{"title":"The Renton Lecture 2020: Devolution and the Statute Book","authors":"W. J. Wolffe","doi":"10.1093/SLR/HMAB003","DOIUrl":"https://doi.org/10.1093/SLR/HMAB003","url":null,"abstract":"","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46726984","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}
One of the areas of cooperation between the BRICS countries is the joint solution of environmental problems, in particular, air and water pollution by harmful emissions, waste management, climate change, biodiversity conservation, as well as the implementation of joint ‘green’ environmental projects. The aim of the study is to identify the features of criminal environmental protection in the BRICS countries. The leading method for studying this problem is the method of analysis of legal acts of the Russian Federation, the Federative Republic of Brazil, the Republic of India, the People’s Republic of China, and the Republic of South Africa, which establish criminal liability for infringements in the field of environmental protection. As a result of the study, the norms contained in the Brazilian Law on Environmental Crimes, in the Criminal Code of Russia, China, as well as in the laws of India and South Africa, which protect the air, land, water, animal, and plant life, were studied. The practical significance of the study is determined by the necessity to introduce liability for environmental crimes in individual countries that are members of the BRICS. It was concluded that it is necessary to develop supranational provisions to ensure environmental protection by legal means.
{"title":"Legislative Regulation of Criminal Liability for Environmental Crimes in the BRICS Countries","authors":"L. V. Ivanova, R. Minin, Galina V. Perezhogina","doi":"10.1093/SLR/HMAB008","DOIUrl":"https://doi.org/10.1093/SLR/HMAB008","url":null,"abstract":"\u0000 One of the areas of cooperation between the BRICS countries is the joint solution of environmental problems, in particular, air and water pollution by harmful emissions, waste management, climate change, biodiversity conservation, as well as the implementation of joint ‘green’ environmental projects. The aim of the study is to identify the features of criminal environmental protection in the BRICS countries. The leading method for studying this problem is the method of analysis of legal acts of the Russian Federation, the Federative Republic of Brazil, the Republic of India, the People’s Republic of China, and the Republic of South Africa, which establish criminal liability for infringements in the field of environmental protection. As a result of the study, the norms contained in the Brazilian Law on Environmental Crimes, in the Criminal Code of Russia, China, as well as in the laws of India and South Africa, which protect the air, land, water, animal, and plant life, were studied. The practical significance of the study is determined by the necessity to introduce liability for environmental crimes in individual countries that are members of the BRICS. It was concluded that it is necessary to develop supranational provisions to ensure environmental protection by legal means.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/SLR/HMAB008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43268745","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 editorial team of the Israeli National Legislation Database endeavored to locate all the proclamations, ordinances, and ‘Orders in Council’ published from the beginning of the British military regime in Palestine to the last ‘hidden laws’ published in the waning days of the British Mandate. These documents complete the historical information on Israel state laws and shed light on the initial establishment of the legal and judicial system in Palestine, before the establishment of the State of Israel. In this paper, we describe the development of legislation under British regime, from 1917 to the establishment of the State of Israel in 1948. We introduce the three figures who played key roles in regulating the legislative system: Orme Bigland Clark, Norman Bentwich, and Sir Robert Harry Drayton, and describe the legislative process that was developed and the legislative procedures that prevailed at the time. The legal framework of this period, alongside the remaining Ottoman legislation, formed a solid basis for the legislative system and process for the Provisional State Council and subsequently, the Knesset.
{"title":"From Paper to Webpage: Legislation during the British Regime in Palestine in the Israeli National Legislation Database","authors":"Gali Ben-Or, Daphna Barnai, Ayelet Volberg","doi":"10.1093/SLR/HMAB006","DOIUrl":"https://doi.org/10.1093/SLR/HMAB006","url":null,"abstract":"\u0000 The editorial team of the Israeli National Legislation Database endeavored to locate all the proclamations, ordinances, and ‘Orders in Council’ published from the beginning of the British military regime in Palestine to the last ‘hidden laws’ published in the waning days of the British Mandate. These documents complete the historical information on Israel state laws and shed light on the initial establishment of the legal and judicial system in Palestine, before the establishment of the State of Israel. In this paper, we describe the development of legislation under British regime, from 1917 to the establishment of the State of Israel in 1948. We introduce the three figures who played key roles in regulating the legislative system: Orme Bigland Clark, Norman Bentwich, and Sir Robert Harry Drayton, and describe the legislative process that was developed and the legislative procedures that prevailed at the time. The legal framework of this period, alongside the remaining Ottoman legislation, formed a solid basis for the legislative system and process for the Provisional State Council and subsequently, the Knesset.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/SLR/HMAB006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44847279","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}
{"title":"Parliamentary Oversight of the Executives – Tools and Procedures in Europe","authors":"D. Greenberg","doi":"10.1093/SLR/HMAB004","DOIUrl":"https://doi.org/10.1093/SLR/HMAB004","url":null,"abstract":"","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":"42 1","pages":"116-120"},"PeriodicalIF":0.3,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/SLR/HMAB004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46738950","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}
{"title":"Putting the Genie Back in the Bottle: Can Statute Restore a Prerogative It Has Removed?","authors":"D. Greenberg","doi":"10.1093/SLR/HMAB005","DOIUrl":"https://doi.org/10.1093/SLR/HMAB005","url":null,"abstract":"","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":"42 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/SLR/HMAB005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47903079","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}
Abstract This article examines comparatively approaches in Hong Kong and English law on powers created by the use of subordinate legislations to combat the COVID-19 pandemic from the perspectives of legislative drafting and statutory interpretation. These powers, being wide and flexible in nature, pose a tension between two competing concerns. On the one hand, they enable law enforcement officers to be able to deal with the unique challenges posed by a public health crisis. On the other hand, they pose the potential to restrict fundamental human rights disproportionately. This article will proceed in three parts. First, the article will analyse the responsibilities of drafters in drafting subordinate legislations and the techniques therein; the discussion will be contextualized within a need for urgent public health responses to combat the pandemic. Second, the powers conferred upon law enforcement officers and restrictions on individual liberty under Hong Kong law and English law will be analysed. Third, approaches to interpreting the relevant legislations under the two jurisdictions will be examined. It will be argued that despite the need to confer wide and flexible powers to the executive to combat the pandemic, specificity of language and precision in articulating these powers remain of cardinal and overarching importance.
{"title":"Comparative Reflections on COVID-19 Responses: Drafting, Powers, and Interpretation","authors":"Thomas Yeon","doi":"10.1093/slr/hmab009","DOIUrl":"https://doi.org/10.1093/slr/hmab009","url":null,"abstract":"Abstract This article examines comparatively approaches in Hong Kong and English law on powers created by the use of subordinate legislations to combat the COVID-19 pandemic from the perspectives of legislative drafting and statutory interpretation. These powers, being wide and flexible in nature, pose a tension between two competing concerns. On the one hand, they enable law enforcement officers to be able to deal with the unique challenges posed by a public health crisis. On the other hand, they pose the potential to restrict fundamental human rights disproportionately. This article will proceed in three parts. First, the article will analyse the responsibilities of drafters in drafting subordinate legislations and the techniques therein; the discussion will be contextualized within a need for urgent public health responses to combat the pandemic. Second, the powers conferred upon law enforcement officers and restrictions on individual liberty under Hong Kong law and English law will be analysed. Third, approaches to interpreting the relevant legislations under the two jurisdictions will be examined. It will be argued that despite the need to confer wide and flexible powers to the executive to combat the pandemic, specificity of language and precision in articulating these powers remain of cardinal and overarching importance.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/slr/hmab009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44889061","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}
Enacted to regulate the incubus of organized crime, India’s Prevention of Money Laundering Act has quickly degenerated into interpretative chaos, with conflicting judicial opinions straining its otherwise sound provisions. Instead of chastening statutory mercuriality, close to eleven amendments to the Act have only fuelled incertitude further. The most damaging feature of the PMLA’s disarray is that the interpretive conflict eclipses the most basic punitive machinery of the Act. Part 2 of the article clarifies the relationship between the offence of money laundering and its predicate offences in the realm of how the latter ought to influence property attachment and prosecution proceedings for the former. Part 3 dissects the complication of Indian Criminal Procedure’s applicability to investigations under the PMLA and proposes an inventive two-step enquiry to determine the extent of said applicability in view of the provisions of both statutes. Part 4 chronicles the peculiar acquiescence of some Indian courts in not insisting upon furnishing written grounds of arrest to a detenu and explains why that jurisprudential course deserves to be abandoned. Lastly, Part 5 addresses the topical disputation of the effect of recent amendments on the potential revival of sui generis bail conditions under the PMLA that had previously been declared unconstitutional. The article presents a syncretism of recommended interpretative paths that the judiciary must take to remedy the recognized flaws.
{"title":"PMLA 2002’s Gremlins: Anatomizing the Labyrinth of Recent Amendments and Precedent","authors":"Jaideep Singh Lalli, N. Garg","doi":"10.1093/SLR/HMAB002","DOIUrl":"https://doi.org/10.1093/SLR/HMAB002","url":null,"abstract":"\u0000 Enacted to regulate the incubus of organized crime, India’s Prevention of Money Laundering Act has quickly degenerated into interpretative chaos, with conflicting judicial opinions straining its otherwise sound provisions. Instead of chastening statutory mercuriality, close to eleven amendments to the Act have only fuelled incertitude further. The most damaging feature of the PMLA’s disarray is that the interpretive conflict eclipses the most basic punitive machinery of the Act. Part 2 of the article clarifies the relationship between the offence of money laundering and its predicate offences in the realm of how the latter ought to influence property attachment and prosecution proceedings for the former. Part 3 dissects the complication of Indian Criminal Procedure’s applicability to investigations under the PMLA and proposes an inventive two-step enquiry to determine the extent of said applicability in view of the provisions of both statutes. Part 4 chronicles the peculiar acquiescence of some Indian courts in not insisting upon furnishing written grounds of arrest to a detenu and explains why that jurisprudential course deserves to be abandoned. Lastly, Part 5 addresses the topical disputation of the effect of recent amendments on the potential revival of sui generis bail conditions under the PMLA that had previously been declared unconstitutional. The article presents a syncretism of recommended interpretative paths that the judiciary must take to remedy the recognized flaws.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/SLR/HMAB002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46989774","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}
Manifest Arbitrariness Doctrine is perhaps the most important legal development of the decade for India. It is a standard that includes anything done by the legislature capriciously, irrationally and/or without adequate determining principle, excessively or disproportionately. It is being increasingly used to strike down plenary legislation under Article 14. However, there is no clarity on its application, and no literature addressing the same. Without this clarity, law-makers may inadvertently pass legislations that fail the test; and adjudicators may fail to determine when the legislations fail the test. More importantly, the Doctrine may empower judges to substitute legislative wisdom for their own. This paper alleviates these concerns by finding consistency in its application while restricting the scope of judicial scrutiny. By employing the framework of “Rules versus Standard”, this paper analyses six instances of application of the Doctrine and develops a four-step test. It evinces that the Doctrine has been used in a restrictive sense to strike down plenary legislation only when first, the legislation in question is a rule as against a standard; second, it is overinclusive/underinclusive; third, due to overinclusive/underinclusive nature, it yields socially undesirable results; and fourth, these socially undesirable results are worse than the competing social results.
{"title":"Manifesting the Consistency in the Application of ‘Manifest Arbitrariness Doctrine’","authors":"Vasu Aggarwal","doi":"10.1093/SLR/HMAB001","DOIUrl":"https://doi.org/10.1093/SLR/HMAB001","url":null,"abstract":"\u0000 Manifest Arbitrariness Doctrine is perhaps the most important legal development of the decade for India. It is a standard that includes anything done by the legislature capriciously, irrationally and/or without adequate determining principle, excessively or disproportionately. It is being increasingly used to strike down plenary legislation under Article 14. However, there is no clarity on its application, and no literature addressing the same. Without this clarity, law-makers may inadvertently pass legislations that fail the test; and adjudicators may fail to determine when the legislations fail the test. More importantly, the Doctrine may empower judges to substitute legislative wisdom for their own. This paper alleviates these concerns by finding consistency in its application while restricting the scope of judicial scrutiny. By employing the framework of “Rules versus Standard”, this paper analyses six instances of application of the Doctrine and develops a four-step test. It evinces that the Doctrine has been used in a restrictive sense to strike down plenary legislation only when first, the legislation in question is a rule as against a standard; second, it is overinclusive/underinclusive; third, due to overinclusive/underinclusive nature, it yields socially undesirable results; and fourth, these socially undesirable results are worse than the competing social results.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43515427","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}
Modern aspirations of Ukraine for European integration, the impact of globalization, and innovative technologies are the driving force on the path of reforming the national legal system. In this regard, issues concerning the modernization of the civil liability have recently become of significant importance. This article is aimed at analysing modernization of Ukrainian civil liability and forecasting tendencies of further reform of the civil liability institution in Ukraine. The methodological basis of the article includes the comparative law method, normative-dogmatic method, method of terminological analysis, method of operationalization of concepts, classification method, methods of analysis and synthesis, statistical method, legal modelling method, and complex method. In the course of the research-leading scientific and legal approaches to civil liability were analysed, and the most typical approaches were unified. A conditional list of the leading directions of modernization of legal regulation of the civil liability institution is proposed. The relevance of the subject matter is amplified by the fact that at present the scope of the most important and reforming issues of civil liability is expanding and remains either understudied or entirely disregarded by the representatives of academia and legislators.
{"title":"Civil Liability Institution in Ukraine through the Lens of Reform and European Integration Processes","authors":"N. Kuznietsova, O. Kot, M. M. Khomenko","doi":"10.1093/SLR/HMAA024","DOIUrl":"https://doi.org/10.1093/SLR/HMAA024","url":null,"abstract":"\u0000 Modern aspirations of Ukraine for European integration, the impact of globalization, and innovative technologies are the driving force on the path of reforming the national legal system. In this regard, issues concerning the modernization of the civil liability have recently become of significant importance. This article is aimed at analysing modernization of Ukrainian civil liability and forecasting tendencies of further reform of the civil liability institution in Ukraine. The methodological basis of the article includes the comparative law method, normative-dogmatic method, method of terminological analysis, method of operationalization of concepts, classification method, methods of analysis and synthesis, statistical method, legal modelling method, and complex method. In the course of the research-leading scientific and legal approaches to civil liability were analysed, and the most typical approaches were unified. A conditional list of the leading directions of modernization of legal regulation of the civil liability institution is proposed. The relevance of the subject matter is amplified by the fact that at present the scope of the most important and reforming issues of civil liability is expanding and remains either understudied or entirely disregarded by the representatives of academia and legislators.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48668395","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 uses the US Supreme Court’s line of cases beginning with Apprendi v. New Jersey to illuminate territory in which English law, in comparison to American law, is comparatively underdeveloped—currently affording a Newton-style hearing only where a guilty plea obliterates any previous evidence. This need not be so. Both before and after Apprendi, US federal and state courts have implemented post-trial fact-finding procedures for sentencing purposes, and we could do the same. The Davies case, where the requirement of proof beyond a reasonable doubt was imported from the trial phase, into consideration of the statutory starting points for murder sentencing, will, for reasons to be given, be doubted.
{"title":"A Thankfully Wide Sea between England and Apprendi-Land","authors":"T. Curr","doi":"10.1093/slr/hmaa023","DOIUrl":"https://doi.org/10.1093/slr/hmaa023","url":null,"abstract":"\u0000 This article uses the US Supreme Court’s line of cases beginning with Apprendi v. New Jersey to illuminate territory in which English law, in comparison to American law, is comparatively underdeveloped—currently affording a Newton-style hearing only where a guilty plea obliterates any previous evidence. This need not be so. Both before and after Apprendi, US federal and state courts have implemented post-trial fact-finding procedures for sentencing purposes, and we could do the same. The Davies case, where the requirement of proof beyond a reasonable doubt was imported from the trial phase, into consideration of the statutory starting points for murder sentencing, will, for reasons to be given, be doubted.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/slr/hmaa023","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41361944","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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