, funds, etc. But the broad, overall look at the main problems in comparative criminology will, hopefully, open a new chapter in the history of crimino-logical research and in our continuing search for knowledge of man and society. The brief resume which follows should give the reader an idea of the extent of the problems tackled. The detailed proceedings of the Symposium will be published at a later date, in mimeographed form. Sectors of research proposed In a sense, this Symposium was prepared by all the participants. The organizers had requested that each person invited prepare a memorandum setting out the problems in comparative criminology which he considered to be most important. The compilation of their replies, reported to the plenary session at the opening of the Symposium, produced the following results : Summary of suggestions for research activities Note : In all that follows, it should be understood that all of these topics should be studied in a cross-cultural or international context. 1) Definitions and concepts : a) Social vs legal concept of deviance ; b) Distinction between political and criminal crimes ; c) The law : a moral imperative or a simple norm ; d) The concepts used in penal law : how adequate ? e.g. personality of criminal ; e) Who are the sinners in different cultures and at different times. 2) Procedures : a) Working concepts of criminal law and procedure ; b) Differentiating between factors relating to the liability-finding process and the sentencing process ; c) Behavioural manifestations of the administration of criminal justice ; d) Judicial decisions as related to the personality of the judges and of the accused ; e) Sentencing in the cross-national context (2 proposals) ; f) In developing countries, the gap between development of the legal apparatus and social behaviour ; g) Determination of liability ; h) The problem of definition and handling of dangerous offenders ; i) Decision-making by the sentencing judges, etc. (2 proposals) ; ;) Medical vs penal committals ; k) Law-enforcement, policing. 3) Personnel : a) Professionalization in career patterns ; b) Criteria for personnel selection ; c) Greater use of female personnel. 4) Causation. Situations related to criminality : a) How international relations and other external factors affect crime ; 6) Hierarchy of causes of crime ; c) Migrants. Minorities in general ; d) Relation to socio-economic development in different countries ; e) A biological approach to criminal subcultures, constitutional types, twin studies, etc. ; f) Cultural and social approach : norms of moral judgment, ideals presented to the young, etc. ; g) Effect of social change : crime in developing countries, etc. (6 proposals) ; h) Effects of mass media, rapid dissemination of patterns of deviant behaviour (2 proposals). 5) Varieties of crime and criminals : a) Traffic in drugs ; b) Prison riots ; c) Violence particularly in youth (7 proposals) ; d) Dangerousness ; e) Relation to the rights of man (including rights of deviants); f) Female crime (2 proposals) ; g) Prostitution ; i) The mentally ill offender ; ;) Cultural variations in types of crime ; k) Organized crime ; /) Use of firearms ; m) Gambling ; n) Victims and victimology. 6) Treatment : evaluation : a) Social re-adaptation of offenders ; b) Statistical research on corrections, with possible computerization of data ; c) Comparisons between prisons and other closed environments ; d) Extra-legal consequences of deprivation of liberty ; e) Rehabilitation in developing countries ; f ) Criteria for evaluation of programs of correction ; g) Biochemical treatment (2 proposals) ; i) Differential treatment of different types of offense. Evaluation ; /) Prisons as agencies of treatment ; k) Effects of different degrees of restriction of liberty ; /) Environments of correctional institutions ; m) Study of prison societies ; n) Crime as related to the total social system. 7) Research methodology : a) Publication of what is known regarding methodology ; b) Methods of research ; c) Culturally-comparable vs culturally-contrasting situations ; d) Development of a new clearer terminology to facilitate communication ; e) Actual social validity of the penal law. 8) Statistics : epidemiology : a) Need for comparable international statistics ; standardized criteria (3 proposals) ; b) Difficulties. Criminologists must collect the data themselves. 9) Training of research workers : Recruiting and training of « com-paratists ». 10) Machinery : Committee of co-ordination. Discussions The discussions at the Symposium were based on these suggestions, the main concentration falling on problems of manifestations of violence in the world today, the phenomenon of student contestation, and on human rights and the corresponding responsibilities attached thereto. Although the participants did not come to definite conclusions as to the respective merits of the problems submitted for consideration, they did discuss the conditions under which comparative studies of these problems should be approached, the techniques appropriate to obtaining valid results, and the limitations on this type or work. Four workshops were established and studied the various problems. The first tackled the problems of the definition of the criteria of « danger » represented by different type of criminals ; the problem of discovering whether the value system which underlies the Human Rights Declaration corresponds to the value system of today's youth; the problem of the treatment of criminals ; of female criminality ; and, finally, of violence in the form of individual and group manifestations. The second workshop devoted its main consideration to the revolt of youth and to organized crime, also proposing that an international instrument bank of documentation and information be established. The third workshop considered problems of theory : how the police and the public view the criminal ; the opportunity of making trans-cultural comparisons on such subjects as arrest, prison, etc. ; and the role of the media of information in the construction of value systems. The fourth workshop blazed a trail in the matter of methodology appropriate to research in comparative criminology. The period of discussions which followed the report of the four workshops gave rise to a confrontation between two schools of thought within the group of specialists. The question arose as to whether the problem of student contestation falls within the scope of the science of criminology. Several experts expressed the opinion that criminologists ought not to concern themselves with a question which really belongs in the realm of political science. On the other hand, the majority of the participants appeared to feel that the phenomenon of student contestation did indeed belong in the framework of criminological research. One of the experts in particular took it upon himself to be the spokesman of this school of thought. There are those, he said, who feel that criminology should confine itself and its research to known criminality, to hold-ups, rape, etc. However, one should not forget that penal law rests on political foundations, the legality of power, a certain moral consensus of the population. Today, it is exactly this « legitimate » authority that is being contested. Is it not to be expected, therefore, that criminology should show interest in all sociological phenomena which have legal and criminal implications ? Contestation and violence have consequences for the political foundations of penal law, and therefore are fit subjects for the research of the criminologist. International Centre {or Comparative Criminology The First International Symposium for Research in Comparative Criminology situated itself and its discussions within the framework and in the perspectives opened by the founding of the International Centre for Comparative Criminology. The Centre is sponsored jointly by the University of Montreal and the International Society for Criminology, with headquarters at the University of Montreal. As one of the participants emphasized, criminologists need a place to retreat from the daily struggle, to meditate, to seek out and propose instruments of research valid for the study of problems common to several societies. Viewing the facts as scientists, we are looking for operational concepts. Theoreticians and research workers will rough out the material and, hopefully, this will inspire conferences and symposiums of practitioners, jurists, sociologists, penologists, and other specialists. Above all, it will give common access to international experience, something which is lacking at present both at the level of documentation and of action. A bank of instruments of method- ology in the field of comparative criminology does not exist at the present time. The Centre will undertake to compile and analyse research methods used in scientific surveys, and it will establish such an instrument bank. It will also gather and analyse information pertaining to legislative reforms now in progress or being contemplated in the field of criminal justice. Through the use of computers, the Centre will be able to put these two projects into effect and make the results easily accessible to research workers, and to all those concerned in this field. The participants at the Symposium were given a view of the extent of the problems envisaged for research by the future Centre. It is hoped that this initiative will be of concrete use to research workers, private organizations, public services and governments at many levels, and in many countries.

One of the basic principles of criminal law is the principle of legality. The principle of legality has a very fundamental position and therefore becomes one of the most important principles in the criminal law. This principle, among others, regulates about what and how an action or deed can be categorized as a criminal offense and based on what proposition. The introduction of the legality principle in jurisprudence initially serves normatively to standardize one's behavior so that it can be categorized as a crime (offense) or not. But in its development, the principle of legality is also used as a tool to arbitrarily set legal policies by the authorities. This is between the form of the problem of absolutism of the principle of legality. regarding the process of Decontructuring to the Legality Principle, in relation to the treatment of Protection Balance on the Interests of Criminal Actors and Victims, where the authors will only use Normative legal methodology, that is, to analyze only the literature materials without conducting the hypothesis testing (library research). By reforming the substance of the law, the potential for improving the legal and legal structure of the law becomes systematic and more directed. Among the legal substances that need attention are Legal Legality Principles.From the description and formulation of the author, then the principle of legality has a narrower range and scope is more narrow when compared with the idea nullum crimen sine poena. Legality principle can only be used to demand "mala prohibita", while the idea of "nullum crimen sine poena" can be used to prosecute "mala prohibita", and criminal extra ordinaria.

This article explains the disjuncture between formal parliamentary laws and norms of informal economic activities on the basis of a contextual and layered idea of legitimacy. This explanation clarifies a misunderstanding in certain scholarly and policy circles characterising informal economic activities as extra-legal or illegal. The idea of legal legitimacy helps explain divergent normative logics of formal and informal spaces while indicating that informal activities are not performed in a regulatory void. In addition to helping redefine the informal space, the idea also helps clarify the interaction between formal and informal regulation. By employing Jürgen Habermas’ analytical characterisation of society as constitutive of lifeworld(s) and system, and drawing on the empirical literature, the article argues that a cautious interpretation of Habermas’ analytical categorization helps explain the legality of the informal space. If formal laws need to become legitimate for the informal context, they must integrate the contextual standards of legitimacy recognized in the informal space.

The principle of legal certainty applied to the principle of extra ordinary crime is contrary to the respect for humanity as the most fundamental human rights principle and the principle of legality is associated with positive law and international conventions. The results of this study are intended to seek or find arguments for the certainty of the execution of the death penalty for the community, family, convicts and the state, so that the research on death penalty decisions in narcotics cases that occurred from 2014 to 2018. This research method is included in normative juridical law research. The conclusion is, sentencing with the threat of the death penalty can still be applied in Indonesia in narcotics crime cases is appropriate. Therefore, the death penalty, of course, state law does not conflict with religious law/teachings, in other words, the death penalty does not conflict with the first precepts because the first principle of Pancasila is Belief in One God, which means based on the beliefs/religions of each person who in carrying out/believes His religion is also guaranteed in the 1945 Constitution of the Republic of Indonesia, which is contained in Article 28 E paragraph (1) and paragraph (2) and Article 29 paragraph (2).

The use of targeted killings has become more typical since the US declaration of a “Global War on Terror”. States such as the US and Israel have employed targeted killings as a means to combat the growing threat of international Islamic terrorism; the US has transitioned from a law enforcement paradigm to a law of war paradigm, through the Congress’ Authorization on the Use of Military Force. Although the legality of targeted killings is still contested in the international community, I argue that while the law enforcement paradigm is ineffective at containing the growing threat of terrorism, the law of war paradigm disregards international law and risks the protections of civilians unnecessarily. More constraints are needed through international law in order to maintain the core principles of the international humanitarian framework, while still combating terrorism and expanding the existing framework to cover non international armed conflicts such as that between al-Qaeda and the US. This can be done through the establishment of a new paradigm, called the continuous hostilities paradigm. If the existing international principles such as distinction, proportionality, military necessity and humanity are considered, targeted killings can be legal under international law. However, the indiscriminate killing of suspected terrorists by States cannot be considered legal, and it is crucial to consider the necessity of the protection of civilians

The criminalization of migration-related acts, rather than simply strengthening state authority, also represents a risk of exposing legal legitimacy deficits. By drawing on juridical analysis of court judgements, legal documents, and case law, together with ethnographic observation in court and analysis of media coverage, the article argues for acknowledging the extra-legal aspects of criminalization. By employing the concept of legal consciousness, we bring attention to how bordering processes are challenged from below by using the courtroom to expose potential legitimacy deficits concerning crimmigration enforcement. The article shows how the courtroom is not merely a place for convictions but also a site for resistance and social mobilization: a platform that may give marginalized groups voice and visibility, invoking a complex picture of state power, involving the ability to use force as well as reluctance and ambivalence connected to the questionable legitimacy of criminalization strategies.

In August 2006 the LiveJournal (hereafter LJ) community sga_flashfic posted its bimonthly challenge: a “Mission Report” challenge. Challenge communities are fandom-specific sites where moderators pick a theme or prompt to which writers respond and then post their specific fan works. The terms of this challenge were to encourage participants to invent a new mission and create a piece of fan fiction in the form of a mission report from the point of view of the Stargate Atlantis team of explorers. As an alternative possibility, and this is where the trouble started, the challenge also allowed to “take another author’s story and write a report” of its mission. Moderator Cesperanza then explained, “if you choose to write a mission report of somebody else’s story, we’ll ask you to credit them, but we won’t require you to ask their permission” (sga_flashfic LJ, 21 Aug. 2006, emphasis added). Whereas most announcement posts would only gather a few comments, this reached more than a hundred responses within hours, mostly complaints. Even though the community administrators quickly backtracked and posted a revision of the challenge not 12 hours later, the fannish LiveJournal sphere debated the challenge for days, reaching far beyond the specific fandom of Stargate Atlantis to discuss the ethical questions surrounding fannish appropriation and remix. At the center of the debate were the last eight words: “we won’t require you to ask their permission.” By encouraging fans to effectively write fan fiction of fan fiction and by not requiring permission, the moderators had violated an unwritten norm within this fannish community. Like all fan communities, western media fans have developed internal rules covering everything from what to include in a story header to how long to include a spoiler warning following aired episodes (for a definition and overview of western media fandom, see Coppa). In this example, the mods violated the fannish prohibition against the borrowing of original characters, settings, plot points, or narrative structures from other fan writers without permission—even though as fan fiction, the source of the inspiration engages in such borrowing itself. These kinds of normative rules can be altered, of course, but any change requires long and involved discussions. In this essay, we look at various debates that showcase how this fan community—media fandom on LiveJournal—creates and enforces but also discusses and changes its normative behavior. Fan fiction authors’ desire to prevent their work from being remixed may seem hypocritical, but we argue that underlying these conversations are complex negotiations of online privacy and control, affective aesthetics, and the value of fan labor. This is not to say that all fan communities address issues of remixing in the same way media fandom at this point in time did nor to suggest that they should; rather, we want to highlight a specific community’s internal ethics, the fervor with which members defend their rules, and the complex arguments that evolve from all sides when rules are questioned. Moreover, we suggest that these conversations offer insight into the specific relation many fan writers have to their stories and how it may differ from a more universal authorial affect. In order to fully understand the underlying motivations and the community ethos that spawned the sga_flashfic debates, we first want to differentiate between forms of unauthorised (re)uses and the legal, moral, and artistic concerns they create. Only with a clear definition of copyright infringement and plagiarism, as well as a clear understanding of who is affected (and in what ways) in any of these cases, can we fully understand the social and moral intersection of fan remixing of fan fiction. Only when sidestepping the legal and economic concerns surrounding remix can we focus on the ethical intricacies between copyright holders and fan writers and, more importantly, within fan communities. Fan communities differ greatly over time, between fandoms, and even depending on their central social interfaces (such as con-based zines, email-based listservs, journal-based online communities, etc.), and as a result they also develop a diverse range of internal community rules (Busse and Hellekson, “Works”; Busker). Much strife is caused when different traditions and their associated mores intersect. We’d argue, however, that the issues in the case of the Stargate Atlantis Remix Challenge were less the confrontation of different communities and more the slowly changing attitudes within one. In fact, looking at media fandom today, we may already be seeing changed attitudes—even as the debates continue over remix permission and unauthorised use. Why Remixes Are Not Copyright Infringement In discussing the limits of unauthorised use, it is important to distinguish plagiarism and copyright violation from forms of remix. While we are more concerned with the ethical issues surrounding plagiarism, we want to briefly address copyright infringement, simply because it often gets mixed into the ethics of remixes. Copyright is strictly defined as a matter of law; in many of the online debates in media fandom, it is often further restricted to U.S. Law, because a large number of the source texts are owned by U.S. companies. According to the U.S. Constitution (Article I, Section 8), Congress has the power to secure an “exclusive Right” “for limited Times.” Given that intellectual property rights have to be granted and are limited, legal scholars read this statute as a delicate balance between offering authors exclusive rights and allowing the public to flourish by building on these works. Over the years, however, intellectual property rights have been expanded and increased at the expense of the public commons (Lessig, Boyle). The main exception to this exclusive right is the concept of “fair use,” defined as use “for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research” (§107). Case law circumscribes the limits of fair use, distinguishing works that are merely “derivative” from those that are “transformative” and thus add value (Chander and Sunder, Fiesler, Katyal, McCardle, Tushnet). The legal status of fan fiction remains undefined without a specific case that would test the fair use doctrine in regards to fan fiction, yet fair use and fan fiction advocates argue that fan fiction should be understood as eminently transformative and thus protected under fair use. The nonprofit fan advocacy group, the Organization for Transformative Works, in fact makes clear its position by including the legal term in their name, reflecting a changing understanding of both fans and scholars. Why Remixes Are Not Plagiarism Whereas copyright infringement is a legal concept that punishes violations between fan writers and commercial copyright holders, plagiarism instead is defined by the norms of the audience for which a piece is written: definitions of plagiarism thus differ from academic to journalist to literary contexts. Within fandom one of the most blatant (and most easily detectable) forms of plagiarism is when a fan copies another work wholesale and publishes it under their own name, either within the same fandom or by simply searching and replacing names to make it fit another fandom. Other times, fan writers may take selections of published pro or fan fiction and insert them into their works. Within fandom accusations of plagiarism are taken seriously, and fandom as a whole polices itself with regards to plagiarism: the LiveJournal community stop_plagiarism, for example, was created in 2005 specifically to report and pursue accusations of plagiarism within fandom. The community keeps a list of known plagiarisers that include the names of over 100 fan writers. Fan fiction plagiarism can only be determined on a case-by-case basis—and fans remain hypervigilant simply because they are all too often falsely accused as merely plagiarising when instead they are interpreting, translating, and transforming. There is another form of fannish offense that does not actually constitute plagiarism but is closely connected to it, namely the wholesale reposting of stories with attributions intact. This practice is frowned upon for two main reasons. Writers like to maintain at least some control over their works, often deriving from anxieties over being able to delete one’s digital footprint if desired or necessary. Archiving stories without authorial permission strips authors of this ability. More importantly, media fandom is a gift economy, in which labor is not reimbursed economically but rather rewarded with feedback (such as comments and kudos) and the growth of a writer’s reputation (Hellekson, Scott). Hosting a story in a place where readers cannot easily give thanks and feedback to the author, the rewards for the writer’s fan labor are effectively taken from her. Reposting thus removes the story from the fannish gift exchange—or, worse, inserts the archivist in lieu of the author as the recipient of thanks and comments. Unauthorised reposting is not plagiarism, as the author’s name remains attached, but it tends to go against fannish mores nonetheless as it deprives the writer of her “payment” of feedback and recognition. When Copyright Holders Object to Fan Fiction A small group of professional authors vocally proclaim fan fiction as unethical, illegal, or both. In her “Fan Fiction Rant” Robin Hobbs declares that “Fan fiction is to writing what a cake mix is to gourmet cooking” and then calls it outright theft: “Fan fiction is like any other form of identity theft. It injures the name of the party whose identity is stolen.” Anne Rice shares her feelings about fan fiction on her web site with a permanent message: “I do not allow fan fiction. The characters are copyrighted. It upsets me terribly to even think about fan fiction with my characters. I advise my readers to write your own original stories with your own characters. It is absolutely essential that you respect my wishes.” Diana Gabaldon calls fan fiction immoral and describes, “it makes me want to barf whenever I’ve inadvertently encountered some of it involving my characters.” Moreover, in a move shared by other anti-fan fiction writers, she compares her characters to family members: “I wouldn’t like people writing sex fantasies for public consumption about me or members of my family—why would I be all right with them doing it to the intimate creations of my imagination and personality?” George R.R. Martin similarly evokes familial intimacy when he writes, “My characters are my children, I have been heard to say. I don’t want people making off with them.” What is interesting in these—and other authors’—articulations of why they disapprove of fan fiction of their works is that their strongest and ultimate argument is neither legal nor economic reasoning but an emotional plea: being a good fan means coloring within the lines laid out by the initial creator, putting one’s toys back exactly as one found them, and never ever getting creative or transformative with them. Many fan fiction writers respect these wishes and do not write in book fandoms where the authors have expressed their desires clearly. Sometimes entire archives respect an author’s desires: fanfiction.net, the largest repository of fic online, removed all stories based on Rice’s work and does not allow any new ones to be posted. However, fandom is a heterogeneous culture with no centralised authority, and it is not difficult to find fic based on Rice’s characters and settings if one knows where to look. Most of these debates are restricted to book fandoms, likely for two reasons: (1) film and TV fan fiction alters the medium, so that there is no possibility that the two works might be mistaken for one another; and (2) film and TV authorship tends to be collaborative and thus lowers the individual sense of ownership (Mann, Sellors). How Fannish Remixes Are like Fan Fiction Most fan fiction writers strongly dismiss accusations of plagiarism and theft, two accusations that all too easily are raised against fan fiction and yet, as we have shown, such accusations actually misdefine terms. Fans extensively debate the artistic values of fan fiction, often drawing from classical literary discussions and examples. Clearly echoing Wilde’s creed that “there is no such thing as a moral or immoral book,” Kalichan, for example, argues in one LJ conversation that “whenever I hear about writers asserting that other writing is immoral, I become violently ill. Aside from this, morality & legality are far from necessarily connected. Lots of things are immoral and legal, illegal and moral and so on, in every permutation imaginable, so let’s just not confuse the two, shall we” (Kalichan LJ, 3 May 2010). Aja Romano concludes an epic list of remixed works ranging from the Aeneid to The Wind Done Gone, from All’s Well That Ends Well to Wicked with a passionate appeal to authors objecting to fan fiction: the story is not defined by the barriers you place around it. The moment you gave it to us, those walls broke. You may hate the fact people are imagining more to your story than what you put there. But if I were you, I’d be grateful that I got the chance to create a story that has a culture around it, a story that people want to keep talking about, reworking, remixing, living in, fantasizing about, thinking about, writing about. (Bookshop LJ, 3 May 2010)Many fan writers view their own remixes as part of a larger cultural movement that appropriates found objects and culturally relevant materials to create new things, much like larger twentieth century movements that include Dada and Pop Art, as well as feminist and postcolonial challenges to the literary canon. Finally, fan fiction partakes in 21st century ideas of social anarchy to create a cultural creative commons of openly shared ideas. Fan Cupidsbow describes strong parallels and cross-connection between all sorts of different movements, from Warhol to opensource, DeviantArt to AMV, fanfiction to mashups, sampling to critique and review. All these things are about how people are interacting with technology every day, and not just digital technology, but pens and paper and clothes and food fusions and everything else. (Cupidsbow LJ, 20 May 2009) Legally, of course, these reuses of collectively shared materials are often treated quite differently, which is why fan fiction advocates often maintain that all remixes be treated equally—regardless of whether their source text is film, TV, literature, or fan fiction. The Archive of Our Own, a project of the Organization for Transformative Works, for example, does not distinguish in its Content and Abuse Policy section between commercial and fan works in regard to plagiarism and copyright. Returning to the initial case of the Stargate Atlantis Mission Report Challenge, we can thus see how the moderator clearly positions herself within a framework that considers all remixes equally remixable. Even after changing the guidelines to require permission for the remixing of existing fan stories, moderator Cesperanza notes that she “remain[s] philosophically committed to the idea that people have the right to make art based on other art provided that due credit is given the original artist” (sga_flashfic LJ, 21 Aug. 2006). Indeed, other fans agree with her position in the ensuing discussions, drawing attention to the hypocrisy of demanding different rules for what appears to be the exact same actions: “So explain to me how you can defend fanfiction as legitimate derivative work if it’s based on one type of source material (professional writing or TV shows), yet decry it as ‘stealing’ and plagiarism if it’s based on another type of source material (fanfiction)” (Marythefan LJ, 21 Aug. 2006). Many fans assert that all remixes should be tolerated by the creators of their respective source texts—be they pro or fan. Fans expect Rowling to be accepting of Harry Potter’s underage romance with a nice and insecure Severus Snape, and they expect Matthew Weiner to be accepting of stories that kill off Don Draper and have his (ex)wives join a commune together. So fans should equally accept fan fiction that presents the grand love of Rodney McKay and John Sheppard, the most popular non-canonical fan fiction pairing on Stargate Atlantis, to be transformed into an abusive and manipulative relationship or rewritten with one of them dying tragically. Lydiabell, for example, argues that “there’s [no]thing wrong with creating a piece of art that uses elements of another work to create something new, always assuming that proper credit is given to the original... even if your interpretation is at odds with everything the original artist wanted to convey” (Lydiabell LJ, 22 Aug. 2006). Transforming works can often move them into territory that is critical of the source text, mocks the source text, rearranges relationships, and alters characterisations. It is here that we reach the central issue of this article: many fans indeed do view intrafandom interactions as fundamentally different to their interactions with professional authors or commercial entertainment companies. While everyone agrees that there are no legal, economic, or even ultimately moral arguments to be made against remixing fan fiction (because any such argument would nullify the fan’s right to create their fan fiction in the first place), the discourses against open remixing tend to revolve around community norms, politeness, and respect. How Fannish Remixes Are Not like Fan Fiction At the heart of the debate lie issues of community norms: taking another fan’s stories as the basis for one’s own fiction is regarded as a violation of manners, at least the way certain sections of the community define them. This, in fact, is not unlike the way many fan academics engage with fandom research. While it may be perfectly legal to directly cite fans’ blog posts, and while it may even be in compliance with institutional ethical research requirements (such as Internal Review Boards at U.S. universities), the academic fan writing about her own community may indeed choose to take extra precautions to protect herself and that community. As Kristina Busse and Karen Hellekson have argued, fan studies often exists at the intersection of language and social studies, and thus written text may simultaneously be treated as artistic works and as utterances by human subjects (“Identity”). In this essay (and elsewhere), we thus limit direct linking into fannish spaces, instead giving site, date, and author, and we have consent from all fans we cite in this essay. The community of fans who write fic in a particular fandom is relatively small, and most of them are familiar with each other, or can trace a connection via one or two degrees of separation only. While writing fan fiction about Harry Potter may influence the way you and your particular circle of friends interpret the novels, it is unlikely to affect the overall reception of the work. During the remix debate, fan no_pseud articulates the differing power dynamic: When someone bases fanfic on another piece of fanfic, the balance of power in the relationship between the two things is completely different to the relationship between a piece of fanfic and the canon source. The two stories have exactly equal authority, exactly equal validity, exactly equal ‘reality’ in fandom. (nopseud LJ, 21 Aug. 2006) Within fandom, there are few stories that have the kind of reach that professional fiction does, and it is just as likely that a fan will come across an unauthorised remix of a piece of fan fiction as the original piece itself. In that way, the reception of fan fiction is more fragile, and fans are justifiably anxious about it. In a recent conversation about proper etiquette within Glee fandom, fan writer flaming_muse articulates her reasons for expecting different behavior from fandom writers who borrow ideas from each other: But there’s a huge difference between fanfic of media and fanfic of other fanfic authors. Part of it is a question of the relationship of the author to the source material … but part of it is just about not hurting or diminishing the other creative people around you. We aren’t hurting Glee by writing fic in their ‘verse; we are hurting other people if we write fanfic of fanfic. We’re taking away what’s special about their particular stories and all of the work they put into them. (Stoney321 LJ, 12 Feb. 2012)Flaming_muse brings together several concepts but underlying all is a sense of community. Thus she equates remixing within the community without permission as a violation of fannish etiquette. The sense of community also plays a role in another reason given by fans who prefer permission, which is the actual ease of getting it. Many fandoms are fairly small communities, which makes it more possible to ask for permission before doing a translation, adaptation, or other kind of rewrite of another person’s fic. Often a fan may have already given feedback to the story or shared some form of conversation with the writer, so that requesting permission seems fairly innocuous. Moreover, fandom is a community based on the economy of gifting and sharing (Hellekson), so that etiquette becomes that much more important. Unlike pro authors who are financially reimbursed for their works, feedback is effectively a fan writer’s only payment. Getting comments, kudos, or recommendations for their stories are ways in which readers reward and thank the writers for their work. Many fans feel that a gift economy functions only through the goodwill of all its participants, which remixing without permission violates. How Fan Writing May Differ From Pro Writing Fans have a different emotional investment in their creations, only partially connected to writing solely for love (as opposed to professional writers who may write for love but also write for their livelihood in the best-case scenarios). One fan, who writes both pro and fan fiction, describes her more distanced emotional involvement with her professional writing as follows, When I’m writing for money, I limit my emotional investment in the material I produce. Ultimately what I am producing does not belong to me. Someone else is buying it and I am serving their needs, not my own. (St_Crispins LJ, 27 Aug. 2006)The sense of writing for oneself as part of a community also comes through in a comment by pro and fan writer Matociquala, who describes the specificity and often quite limited audience of fan fiction as follows: Fanfiction is written in the expectation of being enjoyed in an open membership but tight-knit community, and the writer has an expectation of being included in the enjoyment and discussion. It is the difference, in other words, between throwing a fair on the high road, and a party in a back yard. Sure, you might be able to see what’s going on from the street, but you’re expected not to stare. (Matociquala LJ, 18 May 2006)What we find important here is the way both writers seem to suggest that fan fiction allows for a greater intimacy and immediacy on the whole. So while not all writers write to fulfill (their own or other’s) emotional and narrative desires, this seems to be more acceptable in fan fiction. Intimacy, i.e., the emotional and, often sexual, openness and vulnerability readers and writers exhibit in the stories and surrounding interaction, can thus constitute a central aspect for readers and writers alike. Again, none of these aspects are particular to fan fiction alone, but, unlike in much other writing, they are such a central component that the stories divorced from their context—textual, social, and emotional—may not be fully comprehensible. In a discussion several years ago, Ellen Fremedon coined the term Id Vortex, by which she refers to that very tailored and customised writing that caters to the writers’ and/or readers’ kinks, that creates stories that not only move us emotionally because we already care about the characters but also because it uses tropes, characterisations, and scenes that appeal very viscerally: In fandom, we’ve all got this agreement to just suspend shame. I mean, a lot of what we write is masturbation material, and we all know it, and so we can’t really pretend that we’re only trying to write for our readers’ most rarefied sensibilities, you know? We all know right where the Id Vortex is, and we have this agreement to approach it with caution, but without any shame at all. (Ellen Fremedon LJ, 2 Dec. 2004)Writing stories for a particular sexual kink may be the most obvious way fans tailor stories to their own (or others’) desires, but in general, fan stories often seem to be more immediate, more intimate, more revealing than most published writing. This attachment is only strengthened by fans’ immense emotional attachment to the characters, as they may spend years if not decades rewatching their show, discussing all its details, and reading and writing stories upon stories. From Community to Commons These norms and mores continue to evolve as fannish activity becomes more and more visible to the mainstream, and new generations of fans enter fandom within a culture where media is increasingly spreadable across social networks and all fannish activity is collectively described and recognised as “fandom” (Jenkins, Ford, and Green). The default mode of the mainstream often treats “found” material as disseminable, and interfaces encourage such engagement by inviting users to “share” on their collection of social networks. As a result, many new fans see remixing as not only part of their fannish right, but engage in their activity on platforms that make sharing with or without attribution both increasingly easy and normative. Tumblr is the most recent and obvious example of a platform in which reblogging other users’ posts, with or without commentary, is the normative mode. Instead of (or in addition to) uploading one’s story to an archive, a fan writer might post it on Tumblr and consider reblogs as another form of feedback. In fact, our case study and its associated differentiation of legal, moral, and artistic justifications for and against remixing fan works, may indeed be an historical artifact in its own right: media fandom as a small and well-defined community of fans with a common interest and a shared history is the exception rather than the norm in today’s fan culture. When access to stories and other fans required personal initiation, it was easy to teach and enforce a community ethos. Now, however, fan fiction tops Google searches for strings that include both Harry and Draco or Spock and Uhura, and fan art is readily reblogged by sites for shows ranging from MTV’s Teen Wolf to NBC’s Hannibal. Our essay thus must be understood as a brief glimpse into the internal debates of media fans at a particular historical juncture: showcasing not only the clear separation media fan writers make between professional and fan works, but also the strong ethos that online communities can hold and defend—if only for a little while. References Boyle, James. The Public Domain: Enclosing the Commons of the Mind. Ithaca: Yale University Press, 2008. Busker, Rebecca Lucy. “On Symposia: LiveJournal and the Shape of Fannish Discourse.” Transformative Works and Cultures 1 (2008). http://journal.transformativeworks.org/index.php/twc/article/view/49. Busse, Kristina, and Karen Hellekson. “Work in Progress.” In Karen Hellekson and Kristina Busse, eds., Fan Fiction and Fan Communities in the Age of the Internet: New Essays. Jefferson, N.C.: McFarland, 2006. 5–40. Busse, Kristina, and Karen Hellekson. “Identity, Ethics, and Fan Privacy.” In Katherine Larsen and Lynn Zubernis, eds., Fan Culture: Theory/Practice. Newcastle upon Tyne: Cambridge Scholars Publishing, 2012. 38-56. Chander, Anupam, and Madhavi Sunder. “Everyone’s a Superhero: A Cultural Theory of ‘Mary Sue’ Fan Fiction as Fair Use.” California Law Review 95 (2007): 597-626. Coppa, Francesca. “A Brief History of Media Fandom.” In Karen Hellekson and Kristina Busse, eds., Fan Fiction and Fan Communities in the Age of the Internet: New Essays. Jefferson, N.C.: McFarland, 2006. 41–59. Fiesler, Casey. “Everything I Need to Know I Learned from Fandom: How Existing Social Norms Can Help Shape the Next Generation of User-Generated Content.” Vanderbilt Journal of Entertainment and Technology Law 10 (2008): 729-62. Gabaldon, Diana. “Fan Fiction and Moral Conundrums.” Voyages of the Artemis. Blog. 3 May 2010. 7 May 2010 http://voyagesoftheartemis.blogspot.com/2010/05/fan-fiction-and-moral-conundrums.html. Hellekson, Karen. “A Fannish Field of Value: Online Fan Gift Culture.” Cinema Journal 48.4 (2009): 113–18. Hobbs, Robin. “The Fan Fiction Rant.” Robin Hobb’s Home. 2005. 14 May 2006 http://www.robinhobb.com/rant.html. Jenkins, Henry, Sam Ford, and Joshua Green. Spreadable Media: Creating Value and Meaning in a Networked Culture. New York: New York University Press, 2013. Katyal, Sonia. “Performance, Property, and the Slashing of Gender in Fan Fiction.” Journal of Gender, Social Policy, and the Law 14 (2006): 463-518. Lessig, Lawrence. Remix: Making Art and Commerce Thrive in a Hybrid Economy. New York: Penguin, 2008. Mann, Denise. “It’s Not TV, It’s Brand Management.” In Vicki Mayer, Miranda Banks, and John Thornton Caldwell, eds., Production Studies: Cultural Studies of Media Industries. New York: Routledge, 2009. 99-114. Martin, George R.R. “Someone is Angry on the Internet.” LiveJournal. 7 May 2010. 15 May 2013. http://grrm.livejournal.com/151914.html. McCardle, Meredith. “Fandom, Fan Fiction and Fanfare: What’s All the Fuss?” Boston University Journal of Science and Technology Law 9 (2003): 443-68. Rice, Anne. “Important Message From Anne on ‘Fan Fiction’.” n.d. 15 May 2013. http://www.annerice.com/readerinteraction-messagestofans.html. Scott, Suzanne. “Repackaging Fan Culture: The Regifting Economy of Ancillary Content Models.” Transformative Works and Cultures 3 (2009). http://dx.doi.org/10.3983/twc.2009.0150. Sellors, C. Paul. Film Authorship: Auteurs and Other Myths. London: Wallflower, 2010. Tushnet, Rebecca. “Copyright Law, Fan Practices, and the Rights of the Author.” In Jonathan Gray, Cornel Sandvoss, and C. Lee Harrington, eds., Fandom: Identities and Communities in a Mediated World. New York: New York University Press, 2007. 60-71.