Remedial constructive trusts are held out as a way for the courts to make better decisions: freed from the strictures of rules, courts would be better positioned to do justice on the facts, tailoring a remedy to the circumstances of the case. If this were true, their rejection in English law would be a serious failing. But a closer look at the relationship between rules and discretion suggests that it’s not true and that, when discretion is in genuine opposition to rule-determined decision-making, the outcome is not more justice but less. Moreover, when we look to the arguments of those calling for remedial constructive trusts to be introduced into English law and to those jurisdictions which claim to recognize them, this much seems to be agreed. Such differences as there are go instead to the substantive rules which govern the operation of constructive trusts. So the question English law faces is not whether we should recognise some ‘new model’ of constructive trust, but rather the more familiar inquiry into what rules are best. In addressing this question, the idea of the ‘remedial’ constructive trust is only an unnecessary distraction.
{"title":"The Myth of the Remedial Constructive Trust","authors":"C. Webb","doi":"10.1093/clp/cuw013","DOIUrl":"https://doi.org/10.1093/clp/cuw013","url":null,"abstract":"Remedial constructive trusts are held out as a way for the courts to make better decisions: freed from the strictures of rules, courts would be better positioned to do justice on the facts, tailoring a remedy to the circumstances of the case. If this were true, their rejection in English law would be a serious failing. But a closer look at the relationship between rules and discretion suggests that it’s not true and that, when discretion is in genuine opposition to rule-determined decision-making, the outcome is not more justice but less. Moreover, when we look to the arguments of those calling for remedial constructive trusts to be introduced into English law and to those jurisdictions which claim to recognize them, this much seems to be agreed. Such differences as there are go instead to the substantive rules which govern the operation of constructive trusts. So the question English law faces is not whether we should recognise some ‘new model’ of constructive trust, but rather the more familiar inquiry into what rules are best. In addressing this question, the idea of the ‘remedial’ constructive trust is only an unnecessary distraction.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuw013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878331","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}
{"title":"'Things' are not what they seem: on persons, things, slaves, and the new abolitionist movement","authors":"J. Davidson","doi":"10.1093/CLP/CUW008","DOIUrl":"https://doi.org/10.1093/CLP/CUW008","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878076","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}
{"title":"Democracy, Separation of Powers, and International Treaty-making The example of TTIP","authors":"Gertrude Lübbe-Wolff","doi":"10.1093/CLP/CUW011","DOIUrl":"https://doi.org/10.1093/CLP/CUW011","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878172","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}
Many states, or rather their leaders and officials, routinely violate the fundamental human rights of both their compatriots or outsiders. Faced with this depressing catalogue of abuses, the international community’s response of choice consists in imposing economic sanctions on wrongdoers. The relatively scant philosophical literature on the topic tackles primary sanctions where the sanctioning party (Sender) restricts economic relationships between, on the one hand, the sanctioned party (Target) and, on the other hand, agents of any nationality who are located on its own territory, or its own nationals wherever they are located – in other words, agents who are subject to its territorial and/or personal jurisdiction. In this paper however I focus on unilateral secondary sanctions, whereby Sender seeks to restrict the economic activities of agents who are not subject to its territorial and/or personal jurisdiction, on the grounds that they trade with or invest in Target. I provide a cosmopolitan defence of those sanctions as a means to stop ongoing grievous human rights violations. I proceed as follows. First, I outline the central tenets of cosmopolitan morality which I take for granted throughout this paper. I then mount my cosmopolitan defence of unilateral secondary sanctions. I end by rejecting the view that multilateral authorisation is a necessary condition for sanctions in general and secondary sanctions in particular, though I consider cases where such authorisation is warranted.
{"title":"Secondary Economic Sanctions","authors":"Cécile Fabre","doi":"10.1093/CLP/CUW003","DOIUrl":"https://doi.org/10.1093/CLP/CUW003","url":null,"abstract":"Many states, or rather their leaders and officials, routinely violate the fundamental human rights of both their compatriots or outsiders. Faced with this depressing catalogue of abuses, the international community’s response of choice consists in imposing economic sanctions on wrongdoers. The relatively scant philosophical literature on the topic tackles primary sanctions where the sanctioning party (Sender) restricts economic relationships between, on the one hand, the sanctioned party (Target) and, on the other hand, agents of any nationality who are located on its own territory, or its own nationals wherever they are located – in other words, agents who are subject to its territorial and/or personal jurisdiction. In this paper however I focus on unilateral secondary sanctions, whereby Sender seeks to restrict the economic activities of agents who are not subject to its territorial and/or personal jurisdiction, on the grounds that they trade with or invest in Target. I provide a cosmopolitan defence of those sanctions as a means to stop ongoing grievous human rights violations. I proceed as follows. First, I outline the central tenets of cosmopolitan morality which I take for granted throughout this paper. I then mount my cosmopolitan defence of unilateral secondary sanctions. I end by rejecting the view that multilateral authorisation is a necessary condition for sanctions in general and secondary sanctions in particular, though I consider cases where such authorisation is warranted.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878214","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 his inaugural lecture as Professor of Public International Law at UCL, Roger O’Keefe teases out some recurrent international legal problems through the story of the life and opinions of DHGH-G Salamander, lesser highly qualified publicist and minor poet.
在他作为伦敦大学学院国际公法教授的就职演讲中，Roger O 'Keefe通过DHGH-G Salamander的生活和观点梳理了一些反复出现的国际法律问题，DHGH-G Salamander是一名不太合格的公关家和小诗人。
{"title":"Curriculum vitae: A Prequel","authors":"Roger O'Keefe","doi":"10.1093/CLP/CUW012","DOIUrl":"https://doi.org/10.1093/CLP/CUW012","url":null,"abstract":"In his inaugural lecture as Professor of Public International Law at UCL, Roger O’Keefe teases out some recurrent international legal problems through the story of the life and opinions of DHGH-G Salamander, lesser highly qualified publicist and minor poet.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878246","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}
We wrong a person as a social being when we deny him minimally adequate opportunities to contribute socially to other people’s survival and wellbeing. We can call this kind of wrong social contribution injustice. In the morally fraught domain of criminal justice, we perpetrate this injustice in many ways, including in our tendency to see people who have committed offences as social threats. One way that we exhibit this tendency in our use of classificatory terms such as ‘murderer’ and ‘rapist’ that essentialise people’s wrongdoing. We also engage in more concrete, material forms of social contribution injustice when we give people criminal records they can never spend, impose punishments that stretch or sever their social bonds, and deny them support when they are trying to reintegrate after punishment. We also do social contribution injustice to the dependents and affiliates of many of the people we punish. Much of this injustice is contingent on our practices, policies, and general attitudes toward offending.
{"title":"Don’t Call People ‘Rapists’: on the Social Contribution Injustice of Punishment","authors":"K. Brownlee","doi":"10.1093/CLP/CUW009","DOIUrl":"https://doi.org/10.1093/CLP/CUW009","url":null,"abstract":"We wrong a person as a social being when we deny him minimally adequate opportunities to contribute socially to other people’s survival and wellbeing. We can call this kind of wrong social contribution injustice. In the morally fraught domain of criminal justice, we perpetrate this injustice in many ways, including in our tendency to see people who have committed offences as social threats. One way that we exhibit this tendency in our use of classificatory terms such as ‘murderer’ and ‘rapist’ that essentialise people’s wrongdoing. We also engage in more concrete, material forms of social contribution injustice when we give people criminal records they can never spend, impose punishments that stretch or sever their social bonds, and deny them support when they are trying to reintegrate after punishment. We also do social contribution injustice to the dependents and affiliates of many of the people we punish. Much of this injustice is contingent on our practices, policies, and general attitudes toward offending.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878095","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 phenomenon of ‘corruption by organised crime’ is the subject of increased attention from policymakers in the UK. This focus is notable, given the limited political and academic consideration of the scope and meaning of this intersecting term. Both ‘organised crime’ and ‘corruption’ are difficult notions to pin down, definitionally and empirically, and such complexity is compounded by their conjunction. In this article, I problematize the dominant conceptualization of ‘corruption by organised crime’, and suggest that it is questionable in an abstract as well as operational sense. Given the ambiguity of the constituent concepts, as well as the implications for the development of criminal justice policy and law, I call for caution in its use. Instead I propose that we refer, and thus respond, to specific manifestations of corrupt practices for different criminal ends.
{"title":"‘Corruption by organised crime’ – a matter of definition?","authors":"L. Campbell","doi":"10.1093/CLP/CUW004","DOIUrl":"https://doi.org/10.1093/CLP/CUW004","url":null,"abstract":"The phenomenon of ‘corruption by organised crime’ is the subject of increased attention from policymakers in the UK. This focus is notable, given the limited political and academic consideration of the scope and meaning of this intersecting term. Both ‘organised crime’ and ‘corruption’ are difficult notions to pin down, definitionally and empirically, and such complexity is compounded by their conjunction. In this article, I problematize the dominant conceptualization of ‘corruption by organised crime’, and suggest that it is questionable in an abstract as well as operational sense. Given the ambiguity of the constituent concepts, as well as the implications for the development of criminal justice policy and law, I call for caution in its use. Instead I propose that we refer, and thus respond, to specific manifestations of corrupt practices for different criminal ends.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878293","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}
{"title":"The Inferred Trust: an Unhappy Marriage of Contract and Trust?","authors":"M. Bryan","doi":"10.1093/CLP/CUW006","DOIUrl":"https://doi.org/10.1093/CLP/CUW006","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60877938","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}
Remarkably, the interaction between common law and statute has not attracted the scholarly attention it deserves, given that it is such a basic component of legal reasoning in common law systems. This is especially true in the law of employment, where the interaction between common law and statute is a pervasive feature of modern employment law. In recent years, scholars have started to rise to the challenge of developing principles to regulate this interaction, and this article provides a contribution to those debates. It builds upon Lord Hoffmann’s controversial judgment in Johnson v Unisys to identify three modes of interaction: statute as pre-emptive of common law development; statute as an analogical stimulus of common law development; and common law fundamental rights. By connecting this analysis to background principles of legislative supremacy and fundamental rights, it argues that Johnson v Unisys provides an attractive constitutional vision of the relationship between Parliament and the courts.
值得注意的是，普通法和成文法之间的相互作用并没有引起应有的学术关注，因为它是普通法体系中法律推理的一个基本组成部分。在雇佣法中尤其如此，普通法和成文法之间的相互作用是现代雇佣法的一个普遍特征。近年来，学者们开始挑战发展原则来规范这种相互作用，本文为这些辩论提供了一些贡献。它以Hoffmann勋爵在Johnson v Unisys案中有争议的判决为基础，确定了三种互动模式:成文法作为普通法发展的先发制人;成文法作为普通法发展的类比刺激以及普通法的基本权利。通过将这一分析与立法至上和基本权利的背景原则联系起来，它认为Johnson v Unisys为议会和法院之间的关系提供了一个有吸引力的宪法愿景。
{"title":"Common Law and Statute in the Law of Employment","authors":"Alan L. Bogg","doi":"10.1093/CLP/CUW007","DOIUrl":"https://doi.org/10.1093/CLP/CUW007","url":null,"abstract":"Remarkably, the interaction between common law and statute has not attracted the scholarly attention it deserves, given that it is such a basic component of legal reasoning in common law systems. This is especially true in the law of employment, where the interaction between common law and statute is a pervasive feature of modern employment law. In recent years, scholars have started to rise to the challenge of developing principles to regulate this interaction, and this article provides a contribution to those debates. It builds upon Lord Hoffmann’s controversial judgment in Johnson v Unisys to identify three modes of interaction: statute as pre-emptive of common law development; statute as an analogical stimulus of common law development; and common law fundamental rights. By connecting this analysis to background principles of legislative supremacy and fundamental rights, it argues that Johnson v Unisys provides an attractive constitutional vision of the relationship between Parliament and the courts.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878036","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 paper examines a dimension of public law which, despite the increased frequency of litigation in this area, remains relatively under-explored: the constitution and foreign affairs. To aid this task, two models are elaborated. The first, the unilateralist or sovereigntist model, assumes a sharp separation between the internal and the external as domains of peace (constitution) and war (reason of state) respectively. The second model assumes that juridical boundaries are contested and permeable, reading the dynamics of constitutional development in terms of a process of mutual recognition. While the former may have had more historical traction, I argue that the latter now provides the better guide, both analytically and normatively. The theoretical argument is developed in relation to the lived tradition of the British constitution. The paper closes with a series of propositions that seek to capture the emerging principles within this complex and fast-moving area of law.
{"title":"The Constitution and Foreign Affairs","authors":"T. Poole","doi":"10.2139/SSRN.2876859","DOIUrl":"https://doi.org/10.2139/SSRN.2876859","url":null,"abstract":"This paper examines a dimension of public law which, despite the increased frequency of litigation in this area, remains relatively under-explored: the constitution and foreign affairs. To aid this task, two models are elaborated. The first, the unilateralist or sovereigntist model, assumes a sharp separation between the internal and the external as domains of peace (constitution) and war (reason of state) respectively. The second model assumes that juridical boundaries are contested and permeable, reading the dynamics of constitutional development in terms of a process of mutual recognition. While the former may have had more historical traction, I argue that the latter now provides the better guide, both analytically and normatively. The theoretical argument is developed in relation to the lived tradition of the British constitution. The paper closes with a series of propositions that seek to capture the emerging principles within this complex and fast-moving area of law.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68410345","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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