Oxford Journal of Legal Studies最新文献

Abstract-How do you stop hard cases from making bad law? One way is to strip their determination of any distinctly legal reasoning, and deny that they make law at all. This article suggests that is the approach found in the Mental Capacity Act 2005 (MCA). With a focus on best interests determinations within mental capacity adjudication, the following argument challenges the sense (or otherwise) in conceiving of such adjudication as a legal exercise. I argue that MCA cases do not involve the courts in either a law-applying or even a law-making role. Rather, they represent the issuing of a decision that is eminently non-legal in nature, and more reflective of the exercise of an executive or administrative function. This raises questions about the quality and defensibility of mental capacity jurisprudence itself, but also about the meaning of law and the role of the judicial branch.

Doctrinal research is the distinct methodological approach of lawyers and a core contribution of legal studies to human knowledge. Yet, lawyers do not often explain their doctrinal research methods and by implication struggle to articulate where empirical research can make helpful contributions. The articles suggests that doctrinal research is characterised by three core features that make specific assumptions about law: (i) legal sources are the exclusive avenue for altering rules and principles of law; (ii) legal sources are intelligible, coherent and consistent; and (iii) the success of any doctrinal account is contingent on legal sources alone. On this basis, we can appreciate that empirical contributions are essential: (i) to an accurate understanding of the law; (ii) to critiques, because the law lacks frameworks to evaluate its own operation; and (iii) to surveying legal sources. However, this insight comes with a word of caution: not all empirical methods are well suited to providing doctrinally relevant insights and there are some sophisticated pitfalls to avoid along the way.

[This corrects the article DOI: 10.1093/ojls/gqaf022.].

Various heads of non-pecuniary loss recovery in negligence cast doubt on the explanatory capacity of the traditional twin categories of pain and suffering and loss of amenity. This includes, in particular, loss of congenial employment and loss of reproductive autonomy. The central arguments of this piece are that we can construct from these, based on the existing law, a third category of non-pecuniary loss for personal injury; and that recognising this allows us to rationalise, expand and develop the claims more coherently, rather than castigating them as exceptional extras. The article demonstrates that, alongside pain and suffering and losses of amenity, the courts have already accepted 'loss of a protected decision' in these contexts. From that base, the argument considers with more conceptual coherence whether further instances of this category can be accepted in the healthcare and other contexts.

Paul Wragg's book, Free Speech Theory: A Radical Restatement, is arguably the most important work on free speech theory since Frederick Schauer's now-classic Free Speech: A Philosophical Enquiry. The theoretical issues of freedom of speech have hitherto been dominated in the international arena by the US literature, which builds on the First Amendment jurisprudence as its starting point. Now, an essential European work digs deep into the question and, moving away from legal positivism, seeks an answer to the question: 'What is free speech?' Wragg gives a new, revelatory interpretation of John Stuart Mill's oft-quoted essay, 'On Liberty'. The author argues forcefully in defence of 'irrationality', which is the keyword of the book. For him, the very essence of free speech is the protection of irrational speech, that is, speech regarded as worthless by traditional free speech justifications. This is not to unleash foolishness and irresponsibility, but to protect the freedom and autonomy of the individual. Wragg follows the greatest liberal English traditions, as his ideal is the individual responsible for themself.

The article proposes an agency turn in animal law, following in the footsteps of the political agency turn in animal ethics. The law currently operates on the assumption that animals are passive non-agents, which is reflected in the nature of their legal representation as voiceless and incompetent. We challenge this assumption by identifying three alternative standards for legally representing animals and their interests in the decision-making processes that affect them. According to the: (i) Interest Representation Standard, the best interests of animals are considered; (ii) Listening Standard, animals have a voice, and their input is solicited; and (iii) Empowerment Standard, animals are enabled to make decisions with legal effect. Each standard involves a varying degree of human and animal involvement in legal decision making. It is argued that scholars should reassess the assumption that animals are passive, and seriously consider the extent to which animal law could move towards an agency-affirming paradigm.

With the pending case of Bradshaw and others v United Kingdom, the European Court of Human Rights finds itself at a crossroads: it can either cement its free elections jurisprudence under article 3 of Protocol 1 (P1-3) of the European Convention on Human Rights or it can recalibrate and refine it to better safeguard the electorate's democratic rights in the face of electoral disinformation and foreign information manipulation and interference. This article makes the doctrinal and normative case for the latter option. We scrutinise three limitations in the jurisprudence: first, the Court's individualised approach to electoral falsehoods under P1-3, at the expense of the electorate's rights as informed democratic participants; second, the focus on reactive positive obligations to combat electoral disinformation, rather than proactive measures to ensure the free expression of voter choice; and finally, the lack of clarity about how the rights to free elections and to freedom of expression should be read harmoniously where they conflict.

Catherine the Great (apparently) wrote to the French philosopher Diderot something along the lines of: 'You philosophers are fortunate. You write on paper, and paper is patient. Unfortunate emperor that I am, I write on the susceptible skins of living beings.' Catherine expressed, I think, an important insight, that is true of the law as well: the law writes on the susceptible skins of living beings. This does not mean, of course, that we should not philosophise about the law, or that we should not take advantage of the benefits of having patient paper to write on. But as we do so, we should philosophise about the law all the time fully realising that the law itself does not write on patient paper, but on the susceptible skins of living beings. This has important implications to how we should-and how we should not-do philosophy of law. This article elaborates on these implications-both in general and using more specific examples.

Even if a hiring process is merit-based and non-discriminatory, it may still fail to ensure substantive fairness if some applicants lacked a fair opportunity to develop their qualifications to compete. A familiar potential remedy for the problem is 'affirmative action', in the sense of preferential treatment for job candidates who lacked a fair opportunity to develop their job qualifications. I defend two analogous contentions about criminal justice. Even if criminal sentencing is formally fair-ie free of discrimination and bias-it may still be substantively unfair because some disadvantaged offenders have lacked a fair opportunity to develop their capacities and structure their choice environments to fortify themselves against resorting to crime. And the criminal justice system might implement a form of 'affirmative action in criminal justice' by mitigating the punishment of offenders who are culpable for crimes but lacked a fair opportunity to avoid becoming so.

Rights of nature (RoN) appear to provide a promising alternative to anthropocentric environmental rights. But do they meet the demands of transformative green constitutionalist projects? This article addresses that question by examining the juridical dimensions of RoN. We draw on empirical studies of RoN laws to identify and examine the challenges of redeploying 'rights' and 'legal personality'-concepts associated with liberal normative frameworks-in the service of green normative theory and its fundamental concern for ecological well-being. We reject the dominant rights-based paradigm, which locates the green potential of RoN laws in constituting nature as a rights-bearing legal subject, and we propose an alternative: the governance paradigm. Our alternative locates the green potential of RoN laws in reconfiguring authority relations and supports ecocentric legal frameworks instead of RoN: emphasising ecocentric values and duties instead of rights, and ecological community membership instead of legal personhood.