Many theorists take the view that literal meaning can be one of a number of factors to be weighed in reaching a legal interpretation. Still others regard literal meaning as having the potential to legally justify a particular outcome. Building on the scholarly response to HLA Hart’s famous ‘vehicles in the park’ hypothetical, this article presents a formal argument that literal meaning cannot be decisive of what’s legally correct, one which, unusually, makes no appeal to controversial theories within philosophy of language or literary criticism. If the argument is sound, it follows that an enactment’s literal meaning neither weighs in the determination of correct legal outcomes nor permits the application of a sequencing model, ie a non-monotonic logic, to its interpretation. These implications are considerably more controversial within contemporary legal theory than the idea that a statute’s literal meaning is not necessarily its legal meaning. Yet we see that, given an intuitive notion of legal truth, they follow from it nonetheless.
{"title":"Revisiting the Contribution of Literal Meaning to Legal Meaning","authors":"B. Flanagan","doi":"10.1093/OJLS/GQP030","DOIUrl":"https://doi.org/10.1093/OJLS/GQP030","url":null,"abstract":"Many theorists take the view that literal meaning can be one of a number of factors to be weighed in reaching a legal interpretation. Still others regard literal meaning as having the potential to legally justify a particular outcome. Building on the scholarly response to HLA Hart’s famous ‘vehicles in the park’ hypothetical, this article presents a formal argument that literal meaning cannot be decisive of what’s legally correct, one which, unusually, makes no appeal to controversial theories within philosophy of language or literary criticism. If the argument is sound, it follows that an enactment’s literal meaning neither weighs in the determination of correct legal outcomes nor permits the application of a sequencing model, ie a non-monotonic logic, to its interpretation. These implications are considerably more controversial within contemporary legal theory than the idea that a statute’s literal meaning is not necessarily its legal meaning. Yet we see that, given an intuitive notion of legal truth, they follow from it nonetheless.","PeriodicalId":344576,"journal":{"name":"OUP: Oxford Journal of Legal Studies","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121816729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 the House of Lords approved of protecting privacy interests through incrementally developing the existing action for breach of confidence. Lord Hoffmann suggested that this modified cause of action, instead of being based upon the duty of good faith, focuses upon the protection of human autonomy and dignity. This article explores how this change in underlying values affects the availability of gain-based remedies, where breach of confidence is relied upon against the wrongful publication of private information. An account of profits is generally available where a defendant profited from disclosing confidential information in breach of a pre-existing relationship of confidence. It can also be awarded for certain breaches of contractual non-disclosure agreements and to protect proprietary interests. This article argues that these existing rationales for an account of profits can, where they apply in a particular case, also support gain-based relief in a privacy context. The article then considers that the particular nature and vulnerability of privacy make it necessary to allow gain-based relief in circumstances beyond these established categories. In order to provide effective deterrence and protection against commercially motivated infringements, in particular by the media, gain-based remedies should also be available where the privacy invasion is deliberate and a particularly outrageous infringement of the claimant's rights.
在Campbell v MGN Ltd [2004] UKHL 22， [2004] 2 AC 457中，上议院批准通过逐步发展现有的失信行为来保护隐私利益。Hoffmann勋爵认为，这种修改后的诉因不是建立在诚信义务的基础上，而是侧重于保护人的自主和尊严。本文探讨了潜在价值的这种变化如何影响基于收益的补救措施的可用性，在这种补救措施中，违反信任是对错误发布私人信息的依赖。当被告因披露机密资料而违反先前的保密关系而获利时，一般可获得一份利润帐目。它也可以判给某些违反合同保密协议和保护专有利益的行为。本文认为，在特定情况下，这些现有的利润核算理由也可以支持隐私背景下的基于收益的救济。文章随后认为，隐私的特殊性质和脆弱性使得有必要在这些既定类别之外的情况下允许基于收益的救济。为了提供有效的威慑和保护，防止出于商业动机的侵权行为，特别是媒体的侵权行为，在故意侵犯隐私和特别粗暴地侵犯索赔人权利的情况下，还应提供基于利益的补救办法。
{"title":"Justifying Gain-Based Remedies for Invasions of Privacy","authors":"N. Witzleb","doi":"10.1093/OJLS/GQP005","DOIUrl":"https://doi.org/10.1093/OJLS/GQP005","url":null,"abstract":"In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 the House of Lords approved of protecting privacy interests through incrementally developing the existing action for breach of confidence. Lord Hoffmann suggested that this modified cause of action, instead of being based upon the duty of good faith, focuses upon the protection of human autonomy and dignity. This article explores how this change in underlying values affects the availability of gain-based remedies, where breach of confidence is relied upon against the wrongful publication of private information. An account of profits is generally available where a defendant profited from disclosing confidential information in breach of a pre-existing relationship of confidence. It can also be awarded for certain breaches of contractual non-disclosure agreements and to protect proprietary interests. This article argues that these existing rationales for an account of profits can, where they apply in a particular case, also support gain-based relief in a privacy context. The article then considers that the particular nature and vulnerability of privacy make it necessary to allow gain-based relief in circumstances beyond these established categories. In order to provide effective deterrence and protection against commercially motivated infringements, in particular by the media, gain-based remedies should also be available where the privacy invasion is deliberate and a particularly outrageous infringement of the claimant's rights.","PeriodicalId":344576,"journal":{"name":"OUP: Oxford Journal of Legal Studies","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125308892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Reason often falls into despair when confronted with its distance from reality. In 1667, Samuel Pufendorf realized this distance and he became furious: the political structure in which he lived, the German Holy Roman Empire, appeared to him so irregular and arbitrary that he could only call it “monstro simile”: similar to a monster.1 Philip Allott may be today’s Pufendorf, except that it is yet unclear whether the idea of reason he believes in is, like that of his predecessor, on the rise; in these late-modern or even post-modern times, he may well fight a losing battle. For Allott today, it is the European Union that is unbearably irregular and contradictory in its construction: he sees it as an Ungeheuer, as a monster produced, in Goya’s words, by the sleep of reason.2 His vision is, instead, that of a well-ordered, coherent structure: of a unity brought about by European society in an act of “self-constituting”. But his is only an epilogue in the volume under review, and his vision of unity is hardly shared by the other authors in it. With many different nuances, most of them agree with Allott’s characterization of the irregularity of the European Union, yet they do not call it “monstrous” but “pluralist” or “polycentric” and do not see anything inherently bad in it. Some even praise polycentricity as a model for the future; most, however, acknowledge it as a fact and, in pragmatic fashion, base their further theorizing upon it. In this they may be not so far from the theorists of the Holy Roman Empire, of whom one observer stated at the end of the 17th century: “While in the other disciplines of law reason prevails, in the public law of Germany it is history instead.”3
{"title":"Europe's Constitutional Monstrosity*","authors":"Nico Krisch","doi":"10.1093/OJLS/GQI016","DOIUrl":"https://doi.org/10.1093/OJLS/GQI016","url":null,"abstract":"Reason often falls into despair when confronted with its distance from reality. In 1667, Samuel Pufendorf realized this distance and he became furious: the political structure in which he lived, the German Holy Roman Empire, appeared to him so irregular and arbitrary that he could only call it “monstro simile”: similar to a monster.1 Philip Allott may be today’s Pufendorf, except that it is yet unclear whether the idea of reason he believes in is, like that of his predecessor, on the rise; in these late-modern or even post-modern times, he may well fight a losing battle. For Allott today, it is the European Union that is unbearably irregular and contradictory in its construction: he sees it as an Ungeheuer, as a monster produced, in Goya’s words, by the sleep of reason.2 His vision is, instead, that of a well-ordered, coherent structure: of a unity brought about by European society in an act of “self-constituting”. But his is only an epilogue in the volume under review, and his vision of unity is hardly shared by the other authors in it. With many different nuances, most of them agree with Allott’s characterization of the irregularity of the European Union, yet they do not call it “monstrous” but “pluralist” or “polycentric” and do not see anything inherently bad in it. Some even praise polycentricity as a model for the future; most, however, acknowledge it as a fact and, in pragmatic fashion, base their further theorizing upon it. In this they may be not so far from the theorists of the Holy Roman Empire, of whom one observer stated at the end of the 17th century: “While in the other disciplines of law reason prevails, in the public law of Germany it is history instead.”3","PeriodicalId":344576,"journal":{"name":"OUP: Oxford Journal of Legal Studies","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132060190","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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