Introduction Lawyers and politicians regularly make responses (more or less effectively) to controversies and crises that, in their distinctiveness, take them by surprise. Where their efforts yield successful outcomes, the view may gain currency that a society has it in its power to move towards a stable set of practical arrangements in which people enjoy enduring security. Here we can talk of a vision that tends in the direction of an end-state. Social flux may, however, encourage a more modest view. The need to use legal and political power in ways attuned to changing circumstances may support the conclusion that societies do well if they succeed in staying afloat on a sea of contingency. Both Luuk van Middelaar in Alarums and Excursions: Improvising Politics on the European Stage and Vernon Bogdanor in Britain and Europe in a Troubled World (The Henry L Stimson Lectures) throw light on each of these views. Van Middelaar lends support to the view that the aspiration to move towards an end-state (that can quickly take on the appearance of an ideal) is problematic. He also has much to say on how the European Union (a social formation not amenable to analysis as a conventional state) can meet the challenges posed by social flux. This aspect of his exposition has to do with a pragmatic practical outlook. Those who possess this outlook respond to legal, political, economic, and other problems by addressing the question ‘What will work or prove useful in this set of circumstances?’
引言律师和政治家经常（或多或少有效地）对争议和危机做出回应，这些争议和危机的独特性让他们大吃一惊。如果他们的努力取得了成功，人们可能会认为一个社会有能力走向一套稳定的实际安排，让人们享有持久的安全。在这里，我们可以谈论一个趋向于最终状态的愿景。然而，社会的变化可能会鼓励人们持更温和的观点。以适应不断变化的环境的方式使用法律和政治权力的必要性可能支持这样一个结论，即如果社会能够成功地在突发事件的海洋中生存，那么它们就会做得很好。Luuk van Middelaar在《Alarums and Excursions:Improvising Politics on the European Stage》和Vernon Bogdanor在《麻烦世界中的英国和欧洲》（亨利·L·史汀生讲座）中都阐述了这些观点。范·米德拉支持这样一种观点，即追求最终状态（可以很快呈现出理想的样子）的愿望是有问题的。对于欧盟（一个传统国家无法分析的社会形态）如何应对社会变化带来的挑战，他也有很多话要说。他的这方面论述与务实的实践观有关。那些拥有这种观点的人通过回答“在这种情况下，什么会起作用或证明有用？”
{"title":"Law, politics, and pragmatism in the European Union and the United Kingdom","authors":"R. Mullender","doi":"10.1017/lst.2023.3","DOIUrl":"https://doi.org/10.1017/lst.2023.3","url":null,"abstract":"Introduction Lawyers and politicians regularly make responses (more or less effectively) to controversies and crises that, in their distinctiveness, take them by surprise. Where their efforts yield successful outcomes, the view may gain currency that a society has it in its power to move towards a stable set of practical arrangements in which people enjoy enduring security. Here we can talk of a vision that tends in the direction of an end-state. Social flux may, however, encourage a more modest view. The need to use legal and political power in ways attuned to changing circumstances may support the conclusion that societies do well if they succeed in staying afloat on a sea of contingency. Both Luuk van Middelaar in Alarums and Excursions: Improvising Politics on the European Stage and Vernon Bogdanor in Britain and Europe in a Troubled World (The Henry L Stimson Lectures) throw light on each of these views. Van Middelaar lends support to the view that the aspiration to move towards an end-state (that can quickly take on the appearance of an ideal) is problematic. He also has much to say on how the European Union (a social formation not amenable to analysis as a conventional state) can meet the challenges posed by social flux. This aspect of his exposition has to do with a pragmatic practical outlook. Those who possess this outlook respond to legal, political, economic, and other problems by addressing the question ‘What will work or prove useful in this set of circumstances?’","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"370 - 379"},"PeriodicalIF":0.7,"publicationDate":"2023-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46218338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Whereas legal comparisons tend to be concerned with legal systems, structures or rules, this paper focuses on a more fundamental element of law: a legal concept. From the semiotic point of view, a concept is an element of the tripartite construct of meaning, which – in the legal context – is derived from a particular legal system. Since effective communication in legal practice is predicated on the unity of meaning, issues are likely to arise when an act of communication spans disparate legal cultures. When the epistemic embedding of legal concepts fundamentally differs between the respective legal systems with which the participants to a communicative event are familiar, conceptual incommensurability will arise, impeding the communication process and, potentially, also having an impact on associated court proceedings. Against this theoretical backdrop, the paper shifts its focus to globalised legal practice, which requires a broader legal skillset and comparative perspectives. As an illustration, the equivalence of selected substantive law concepts is explored across the common law/civil law divide, accurate comprehension of which is essential to intercultural provision of legal services. Drawing parallels between the functional method in comparative law and the functional approach recommended in legal translation, an overview is provided of techniques for remedying terminological incongruence and conveying intended meaning across legal cultures. The paper concludes by querying whether the law curriculum would be enhanced by inclusion of comparative and linguistic perspectives, with a view to equipping graduates with interdisciplinary tools for effective legal communication and global law practice.
{"title":"Comparative law outside the ivory tower: an interdisciplinary perspective","authors":"P. Wilson","doi":"10.1017/lst.2023.6","DOIUrl":"https://doi.org/10.1017/lst.2023.6","url":null,"abstract":"\u0000 Whereas legal comparisons tend to be concerned with legal systems, structures or rules, this paper focuses on a more fundamental element of law: a legal concept. From the semiotic point of view, a concept is an element of the tripartite construct of meaning, which – in the legal context – is derived from a particular legal system. Since effective communication in legal practice is predicated on the unity of meaning, issues are likely to arise when an act of communication spans disparate legal cultures. When the epistemic embedding of legal concepts fundamentally differs between the respective legal systems with which the participants to a communicative event are familiar, conceptual incommensurability will arise, impeding the communication process and, potentially, also having an impact on associated court proceedings.\u0000 Against this theoretical backdrop, the paper shifts its focus to globalised legal practice, which requires a broader legal skillset and comparative perspectives. As an illustration, the equivalence of selected substantive law concepts is explored across the common law/civil law divide, accurate comprehension of which is essential to intercultural provision of legal services. Drawing parallels between the functional method in comparative law and the functional approach recommended in legal translation, an overview is provided of techniques for remedying terminological incongruence and conveying intended meaning across legal cultures. The paper concludes by querying whether the law curriculum would be enhanced by inclusion of comparative and linguistic perspectives, with a view to equipping graduates with interdisciplinary tools for effective legal communication and global law practice.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48049953","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Third parties who receive trust property with knowledge that the transfer to them was a breach of trust will be liable in knowing receipt. Knowing receipt has grown quickly in importance in recent years and many of the finer points of the doctrine are still being worked out. This paper discusses one such issue: whether liability can exist when the third party acquires a security interest in trust property, rather than the underlying trust property itself. This point has not yet been considered by English courts, although it has been examined in cases from Australia, Canada and Hong Kong. The paper analyses the existing authorities in the context of the wider law relating to knowing receipt and explains the conceptual difficulties and practical problems with allowing liability to be grounded on the receipt of a mere security interest in trust property.
{"title":"Security interests and knowing receipt","authors":"J. Glister","doi":"10.1017/lst.2023.1","DOIUrl":"https://doi.org/10.1017/lst.2023.1","url":null,"abstract":"\u0000 Third parties who receive trust property with knowledge that the transfer to them was a breach of trust will be liable in knowing receipt. Knowing receipt has grown quickly in importance in recent years and many of the finer points of the doctrine are still being worked out. This paper discusses one such issue: whether liability can exist when the third party acquires a security interest in trust property, rather than the underlying trust property itself. This point has not yet been considered by English courts, although it has been examined in cases from Australia, Canada and Hong Kong. The paper analyses the existing authorities in the context of the wider law relating to knowing receipt and explains the conceptual difficulties and practical problems with allowing liability to be grounded on the receipt of a mere security interest in trust property.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48102042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper normative orientation of judicial review of delegated legislation – upholding the moral requirements of delegation relationships and safeguarding democratic accountability and the rule of law. It then argues that existing grounds of review applied towards delegated legislation go some way towards but are inadequately directed at this normative orientation. Drawing inspiration from Irish and US jurisprudence, the paper critically evaluates several possible means of filling this doctrinal space, and concludes that the non-delegation doctrine and a rule of law-based ground of judicial review directed at exercises of delegated law-making power can supplement the law of judicial review of delegated legislation.
{"title":"Re-examining judicial review of delegated legislation","authors":"Kenny Chng","doi":"10.1017/lst.2023.7","DOIUrl":"https://doi.org/10.1017/lst.2023.7","url":null,"abstract":"\u0000 The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper normative orientation of judicial review of delegated legislation – upholding the moral requirements of delegation relationships and safeguarding democratic accountability and the rule of law. It then argues that existing grounds of review applied towards delegated legislation go some way towards but are inadequately directed at this normative orientation. Drawing inspiration from Irish and US jurisprudence, the paper critically evaluates several possible means of filling this doctrinal space, and concludes that the non-delegation doctrine and a rule of law-based ground of judicial review directed at exercises of delegated law-making power can supplement the law of judicial review of delegated legislation.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47012828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Prior to the Insurance Act 2015, an insurer could refuse payment by relying on terms unrelated to the manner in which the loss occurred, or with the assured's default. Section 11 of the Insurance Act 2015 reverses that and requires ‘the punishment to fit the crime’ by introducing a ‘could have increased the risk’ test, which is said to be a requirement for correlation between an assured's non-compliance with a risk clause and the actual occurrence of the loss. The new test effectively raises more profound causation issues from a practical point of view as regards insurance recoveries and also from a theoretical point of view of causation in the law. It is submitted that the test ‘could have increased the risk’ introduced by section 11 of the Insurance Act 2015 should be interpreted by an approach to recognising a nexus – a general causal relevance (general causation) – and adopting interpretation as a restricting tool, to achieve alignment with the legislative intent. In presenting this argument, this paper explores the difference between correlation and causation in the law, expounding a wider understanding of legal causation than causa proxima in the insurance context.
{"title":"Causation or correlation: the chimera in section 11 of the Insurance Act 2015","authors":"Meixian Song","doi":"10.1017/lst.2022.38","DOIUrl":"https://doi.org/10.1017/lst.2022.38","url":null,"abstract":"Abstract Prior to the Insurance Act 2015, an insurer could refuse payment by relying on terms unrelated to the manner in which the loss occurred, or with the assured's default. Section 11 of the Insurance Act 2015 reverses that and requires ‘the punishment to fit the crime’ by introducing a ‘could have increased the risk’ test, which is said to be a requirement for correlation between an assured's non-compliance with a risk clause and the actual occurrence of the loss. The new test effectively raises more profound causation issues from a practical point of view as regards insurance recoveries and also from a theoretical point of view of causation in the law. It is submitted that the test ‘could have increased the risk’ introduced by section 11 of the Insurance Act 2015 should be interpreted by an approach to recognising a nexus – a general causal relevance (general causation) – and adopting interpretation as a restricting tool, to achieve alignment with the legislative intent. In presenting this argument, this paper explores the difference between correlation and causation in the law, expounding a wider understanding of legal causation than causa proxima in the insurance context.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"278 - 294"},"PeriodicalIF":0.7,"publicationDate":"2023-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45236751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Associate Hospital Managers (AHMs) are members of the local community with a power under section 23 of the Mental Health Act 1983 to discharge people from compulsory mental health care against medical advice. They provide scrutiny of professional decisions and, in so doing, protect patient liberty by providing review of compulsory care. Abolition of the AHMs has been contemplated on numerous occasions, most recently by the Independent Review of the Mental Health Act 1983 (December 2018), the White Paper on ‘Reforming the Mental Health Act’ (January 2021) and the Government's response (July 2021). Through an historical and contemporary consideration of the section 23 power spanning 1808–2022, this paper argues that removal of the AHMs would be detrimental to the legitimacy of the 1983 Act. This is because the abolition of the AHMs would undermine the principles of local, democratic, community oversight entailed by section 23, and found nowhere else in the Act. The Draft Mental Health Bill (June 2022) does not address these concerns.
{"title":"Local, democratic community justice in the Mental Health Act 1983","authors":"T. Webb","doi":"10.1017/lst.2023.2","DOIUrl":"https://doi.org/10.1017/lst.2023.2","url":null,"abstract":"Abstract Associate Hospital Managers (AHMs) are members of the local community with a power under section 23 of the Mental Health Act 1983 to discharge people from compulsory mental health care against medical advice. They provide scrutiny of professional decisions and, in so doing, protect patient liberty by providing review of compulsory care. Abolition of the AHMs has been contemplated on numerous occasions, most recently by the Independent Review of the Mental Health Act 1983 (December 2018), the White Paper on ‘Reforming the Mental Health Act’ (January 2021) and the Government's response (July 2021). Through an historical and contemporary consideration of the section 23 power spanning 1808–2022, this paper argues that removal of the AHMs would be detrimental to the legitimacy of the 1983 Act. This is because the abolition of the AHMs would undermine the principles of local, democratic, community oversight entailed by section 23, and found nowhere else in the Act. The Draft Mental Health Bill (June 2022) does not address these concerns.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"523 - 542"},"PeriodicalIF":0.7,"publicationDate":"2023-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43636154","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The European Convention on Human Rights allows its Contracting Parties to submit third-party interventions. This paper analyses the reasons for engagement of the states with the European Court of Human Rights beyond what they are strictly expected to do: respond in contentious cases and execute judgments. It is argued here that the states mainly engage with the Court for the purposes of self-interest. This paper fills the gap in the literature by substantiating this claim using empirical methods of content analysis of the case law and research interviews with the governmental representatives. Finally, this paper looks at the impact of third-party interventions on the Court's reasoning and concludes that the Court is aware of the aims of the national governments and bears those aims in mind.
{"title":"Conversations with friends: ‘friends of the Court’ interventions of the state parties to the European Convention on Human Rights","authors":"K. Dzehtsiarou","doi":"10.1017/lst.2022.54","DOIUrl":"https://doi.org/10.1017/lst.2022.54","url":null,"abstract":"Abstract The European Convention on Human Rights allows its Contracting Parties to submit third-party interventions. This paper analyses the reasons for engagement of the states with the European Court of Human Rights beyond what they are strictly expected to do: respond in contentious cases and execute judgments. It is argued here that the states mainly engage with the Court for the purposes of self-interest. This paper fills the gap in the literature by substantiating this claim using empirical methods of content analysis of the case law and research interviews with the governmental representatives. Finally, this paper looks at the impact of third-party interventions on the Court's reasoning and concludes that the Court is aware of the aims of the national governments and bears those aims in mind.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"381 - 401"},"PeriodicalIF":0.7,"publicationDate":"2023-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42011107","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract It is conventionally argued that because an artificially-intelligent (AI) system acts autonomously, its makers cannot easily be held liable should the system's actions harm. Since the system cannot be liable on its own account either, existing laws expose victims to accountability gaps and need to be reformed. Recent legal instruments have nonetheless established obligations against AI developers and providers. Drawing on attribution theory, this paper examines how these seemingly opposing positions are shaped by the ways in which AI systems are conceptualised. Specifically, folk dispositionism underpins conventional legal discourse on AI liability, personality, publications, and inventions and leads us towards problematic legal outcomes. Examining the technology and terminology driving contemporary AI systems, the paper contends that AI systems are better conceptualised instead as situational characters whose actions remain constrained by their programming. Properly viewing AI systems as such illuminates how existing legal doctrines could be sensibly applied to AI and reinforces emerging calls for placing greater scrutiny on the broader AI ecosystem.
{"title":"Legal dispositionism and artificially-intelligent attributions","authors":"Jerrold Soh","doi":"10.1017/lst.2022.52","DOIUrl":"https://doi.org/10.1017/lst.2022.52","url":null,"abstract":"Abstract It is conventionally argued that because an artificially-intelligent (AI) system acts autonomously, its makers cannot easily be held liable should the system's actions harm. Since the system cannot be liable on its own account either, existing laws expose victims to accountability gaps and need to be reformed. Recent legal instruments have nonetheless established obligations against AI developers and providers. Drawing on attribution theory, this paper examines how these seemingly opposing positions are shaped by the ways in which AI systems are conceptualised. Specifically, folk dispositionism underpins conventional legal discourse on AI liability, personality, publications, and inventions and leads us towards problematic legal outcomes. Examining the technology and terminology driving contemporary AI systems, the paper contends that AI systems are better conceptualised instead as situational characters whose actions remain constrained by their programming. Properly viewing AI systems as such illuminates how existing legal doctrines could be sensibly applied to AI and reinforces emerging calls for placing greater scrutiny on the broader AI ecosystem.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"132 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135638741","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"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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