Theories of criminalisation seek to identify the criteria by which behaviour is legitimately criminalised. This article believes that their success in so doing is best assessed if they examine the question of criminalisation in light of four desirable features for any such theory. These desirable features, which this article will term desiderata for short, are as follows: Desideratum 1: a theory of criminalisation should offer an evaluative framework that justifies the form of legal regulation known as the criminal law. Desideratum 2: a theory of criminalisation’s evaluative framework under Desideratum 1 should allow for a coherent and defensible account of the criminal law as morally censorious, thereby articulating something distinctive about the criminal law as a form of legal regulation. Desideratum 3: a theory of criminalisation should display a coherent understanding of how its evaluative framework under Desideratum 1 integrates with a theoretical account of the purpose, and legitimacy, of the state. Desideratum 4: a theory of criminalisation’s evaluative framework under Desideratum 1 should distil criminal from non-criminal behaviour in principled and defensible way. Given that the defence of each desideratum would arguably generate an article apiece, the aims of this article are consequently more modest. It is aimed at those who already accept one or more of them. It will demonstrate the success, in satisfying the desiderata, of a theory of criminalisation embedded in the notion of public goods. It shall call this theory the public goods account (the ‘PGA’). The PGA is not an entirely new theory, as elements of it can be found in the writings of a number of theorists. However, by expanding on, exploring and assessing these elements in light of the desiderata, this article offers further support to a theory of criminal law embedded in the notion of public goods. In order to understand the PGA, it is necessary to begin this article with a section outlining the nature of public goods. Subsequent sections will then address how the PGA satisfies each desideratum, in the order they are set out above.
{"title":"PUBLIC GOODS AND CRIMINALISATION","authors":"James Slater","doi":"10.5750/DLJ.V29I1.1423","DOIUrl":"https://doi.org/10.5750/DLJ.V29I1.1423","url":null,"abstract":"Theories of criminalisation seek to identify the criteria by which behaviour is legitimately criminalised. This article believes that their success in so doing is best assessed if they examine the question of criminalisation in light of four desirable features for any such theory. These desirable features, which this article will term desiderata for short, are as follows: Desideratum 1: a theory of criminalisation should offer an evaluative framework that justifies the form of legal regulation known as the criminal law. Desideratum 2: a theory of criminalisation’s evaluative framework under Desideratum 1 should allow for a coherent and defensible account of the criminal law as morally censorious, thereby articulating something distinctive about the criminal law as a form of legal regulation. Desideratum 3: a theory of criminalisation should display a coherent understanding of how its evaluative framework under Desideratum 1 integrates with a theoretical account of the purpose, and legitimacy, of the state. Desideratum 4: a theory of criminalisation’s evaluative framework under Desideratum 1 should distil criminal from non-criminal behaviour in principled and defensible way. Given that the defence of each desideratum would arguably generate an article apiece, the aims of this article are consequently more modest. It is aimed at those who already accept one or more of them. It will demonstrate the success, in satisfying the desiderata, of a theory of criminalisation embedded in the notion of public goods. It shall call this theory the public goods account (the ‘PGA’). The PGA is not an entirely new theory, as elements of it can be found in the writings of a number of theorists. However, by expanding on, exploring and assessing these elements in light of the desiderata, this article offers further support to a theory of criminal law embedded in the notion of public goods. In order to understand the PGA, it is necessary to begin this article with a section outlining the nature of public goods. Subsequent sections will then address how the PGA satisfies each desideratum, in the order they are set out above.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134153155","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}
This article explores some of the developing strategies designed to tackle the supply side of transnational corruption through the “Art of Persuasion” i.e. how to “persuade” commercial organisations, no matter how powerful, to commit to good governance and integrity in their business. In doing so, it uses Alstom SA (hereinafter Alstom) as a case study. The article is divided into three parts. Part 1 explores some of “persuasive” techniques designed to combat the bribery of foreign public officials and to enhance corporate good governance and integrity. Part 2 explores some of the lessons and challenges from the Alstom case whilst Part 3 contains a Conclusion which re-visits the “Art of Persuasion” .
{"title":"COMBATING THE BRIBERY OF FOREIGN PUBLIC OFFICIALS AND THE “ART OF PERSUASION”: THE CASE OF ALSTOM AND THE ENERGY SECTOR","authors":"J. Hatchard","doi":"10.5750/DLJ.V28I0.1278","DOIUrl":"https://doi.org/10.5750/DLJ.V28I0.1278","url":null,"abstract":"This article explores some of the developing strategies designed to tackle the supply side of transnational corruption through the “Art of Persuasion” i.e. how to “persuade” commercial organisations, no matter how powerful, to commit to good governance and integrity in their business. In doing so, it uses Alstom SA (hereinafter Alstom) as a case study. The article is divided into three parts. Part 1 explores some of “persuasive” techniques designed to combat the bribery of foreign public officials and to enhance corporate good governance and integrity. Part 2 explores some of the lessons and challenges from the Alstom case whilst Part 3 contains a Conclusion which re-visits the “Art of Persuasion” .","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124133870","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}
This article interrogates the constitutional relevance of African social ordering rules in petroleum governance in Sub-Saharan African petroleum producing states. At the apex of the hierarchized African legal system is the national constitution which contains the basic norm or grundnorm derived from Western received law. Yet some African scholars have described African social ordering norms as grundnorms. This goes contrary to the conventional positivist position that “ a legal system cannot be founded on two conflicting grundnorms. ” This article will consider whether African social ordering norms have attained the level of a grundnorm as expounded in Kelsen ’ s pure theory. Utilising the Ekeh ’s “ two publics ” model, it investigates how the basic norm for African social ordering grundnorms is presupposed. The article considers whether there is a conflict between the domanial system of state ownership as approved by African national constitutions and indigenous African social ordering norms premised on communitarianism. The article presents for analysis the recent study undertaken by African Petroleum Producers Association (APPA). This study considers whether it is possible to standardise the rules of petroleum contractual governance in Africa. This has led to some discussion on whether the standardisation of these rules could lead to the development of an African Lex Petrolea . This article explores the role that African social ordering norms can play in the development of a continent-wide Lex Petrolea .
{"title":"AFRICAN ‘SOCIAL ORDERING’ GRUNDNORMS AND THE DEVELOPMENT OF AN AFRICAN LEX PETROLEA?","authors":"Hephzibah Egede","doi":"10.5750/DLJ.V28I0.1273","DOIUrl":"https://doi.org/10.5750/DLJ.V28I0.1273","url":null,"abstract":"This article interrogates the constitutional relevance of African social ordering rules in petroleum governance in Sub-Saharan African petroleum producing states. At the apex of the hierarchized African legal system is the national constitution which contains the basic norm or grundnorm derived from Western received law. Yet some African scholars have described African social ordering norms as grundnorms. This goes contrary to the conventional positivist position that “ a legal system cannot be founded on two conflicting grundnorms. ” This article will consider whether African social ordering norms have attained the level of a grundnorm as expounded in Kelsen ’ s pure theory. Utilising the Ekeh ’s “ two publics ” model, it investigates how the basic norm for African social ordering grundnorms is presupposed. The article considers whether there is a conflict between the domanial system of state ownership as approved by African national constitutions and indigenous African social ordering norms premised on communitarianism. The article presents for analysis the recent study undertaken by African Petroleum Producers Association (APPA). This study considers whether it is possible to standardise the rules of petroleum contractual governance in Africa. This has led to some discussion on whether the standardisation of these rules could lead to the development of an African Lex Petrolea . This article explores the role that African social ordering norms can play in the development of a continent-wide Lex Petrolea .","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117222514","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}
Environmental taxation is different from many other forms of taxation as it is not only used to raise revenue but it is also able to marginally influence behaviour to protect and enhance the environment. It provides valuable market led mechanisms to help limit greenhouse gas emissions, encourage sustainable behaviour and improve environmental performance to address climate change. The Post Paris (COP21) agreement provides a framework for global actions to address climate change and this sets the context for the discussion of environmental taxation. Environmental taxes have enormous potential to change carbon usage. In 2012, the Coalition Government (2010-2015) opined that the definition of an environmental tax includes three principles, namely that the tax is explicitly linked to the government’s environmental objectives, that the primary objective of the tax is to encourage environmentally positive behaviour, and that the tax is structured in relation to environmental objectives, particularly the more polluting the behaviour the greater tax levied. The current Government has adopted and applied this definition. By way of contrast, the definitions of environmental taxation favoured by the Office for National Statistics (ONS) and the Organisation for Economic Cooperation and Development (OECD), respectively, give a wider remit for environmental taxation and policy making and include, for instance, various transport taxes which, as will be seen, do not fall within the Government’s definition of an environmental tax. The Climate Change Levy, which is the focus of this article, was introduced as one of a series of new environmental taxes on business energy use in 2001. It is charged on electricity, gas liquefied petroleum gas and solid fuels used by business. Generally, environmental taxes are intended to increase investments in renewable technologies while reducing carbon emissions, but they are vulnerable to political influence and policy changes. Thus, the rationale for environmental or ‘Green’ taxes has shifted perceptibly to raising revenue rather than enabling government to meet its obligations under the Climate Change Act 2008. Environmental taxes are also susceptible to oil prices and fluctuations in the global economy. The North Sea oil and gas industry is going through a difficult period of retrenchment. A recent independent report has suggested that the industry has two years to adjust to changing economic circumstances. Inevitably, this will impact on the tax revenues raised from this sector. In an ideal world, environmental taxes should be easy to avoid through a change in behaviour and, consequently, hard to evade. Environmental taxes provide important means to achieve policy objectives, but their full potential requires public support and, especially, engagement by the business community. The future of environmental taxes may depend on the success of ‘green’ investment. There is a case for introducing a single climate tax on business.
{"title":"ENVIRONMENTAL TAXATION IN THE UK: THE CLIMATE CHANGE LEVY AND POLICY MAKING","authors":"J. McEldowney, D. Salter","doi":"10.5750/DLJ.V28I0.1276","DOIUrl":"https://doi.org/10.5750/DLJ.V28I0.1276","url":null,"abstract":"Environmental taxation is different from many other forms of taxation as it is not only used to raise revenue but it is also able to marginally influence behaviour to protect and enhance the environment. It provides valuable market led mechanisms to help limit greenhouse gas emissions, encourage sustainable behaviour and improve environmental performance to address climate change. The Post Paris (COP21) agreement provides a framework for global actions to address climate change and this sets the context for the discussion of environmental taxation. Environmental taxes have enormous potential to change carbon usage. In 2012, the Coalition Government (2010-2015) opined that the definition of an environmental tax includes three principles, namely that the tax is explicitly linked to the government’s environmental objectives, that the primary objective of the tax is to encourage environmentally positive behaviour, and that the tax is structured in relation to environmental objectives, particularly the more polluting the behaviour the greater tax levied. The current Government has adopted and applied this definition. By way of contrast, the definitions of environmental taxation favoured by the Office for National Statistics (ONS) and the Organisation for Economic Cooperation and Development (OECD), respectively, give a wider remit for environmental taxation and policy making and include, for instance, various transport taxes which, as will be seen, do not fall within the Government’s definition of an environmental tax. The Climate Change Levy, which is the focus of this article, was introduced as one of a series of new environmental taxes on business energy use in 2001. It is charged on electricity, gas liquefied petroleum gas and solid fuels used by business. Generally, environmental taxes are intended to increase investments in renewable technologies while reducing carbon emissions, but they are vulnerable to political influence and policy changes. Thus, the rationale for environmental or ‘Green’ taxes has shifted perceptibly to raising revenue rather than enabling government to meet its obligations under the Climate Change Act 2008. Environmental taxes are also susceptible to oil prices and fluctuations in the global economy. The North Sea oil and gas industry is going through a difficult period of retrenchment. A recent independent report has suggested that the industry has two years to adjust to changing economic circumstances. Inevitably, this will impact on the tax revenues raised from this sector. In an ideal world, environmental taxes should be easy to avoid through a change in behaviour and, consequently, hard to evade. Environmental taxes provide important means to achieve policy objectives, but their full potential requires public support and, especially, engagement by the business community. The future of environmental taxes may depend on the success of ‘green’ investment. There is a case for introducing a single climate tax on business. ","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"2014 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127468454","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}
This article focuses on whether the decrease in the oil price will result in insufficient security to cover escalating offshore decommissioning liabilities. The annual decommissioning security process requires the calculation of an amount of security in anticipation of decommissioning. This process takes place under decommissioning security agreements, whose aim is to provide mutual protection in case one party falls into financial difficulty. The funds are held in a trust until the decommissioning is completed. This article notes that disputes have begun to arise as to whether sufficient security has already been - or ought to now be - placed in trust. This article also considers the preferred dispute resolution mechanism for such disputes, namely expert determination.
{"title":"DECOMMISSIONING IN THE UNITED KINGDOM CONTINENTAL SHELF: DECOMMISSIONING SECURITY DISPUTES","authors":"Ben Holland","doi":"10.5750/dlj.v28i0.1275","DOIUrl":"https://doi.org/10.5750/dlj.v28i0.1275","url":null,"abstract":"This article focuses on whether the decrease in the oil price will result in insufficient security to cover escalating offshore decommissioning liabilities. The annual decommissioning security process requires the calculation of an amount of security in anticipation of decommissioning. This process takes place under decommissioning security agreements, whose aim is to provide mutual protection in case one party falls into financial difficulty. The funds are held in a trust until the decommissioning is completed. This article notes that disputes have begun to arise as to whether sufficient security has already been - or ought to now be - placed in trust. This article also considers the preferred dispute resolution mechanism for such disputes, namely expert determination.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128485815","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}
A significant amount of marine oil pollution is vessel-source with another being non-vessel-source originating from offshore oil platform operations. The world has witnessed a number of oil spill disasters since the 1950s including the Deepwater Horizon incident in the United States, the Montara Wellhead Platform in Australia and the continuing oil spill incidents in the Niger Delta, Nigeria. Technological advances mean that offshore operators now venture further out from coastlines to explore for, and exploit hydrocarbon reserves, thus increasing the crude oil output, and also the possibility of oil pollution incidents from offshore platforms. The International Convention on Civil Liability for Oil Pollution 1969 and the International Convention on the Establishment of an International Fund for Oil Pollution Damage 1971 were developed under the leadership of the International Maritime Organization in response to the increasing incidents of vessel-source oil pollution of the marine environment. Since the entry into force of these Conventions the membership has increased and the incidents of vessel-source oil pollution reduced. Efforts made by the Comite Maritime International (CMI), as early as in 1977, to develop a uniform civil liability convention for claims arising from offshore operations did not come to fruition, and very little progress has been made in finding a solution. Currently, there is no uniform international civil liability regime in place for oil pollution compensation claims arising for damages caused by offshore operations. This article explores the reasons behind the lack of a coherent legal framework to process civil liability claims arising from offshore oil spill incidents, especially when a comprehensive international regulation exists to govern vessel-source and other related forms of marine oil pollution. It argues that the lack of leadership to find a solution is proving to be highly damaging and that there is a strong case and an urgent need to establish a uniform international offshore oil spill liability regime. The article looks at existing regimes, both regional and national, as a way forward to develop an international regime for oil pollution compensation for damages arising from offshore activities.
{"title":"OFFSHORE OIL POLLUTION DAMAGE: IN PURSUIT OF A UNIFORM INTERNATIONAL CIVIL LIABILITY REGIME","authors":"J. Sundaram","doi":"10.5750/DLJ.V28I0.1277","DOIUrl":"https://doi.org/10.5750/DLJ.V28I0.1277","url":null,"abstract":"A significant amount of marine oil pollution is vessel-source with another being non-vessel-source originating from offshore oil platform operations. The world has witnessed a number of oil spill disasters since the 1950s including the Deepwater Horizon incident in the United States, the Montara Wellhead Platform in Australia and the continuing oil spill incidents in the Niger Delta, Nigeria. Technological advances mean that offshore operators now venture further out from coastlines to explore for, and exploit hydrocarbon reserves, thus increasing the crude oil output, and also the possibility of oil pollution incidents from offshore platforms. The International Convention on Civil Liability for Oil Pollution 1969 and the International Convention on the Establishment of an International Fund for Oil Pollution Damage 1971 were developed under the leadership of the International Maritime Organization in response to the increasing incidents of vessel-source oil pollution of the marine environment. Since the entry into force of these Conventions the membership has increased and the incidents of vessel-source oil pollution reduced. Efforts made by the Comite Maritime International (CMI), as early as in 1977, to develop a uniform civil liability convention for claims arising from offshore operations did not come to fruition, and very little progress has been made in finding a solution. Currently, there is no uniform international civil liability regime in place for oil pollution compensation claims arising for damages caused by offshore operations. This article explores the reasons behind the lack of a coherent legal framework to process civil liability claims arising from offshore oil spill incidents, especially when a comprehensive international regulation exists to govern vessel-source and other related forms of marine oil pollution. It argues that the lack of leadership to find a solution is proving to be highly damaging and that there is a strong case and an urgent need to establish a uniform international offshore oil spill liability regime. The article looks at existing regimes, both regional and national, as a way forward to develop an international regime for oil pollution compensation for damages arising from offshore activities.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123333120","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}
On 23 June 2016, the UK electorate voted in a referendum to leave the European Union (EU). This outcome is expected to have far-reaching consequences for UK industry, including the oil & gas sector. These include: short- to medium-term uncertainty; potential changes to legislation affecting the downstream industry; restrictions on the free movement of goods and people; effects on the gas market; and renewed impetus for Scottish independence. It is impossible at this early stage to reach any definitive conclusions regarding the consequences of Brexit to the UK oil & gas industry, but this short article will discuss certain issues that are likely to be of interest and relevance.
{"title":"BREXIT AND THE UK OIL & GAS SECTOR","authors":"J. LaMaster, Marc Hammerson","doi":"10.5750/dlj.v28i0.1274","DOIUrl":"https://doi.org/10.5750/dlj.v28i0.1274","url":null,"abstract":"On 23 June 2016, the UK electorate voted in a referendum to leave the European Union (EU). This outcome is expected to have far-reaching consequences for UK industry, including the oil & gas sector. These include: short- to medium-term uncertainty; potential changes to legislation affecting the downstream industry; restrictions on the free movement of goods and people; effects on the gas market; and renewed impetus for Scottish independence. It is impossible at this early stage to reach any definitive conclusions regarding the consequences of Brexit to the UK oil & gas industry, but this short article will discuss certain issues that are likely to be of interest and relevance.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122460899","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}
The University of Buckingham Centre for Extractive Energy Studies (UBCEES) offers a uniquely holistic approach to the study of extractive energy. This ranges from issues of good governance and accountability, combating corruption and asset recovery, on to the legal, fiscal and competition issues relating to the actual process of the extraction and carriage of energy resources and its environmental and social impact. It also explores contemporary issues relating to the exploitation and extraction of offshore energy from the sea, fracking, community and labour rights in the global extractive energy sector, including indigenous community participation in the decision-making process of the ownership and the sustainable management of energy resources.
{"title":"UNIVERSITY OF BUCKINGHAM CENTRE FOR EXTRACTIVE ENERGY STUDIES","authors":"Hephzibah Egede, J. Hatchard","doi":"10.5750/DLJ.V28I0.1279","DOIUrl":"https://doi.org/10.5750/DLJ.V28I0.1279","url":null,"abstract":"The University of Buckingham Centre for Extractive Energy Studies (UBCEES) offers a uniquely holistic approach to the study of extractive energy. This ranges from issues of good governance and accountability, combating corruption and asset recovery, on to the legal, fiscal and competition issues relating to the actual process of the extraction and carriage of energy resources and its environmental and social impact. It also explores contemporary issues relating to the exploitation and extraction of offshore energy from the sea, fracking, community and labour rights in the global extractive energy sector, including indigenous community participation in the decision-making process of the ownership and the sustainable management of energy resources.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123097672","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}
Lord Denning’s assessment of Magna Carta at its 750th anniversary has stood the test of half a century: “ the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot”. His longer, but still succinct, article for The Times for the same anniversary has not been bettered. Yet at the time of Magna Carta’s 800 th anniversary we have lost sight of two other works of Lord Denning which could make a distinctive contribution to our current constitutional debates. Whereas Lord Neuberger has linked the real Magna Carta to the fictitious Holy Grail in an entertaining lecture on law and myth, for legal scholars the Holy Grail is a long lost text or case. An earlier essay identified the links between the opening clause of Magna Carta 1215 and s 13 of the Human Rights Act 1998 as worthy of rediscovery. This article presents two further candidates: a neglected lecture on Borrowing from Scotland by Lord Denning in 1961 and a neglected Court of Appeal decision in 1975 applying Magna Carta, in which Lord Denning presided as Master of the Rolls, R v Secretary of State for the Home Office, ex p Phansopkar . [6 Between them, they can offer refreshing insights into contemporary constitutional controversies.
{"title":"LORD DENNING, MAGNA CARTA AND MAGNANIMITY","authors":"Simon Lee","doi":"10.5750/DLJ.V27I0.1127","DOIUrl":"https://doi.org/10.5750/DLJ.V27I0.1127","url":null,"abstract":"Lord Denning’s assessment of Magna Carta at its 750th anniversary has stood the test of half a century: “ the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot”. His longer, but still succinct, article for The Times for the same anniversary has not been bettered. Yet at the time of Magna Carta’s 800 th anniversary we have lost sight of two other works of Lord Denning which could make a distinctive contribution to our current constitutional debates. Whereas Lord Neuberger has linked the real Magna Carta to the fictitious Holy Grail in an entertaining lecture on law and myth, for legal scholars the Holy Grail is a long lost text or case. An earlier essay identified the links between the opening clause of Magna Carta 1215 and s 13 of the Human Rights Act 1998 as worthy of rediscovery. This article presents two further candidates: a neglected lecture on Borrowing from Scotland by Lord Denning in 1961 and a neglected Court of Appeal decision in 1975 applying Magna Carta, in which Lord Denning presided as Master of the Rolls, R v Secretary of State for the Home Office, ex p Phansopkar . [6 Between them, they can offer refreshing insights into contemporary constitutional controversies.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114647255","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}
These two scholarly and accessible works stand in their own right, whilst being complementary. Each affirms and expands on what Magna Carta is believed to embody. They engage with the struggle to ensure that law is a living branch of learning and praxis, advancing not only notions of rights but fixing them firmly into the interstices not only of legal decision–making, but throughout the legal systems they address and the societies thereby regulated. Rule of Law is the more straightforward of the two. Human dignity and fundamental rights is more complex. Yet both acknowledge the vital importance of law and justice as the basis of a good, decent and just society. Each questions how best this can be achieved.
{"title":"HUMAN DIGNITY AND FUNDAMENTAL RIGHTS IN SOUTH AFRICA AND IRELAND AND RULE OF LAW REFORM AND DEVELOPMENT – CHARTING THE FRAGILE PATH OF PROGRESS","authors":"J. Scutt","doi":"10.5750/DLJ.V27I0.1115","DOIUrl":"https://doi.org/10.5750/DLJ.V27I0.1115","url":null,"abstract":"These two scholarly and accessible works stand in their own right, whilst being complementary. Each affirms and expands on what Magna Carta is believed to embody. They engage with the struggle to ensure that law is a living branch of learning and praxis, advancing not only notions of rights but fixing them firmly into the interstices not only of legal decision–making, but throughout the legal systems they address and the societies thereby regulated. Rule of Law is the more straightforward of the two. Human dignity and fundamental rights is more complex. Yet both acknowledge the vital importance of law and justice as the basis of a good, decent and just society. Each questions how best this can be achieved.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"229 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122351614","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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