Mark Greenberg argues that legal obligations are those moral obligations created by the actions of legal institutions in the legally proper way (Moral Impact Theory of Law, MITL). Here I defend three main claims. First, I argue that, although very often misunderstood, Joseph Raz is also a defender of MITL. Secondly, I argue that while both Greenberg and Raz are committed to MITL, they disagree about the conditions under which a moral obligation can be said to be created in the legally proper way. Finally, I argue that Raz’s variant of MITL is better than Greenberg’s. It rests on a more plausible account of authority and it avoids one of the crucial defects threatening Greenberg’s view, namely, its overinclusiveness.
{"title":"On the Moral Impact Theory of Law","authors":"Ezequiel H. Monti","doi":"10.1093/ojls/gqab035","DOIUrl":"https://doi.org/10.1093/ojls/gqab035","url":null,"abstract":"\u0000 Mark Greenberg argues that legal obligations are those moral obligations created by the actions of legal institutions in the legally proper way (Moral Impact Theory of Law, MITL). Here I defend three main claims. First, I argue that, although very often misunderstood, Joseph Raz is also a defender of MITL. Secondly, I argue that while both Greenberg and Raz are committed to MITL, they disagree about the conditions under which a moral obligation can be said to be created in the legally proper way. Finally, I argue that Raz’s variant of MITL is better than Greenberg’s. It rests on a more plausible account of authority and it avoids one of the crucial defects threatening Greenberg’s view, namely, its overinclusiveness.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46064353","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}
Abstract The article advances an anti-foundationalist account of the key doctrines of the European Court of Human Rights (ECtHR): the margin of appreciation (MoA) and European consensus (EuC). The first part of the article argues that anti-foundationalism, which understands the existence of human rights as ultimately dependent on social practices and their justification as based on a plurality of values, is a credible conception of human rights grounds. The second part contends that anti-foundationalism offers the best explanation of the MoA and EuC, without making the ECtHR’s practice less normatively appealing. These arguments challenge the dominant critiques of the MoA and EuC, which often assume, but rarely explicitly defend, a foundationalist understanding of human rights. While the ECtHR’s use of the MoA and EuC can be inadequate, this is not because it is mistaken about the grounds of human rights.
{"title":"A New Philosophy for the Margin of Appreciation and European Consensus","authors":"B. Tripkovic","doi":"10.1093/ojls/gqab031","DOIUrl":"https://doi.org/10.1093/ojls/gqab031","url":null,"abstract":"Abstract The article advances an anti-foundationalist account of the key doctrines of the European Court of Human Rights (ECtHR): the margin of appreciation (MoA) and European consensus (EuC). The first part of the article argues that anti-foundationalism, which understands the existence of human rights as ultimately dependent on social practices and their justification as based on a plurality of values, is a credible conception of human rights grounds. The second part contends that anti-foundationalism offers the best explanation of the MoA and EuC, without making the ECtHR’s practice less normatively appealing. These arguments challenge the dominant critiques of the MoA and EuC, which often assume, but rarely explicitly defend, a foundationalist understanding of human rights. While the ECtHR’s use of the MoA and EuC can be inadequate, this is not because it is mistaken about the grounds of human rights.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48696728","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 recognition of gender equality has become one of the most important trends in contemporary constitutional law. Nonetheless, a crucial question lingers: is it leading to material constitutional transformation? In order to better understand it, this article presents a case study on the constitutional reconfigurations undergone in Morocco, Tunisia and Egypt after the Arab uprisings. The main vectors of constitutional change are identified from a descriptive-analytical perspective. Even if they kept idiosyncratic elements of persistent discrimination, the new charters were inserted in the globalised trends of constitutional design, bringing about a strong formal expansion of gender equality rights. On the whole, however, little material progress has been made. This suboptimal material transformation is explained by means of research arguments framed in legal evolutionist theories. Finally, the article elucidates why the greater constitutional verbosity in the recognition of gender equality did not translate into greater parity.
{"title":"Constitutional Transformation and Gender Equality: The Case of the Post-Arab Uprisings North African Constitutions","authors":"Antonio‐Martín Porras‐Gómez","doi":"10.1093/ojls/gqab028","DOIUrl":"https://doi.org/10.1093/ojls/gqab028","url":null,"abstract":"\u0000 The recognition of gender equality has become one of the most important trends in contemporary constitutional law. Nonetheless, a crucial question lingers: is it leading to material constitutional transformation? In order to better understand it, this article presents a case study on the constitutional reconfigurations undergone in Morocco, Tunisia and Egypt after the Arab uprisings. The main vectors of constitutional change are identified from a descriptive-analytical perspective. Even if they kept idiosyncratic elements of persistent discrimination, the new charters were inserted in the globalised trends of constitutional design, bringing about a strong formal expansion of gender equality rights. On the whole, however, little material progress has been made. This suboptimal material transformation is explained by means of research arguments framed in legal evolutionist theories. Finally, the article elucidates why the greater constitutional verbosity in the recognition of gender equality did not translate into greater parity.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46223345","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 review article offers a critical appraisal of Joel Colón-Ríos’s Constituent Power and the Law. It argues that while Colón-Ríos’s book is undoubtedly a major advance in scholarship on constituent power, it leaves the reader wanting more illumination in its treatment of the relationship between the descriptive and the normative dimensions of the concept.
{"title":"Between Constituent Power and Constituent Authority†","authors":"George Duke, E. Arcioni","doi":"10.1093/ojls/gqab030","DOIUrl":"https://doi.org/10.1093/ojls/gqab030","url":null,"abstract":"\u0000 This review article offers a critical appraisal of Joel Colón-Ríos’s Constituent Power and the Law. It argues that while Colón-Ríos’s book is undoubtedly a major advance in scholarship on constituent power, it leaves the reader wanting more illumination in its treatment of the relationship between the descriptive and the normative dimensions of the concept.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49382276","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}
Abstract The appropriate adult (AA) safeguard is an important procedural safeguard that can be implemented to protect vulnerable suspects at the police investigative stage of the criminal process. The safeguard is available for young suspects (below the age of 18) and adult suspects who are defined as vulnerable, and can be performed by a vast array of individuals. It is intended to protect evidence, enable effective participation and avoid miscarriages of justice. However, the safeguard lacks an underpinning conceptual framework; it is, and can, be interpreted in multiple ways, thus undermining its efficacy. Drawing upon doctrinal and socio-legal analysis, this article examines how the safeguard is—and, crucially, can be—conceptualised. It is argued that, although it is used principally as an evidential safeguard, the appropriate adult could be reimagined through the United Nations Conventions on the Rights of Persons with Disabilities and the United Nations Conventions on the Rights of the Child, with a specific focus on allowing for effective participation of the vulnerable suspect.
{"title":"Interpreting and Reframing the Appropriate Adult Safeguard","authors":"R. Dehaghani","doi":"10.1093/ojls/gqab029","DOIUrl":"https://doi.org/10.1093/ojls/gqab029","url":null,"abstract":"Abstract The appropriate adult (AA) safeguard is an important procedural safeguard that can be implemented to protect vulnerable suspects at the police investigative stage of the criminal process. The safeguard is available for young suspects (below the age of 18) and adult suspects who are defined as vulnerable, and can be performed by a vast array of individuals. It is intended to protect evidence, enable effective participation and avoid miscarriages of justice. However, the safeguard lacks an underpinning conceptual framework; it is, and can, be interpreted in multiple ways, thus undermining its efficacy. Drawing upon doctrinal and socio-legal analysis, this article examines how the safeguard is—and, crucially, can be—conceptualised. It is argued that, although it is used principally as an evidential safeguard, the appropriate adult could be reimagined through the United Nations Conventions on the Rights of Persons with Disabilities and the United Nations Conventions on the Rights of the Child, with a specific focus on allowing for effective participation of the vulnerable suspect.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43136989","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 this article, I challenge the use of a majority voting rule (majority rule) to declare statutes unconstitutional in many constitutional courts. To do this, I briefly present four main features of majority rule and assess whether these features (separately and jointly considered) provide definitive reasons for using this voting rule over others in constitutional adjudication. I conclude that these features do not provide such reasons either individually or taken together. This conclusion enables one to analyse whether constitutional courts should use other voting rules in constitutional adjudication, such as supermajority rules.
{"title":"Is Majority Rule Justified in Constitutional Adjudication?","authors":"Cristóbal Caviedes","doi":"10.1093/ojls/gqaa055","DOIUrl":"https://doi.org/10.1093/ojls/gqaa055","url":null,"abstract":"\u0000 In this article, I challenge the use of a majority voting rule (majority rule) to declare statutes unconstitutional in many constitutional courts. To do this, I briefly present four main features of majority rule and assess whether these features (separately and jointly considered) provide definitive reasons for using this voting rule over others in constitutional adjudication. I conclude that these features do not provide such reasons either individually or taken together. This conclusion enables one to analyse whether constitutional courts should use other voting rules in constitutional adjudication, such as supermajority rules.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojls/gqaa055","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44902586","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 article attends to claims that the expansionist trend in modern constitutional practices resulted in the recognition of many norms that are not real rights: they fail to guide and constrain duty-bearers and empower and protect right-holders because they are too abstract and can be limited too regularly. It claims that many constitutional rights are, indeed, ‘loosely relational’: the correlation between them and duties is flexible and affected by considerations external to the direct relations between the right-holder and the duty-bearer. However, it adds that, the assumption that rights must be ‘strictly relational’ for them to exhibit the robust normativity that gives rights their force and value is incorrect. This is important because loosely relational constitutional rights confer this robust normativity on consequentialist standards for the evaluation of legal norms and activities: a fundamental role constitutional rights play in modern liberal legal systems, reflecting a collective commitment to the realisation of social justice.
{"title":"Loosely Relational Constitutional Rights","authors":"Tom Kohavi","doi":"10.1093/ojls/gqaa049","DOIUrl":"https://doi.org/10.1093/ojls/gqaa049","url":null,"abstract":"\u0000 This article attends to claims that the expansionist trend in modern constitutional practices resulted in the recognition of many norms that are not real rights: they fail to guide and constrain duty-bearers and empower and protect right-holders because they are too abstract and can be limited too regularly. It claims that many constitutional rights are, indeed, ‘loosely relational’: the correlation between them and duties is flexible and affected by considerations external to the direct relations between the right-holder and the duty-bearer. However, it adds that, the assumption that rights must be ‘strictly relational’ for them to exhibit the robust normativity that gives rights their force and value is incorrect. This is important because loosely relational constitutional rights confer this robust normativity on consequentialist standards for the evaluation of legal norms and activities: a fundamental role constitutional rights play in modern liberal legal systems, reflecting a collective commitment to the realisation of social justice.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojls/gqaa049","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42562433","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 this article, I critically review the economic theory of corporate liability design, focusing on the allocation of liability between a corporation and its individual human agents. I apply this theory to transnational commercial contexts where human rights abuses occur and assess the likely efficacy of some putative liability regimes, including regimes requiring corporations to undertake human rights due diligence throughout their global supply chains. I advance a set of general considerations justifying the efficacy of due diligence in relation to alternative liability regimes. I argue, however, that due diligence regimes will likely under-deter severe human rights abuses unless they are supported by substantial entity-level sanctions and, in at least some cases, by supplementary liability for individual executives. The analysis has significant policy implications for current national and international efforts to enforce human rights norms against corporations.
{"title":"Corporate Liability Design for Human Rights Abuses: Individual and Entity Liability for Due Diligence","authors":"Nick Friedman","doi":"10.1093/ojls/gqaa052","DOIUrl":"https://doi.org/10.1093/ojls/gqaa052","url":null,"abstract":"\u0000 In this article, I critically review the economic theory of corporate liability design, focusing on the allocation of liability between a corporation and its individual human agents. I apply this theory to transnational commercial contexts where human rights abuses occur and assess the likely efficacy of some putative liability regimes, including regimes requiring corporations to undertake human rights due diligence throughout their global supply chains. I advance a set of general considerations justifying the efficacy of due diligence in relation to alternative liability regimes. I argue, however, that due diligence regimes will likely under-deter severe human rights abuses unless they are supported by substantial entity-level sanctions and, in at least some cases, by supplementary liability for individual executives. The analysis has significant policy implications for current national and international efforts to enforce human rights norms against corporations.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojls/gqaa052","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42040010","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 non-judicial character of ombudsmen is viewed as their greatest asset, offering a more accessible, informal and flexible channel than courts for expressing grievances. Yet the Pensions Ombudsman has objected vigorously to its characterisation in the Chancery Division as ‘not a court’, pointing to a range of judicial qualities with which it has been statutorily invested. This raises the broader question of whether ombudsmen can be courts; a rarely considered characterisation. It is argued in this article that, although some ombudsmen exhibit judicial or quasi-judicial attributes, they are categorically distinct from courts and should remain so. Parliament must be astute not to invest ombudsmen with too many judicial qualities, lest the boundary between exercising judicial functions and exercising the judicial power of the state is crossed. This article also gives cause to reflect more broadly on the fundamental and distinctive nature of courts, tribunals and ombudsmen.
{"title":"Ombudsmen as Courts","authors":"Stephen Thomson","doi":"10.1093/OJLS/GQAA056","DOIUrl":"https://doi.org/10.1093/OJLS/GQAA056","url":null,"abstract":"\u0000 The non-judicial character of ombudsmen is viewed as their greatest asset, offering a more accessible, informal and flexible channel than courts for expressing grievances. Yet the Pensions Ombudsman has objected vigorously to its characterisation in the Chancery Division as ‘not a court’, pointing to a range of judicial qualities with which it has been statutorily invested. This raises the broader question of whether ombudsmen can be courts; a rarely considered characterisation. It is argued in this article that, although some ombudsmen exhibit judicial or quasi-judicial attributes, they are categorically distinct from courts and should remain so. Parliament must be astute not to invest ombudsmen with too many judicial qualities, lest the boundary between exercising judicial functions and exercising the judicial power of the state is crossed. This article also gives cause to reflect more broadly on the fundamental and distinctive nature of courts, tribunals and ombudsmen.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43959369","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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