Oxford Journal of Legal Studies最新文献

For many political constitutionalists, the ordinary democratic process should be the constitution; constitutional entrenchment and strong-form judicial review should be avoided. But how is ordinary democratic politics understood by political constitutionalists? To answer this question, this article engages in an interpretative inquiry to delineate four distinct ideological readings of political constitutionalism-democratic socialist, liberal, republican and conservative-that are alive within the existing literature. It does so to explain how these readings articulate subtly different understandings of ordinary democratic politics. In doing so, it reflects on how to identify political constitutionalist thought; how political constitutionalism can appeal to different ideologies; how ideologies have influenced the theory's intellectual development; and the ideological conditions required to sustain a political constitution.

This article provides a historical perspective on capacity to consent to sex. It examines who could make decisions about sex, whose consent mattered and why. The article draws from legal history and from transcripts and testimonies in unreported sexual offence cases in England, heard in the Central Criminal Court in London and the regional assizes between the years of 1918 and 1950. These cases, often involving vulnerable complainants below the age of consent and those with mental disabilities, show that the concept of capacity was neither fixed nor clearly articulated. The article argues that, historically, capacity was not a biological or medical construct, but rather a social one, influenced by notions of class, gender and even eugenic ideals. The article demonstrates that, during this period, sexual offence law enabled social and population control, and that, despite significant legislative advances, capacity remains a fraught concept.

This article investigates how human rights considerations are increasingly shaping tort law by focusing on the gradual expansion of the duty of care in business and human rights cases. For decades, victims have attempted to hold parent companies to account for extraterritorial human rights abuses committed by their foreign subsidiaries. Recently, the Supreme Court ruled that UK courts have jurisdiction over such business and human rights cases. These cases are not only jurisdictional. They also contributed to developing the duty of care case law on parental liability. But how much can human rights considerations stretch the boundaries of tort law? The article analyses the case of climate change litigation to assess whether a further development in tort law jurisprudence would be necessary to hold corporations accountable for their contribution to climate change.

The Economic Crime and Corporate Transparency Act 2023 expanded the identification doctrine in welcome ways, but, I argue, does not go far enough. Specifically, I contend that the Act's reforms do not sufficiently respond to the threat of senior managers who culpably interfere in the proper flow of information within the company to orchestrate harmful or risky practices by others, all while seeking to avoid liability by preventing any individual from forming the full mens rea of any economic crime. How should the criminal law respond to this gap? I argue it would be problematic to respond by extending individual liability even further-say, by expanding the already 'disturbingly wide' inchoate offences in the Serious Crime Act 2007. Instead, the collective knowledge doctrine provides a tailor-made solution to these scenarios. This doctrine would permit courts (in narrow circumstances) to aggregate individuals' mental states within the company to construct a distinct corporate mens rea. I argue that section 196 of the 2023 Act, which expands the identification doctrine, could be read to incorporate a narrow version of the collective knowledge doctrine-at least if courts are willing to adopt a purposivist orientation aimed at giving effect to the wider aims of Parliament. A restricted version of the collective knowledge doctrine would have normative benefits and so, I suggest, is worth putting to the courts through test litigation.

Hohfeld was acutely aware of the 'potent tendency [of words] to control thought'. He was perhaps less aware of the power of syntax to do the same. Hohfeld's tendency to express the content of duties and liberties in the syntactically restrictive to ϕ form has allowed a corrupted version of his analytical scheme to take root. That version takes as axiomatic that the content of any duty or liberty is the action or inaction of the duty bearer or liberty holder. Yet duties and liberties can (and do) pertain to matters other than the action or inaction of the duty bearer or liberty holder. This insight has a range of doctrinal implications.

The Convention on the Rights of Persons with Disabilities (CRPD) operates as a lens of analysis to show that the insanity doctrine and its dispositions discriminate against the category of people with mental disabilities to whom the defence applies. However, while identifying the discrimination perpetuated by the insanity doctrine, this article argues that the CRPD Committee has failed to uncover the ultimate source of disadvantage of which the doctrine is merely symptomatic. Instead, it is argued that the criminal justice system entrenches a notion of 'capacity-responsibility' which situates the mentally disabled defendant as the 'other'. In an attempt to challenge this embedded structural injustice, the article thus calls on the CRPD Committee for a more holistic application of the CRPD, to provide the tools to challenge that will move towards greater equality for people with mental disabilities.