Pub Date : 2022-07-01DOI: 10.1017/S0008197322000393
Guy Baldwin
excellently presented by Beever in Part II, can free us from the old debates in the grand jurisprudential battle discussed in Part III. This is so particularly because throughout Part III – consisting more than half of the book’s content – Beever is trying to defend one camp in the battle against the other, despite his avowal that this battle is a great waste of time. To borrow Beever’s Freudian terminology (p. 264), it almost seems that he is consciously trying to move on from the battle while unconsciously joining the battle himself. Beever’s sustained attacks on legal positivism are often vigorous and skilful. However, in deploying those attacks he draws only sparingly on Searle and adopts a methodology that is virtually indistinguishable from how jurisprudence has traditionally been practised, making good use of doctrinal legal materials (showcasing Beever’s expertise in tort law), but ultimately letting the philosopher’s own intuition do the decisive work. Beever hence demonstrates by his own practice that one can still make new contributions to the persistent jurisprudential debates, which Searle’s social philosophy has not enabled us to either resolve or dissolve.
{"title":"A General Right to Conscientious Exemption: Beyond Religious Privilege. By John Adenitire. [Cambridge University Press, 2020. xiv + 320 pp. Hardback £85.00. ISBN 978-1-10-847845-8.]","authors":"Guy Baldwin","doi":"10.1017/S0008197322000393","DOIUrl":"https://doi.org/10.1017/S0008197322000393","url":null,"abstract":"excellently presented by Beever in Part II, can free us from the old debates in the grand jurisprudential battle discussed in Part III. This is so particularly because throughout Part III – consisting more than half of the book’s content – Beever is trying to defend one camp in the battle against the other, despite his avowal that this battle is a great waste of time. To borrow Beever’s Freudian terminology (p. 264), it almost seems that he is consciously trying to move on from the battle while unconsciously joining the battle himself. Beever’s sustained attacks on legal positivism are often vigorous and skilful. However, in deploying those attacks he draws only sparingly on Searle and adopts a methodology that is virtually indistinguishable from how jurisprudence has traditionally been practised, making good use of doctrinal legal materials (showcasing Beever’s expertise in tort law), but ultimately letting the philosopher’s own intuition do the decisive work. Beever hence demonstrates by his own practice that one can still make new contributions to the persistent jurisprudential debates, which Searle’s social philosophy has not enabled us to either resolve or dissolve.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44027361","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}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000356
M. Leeming
{"title":"The Intricacies of Dicta and Dissent. By Neil Duxbury. [Cambridge University Press, 2021. xxv + 260 pp. Paperback £29.99. ISBN 978-1-108-79488-6.]","authors":"M. Leeming","doi":"10.1017/S0008197322000356","DOIUrl":"https://doi.org/10.1017/S0008197322000356","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48064888","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}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000277
Veronika Fikfak
Declaration, Legality centred on an allegation that states engaging in the use of force were committing genocide through their use of force. In contrast, the claim in Ukraine is whether actions taken purportedly to prevent and punish genocide were lawful under the GC. Robinson explicitly linked this to the question of false claims of international law, pointing out that Ukraine has not asked the court a general question about Russia’s force; rather, it is arguing that Russia cannot lawfully rely on a false claim to act to prevent genocide under the Convention. The court’s Order is a clear win for Ukraine, even though Russia is highly unlikely to comply. The way in which Ukraine relies on the idea of falsity to characterise its rights – the right “not to be subject to a false claim of genocide” (at [52]) and for military action not to be “launched on a pretext of genocide” (at [68]) – is perhaps the most remarkable aspect of the case. Although the court stops short of directly embracing the idea of a right not to be subject to false claims of international law, it does conclude that Ukraine has “a plausible right not to be subject to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine” (at [60]). While jurisdiction is clearly based on the existence of a dispute as to whether genocide is taking place and what actions Russia may lawfully take in response, the court nevertheless signalled that Article I GC must be carried out in good faith and in a way that is compatible with general international law. At the merits stage, it may have to grapple with what this means in practice, including what it means to make “bad faith” and pre-textual claims about law and fact as opposed to making claims that are plausible but wrong. Drawing these distinctions and characterising the impact that deception has on the validity of international legal arguments is a perennial challenge for international law, as too many past examples of unilateral force have shown.
{"title":"ESTABLISHING DAMAGES FOR MASS HUMAN RIGHTS VIOLATIONS","authors":"Veronika Fikfak","doi":"10.1017/S0008197322000277","DOIUrl":"https://doi.org/10.1017/S0008197322000277","url":null,"abstract":"Declaration, Legality centred on an allegation that states engaging in the use of force were committing genocide through their use of force. In contrast, the claim in Ukraine is whether actions taken purportedly to prevent and punish genocide were lawful under the GC. Robinson explicitly linked this to the question of false claims of international law, pointing out that Ukraine has not asked the court a general question about Russia’s force; rather, it is arguing that Russia cannot lawfully rely on a false claim to act to prevent genocide under the Convention. The court’s Order is a clear win for Ukraine, even though Russia is highly unlikely to comply. The way in which Ukraine relies on the idea of falsity to characterise its rights – the right “not to be subject to a false claim of genocide” (at [52]) and for military action not to be “launched on a pretext of genocide” (at [68]) – is perhaps the most remarkable aspect of the case. Although the court stops short of directly embracing the idea of a right not to be subject to false claims of international law, it does conclude that Ukraine has “a plausible right not to be subject to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine” (at [60]). While jurisdiction is clearly based on the existence of a dispute as to whether genocide is taking place and what actions Russia may lawfully take in response, the court nevertheless signalled that Article I GC must be carried out in good faith and in a way that is compatible with general international law. At the merits stage, it may have to grapple with what this means in practice, including what it means to make “bad faith” and pre-textual claims about law and fact as opposed to making claims that are plausible but wrong. Drawing these distinctions and characterising the impact that deception has on the validity of international legal arguments is a perennial challenge for international law, as too many past examples of unilateral force have shown.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43371669","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}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000319
J. Grower
by the parties – lower courts would do well to heed the warning. While the judgment in ZXC could be described as a “win” for privacy interests, a “general principle” or “starting point” of a reasonable expectation of privacy in respect of information relating to pre-charge criminal investigations does not preclude journalists from conducting their own inquiries into a person’s alleged misconduct and reporting the outcome of those inquiries. As the trial judge, Court of Appeal and Supreme Court emphasised, the article at the centre of the proceedings in ZXC merely repeated the content of the LoR. If, instead, the article concerned ZXC’s alleged wrongdoing based on Bloomberg’s own investigations, this would have been a “distinct and separate situation” (at [78]). Given that law enforcement authorities have themselves adopted a uniform policy of not disclosing information regarding pre-charge investigations, the approach espoused by the lower courts and endorsed by the Supreme Court in ZXC is an eminently reasonable compromise between the conflicting Article 8 and 10 interests in such cases. Any contention that the decision unjustifiably curtails expression that is in the public interest ignores the very clear message from the Supreme Court that each case turns on its own facts and independent investigations by journalists may well fall outside the remit of the general rule.
{"title":"A GAIN IS AS GOOD AS A LOSS … TO A BOUND FIDUCIARY","authors":"J. Grower","doi":"10.1017/S0008197322000319","DOIUrl":"https://doi.org/10.1017/S0008197322000319","url":null,"abstract":"by the parties – lower courts would do well to heed the warning. While the judgment in ZXC could be described as a “win” for privacy interests, a “general principle” or “starting point” of a reasonable expectation of privacy in respect of information relating to pre-charge criminal investigations does not preclude journalists from conducting their own inquiries into a person’s alleged misconduct and reporting the outcome of those inquiries. As the trial judge, Court of Appeal and Supreme Court emphasised, the article at the centre of the proceedings in ZXC merely repeated the content of the LoR. If, instead, the article concerned ZXC’s alleged wrongdoing based on Bloomberg’s own investigations, this would have been a “distinct and separate situation” (at [78]). Given that law enforcement authorities have themselves adopted a uniform policy of not disclosing information regarding pre-charge investigations, the approach espoused by the lower courts and endorsed by the Supreme Court in ZXC is an eminently reasonable compromise between the conflicting Article 8 and 10 interests in such cases. Any contention that the decision unjustifiably curtails expression that is in the public interest ignores the very clear message from the Supreme Court that each case turns on its own facts and independent investigations by journalists may well fall outside the remit of the general rule.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48013943","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}
Pub Date : 2022-07-01DOI: 10.1017/S000819732200037X
Birke Häcker
{"title":"EU Private Law: Anatomy of a Growing Legal Order. By Jürgen Basedow. [Cambridge: Intersentia, 2021. cxxviii + 788 pp. Hardback €149.00. ISBN 978-1-839-70121-4.]","authors":"Birke Häcker","doi":"10.1017/S000819732200037X","DOIUrl":"https://doi.org/10.1017/S000819732200037X","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47632144","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}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000289
Kelly Chong Yan Chan, Edward Lui
{"title":"CITIZENSHIP, CHARGES AND COMMON LAW CONSTITUTIONAL RIGHTS","authors":"Kelly Chong Yan Chan, Edward Lui","doi":"10.1017/S0008197322000289","DOIUrl":"https://doi.org/10.1017/S0008197322000289","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41907684","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}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000344
Jonathan Morgan
{"title":"MAINTAINING THE ELEGANT FAÇADE OF THE ACTS–OMISSIONS DISTINCTION","authors":"Jonathan Morgan","doi":"10.1017/S0008197322000344","DOIUrl":"https://doi.org/10.1017/S0008197322000344","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48256446","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}
Pub Date : 2022-06-16DOI: 10.1017/S0008197322000241
S. Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, G. Dutfield
Abstract This article examines global vaccine inequity during the COVID-19 pandemic. We critique intellectual property (IP) law under the 1994 WTO TRIPS Agreement, and specifically, the role that IP has played in enabling the inequities of production, distribution and pricing in the COVID-19 vaccine context. Given the failure of international response mechanisms, including COVAX and C-TAP, to address vaccine inequity, we argue the TRIPS waiver proposal should be viewed as offering a necessary and proportionate legal measure for clearing IP barriers that cannot be achieved by existing TRIPS flexibilities. Finally, we reflect on the waiver debate in the wider context of TRIPS and the need to boost global pandemic preparedness.
{"title":"ADDRESSING VACCINE INEQUITY DURING THE COVID-19 PANDEMIC: THE TRIPS INTELLECTUAL PROPERTY WAIVER PROPOSAL AND BEYOND","authors":"S. Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, G. Dutfield","doi":"10.1017/S0008197322000241","DOIUrl":"https://doi.org/10.1017/S0008197322000241","url":null,"abstract":"Abstract This article examines global vaccine inequity during the COVID-19 pandemic. We critique intellectual property (IP) law under the 1994 WTO TRIPS Agreement, and specifically, the role that IP has played in enabling the inequities of production, distribution and pricing in the COVID-19 vaccine context. Given the failure of international response mechanisms, including COVAX and C-TAP, to address vaccine inequity, we argue the TRIPS waiver proposal should be viewed as offering a necessary and proportionate legal measure for clearing IP barriers that cannot be achieved by existing TRIPS flexibilities. Finally, we reflect on the waiver debate in the wider context of TRIPS and the need to boost global pandemic preparedness.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43487793","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}
Pub Date : 2022-06-01DOI: 10.1017/S0008197322000022
J. Goldsworthy
Abstract Rivka Weill claims that in the nineteenth century the foundation of the UK constitution changed from parliamentary sovereignty to popular sovereignty, originally as a matter of constitutional convention but today as a matter of law. I argue, to the contrary, that parliamentary sovereignty as a legal principle and popular sovereignty as a political principle are perfectly compatible. Constitutional conventions are essentially political not legal requirements. Therefore, a constitutional convention requiring popular approval of constitutional change, if it ever existed, would not have violated parliamentary sovereignty. But if it did exist, it was displaced by the Parliament Act 1911 and has not been revived since. Moreover, there is no evidence that courts today have legal authority to enforce any requirement, conventional or legal, requiring such approval.
{"title":"PARLIAMENTARY SOVEREIGNTY AND POPULAR SOVEREIGNTY IN THE UK CONSTITUTION","authors":"J. Goldsworthy","doi":"10.1017/S0008197322000022","DOIUrl":"https://doi.org/10.1017/S0008197322000022","url":null,"abstract":"Abstract Rivka Weill claims that in the nineteenth century the foundation of the UK constitution changed from parliamentary sovereignty to popular sovereignty, originally as a matter of constitutional convention but today as a matter of law. I argue, to the contrary, that parliamentary sovereignty as a legal principle and popular sovereignty as a political principle are perfectly compatible. Constitutional conventions are essentially political not legal requirements. Therefore, a constitutional convention requiring popular approval of constitutional change, if it ever existed, would not have violated parliamentary sovereignty. But if it did exist, it was displaced by the Parliament Act 1911 and has not been revived since. Moreover, there is no evidence that courts today have legal authority to enforce any requirement, conventional or legal, requiring such approval.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41463773","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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