An increasing number of jobs are precarious, making workers vulnerable to various forms of ill-treatment and exploitation. The UK Government’s main approach has been to criminalise the actions of unscrupulous employers who seek to exploit these. This approach, however, has been ineffective, partly because it ignores the broader socio-economic structures that place workers in conditions of vulnerability. This article develops an alternative solution, seeking to identify structures that force and trap workers in conditions of exploitation. It focuses specifically on what I call ‘state-mediated structural injustice', where legislative schemes that promote otherwise legitimate aims create vulnerabilities that force and trap workers in conditions of exploitation. I use examples such as restrictive visa regimes, prison work and work in immigration detention, welfare conditionality programmes, and zero-hour contracts to illustrate the unjust structures. I finally assess whether these legal structures are compatible with human rights, such as the right to private life, the prohibition of slavery, servitude, forced and compulsory labour, and the right to fair and just working conditions.
{"title":"Structural Injustice and the Human Rights of Workers","authors":"V. Mantouvalou","doi":"10.1093/clp/cuaa003","DOIUrl":"https://doi.org/10.1093/clp/cuaa003","url":null,"abstract":"\u0000 An increasing number of jobs are precarious, making workers vulnerable to various forms of ill-treatment and exploitation. The UK Government’s main approach has been to criminalise the actions of unscrupulous employers who seek to exploit these. This approach, however, has been ineffective, partly because it ignores the broader socio-economic structures that place workers in conditions of vulnerability. This article develops an alternative solution, seeking to identify structures that force and trap workers in conditions of exploitation. It focuses specifically on what I call ‘state-mediated structural injustice', where legislative schemes that promote otherwise legitimate aims create vulnerabilities that force and trap workers in conditions of exploitation. I use examples such as restrictive visa regimes, prison work and work in immigration detention, welfare conditionality programmes, and zero-hour contracts to illustrate the unjust structures. I finally assess whether these legal structures are compatible with human rights, such as the right to private life, the prohibition of slavery, servitude, forced and compulsory labour, and the right to fair and just working conditions.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2020-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuaa003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48160064","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Trafficking is considered to be an urgent problem of global proportions warranting a robust transnational legal response. Almost twenty years since the adoption of the Palermo Protocol on Trafficking, scholars, activists and governments alike have debated criminal law, human rights and labour law approaches to the problem. With the incorporation of trafficking in the Sustainable Development Goals, this article goes beyond these conventional approaches to argue for a development approach to trafficking. It suggests that SDG 8 cannot be achieved by rehashing older debates on development in the key of trafficking. Instead, we must account for the expanding welfare functions of the postcolonial developmental state, reimagine labour laws from the vantage point of the informal economy and protect and enforce indigenous responses to extreme exploitation rather than exacerbate the negative externalities of a carceral approach in developing world contexts where the criminal justice system is built on a colonial edifice.
{"title":"Trafficking: A Development Approach","authors":"Prabha Kotiswaran","doi":"10.2139/ssrn.3349103","DOIUrl":"https://doi.org/10.2139/ssrn.3349103","url":null,"abstract":"\u0000 Trafficking is considered to be an urgent problem of global proportions warranting a robust transnational legal response. Almost twenty years since the adoption of the Palermo Protocol on Trafficking, scholars, activists and governments alike have debated criminal law, human rights and labour law approaches to the problem. With the incorporation of trafficking in the Sustainable Development Goals, this article goes beyond these conventional approaches to argue for a development approach to trafficking. It suggests that SDG 8 cannot be achieved by rehashing older debates on development in the key of trafficking. Instead, we must account for the expanding welfare functions of the postcolonial developmental state, reimagine labour laws from the vantage point of the informal economy and protect and enforce indigenous responses to extreme exploitation rather than exacerbate the negative externalities of a carceral approach in developing world contexts where the criminal justice system is built on a colonial edifice.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49213594","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The factual component of the duty of care inquiry—that harm to the claimant as a result of the defendant’s conduct was reasonably foreseeable by the defendant—has been entrenched in English law since Donoghue v Stevenson. Both indigenous and comparative (specifically South African) evidence suggests that Lord Atkin’s formulation of the duty of care test was influenced by a particular fragment contained in Title 9.2 of Justinian’s Digest, ‘On the lex Aquilia’. Interrogation of the foreseeability principle in its original setting shows, however, that its role there was rather circumscribed. Derived perhaps from the account of wrongdoing offered by Aristotle, for whom the fact that harm had occurred contrary to expectation (paralogos) served to demonstrate that it had been unintentionally inflicted, in the context of Roman culpa foreseeability functioned as a technique for determining the avoidability of the harm—essentially a causal inquiry. This historical insight serves to illuminate the limits of foreseeability in the context of the modern test for duty of care. As a principle which generates liability, it may be that reasonable foreseeability cannot bear the normative weight assigned to it. Thus the history of foreseeability furnishes the material for a further critique of the duty concept, adding an historical dimension to contemporary calls to abandon the factual component of the duty of care entirely.
{"title":"The History of Foreseeability","authors":"Helen C. Scott","doi":"10.1093/clp/cuz009","DOIUrl":"https://doi.org/10.1093/clp/cuz009","url":null,"abstract":"\u0000 The factual component of the duty of care inquiry—that harm to the claimant as a result of the defendant’s conduct was reasonably foreseeable by the defendant—has been entrenched in English law since Donoghue v Stevenson. Both indigenous and comparative (specifically South African) evidence suggests that Lord Atkin’s formulation of the duty of care test was influenced by a particular fragment contained in Title 9.2 of Justinian’s Digest, ‘On the lex Aquilia’. Interrogation of the foreseeability principle in its original setting shows, however, that its role there was rather circumscribed. Derived perhaps from the account of wrongdoing offered by Aristotle, for whom the fact that harm had occurred contrary to expectation (paralogos) served to demonstrate that it had been unintentionally inflicted, in the context of Roman culpa foreseeability functioned as a technique for determining the avoidability of the harm—essentially a causal inquiry. This historical insight serves to illuminate the limits of foreseeability in the context of the modern test for duty of care. As a principle which generates liability, it may be that reasonable foreseeability cannot bear the normative weight assigned to it. Thus the history of foreseeability furnishes the material for a further critique of the duty concept, adding an historical dimension to contemporary calls to abandon the factual component of the duty of care entirely.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44997825","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state.
{"title":"A Shrinking Space: A Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State","authors":"J. Chan","doi":"10.1093/clp/cuz004","DOIUrl":"https://doi.org/10.1093/clp/cuz004","url":null,"abstract":"\u0000 Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45316364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Historically, colonial domination has involved subjecting innocent populations to atrocities such as murder, torture, and exploitation. But pointing at these wrongs is not enough to explain the distinctive way in which colonialism is wrong. After all, murder, torture and exploitation are wrong whether or not they occur in the context of colonial occupation. If all we can do to explain the nature of colonialism is point at the fact that it typically involves the perpetration of these crimes, we cannot vindicate the thought that there is something distinctively wrong with it. And yet, intuitively the victims of colonial domination have suffered a distinctive wrong over and above those associated with these crimes. How should we understand the nature of this wrong? I answer this question by arguing that colonial domination undermines the capacity of political communities to exercise their self-determining agency in a particular way.
{"title":"Why Colonialism Is Wrong","authors":"M. Renzo","doi":"10.1093/clp/cuz011","DOIUrl":"https://doi.org/10.1093/clp/cuz011","url":null,"abstract":"\u0000 Historically, colonial domination has involved subjecting innocent populations to atrocities such as murder, torture, and exploitation. But pointing at these wrongs is not enough to explain the distinctive way in which colonialism is wrong. After all, murder, torture and exploitation are wrong whether or not they occur in the context of colonial occupation. If all we can do to explain the nature of colonialism is point at the fact that it typically involves the perpetration of these crimes, we cannot vindicate the thought that there is something distinctively wrong with it. And yet, intuitively the victims of colonial domination have suffered a distinctive wrong over and above those associated with these crimes. How should we understand the nature of this wrong? I answer this question by arguing that colonial domination undermines the capacity of political communities to exercise their self-determining agency in a particular way.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48197413","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Written constitutions have often been viewed as a bridle for unchecked political majoritarianism, as a restraint on government, and hence as a limiting device rather than form of democratic political expression. Breaking with that tradition, this article sets out a democratic case for a written constitution and contrasts it with the rights-based and clarity-based cases. It then proceeds to show why the case against written constitutions – which is broadly located in a conservative critique, an anti-rationalist critique and an anti-judicialisation critique – is misguided. Nevertheless, a democratic case for a written constitution necessarily raises challenging questions about how the constitution would be enacted, and how rigidly entrenched it should be. In relation to the former, the author argues for a constituent assembly consisting of party and direct citizen representation. As for the latter, he defends a model of entrenchment that permits amendment through a simple majoritarian parliamentary procedure in conjunction with a referendum, and, most controversially, a provision requiring a new constitutional convention about once in a generation. This is the type of democratic constitution, in the author’s view, that accommodates the need for the United Kingdom constitutional order to take both rights and democracy seriously.
{"title":"The Democratic Case for a Written Constitution","authors":"Jeff A. King","doi":"10.1093/CLP/CUZ001","DOIUrl":"https://doi.org/10.1093/CLP/CUZ001","url":null,"abstract":"\u0000 Written constitutions have often been viewed as a bridle for unchecked political majoritarianism, as a restraint on government, and hence as a limiting device rather than form of democratic political expression. Breaking with that tradition, this article sets out a democratic case for a written constitution and contrasts it with the rights-based and clarity-based cases. It then proceeds to show why the case against written constitutions – which is broadly located in a conservative critique, an anti-rationalist critique and an anti-judicialisation critique – is misguided. Nevertheless, a democratic case for a written constitution necessarily raises challenging questions about how the constitution would be enacted, and how rigidly entrenched it should be. In relation to the former, the author argues for a constituent assembly consisting of party and direct citizen representation. As for the latter, he defends a model of entrenchment that permits amendment through a simple majoritarian parliamentary procedure in conjunction with a referendum, and, most controversially, a provision requiring a new constitutional convention about once in a generation. This is the type of democratic constitution, in the author’s view, that accommodates the need for the United Kingdom constitutional order to take both rights and democracy seriously.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUZ001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48906414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since 2015, when the UK legislated a target for aid spending, the nature of its spending on official development assistance has changed significantly. Government departments not traditionally associated with spending aid have found themselves in charge of disbursing aid funds as a result of that year’s spending review. The vote to exit the European Union has subsequently introduced a number of uncertainties. What considerations will be at play in UK aid spending after Brexit? What will become of official development assistance currently spent through European mechanisms? In what sort of configuration might the Department for International Development and other government departments find themselves? The focus of this paper is on how the vote to leave the European Union might affect the way the UK spends aid. It asks whether the legal framework for this spending is robust enough to withstand the demands that a new post-Brexit political and economic context will make.
{"title":"The Legal Framework for UK Aid After Brexit","authors":"A. Manji","doi":"10.1093/clp/cuz006","DOIUrl":"https://doi.org/10.1093/clp/cuz006","url":null,"abstract":"\u0000 Since 2015, when the UK legislated a target for aid spending, the nature of its spending on official development assistance has changed significantly. Government departments not traditionally associated with spending aid have found themselves in charge of disbursing aid funds as a result of that year’s spending review. The vote to exit the European Union has subsequently introduced a number of uncertainties. What considerations will be at play in UK aid spending after Brexit? What will become of official development assistance currently spent through European mechanisms? In what sort of configuration might the Department for International Development and other government departments find themselves? The focus of this paper is on how the vote to leave the European Union might affect the way the UK spends aid. It asks whether the legal framework for this spending is robust enough to withstand the demands that a new post-Brexit political and economic context will make.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49324746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this paper, I first provide an idealized functional account of political parties and party systems. I argue that parties are difficult to regulate constitutionally because of their Janus-faced public-private character. The key function they perform, when functioning as they ought to function, is to facilitate a mutually responsive relationship between public policy and popular opinion by acting as an intermediary between a state and its people. They perform this intermediary function in a unique manner, because of their bi-directionality and their plenary character. When they perform this function effectively, political parties significantly reduce four key information and transaction costs which would otherwise make democratic governance impossible: political participation costs, voters’ information costs, policy packaging costs, and ally prediction costs. This idealised account helps us identify pathological parties and party-systems and ground four principles that constitutions should seek to optimise in relation to political parties. The second part of this paper outlines and defends these four principles. Here I argue that state constitutions: i. should guarantee maximum autonomy for the formation, organisation, and operation of political parties, moderated by the restrictions necessitated by their purpose of winning (a share in) state power (for fixed terms) in competitive elections by acting as intermediaries between the state and its people (the ‘purposive autonomy principle’); ii. should try to optimise the party system such that the total number of serious political parties is large enough to broadly represent every major ‘voter type’, but not so large that the information costs on judicious voters are too high (the ‘party system optimality principle’); iii. should ensure a separation of parties and the state (the ‘party-state separation principle’); and iv. should discourage the factionalization of political parties (the ‘anti-faction principle’). These political principles are drawn from the value of democracy itself. They are likely to bring real world political parties and party systems closer to their idealised form, thereby improving and deepening democratic governance. As such, they should—alongside other relevant political and constitutional norms—inform fundamental constitutional design choices.
{"title":"Political Parties in Constitutional Theory","authors":"Tarunabh Khaitan","doi":"10.2139/ssrn.3492467","DOIUrl":"https://doi.org/10.2139/ssrn.3492467","url":null,"abstract":"In this paper, I first provide an idealized functional account of political parties and party systems. I argue that parties are difficult to regulate constitutionally because of their Janus-faced public-private character. The key function they perform, when functioning as they ought to function, is to facilitate a mutually responsive relationship between public policy and popular opinion by acting as an intermediary between a state and its people. They perform this intermediary function in a unique manner, because of their bi-directionality and their plenary character. When they perform this function effectively, political parties significantly reduce four key information and transaction costs which would otherwise make democratic governance impossible: political participation costs, voters’ information costs, policy packaging costs, and ally prediction costs. This idealised account helps us identify pathological parties and party-systems and ground four principles that constitutions should seek to optimise in relation to political parties. \u0000 \u0000The second part of this paper outlines and defends these four principles. Here I argue that state constitutions: \u0000i. should guarantee maximum autonomy for the formation, organisation, and operation of political parties, moderated by the restrictions necessitated by their purpose of winning (a share in) state power (for fixed terms) in competitive elections by acting as intermediaries between the state and its people (the ‘purposive autonomy principle’); \u0000ii. should try to optimise the party system such that the total number of serious political parties is large enough to broadly represent every major ‘voter type’, but not so large that the information costs on judicious voters are too high (the ‘party system optimality principle’); \u0000iii. should ensure a separation of parties and the state (the ‘party-state separation principle’); and \u0000iv. should discourage the factionalization of political parties (the ‘anti-faction principle’). \u0000 \u0000These political principles are drawn from the value of democracy itself. They are likely to bring real world political parties and party systems closer to their idealised form, thereby improving and deepening democratic governance. As such, they should—alongside other relevant political and constitutional norms—inform fundamental constitutional design choices.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2019-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48890289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores the relationship between the Scottish and the English legal traditions through the lens of communication practices. ‘Communication practices’ are conceived of as the multiple ways in which legal traditions interact with one another by a combination of the circulation of legal ideas and the activities of legal actors. The article argues that greater attention should be paid in comparative legal literature to communication practices as they evolve over time and space, being especially mindful of the language used and the labels employed. By exploring different shapes of temporality and space, this article demonstrates the importance of looking beyond both discrete events and moments of transplantation, and the immediate geographical space. It also shows that the focus on language and what is explicitly said, but also on what is not said, generates insights both into the various techniques and practices involved in communication, as well as the factors that play a role. By examining concrete examples of communication involving both judges and legislatures, drawn from across different areas of law and different time periods, this article argues that contrary to the prevailing narrative, communication practices between Scotland and England are much richer and more dynamic than we tend to assume. Ultimately, the article questions the narrative and construction of the Scottish legal tradition, and of mixed legal systems more generally, as systems that primarily adopt ideas from abroad, rather than generating ideas capable of stimulating and shaping developments elsewhere.
{"title":"The Value of Communication Practices for Comparative Law: Exploring the Relationship Between Scotland and England","authors":"Alexandra Braun","doi":"10.1093/clp/cuz010","DOIUrl":"https://doi.org/10.1093/clp/cuz010","url":null,"abstract":"\u0000 This article explores the relationship between the Scottish and the English legal traditions through the lens of communication practices. ‘Communication practices’ are conceived of as the multiple ways in which legal traditions interact with one another by a combination of the circulation of legal ideas and the activities of legal actors. The article argues that greater attention should be paid in comparative legal literature to communication practices as they evolve over time and space, being especially mindful of the language used and the labels employed. By exploring different shapes of temporality and space, this article demonstrates the importance of looking beyond both discrete events and moments of transplantation, and the immediate geographical space. It also shows that the focus on language and what is explicitly said, but also on what is not said, generates insights both into the various techniques and practices involved in communication, as well as the factors that play a role. By examining concrete examples of communication involving both judges and legislatures, drawn from across different areas of law and different time periods, this article argues that contrary to the prevailing narrative, communication practices between Scotland and England are much richer and more dynamic than we tend to assume. Ultimately, the article questions the narrative and construction of the Scottish legal tradition, and of mixed legal systems more generally, as systems that primarily adopt ideas from abroad, rather than generating ideas capable of stimulating and shaping developments elsewhere.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2019-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49460168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is often said that the courts will not save parties from bad bargains: as Lord Nottingham observed, even ‘the Chancery mends no man's bargain’. This article considers what is meant by ‘bad bargain’, and argues that courts should be reluctant to develop the law in a way which would allow sophisticated commercial actors to escape bad bargains. This analysis is timely since in the current economic climate a number of long-term contracts have become especially disadvantageous to one party, and one consequence of Brexit is likely to be an increase in instances where one party tries to escape a bad bargain. Sympathy for the party which finds itself subject to a bad bargain has led to pressure on courts to find that an agreement is not binding; to expand the scope of the vitiating factors; and to liberalise the principles of interpretation and rectification, for example. It is suggested that courts should not readily bow to such pressure.
{"title":"Bad Bargains","authors":"P. Davies","doi":"10.1093/clp/cuz008","DOIUrl":"https://doi.org/10.1093/clp/cuz008","url":null,"abstract":"\u0000 It is often said that the courts will not save parties from bad bargains: as Lord Nottingham observed, even ‘the Chancery mends no man's bargain’. This article considers what is meant by ‘bad bargain’, and argues that courts should be reluctant to develop the law in a way which would allow sophisticated commercial actors to escape bad bargains. This analysis is timely since in the current economic climate a number of long-term contracts have become especially disadvantageous to one party, and one consequence of Brexit is likely to be an increase in instances where one party tries to escape a bad bargain. Sympathy for the party which finds itself subject to a bad bargain has led to pressure on courts to find that an agreement is not binding; to expand the scope of the vitiating factors; and to liberalise the principles of interpretation and rectification, for example. It is suggested that courts should not readily bow to such pressure.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2019-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuz008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44332549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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