Public Morality

Talking about sex in India is still taboo. Despite being the land of Kamasutra, Indians are very hesitant to talk of sex or related issues in public. This is evident in mainstream media where scenes of intimacy still make news. What happens to advertisements of condoms in that case? The most recent condom ad featuring Sunny Leone was mired in controversy as it was considered too improper for public consumption. This highlights India's discomfort with the open depiction of female desire. The objectification of the female body in media is age-old and continues unabated. Female sexuality is still seen through the lens of the man. The imagining of the woman as demure and godly, has taken shape during the national movement, where the glorification of the Vedic past and the shame in the prevailing (perverse) Hindu culture contra Victorian morality, the nationalists scripted a 'Bharat Mata' image of the woman. She is the 'Bharat Mata' and the sexually desirable woman at the same time. Among those ads which break this stereotype of the objectified woman are the condom ads featuring Leone. Is this break from the past going to stay or will it hurt the prevailing misogynistic sentiments of the public and face censure? Adding to the list of causes for high rate of rapes in India is the latest condom advertisement (ad) Manforce condom, this according to a senior CPI (Communist Party of India) minister, Atul Anjan, in India. The advertisement shows a seductively dressed Sunny Leone on a bed of strawberries or at times going around a vineyard. The tagline indicates that the man here is of less consequence, 'Excitement. She can't hide'. This ad unlike most, is an overt attempt at talking about a woman and her desire, it almost reverts the male gaze even though in a dubious way. The ad does objectify the body but also shows a woman has control of it too, in her authoritative tone and the obsolete role of male performer. It is probably this second class citizen status that men like Anjan are not used to witnessing, that brings out his disgust for the ad. Once again women become the reason why men rape. It is the oldest trick in the book. This ad has been mired in controversy since its release and it has been proposed by the Ministry of Information and Broadcasting that it should be aired (if at all) between eleven in the night and five in the morning, when the target audience would probably be fast asleep and children wide awake. What is missed is the importance of the product in terms of health and precautionary safe sex, aspect of consent of the parties involved and bringing sex out of the taboo list in Indian parenting, thereby de-mystifying the entire concept.

Obscenety and Public morality. On the Hidden Limits of the Publication of Folklore Texts

The transcription of folklore texts from orality is not only ideologically and technically determined, but is also fundamentally limited by the prevailing public morality. The question is, of course, linked to the fact that the aesthetics-based concept of folklore precluded the possibility of representing 'plebeianness' narratives as values. At the same time, the institutionalisation of folklore studies, the possibility of sound recording and the generalisation of the principle of documentary recording did not completely eliminate this subjective nature of collections, since the procedures of text formation that could be enforced by the collector, transcriber, editor or publisher did not disappear in the collection methodology that became more scientific, but were merely confined within a regulated framework. In addition to professional aspects, it is therefore also worth taking into account the moral and legal rules that underpin the evaluation of historical folklore data, if only because behaviour that distorts ethnographic and folkloristic knowledge, which often appears as self-censorship on the part of both the data provider and the publisher (e.g. selection, euphemisms), is usually hidden from the outside observer. As inappropriate texts and genres often pass through the moral filter, such manifestations of popular culture are perhaps the least visible to researchers.

The comment analyses the Appellate Body report in the controversial dispute over the European marketing ban on seal products (European Communities – Measures Prohibiting the Importation and Marketing of Seal Products). In this context, it particularly looks into the public moral exception provided by Art. XX of the General Agreement Tariffs and Trade and critically assesses the interpretative approach taken by the Appellate Body. This analysis subsequently forms a basis for ascertaining the extent of regulatory freedom enjoyed by WTO Members under this clause.

The jurists naturally privilege the continuity, stability, coherence. If the political tends to periodically break the coherence of the social structures, the jurists conceive themselves as "doctors" thereof, and "their technique is precisely the extirpation of the void, the anticipation of the crises, the assurance of the continuity, or even the mending, after the stroke, of the ruptures of the institutional weave". The legal privileging of the continuity of the social evolution is translated by the structuring of the system on the basis of some principles aimed at attenuating the tendencies of radicalization of the social claims in the name of the prevalence of a certain conception about the good society over its alternatives. It is fundamental for the jurists that the law ensures the priority of the protection of freedom through the mechanisms of the rule of law over the general interest resulted from the democratic exercise of power. The law based on this vision can not be the result of a general transcendent interest over the interests of the members of the society, but must be the result of the accessibility and availability thereof. Key words: democracy; rule of law; restriction of human rights; national security; public morals; availability of the general interest.

Özet:
Genel ahlak modern hukuk sistemlerinin gelişim süreci ve hukuki düşünce tarihindeki tartışmalar açısından her zaman hukuk ile ilişkisi sorgulanan ve zaman zaman da hukuki alandan dışlanan bir kavram olarak karşımıza çıkmaktadır. Ahlaka aykırı ifadelerin sınırlanmasının ya da yasaklanmasının konu edildiği yargı kararları, hukuk-ahlak ilişkisinin felsefe alanıyla sınırlı kalmayıp hukuk bilim alanında da tartışılmasını mümkün kılmaktadır. Zira ahlak, hukukla kıyaslandığında kesinliği tartışma yaratan ve üzerinde fikir birliği oluşturulamayan bir alandır. Çalışma, genel ahlakın korunması nedeniyle ifade özgürlüğünün sınırlanmasının konu edildiği AİHM ve AYM içtihatı üzerinden bir ortak zemin bulunup bulunmadığına odaklanmaktadır. Özellikle içtihadın oluşmaya başladığı yıllarda tartışmanın ana hattını oluşturan takdir marjı doktrininin güncel durumda nasıl değerlendirildiği ve eski önemini koruyup korumadığı hususları ortaya konmaya çalışılmıştır.

Abstract:
Public morality emerges as a concept that is always questioned in the development of modern legal systems and in the history of legal thought, and is sometimes even considered to be excluded from the legal field. The judicial decisions, in which the limitation or prohibition of statements against the public morals, make it possible to discuss the relationship between law and morality, not only in the field of philosophy but also in the field of jurisprudence. Likewise, when compared with the law, the problem of certainty of morality creates controversy and it is impossible to be agreed upon.
This study focuses on whether there is a common ground in the case law of the ECHR and the Constitutional Court of Turkey on limitation of freedom of expression for the protection of public morality. Especially it is tried to delivered how the doctrine of margin of appreciation, which was the core of the discussion in the early years of the case law, evolved in the current situation and whether it maintains its old importance.

The liberalization of trade is the main objective of the World Trade Organization (WTO) and its numerous agreements. However, trade liberalization often conflicts with some important societal values and interests. This is the reason why a set of exceptions were devised in WTO covered agreements to reconcile these conflicting interests. The latter allow Members to adopt measures for the protection of a number of values, including the protection of “public morals.” But the term “public morals” is not defined by WTO agreements so the task of ascribing meaning to such a vague concept is left to the WTO judiciary. Highly ambiguous and subjective, “public morals” introduces a dose of uncertainty into the law of the WTO, which may have to deal with as many different conceptions of morality as there are Member States. Since its scope and its limits remain uncertain, the difficult task is left to the adjudicator as it is confronted with cases pleading a public morality defense. This paper reviews the cases in which the adjudicator has indulged in the delicate exercise of balancing between the preservation of public morals and the imperative of trade liberalization. This paper also critiques the standard of review and sets out to find out the degree of deference accorded to Members to define what constitutes public morals within their respective territory and whether, by so doing, the adjudicator has acted consistently within the delegated power of the Dispute Settlement Understanding.

The paper studies the immense opposition to a nonviolent campaign against the practice of moral policing in Kerala to understand the dominant spaces, collective identities, and discourses that give shape to the outrage of public morality in India. The campaign through its politics specifically targeted rightwing and political groups as well as socially embedded familial and institutional structures that exercise control over individuals through patriarchal regimes. The adverse reaction to the campaign revealed that collective aggression or violence can be used to impose majoritarian values and exert social control through the authority of public morality and everyday acts of moral policing in masculinized, politico-religious spaces that characterize the traditional public sphere in India. The contested ‘morals’ were gendered and communal notions particular to the middle classes and central to the maintenance of dominant structures of family, marriage, religious community, and the nation. The same informs notions of popular morality that give moral policing its ‘rational’ authority. The research employs online opinion pieces, reports and discussions, and two structured interviews to examine why the campaign became prominent in the public sphere. It gives coherence to the campaign’s agenda to counter the underlying violence of moral policing and suggests measures for peaceful resolution of public contestations.

Depuis 1995, des membres se sont régulièrement joints à l’Organisation mondiale du commerce, formant ainsi une mosaïque complexe d’États hétérogènes qui comprend une variété de cultures, de religions, de pratiques et de coutumes. Cette diversité croissante pose plusieurs défis importants, particulièrement quant à la possibilité de limiter le commerce en raison des préoccupations citoyennes qui émanent de tous les membres. Comment un État peut-il répondre aux demandes formulées par sa population tout en respectant ses engagements en faveur des autres membres ? L’exception de moralité publique a consisté en une réponse, laquelle a été étudiée à quatre reprises par les organes quasi juridictionnels de l’OMC. Si les quatre mesures défendues ont été reconnues comme relevant de l’ordre de la moralité publique, aucune n’a pu franchir la totalité des tests commerciaux et être entièrement justifiée. Les lacunes et les interrogations relatives à l’interprétation de cette exception, tout comme le nouvel engouement qu’elle suscite, méritent que l’on s’y attarde. Pour ce faire, cet article propose de revisiter l’exception de moralité publique à la hauteur de la jurisprudence de la Cour européenne des droits de l’homme qui, elle aussi, interprète l’expression de la moralité publique, et ce depuis plus de quarante ans. Elle a su, au travers de sa jurisprudence, développer une approche unilatérale de la norme morale et inscrire la nécessité d’une telle ingérence dans l’exercice et la jouissance des droits et libertés dans une perspective consensuelle. Il est posé comme postulat que les organes quasi juridictionnels de l’OMC pourraient faire de même, et ce dans le but de respecter la nature de la norme.

Since 1995, members have been regularly joining the World Trade Organization, forming a complex mosaic of heterogeneous states that includes a variety of cultures, religions, practices, and customs. This growing diversity poses several important challenges, particularly with regard to the possibility of limiting trade regarding citizen concerns that emanate from all members. How can a state respond to its people’s demands while respecting its commitments toward all members? The public morals exception consisted in a response, which was examined four times by the quasi-judicial bodies of the WTO. While the four measures defended were recognized as public morals, none were able to pass all commercial tests and be justified. The gaps and questions concerning the interpretation of this exception, as well as the new enthusiasm it arouses, merit attention. To this end, this article proposes to revisit the public morals exception in line with the European Court of Human Rights jurisprudence, which also interprets the term “public morals”, and has done so for forty years. Through its jurisprudence, the court has developed a unilateral approach to the moral norm and a consensual perspective on the need for interference. It is postulated that the quasi-judicial bodies of the WTO could do likewise, with the aim of respecting the norm’s nature.

In November 1920, the Alexandria police arrested two sisters, Raya and Sakina, along with their husbands and others, and charged them with the murder of seventeen women. At the end of a trial held in May 1921, the judges sentenced to death six members of the gang, yet it was Raya and Sakina who monopolized public attention as the first women sentenced to death in the Egyptian secular justice system. A century later, they are still alive in the Egyptian collective memory, which has turned them into a long-lasting criminal myth and remembers them as former prostitutes, madams, and female murderers. Previous studies seem to see the myth as resulting from the supposedly exceptional character of the case. This paper is a first step toward exploring how this exceptionality was constructed and how it took on a national dimension after the announcement of Raya and Sakina's arrest. The focus is on al-Ahram, the main national daily newspaper at the time, which covered the issue systematically, providing information on the investigation while building the case in national terms. A micro-historic approach to al-Ahram will enable a deconstruction of exceptionality through comparison with a precedent. An analysis incorporating both the precedent and Raya and Sakina's case will lead to a first hypothesis about the longevity of Raya and Sakina's case and the disappearance of the precedent from the Egyptian collective memory. This perspective offers insight into the connection between the press, public morality, and nation-building in interwar Egypt, linking textual and extra-textual realities and shedding light on the local aspects that make the nation. Indeed, the organization of al-Ahram in the provinces may be seen as a key factor in revealing what attracts national attention and what remains confined to a local dimension.

Les différends commerciaux qui font valoir une défense de moralité publique n’ont occupé et n’occupent encore à ce jour que peu de place au sein des groupes spéciaux et de l’Organe d’appel de l’Organisation mondiale du commerce (OMC). Cette défense, véhiculée sous la forme d’une exception, n’a été soumise qu’à trois reprises aux « juges » de l’OMC, soit dans les affaires États-Unis – Jeux, Chine – Publications et produits audiovisuels et CE – Produits dérivés du phoque. La doctrine a depuis formulé plusieurs hypothèses qui consistent en autant de typologies des mesures dites de moralité publique. Le dernier différend en la matière, opposant le Canada et la Norvège à l’Union européenne, a permis d’apporter un nouvel éclairage sur cette exception en proposant un nouveau test de moralité. Celui-ci est formulé en deux étapes : (1) la détermination de la préoccupation des citoyens et (2) la qualification de moralité publique de la préoccupation des citoyens. L’énoncé comme la mise en œuvre de ce test commandent que l’on s’y attarde afin d’en mesurer les effets et d’en comprendre les subtilités. Il sera principalement démontré que le Groupe spécial, confirmé sur ce point par l’Organe d’appel, semble s’écarter des précédents enseigne- ments en matière de moralité publique en exigeant une justification de nature inter- nationale de la préoccupation citoyenne, laquelle doit également être soutenue par une preuve de nature nationale, pour se voir reconnaître au titre d’exception com- merciale de moralité publique.
Trade disputes raising a public morality defense have occupied and still hold to this day little spot within the World Trade Organization (WTO) Panels and Appellate Body. The defense, portrayed as an exception, has been submitted three times to the WTO “judges”: USA – Gambling, China – Publications and Audiovisual Products and EC – Seal Products. The doctrine has since made several assumptions which consist of many types of public morality measures. The latest dispute in the matter, opposing Canada and Norway to the European Union, helped shed new light on the defense by proposing a new morality test. The test is formulated in two steps: (1) determining citizens’ concerns and (2) whether the citizens’ concerns can be qualified as their public morality. The statement and the implementation of this test require some attention in order to measure the effects and understand the subtleties. It will mainly be demonstrated that the Panel, confirmed on this point by the Appellate body, seems to deviate from previous lessons regarding the public morality defense, requiring international justification of citizen concerns, which should also be supported by national evidence, to be recognized under public morality commercial exception.

This important book takes as its points of departure two questions: What is the nature of valuing? and What morality can be justified in a society that deeply disagrees on what is truly valuable? In Part One, the author develops a theory of value that attempts to reconcile reason with passions. Part Two explores how this theory of value grounds our commitment to moral action. The author argues that rational moral action can neither be seen as a way of simply maximising one's own values, nor derived from reason independent of one's values. Rather, our commitment to the moral point of view is presupposed by our value systems. The book concludes with a defense of liberal political morality.

The paper considers the values and value orientations in four ex-Yugoslav republics (Bosnia and Herzegovina, Serbia, Croatia, and Slovenia). The starting point of the analysis are cross-national analyses of data from the World values survey (Inglehart et al.2014) and data presented by Shalom Schwartz (2013). Both approaches paint a similar picture of Slovenia being by far the closest to values typical for Western liberal democracies, while Bosnia and Herzegovina, and partially Serbia, are found on the opposite extreme. The longitudinal analyses suggest that in all the countries the studied values shifted in the direction of more traditional and survival values. More specifically, all four countries have witnessed an erosion of generalised social trust, a decline in public morality, and retraditionalization of gender roles. It is argued that these shifts should mainly be understood as a consequence of the enduring economic insecurities of the citizens, enhanced by the effects of the ...

The book deals with two very important but imprecise terms in contemporary law, namely public policy and public morality. It is commendable that such a comprehensive work about general clauses has been prepared. They are the elements of the common good which refers directly to Article 1 of the Constitution of the Republic of Poland. The aim of these clauses is to protect the integrity of Polish legal order and the reason why they are applied boils down to the public interest.
The clauses refer to the extralegal criteria of a moral, economic or political nature. That is why, for a legal practice, it appears vital that experts contribute to the clarification of their content and meaning as a legal categories. No less important is entrusting or leaving this task to the courts and other legal bodies. These efforts serve to ensure necessary flexibility in applying, in particular, the public policy clause
– a safety valve of legal order.

PROF. FRANCISZEK LONGCHAMPS DE BÉRIER,
JAGIELLONIAN UNIVERSITY IN KRAKÓW

This article examines Art  12 equality jurisprudence with
specific reference to the case law and legal discourse over
the constitutionality of s 377A of the Penal Code (Cap 224,
2008 Rev Ed), which is paradigmatic, in terms of attracting
legal and political controversy. How the multi-vocal concept of equality is interpreted, implicates interpretive method, rights adjudication and the appropriateness of a “moral questions” doctrine in advocating modest, calibrated judicial review in addressing morally controversial questions. In Singapore, the prevailing “reasonable classification” test and the accompanying presumption of constitutionality of legislation has attracted two primary criticisms. First, that it has been
misapplied; second, that the test itself is too deferential
in according primary weight to the “reasonableness” of
Parliament and should be replaced by a more robust test of judicial scrutiny. The article contests the argument that s 377A fails to satisfy the reasonable classification test, particularly because it serves no purpose or an inadequate purpose given its original rationale. It argues that calls to revise the reasonable classification test in favour of a preferred vision of substantive equality constitute an unwelcome invitation to “rightism” and an outcome-oriented “living tree” approach to judicial review, which trades in value arguments based on an egalitarian liberal theory of the good. The extensive coverage of the above discussion necessitates publication of the content over two discrete yet connected articles. The first of which
is this article which unpacks the orientation and method
of “rightism” in relation to general approaches towards
construing Pt IV liberties and sets forth the extant reasonable classification test, which disfavours a rights-driven path of judicial activism, in distinguishing between arguments for constitutional interpretation and for constitutional change.

Publications obscènes ou blasphématoires, relations et mariages homosexuels, communication sur l’avortement, lancer de nains, conversion sexuelle, inceste, don d’embryon ou de gamète, pornographie, chasse aux gros mammifères, interdiction de manifestation pour la fierté gaie, jeux en ligne, publications et produits audiovisuels, chasse aux phoques, lutte au blanchiment d’argent, qualification halal de produits horticoles : tous ces thèmes ont en commun d’avoir été défendus par les États au nom de la moralité publique, auprès de la Cour européenne des droits de l’homme, du Comité des droits de l’homme ou de l’Organe de règlement des différends de l’Organisation mondiale du commerce (OMC). Fortes de plusieurs décennies d’expériences, les instances de droit universel et régional des droits de la personne ont développé une méthode d’analyse des ingérences de moralité publique qui tend à respecter la nature et la portée de la norme morale défendue par l’État. Inversement, les organes quasi juridictionnels de l’OMC sont nouvellement confrontés à cette exception de plus en plus soulevée pour justifier une entrave au commerce international. Leurs interprétations évoluent, mais plusieurs lacunes persistent. Après avoir fait le bilan de l’expérience du système international de promotion et de protection des droits de l’homme et du système de l’OMC, cet ouvrage propose de prendre en compte les enseignements de la jurisprudence des droits de l’homme pour tenter de résoudre certaines lacunes identifiées dans la mise en œuvre du droit de l’OMC. Des propositions concrètes sont formulées dont l’adoption d’une approche unilatérale de la préoccupation sociale, de la norme morale et du choix du moyen pour parvenir à la protection souhaitée, ainsi qu’une approche consensuelle et un retour à l’examen de la bonne foi des Membres. En définitive, la conciliation des règles commerciales et des demandes formulées par les citoyens, véhiculées par les normes morales, pourrait être satisfaite à l’aide du mécanisme de l’exception commerciale de moralité publique.

The paper considers the values and value orientations in four ex-Yugoslav republics (Bosnia and Herzegovina, Serbia, Croatia, and Slovenia). The starting point of the analysis are cross-national analyses of data from the World values survey (Inglehart et al.2014) and data presented by Shalom Schwartz (2013). Both approaches paint a similar picture of Slovenia being by far the closest to values typical for Western liberal democracies, while Bosnia and Herzegovina, and partially Serbia, are found on the opposite extreme. The longitudinal analyses suggest that in all the countries the studied values shifted in the direction of more traditional and survival values. More specifically, all four countries have witnessed an erosion of generalised social trust, a decline in public morality, and retraditionalization of gender roles. It is argued that these shifts should mainly be understood as a consequence of the enduring economic insecurities of the citizens, enhanced by the effects of the ...

EnglishTrade disputes raising a public morality defense have occupied and still hold to this day little spot within the World Trade Organization (WTO) Panels and Appellate Body. The defense, portrayed as an exception, has been submitted three times to the WTO “judges”: USA – Gambling, China – Publications and Audiovisual Products and EC – Seal Products. The doctrine has since made several assumptions which consist of many types of public morality measures. The latest dispute in the matter, opposing Canada and Norway to the European Union, helped shed new light on the defense by proposing a new morality test. The test is formulated in two steps: (1) determining citizens’ concerns and (2) whether the citizens’ concerns can be qualified as their public morality. The statement and the implementation of this test require some attention in order to measure the effects and understand the subtleties. It will mainly be demonstrated that the Panel, confirmed on this point by the Appellate bod...

Public morality is one of the stated objectives for which WTO Members may seek to justify a measure that impedes trade. The value of considering this single objective is twofold. First, while all six trade disputes relating to the public morality exception have passed the public morality test, no measure has passed both the necessity test and the test in the chapeau paragraph. Second, it is questionable whether it is possible for a panel or the Appelate Body (AB) to recognize a measure as being of public morality. Moreover, if the EC – Seal Products dispute is the focus of the morality exception, it is important to look more closely at subsequent interpretations by panels and the AB, as nothing is less certain about the interpretation of this exception. Two trilogies emerge, firstly the US – Gambling, China – Publications and Audiovisual Products and the EC – Seal Products, and then Colombia – Textiles, Indonesia – Import Licensing and Brazil – Taxation, with the Canada-European dispute as the tipping point. This article is constructed in three parts that draw on the lessons learned from these two trilogies to highlight what remains of the public morality exception at the WTO.

Abstrakt Problematyka konstytucyjnych podstaw prawodawstwa ochrony zwierząt sta-nowi kluczowy warunek rozstrzygania sporów o granice dopuszczalności ogra-niczeń praw i wolności obywatelskich, dokonywanych w imię humanitarnej ochrony zwierząt jako istot zdolnych do odczuwania cierpienia. W odróżnie-niu od rosnącej liczby krajów, w Polsce konstytucja nie zawiera żadnego wyraź-nego przepisu nakazującego prawną ochronę zwierząt. jej podstawy poszukiwać można jednak w pojęciu moralności publicznej zawartym w art. 31 ust. 3 Kon-stytucji. Analiza tego pojęcia wskazuje na konieczność jego interpretacji w świe-tle przede wszystkim uznanego społecznie katalogu podstawowych wartości moralnych. Wymaga także odróżnienia pozytywnego i krytycznego ujęcia funk-cjonujących w społeczeństwie przekonań i postaw moralnych. Moralność publiczną w rozumieniu konstytucyjnym należy utożsamiać raczej z moralno-ścią krytyczną, stanowiącą rodzaj racjonalnej rekonstrukcji faktycznych prze-konań i praktyk moralnych rozpowszechnionych w społeczeństwie. Racje 1 Artykuł powstał w ramach projektu badawczego finansowanego przez Narodowe Centrum Nauki (2017/27/B/HS5/00085).

In Nigeria, it is quite common to see human corpses decomposing by the roadside. Existing scholarly comments have emphasised the aspect of state failure implicated in the phenomenon. However, based on observation, analysis of media reports, and informal discussions, this paper identifies some of the cultural factors that deny roadside corpses the basic honour of burial. Firstly, corpses that decay by the roadside are usually disconnected from the network of kin relations, thereby provoking meaning about space and social signification of the human body. Secondly, the low social status often ascribed to these corpses points towards an idea of the human body as a possible site for enactment of social inequality. Thirdly, public indifference to roadside corpses is explained in terms of contrasting public moralities, neoliberal ideals of self-contained individual, a resentment of the police intertwined with a complicated criminal justice system, and a cultural attitude towards strange entities.
KEYWORDS: Roadside corpses, burial, social inequality, human dignity

This article examines Art  12 equality jurisprudence with
specific reference to the case law and legal discourse over
the constitutionality of s 377A of the Penal Code (Cap 224,
2008 Rev Ed), which is paradigmatic, in terms of attracting
legal and political controversy. How the multi-vocal concept of equality is interpreted, implicates interpretive method, rights adjudication and the appropriateness of a “moral questions” doctrine in advocating modest, calibrated judicial review in addressing morally controversial questions. In Singapore, the prevailing “reasonable classification” test and the accompanying presumption of constitutionality of legislation has attracted two primary criticisms. First, that it has been
misapplied; second, that the test itself is too deferential
in according primary weight to the “reasonableness” of
Parliament and should be replaced by a more robust test of judicial scrutiny. The article contests the argument that s 377A fails to satisfy the reasonable classification test, particularly because it serves no purpose or an inadequate purpose given its original rationale. It argues that calls to revise the reasonable classification test in favour of a preferred vision of substantive equality constitute an unwelcome invitation to “rightism” and an outcome-oriented “living tree” approach to judicial review, which trades in value arguments based on an egalitarian liberal theory of the good. The extensive coverage of the above discussion necessitates publication of the content
over two discrete yet connected articles. The first of which
is this article which unpacks the orientation and method
of “rightism” in relation to general approaches towards
construing Pt IV liberties and sets forth the extant reasonable classification test, which disfavours a rights-driven path of judicial activism, in distinguishing between arguments for constitutional interpretation and for constitutional change.

As countries continue to join the World Trade Organization (WTO), its diversity, which needs to be preserved, also expands. One way a country can uphold its value in that diversified environment is to restrict trade to protect its public morals. The drafters of WTO agreements did not provide a meaning to what constitutes public morals (either by omission or purposefully), simply leaving the task to interpreters when a dispute arises. With a methodology seldom taken by international trade law scholarships on general exceptions in general, this paper traces the roots of the vague concept of ‘public morals’ now found in WTO-covered agreements in order to inform the panels and the Appellate Body’s approach to treaty interpretation that takes into account the preparatory works and circumstances surrounding the conclusion of a treaty. While it is taken for granted that GATT Article XX was drafted in 1927, this paper holds the view that ‘the protection of public morals’ which forms part of the general exceptions was actually devised earlier in history.

The work consists of an introduction and three parts. In the first one, it is shown what one understands by public morality in the United States in the broader context of police power, explaining the evolution of law on the subject until today. In the second one, it is searched for a reasonable definition of morality, useful both to the American model and other legal systems that assimilate the concept. It closes, on one hand, by stating that only a truly and really immoral conduct can jeopardize public morality. This is an objective parameter, which is not satisfied by drawing on tradition and majority opinion. On the other hand, the conduct must be public, in a sense that it must be carried out in public or have relevant intersections with the public dominion. In the third part, a positive representation of morality is introduced as a set of the righteous acting of community members that reverberates most immediately on the public sphere, and carries off a clarification in terms of terminology.

O trabalho consta de uma introdução e de três partes. Na primeira, mostra-se de que modo, nos Estados Unidos, a moralidade pública se entende no contexto mais amplo do poder de polícia e se explica a evolução do Direito sobre a matéria, até chegar ao presente. Na segunda, procura-se encontrar uma definição razoável de moralidade pública, útil tanto para o caso estadunidense como para outros ordenamentos jurídicos que incorporam aquele conceito. Conclui-se, por um lado, que, para que a moralidade pública esteja comprometida, deve existir uma conduta verdadeira e realmente imoral. Este é um parâmetro objetivo, que não se satisfaz com apelações à tradição ou à opinião majoritária. Por outro lado, a conduta deve ser pública, no sentido de realizar-se em público ou de ter outras arestas públicas relevantes. Na terceira parte, aporta-se uma caracterização positiva da moralidade pública como conjunto de manifestações do reto agir dos membros de uma comunidade que repercutem mais imediatamente na esfera pública, e se realiza um esclarecimento em matéria terminológica.

Ireland is one of the sole countries in the European Union that is currently devoid of any legislation concerning Assisted Human Reproduction (AHR). However, there is a Bill presently passing through the pre-legislative scrutiny stage which will establish a framework for regulating AHR. This paper is a comparative analysis of commercial surrogacy and payment for gametes in Canada and Ireland, and I advocate for the legalization of commercializing these Assisted Reproductive Technologies (ART) in both jurisdictions. The paper begins with a history of the evolution of both in the respective countries, moving on to the problems that have arisen in Canada. I then anticipate the complications that are likely to arise in Ireland if the proposed Bill - The Assisted Human Reproduction Bill - is signed into law, which contains provisions similar to those of the Canadian Assisted Human Reproduction Act, 2004.

The liberalization of trade is the main objective of the World Trade Organization (WTO) and its numerous agreements. However, trade liberalization often conflicts with some important societal values and interests. This is the reason why a set of exceptions where devised in WTO covered agreements to reconcile these conflicting interests. The latter allow Members to adopt measures for the protection of a number of values including the protection of "public morals." But what "public morals" means is not defined by WTO agreements so that the task is left to the WTO judiciary to ascribe meaning to such a vague concept. Highly ambiguous and subjective, "public morals" introduces a dose of uncertainty into the law of the WTO, which may have to deal with as many different conceptions of morality as there are Member States. Since its scope and its limits remain uncertain, the difficult task is left to the adjudicator as it is confronted with cases pleading a public morality defense. This paper reviews the cases where the adjudicator has indulged in the delicate exercise of balancing between the preservation of public morals and the imperative of trade liberalization. This paper also critiques the standard of review and sets out to find out the degree of deference accorded to Members to define what constitutes public morals within their respective territory and whether, by so doing, the adjudicator has acted consistently within the delegated power of the Dispute Settlement Understanding.

The police power consists of the authority of the state to regulate in the interests of public health, safety, and morals. As American society continues to grow more diverse and pluralistic, courts and commentators have raised concerns that the last of these, public morality, cannot serve as an acceptable justification for regulatory action. Indeed, if appeals to public morality cannot be evaluated on an objective basis, then regulators might invoke them to conceal unlawful motives. The ability of moral reasoning to provide a legitimate basis for regulation is thrown into doubt.

In this Article, we examine a peculiar line of Supreme Court cases in the free speech context that bring the problem into focus. In the so-called secondary effects cases, the Justices gradually moved away from accepting public morality arguments in support of state restrictions on adult businesses. In place of public morality, the Court began to retrain its focus on the social ills attendant to the activity in question, or what it termed the “secondary effects” of such conduct. Rather than decide whether the regulated activity is immoral, and thus within the legitimate regulatory sweep of the police power as traditionally conceived, the Court instead looked to whether the state could show that its restriction reduced deleterious secondary effects associated with the activity.

This development might have appeared desirable insofar as it would permit courts to rest their rulings on objective facts rather than wrestle with matters of opinion and moral sentiment. To the contrary, we argue, secondary effects arguments rely on moral reasoning — whether articulated or not — to the same extent as public morality arguments. The Court’s attempt in the secondary effects cases to avoid engaging in moral reasoning in reality demonstrates its indispensability.