Centre de Théorie et Analyse du Droit

Abstract Over the last decade international lawyers have been increasingly concerned with the ‘fragmentation’ of international law. However, given that this expression has been repeatedly used by the profession since the mid-nineteenth century to depict the state of international law, one may wonder about its recent revival in the international legal discourse. Why has it re-emerged? What can we learn from previous invocations? An answer may be sought by contextualizing the fragmentation debate in a historical perspective. This brings out the repetitive and relatively stylized modes in which the profession has narrated legal developments. This essay suggests a correlation between periods of crisis in general and a critical view of fragmentation on the one hand, and periods of scholarly enthusiasm and the prevalence of positive views about fragmentation on the other. This analysis sheds critical light on both the implicit assumptions and political implications of the current debate on fragmentation.

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Abstract This article provides an overview of (I) the moral and legal status of the human embryo and of the (II) regulatory approaches to embryonic stem cells and cloning research by comparing the regulatory frameworks of 50 countries. The major goal of this study is to provide and analytical understanding of the policy landscape around the globe, with an aim to contribute to worldwide policy debates. The comparison of these policies underscores the hurdles that scientific consortia involving international jurisdictions and policy frameworks have to confront, as well as the challenges facing the international harmonization of such policies.

One hundred years ago, Roscoe Pound wrote his famous article, “Law in Books and Law in Action.” Considered an important step toward American legal realism, today this article is invoked more for its title than its content. I would argue that in the article, Pound did not clearly distinguish between two separate situations: (1) the departure of decisions of courts from statements of statutory (or constitutional) law, and (2) the discrepancy between doctrine in books and empirical data about law. This second observation has fed various strands of jurisprudence, if often only through the repetition of the well-quoted formula. It is not my purpose here to address all of the controversies concerning the relationship between legal science and facts. My target, more modestly, is to identify and analyze the connections between Pound’s dichotomy and the European legal theories that are influenced by the ideas of Hans Kelsen, H.L.A. Hart, and Alf Ross about law and facts. My point of departure is the distrust of American legal theorists, who, as a group, consider themselves to be “legal realists,” of Kelsen’s normativism, which is too often presented by them as a simplistic and outdated theory without links to the modern practice of law. American legal realism and its intellectual progeny, it can be claimed, are better suited to the empirical study of complex legal orders that comprise more than the law enacted by the state. Although I would argue that Kelsen was both “shocked” and inspired to update his arguments when he discovered American realism upon arriving in the United States, he failed to convince Americans of the correctness of his Pure Theory of Law. In Europe, however, many positivists remain faithful to the theories of Kelsen and Hart. The conception of law as a set of norms and a “matter of social fact” is considered the core principle of legal positivism. As I will demonstrate, the problem raised by Pound in his 1910 paper is virtually identical to the one Kelsen tried to solve a few decades later: how to build a legal science without erecting a phantasmagoria of imagined law without connection to how law is actually used and actually works. Legal scholars continue to write law books and to describe legal orders, and they do so through making choices about what counts as law and is therefore worth presenting to readers. An analysis of these choices that legal scholars must make demonstrates the similarities between Kelsen’s arguments and Pound’s approach. To explore these similarities, I will focus on legal change; in particular, I will consider legal change in its historical context in order to give empirical content to the tension between black-letter law and rules “in action.” I will use legal history, in part, as a means of emphasizing the importance of the rule of change among Hart’s secondary rules, and I will argue that all legal phenomena are in constant evolution. If I am correct, then we can only bring law and facts into closer relation to the extent that we are able to understand why law is continually changing.

International audience

This paper explores the disruptive impact of digitization on cultural heritage preservation, focusing on the challenges posed by intellectual property rights, access, and enforcement. It emphasizes the need to balance innovation and preservation in the digital landscape, addressing issues such as copyright complexities, the commodification of cultural knowledge, and the Western-centric bias in policy shaping. By fostering global cooperation, cultural sensitivity, and public awareness, we will aim at achieving an inclusive and sustainable approach to safeguarding our diverse cultural heritage in the digital era.

STUDY QUESTION: In couples who have chosen and confirmed the fate of surplus frozen embryos, which factors influence their decision, with a special emphasis on their symbolic representation of the embryo(s)? SUMMARY ANSWER: Embryo representation and gamete donation use significantly influence the fate of surplus cryopreserved embryos. WHAT IS KNOWN ALREADY: Previous studies report difficulties for couples to decide whether or not to continue storing their frozen embryo(s) and different factors have been already highlighted which influence their decision, including embryo conceptualization, information and support provided by the medical institution, quality of embryo(s) and life events. Little is known, however, about couples who definitely decided to stop their parental project and finalized the process of decision-making about the fate of their cryopreserved embryo(s). STUDY DESIGN, SIZE, DURATION: This prospective study was conducted over a period of 3 years (2007-2010) and included IVF/ICSI patients with surplus frozen embryos, who made a final embryo disposition decision. Among the 280 eligible IVF/ICSI patients, 247 agreed to participate in the study. According to the available options, 91 persons chose to 'stop cryopreservation', 77 chose donation to 'research' and 48 'embryo donation' to infertile couples. Furthermore, 31 participants who chose embryo donation for a parental project were refused by the center as not compatible with their mandatory medical conditions. Among them, 27 participants then selected donation to research as a new option and were included in a fourth group: 'donation to research after Refusal of Embryo Donation for parental project' or 'research-RED' (n = 27). Four participants chose 'stop cryopreservation', however, given the small number of subjects this latter group was not included in the analysis. In all, 243 participants who made a final choice concerning the fate of their cryopreserved embryos were included in this study. PARTICIPANTS/MATERIALS, SETTING, METHODS: Participants were sent a letter of invitation to a semi-structured interview of 30 min with a psychologist. Interviews were conducted separately for each partner, including a questionnaire with a common part and a specific part, according to the chosen option, and allowing a quantitative evaluation. A multivariate logistic regression model was used to assess the link between their embryo representation and their decision about their embryos' fate. MAIN RESULTS AND THE ROLE OF CHANCE: After adjustment for age, gender, gamete donation, number of children and the different embryo representations, a choice to 'stop cryopreservation' is more frequent if the embryo is represented as a child [odds ratio (OR) adjusted = 3.29, 95% confidence interval (CI) = 1.62-6.66], P = 0.0009. Representing the embryo as a project prompts patients to choose 'donation to research' [OR adjusted = 3.76, 95% CI = 1.56-9.06], P = 0.0032. Respondents are more likely to choose 'embryo donation' if they represent the embryo as a potential person [OR adjusted = 3.77, 95% CI = 1.45-9.80], P = 0.0064. Furthermore, patients who benefited from gamete donation are ∼10 times more likely to donate their embryos to another couple [OR adjusted = 10.62, 95% CI = 3.99-28.30], P < 0.0001. For more than half the participants (57%) the decision-making was easy, however, deciding to stop cryopreservation was significantly more difficult than choosing research or embryo donation (P < 0.0001). LIMITATIONS, REASONS FOR CAUTION: Socio-economic status, moral and religious affiliations are known to influence the choice of couples but analyzing these factors was not an aim of the present study. WIDER IMPLICATIONS OF THE FINDINGS: When couples definitely decide to stop their parental project, the embryo symbolic representation remains the main factor that influences the fate of their frozen embryo(s). Moreover, this representation can evolve when influenced by external events and information provided. In order to support patients who are making this difficult decision, it could be helpful to explore this symbolic representation early in the IVF/ICSI procedure, before surplus embryo freezing, as a new tool enhancing the accuracy of counseling. STUDY FUNDING/COMPETING INTERESTS: this study was supported by a grant from the 'Agence de la biomedicine (ABM)', the national regulatory ART agency, under the authority of the French Ministry of Health. The authors have no conflict of interest to declare.

1789 : la première constitution apparaît dans l'histoire politique française; cependant, loin de rester une oeuvre du passé et d'être une création purement nationale, elle a formulé des principes qui demeurent à la base du droit public moderne considéré dans son universalité. Dans les contributions ici réunies, des juristes, des historiens, des philosophes et des politistes, français ou étrangers, débattent de l'universalité, de la spécificité et de la fécondité présentes en cette "invention de la Constitution". La réflexion menée aussi bien en ce qui concerne le contexte révolutionnaire français que d'autres expériences dans le temps et dans l'espace, aborde des problèmes relevant du constitutionnalisme contemporain ou de la philosophie du droit constitutionnel: la diversité des approches confirme l'importance, pour aujourd'hui, de la Constitution élaborée entre 1789 et 1791. (Résumé éditeur)

Journal Article The Methods of Unification Get access René David René David 1René David is Professor of Law, Faculté de Droit de Paris Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 16, Issue 1-2, Winter-Spring 1968, Pages 13–27, https://doi.org/10.1093/ajcl/16.1-2.13 Published: 01 February 1968

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Because some sentiments simply cannot be verbalized, the written message lacks rendered intonation and the embodied dynamics of expressed feeling. With the rise of emails and other means of digital communication, the emotive shortcomings of new communication channels are even more acute even while they become emotively more expansive. The color, form, and context of emojis in visual communication may lead to more kinds of (mis)interpretation. Although emojis might be presented as a tool for clarification of the communicative intent, it is still unknown whether visual add-ons also introduce more uncertainty or flexibility in language. As a result, emojis contribute to a digital cultural shift in message transmission that also reflects an evolving hermeneutic of legal communication and communicative intention. In a growing number of legal cases, emojis serve as evidence, or as facts which reveal asserted, yet unsaid information and implied meaning. This study depicts the flexible nature of emojis in e-communication, and so analyzes applications in various legal cases to demonstrate the way emojis, as negative emotional influencers, affect the understanding of online communication and decision-making in courts.

Hauriou and the théorie de l'institution. The institution theory developed by dean Maurice Hauriou at the beginning of the century still remains especially stimulating for a theoretical analysis of law and for understanding its social scope. The article discusses this theory. After explaining its genesis and evaluating its content, the author retraces its ramifications in juridical doctrine. Then, based on a critical evaluation of institutional idealism, and taking into account the contribution of institutional analyses outside the realm of jurists, the author demonstrates the interest the theory proposed by Hauriou and its critical application may have for jurists.

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The paper will focus on the identification of several key criteria in e-discourses via the constitution of e-images of the Anonymous arising from e-medias (Facebook, twitter, Snapchat, WeChat, etc.) with a specific focus on youngsters and their (ab)uses of these communication channels to facilitate digital predation, and so to lead to e-victimization. I will explain the specifics of e-victimization discourse taking into consideration its triadic dimension. I will then be able to conceptualize a dominant e-communication and the e-victimization theory around central ideas of dynamics of violence, gender discrimination and power abuse leading to a semio-sphere with a deep focus on anonymity, exposure, frequency, and insecurity as indicators of collective e-delinquency and proneness to e-victimization.

Emojis are a form of electronic communication found in text messages that fundamentally alter the exchange of emotion. Images and signs that depict feelings have replaced the nuanced selection of the right words and phrases. However, where feelings subside once expressed, emoticons transcend the spatio-temporality of emotion in ways that can become recurrent acts of aggression and bullying that are impossible not to see and even harder to erase. Across the globe, the expressive range of human emotion through the static ideogram of the emoji, or emoticon, presents an increasing challenge for the visually immediate, non-verbal exchange of capricious emotive communication.

International audience

International audience

L’article prend appui sur l’analyse critique proposée par la Critical Race Theory de la notion, centrale en droit constitutionnel américain, de « colorblindness » en tant qu’elle constituerait un élément essentiel de la préservation de l’inégalité raciale et de la white supremacy . La présente contribution cherche ainsi à évaluer dans quelle mesure certaines de ces analyses éclairent le rôle que jouent aujourd’hui, en droit français et européen, les notions de neutralité religieuse et/ou de laïcité. Elle explore dans un premier temps certains parallèles propres à la structure des notions de colorblindness et de neutralité/laïcité (raisonnement symétrique, raisonnement formel…), pour analyser dans un second temps les effets concrets que leur font jouer les acteurs juridiques (préservation des distinctions entre groupes, maintien du statu quo inégalitaire, question de la pureté des espaces sociaux auxquels ils trouvent à s’appliquer).

Abstract The current pandemic period has triggered a series of changes in society, at both individual and collective behavioral levels. These changes were perceived as either positive or negative by the impacted bodies, leading to both social change and positive interactions in a tense context. In this paper, the authors will deal with Pandemica Panotpica , subjugation infiltrating all levels of society, and the approach adopted by several countries in trying to find countermeasures to combat the virus' proliferation. Our research scope began at the onset of the pandemic and ended on early January 2021.

Cette analyse des textes distingue leur fonction, allant d’un simple texte déclaratif (sur le génocide arménien) à charge juridique nulle, à une loi (Gayssot) créant un délit pénal. Elle permet également d’affirmer que les lois de 1990 et de 2001 ne portent en elles aucune interprétation législative de l’histoire, mais aussi que la loi Gayssot ne permet pas aux juges d’écrire l’histoire et n’empêche pas non plus les historiens de faire leur travail.