The dignitary account of the rule of law proposes that values of human dignity and agency are appropriately recognised through legal rules and institutions that create opportunities for legal subjects to engage in deliberation and the exercise of practical reason. In a collection of essays published over a period of almost two decades, Thoughtfulness and the Rule of Law, Jeremy Waldron offers a comprehensive account of the grounds and institutional implications of taking dignity so understood as a core rule-of-law desideratum. The ensuing account is novel, stimulating and distinct. There is, however, a chasm between the platforms identified by Waldron and his ambition of advancing dignity. Further, a dignity norm cannot supply a plausible evaluative benchmark under all (or most) plausible circumstances. Its domain might in consequence be more circumscribed than Waldron intimates.
关于法治的尊严论提出，人类尊严和能动性的价值通过法律规则和制度得到了适当的认可，这些规则和制度为法律主体创造了参与讨论和行使实践理性的机会。杰里米-沃尔德伦（Jeremy Waldron）在历时近二十年出版的论文集《深思熟虑与法治》（Thoughtfulness and the Rule of Law）中，全面阐述了将尊严理解为核心法治要求的理由和制度含义。随之而来的论述是新颖的、令人振奋的和与众不同的。然而，沃尔德伦所确定的平台与他推进尊严的雄心壮志之间存在着鸿沟。此外，尊严规范无法在所有（或大多数）可信的情况下提供可信的评价基准。因此，它的领域可能比沃德伦所暗示的更为有限。
{"title":"The Dignity of Legal Subjects","authors":"Aziz Z Huq","doi":"10.1093/ojls/gqae004","DOIUrl":"https://doi.org/10.1093/ojls/gqae004","url":null,"abstract":"The dignitary account of the rule of law proposes that values of human dignity and agency are appropriately recognised through legal rules and institutions that create opportunities for legal subjects to engage in deliberation and the exercise of practical reason. In a collection of essays published over a period of almost two decades, Thoughtfulness and the Rule of Law, Jeremy Waldron offers a comprehensive account of the grounds and institutional implications of taking dignity so understood as a core rule-of-law desideratum. The ensuing account is novel, stimulating and distinct. There is, however, a chasm between the platforms identified by Waldron and his ambition of advancing dignity. Further, a dignity norm cannot supply a plausible evaluative benchmark under all (or most) plausible circumstances. Its domain might in consequence be more circumscribed than Waldron intimates.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"107 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140073620","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}
Disagreement abounds on what exactly constitutes an ‘abuse’ within article 102 TFEU, EU competition law’s prohibition of an abuse of a dominant position. This situation is highly undesirable, given the important role this prohibition is expected to play in alleviating concerns about substantial market power and its use in important sectors, typified by actions against ‘Big Tech’. This article responds to this problem by analysing and synthesising the jurisprudence of the Court of Justice of the European Union and its evolution to establish the constituent elements of an exclusionary ‘abuse’. The article corrects crucial legal misconceptions, including the putative dichotomy between violations ‘by object’ and ‘by effect’; the assumed disparate legal tests for pricing and non-pricing conduct; and the lost distinction between the ‘as efficient competitor test’ and the ‘as efficient competitor standard’. This critical inquiry allows one to draw concrete predictions on the future development of this challenging, yet vital, area of law.
{"title":"A Critical Inquiry into ‘Abuse’ in EU Competition Law","authors":"Pınar Akman","doi":"10.1093/ojls/gqae008","DOIUrl":"https://doi.org/10.1093/ojls/gqae008","url":null,"abstract":"Disagreement abounds on what exactly constitutes an ‘abuse’ within article 102 TFEU, EU competition law’s prohibition of an abuse of a dominant position. This situation is highly undesirable, given the important role this prohibition is expected to play in alleviating concerns about substantial market power and its use in important sectors, typified by actions against ‘Big Tech’. This article responds to this problem by analysing and synthesising the jurisprudence of the Court of Justice of the European Union and its evolution to establish the constituent elements of an exclusionary ‘abuse’. The article corrects crucial legal misconceptions, including the putative dichotomy between violations ‘by object’ and ‘by effect’; the assumed disparate legal tests for pricing and non-pricing conduct; and the lost distinction between the ‘as efficient competitor test’ and the ‘as efficient competitor standard’. This critical inquiry allows one to draw concrete predictions on the future development of this challenging, yet vital, area of law.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"23 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140073553","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 18th century is often treated by scholars as a period of juristic consensus. This article argues, in contrast, that the late 18th century saw the emergence of rival ‘Patriot’ and ‘Tory’ legal traditions. Through a detailed study of the jurisprudence of Lords Camden and Mansfield—who were both pillars of the law, as well as political and juristic rivals—we show that they differed systematically in their understanding of the common law, and that those differences had a partisan cast: although they were not crude attempts to instrumentalise law to political ends, their political and jurisprudential commitments influenced each other and emerged from the same intellectual roots. We place these differences in the context of the fragmentation of 18th-century Whig politics, and argue that they have important implications for how we understand and make use of the common law tradition in present-day scholarship.
{"title":"Partisan Legal Traditions in the Age of Camden and Mansfield","authors":"T T Arvind, Christian R Burset","doi":"10.1093/ojls/gqae007","DOIUrl":"https://doi.org/10.1093/ojls/gqae007","url":null,"abstract":"The 18th century is often treated by scholars as a period of juristic consensus. This article argues, in contrast, that the late 18th century saw the emergence of rival ‘Patriot’ and ‘Tory’ legal traditions. Through a detailed study of the jurisprudence of Lords Camden and Mansfield—who were both pillars of the law, as well as political and juristic rivals—we show that they differed systematically in their understanding of the common law, and that those differences had a partisan cast: although they were not crude attempts to instrumentalise law to political ends, their political and jurisprudential commitments influenced each other and emerged from the same intellectual roots. We place these differences in the context of the fragmentation of 18th-century Whig politics, and argue that they have important implications for how we understand and make use of the common law tradition in present-day scholarship.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"71 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140055442","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 : 2024-02-21eCollection Date: 2024-01-01DOI: 10.1093/ojls/gqae003
Alex Green
Small Island Developing States (SIDS) are uniquely threatened by rising sea levels. Not only does the retreat of their coastlines place them in danger of losing maritime territory; the concurrent possibility of their landmasses becoming either uninhabitable or completely submerged also threatens their very existence. According to one understanding of the law that governs the continuity and extinction of states, political communities that permanently lose 'effectiveness'-typically understood as sufficient governmental control of a relatively determinate territory with a permanent population-must lose their statehood as well. In this article, I provide three reconstructions of effectiveness, each of which rests upon a different normative rationale. My contention is that, regardless of which reconstruction one adopts, the continuity of submerged SIDS is eminently supportable, notwithstanding the arguments frequently made in favour of their formal extinction.
{"title":"Three Reconstructions of 'Effectiveness': Some Implications for State Continuity and Sea-level Rise.","authors":"Alex Green","doi":"10.1093/ojls/gqae003","DOIUrl":"https://doi.org/10.1093/ojls/gqae003","url":null,"abstract":"<p><p>Small Island Developing States (SIDS) are uniquely threatened by rising sea levels. Not only does the retreat of their coastlines place them in danger of losing maritime territory; the concurrent possibility of their landmasses becoming either uninhabitable or completely submerged also threatens their very existence. According to one understanding of the law that governs the continuity and extinction of states, political communities that permanently lose 'effectiveness'-typically understood as sufficient governmental control of a relatively determinate territory with a permanent population-must lose their statehood as well. In this article, I provide three reconstructions of effectiveness, each of which rests upon a different normative rationale. My contention is that, regardless of which reconstruction one adopts, the continuity of submerged SIDS is eminently supportable, notwithstanding the arguments frequently made in favour of their formal extinction.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 2","pages":"201-230"},"PeriodicalIF":1.2,"publicationDate":"2024-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11157290/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141296926","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society’s wealth distribution curve. It then highlights the contestable legality of certain pricing practices, such as ‘contingent charges’, and the challenge they pose to fundamental principles of contract law. An in-depth view of the 2015 case of Beavis v ParkingEye argues that the UK Supreme Court has validated contingent pricing models in a manner unsupported by traditional contractual reasoning and unjustified by contemporary market failure analysis. The article asks contract law to confront the reality that it shapes market distributions in economically and politically significant ways, and appeals for greater scrutiny of the contribution of contract law adjudication to inequality.
{"title":"Contract Law When the Poor Pay More","authors":"Joseph Spooner","doi":"10.1093/ojls/gqae002","DOIUrl":"https://doi.org/10.1093/ojls/gqae002","url":null,"abstract":"Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society’s wealth distribution curve. It then highlights the contestable legality of certain pricing practices, such as ‘contingent charges’, and the challenge they pose to fundamental principles of contract law. An in-depth view of the 2015 case of Beavis v ParkingEye argues that the UK Supreme Court has validated contingent pricing models in a manner unsupported by traditional contractual reasoning and unjustified by contemporary market failure analysis. The article asks contract law to confront the reality that it shapes market distributions in economically and politically significant ways, and appeals for greater scrutiny of the contribution of contract law adjudication to inequality.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"16 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139920109","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}
Realist theories of legislative intent can be divided between aggregative theories (on which legislative intent is what some proportion of legislators intend) and common intent theories (on which legislative intent is a unanimous intent among legislators). In this article, we advance and defend an alternative realist conception of legislative intent: the rational unity account. On this account, the legislature is an agent with a distinctive ‘rational point of view’—a concept we adopt from social ontology. The legislature’s rational point of view is shaped by its procedures and structures, in ways not determined by either a common intention held by legislators or an aggregation of the intentions of legislators. We explain how our view improves on existing accounts. We then apply it to three cases to demonstrate its implications for legal interpretation. Importantly, on the proposed account, legislative intent can depart from what individual legislators think or know.
{"title":"Legislative Intent and Agency: A Rational Unity Account","authors":"Stephanie Collins, David Tan","doi":"10.1093/ojls/gqae001","DOIUrl":"https://doi.org/10.1093/ojls/gqae001","url":null,"abstract":"Realist theories of legislative intent can be divided between aggregative theories (on which legislative intent is what some proportion of legislators intend) and common intent theories (on which legislative intent is a unanimous intent among legislators). In this article, we advance and defend an alternative realist conception of legislative intent: the rational unity account. On this account, the legislature is an agent with a distinctive ‘rational point of view’—a concept we adopt from social ontology. The legislature’s rational point of view is shaped by its procedures and structures, in ways not determined by either a common intention held by legislators or an aggregation of the intentions of legislators. We explain how our view improves on existing accounts. We then apply it to three cases to demonstrate its implications for legal interpretation. Importantly, on the proposed account, legislative intent can depart from what individual legislators think or know.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"92 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139755645","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}
I show that conceptual philosophical anarchism, the claim that law cannot give reasons for action, is entailed by several popular theories about law. Reductionists about practical authority believe that all supposedly legitimate practical authority reduces to forms of theoretical authority. They tend to embrace anarchism, but some readers might not be clear why. Trigger theorists about reason-giving believe that all reason-giving merely activates pre-existing conditional reasons. Natural lawyers hold that all legal reasons are sourced in the natural law, which entails that positive law cannot provide reasons for action. If you are attracted to any of these theories and still think that positive law creates new practical reasons, you might have to give up one or the other position. If anarchism is entailed by believing the normativity in law’s directives pre-dates the directive, only a few may be able to avoid it, Hans Kelsen, Mark Greenberg, and Joseph Raz being the most likely.
{"title":"You Might be an Anarchist if …","authors":"Kenneth M Ehrenberg","doi":"10.1093/ojls/gqad027","DOIUrl":"https://doi.org/10.1093/ojls/gqad027","url":null,"abstract":"I show that conceptual philosophical anarchism, the claim that law cannot give reasons for action, is entailed by several popular theories about law. Reductionists about practical authority believe that all supposedly legitimate practical authority reduces to forms of theoretical authority. They tend to embrace anarchism, but some readers might not be clear why. Trigger theorists about reason-giving believe that all reason-giving merely activates pre-existing conditional reasons. Natural lawyers hold that all legal reasons are sourced in the natural law, which entails that positive law cannot provide reasons for action. If you are attracted to any of these theories and still think that positive law creates new practical reasons, you might have to give up one or the other position. If anarchism is entailed by believing the normativity in law’s directives pre-dates the directive, only a few may be able to avoid it, Hans Kelsen, Mark Greenberg, and Joseph Raz being the most likely.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"19 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139465190","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}
Professor Watson’s The Making of the Modern Company traces the development of the modern corporate form back to the East India Company, disproving a common notion that company law originated solely with small, private companies. This review article argues three key implications of this excellent book. First, Watson focuses on the duality of the modern company—with state-provided and private features. This cuts through, and goes a long way to resolving, the ongoing historic debate as to the nature of the company. Second, the primary unit of study chosen—the modern company—reminds corporate lawyers of our role in studying this duality in a very crowded field. Third, despite eschewing ‘concession theories’ of company law (which hold that the company is merely a concession from the state), Watson demonstrates a role for the state in the modern company that is often overlooked.
{"title":"The Making of Corporate Legal Concession Theory","authors":"Jonathan Hardman","doi":"10.1093/ojls/gqad028","DOIUrl":"https://doi.org/10.1093/ojls/gqad028","url":null,"abstract":"\u0000 Professor Watson’s The Making of the Modern Company traces the development of the modern corporate form back to the East India Company, disproving a common notion that company law originated solely with small, private companies. This review article argues three key implications of this excellent book. First, Watson focuses on the duality of the modern company—with state-provided and private features. This cuts through, and goes a long way to resolving, the ongoing historic debate as to the nature of the company. Second, the primary unit of study chosen—the modern company—reminds corporate lawyers of our role in studying this duality in a very crowded field. Third, despite eschewing ‘concession theories’ of company law (which hold that the company is merely a concession from the state), Watson demonstrates a role for the state in the modern company that is often overlooked.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"1 8","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139439027","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}
Little attention has been paid to what the word ‘myth’ contributes to the concept of rape myths. Rape myths tend to be regarded as widely believed falsehoods that need to be debunked in order to address patriarchal injustices. This account draws upon a long-standing vernacular English association between myth and falsehood which originated in the Enlightenment. But it is not the only possible definition of myth. This article draws upon mythological studies across a range of disciplines to argue that rape myths should be considered authentically mythic; that is, rape ‘myths’ are culturally significant folk narratives about sexual wrongdoing. This reappraisal enables a shift in our understanding of what rape myths are, what they could be—and what we can do to reduce their pernicious influence on the criminal justice system. It also enables legal scholars to more generally reassess how the concept of ‘myth’ is used across our discipline(s).
{"title":"Are Rape Myths ‘Myths’?","authors":"David J Hayes","doi":"10.1093/ojls/gqad029","DOIUrl":"https://doi.org/10.1093/ojls/gqad029","url":null,"abstract":"Little attention has been paid to what the word ‘myth’ contributes to the concept of rape myths. Rape myths tend to be regarded as widely believed falsehoods that need to be debunked in order to address patriarchal injustices. This account draws upon a long-standing vernacular English association between myth and falsehood which originated in the Enlightenment. But it is not the only possible definition of myth. This article draws upon mythological studies across a range of disciplines to argue that rape myths should be considered authentically mythic; that is, rape ‘myths’ are culturally significant folk narratives about sexual wrongdoing. This reappraisal enables a shift in our understanding of what rape myths are, what they could be—and what we can do to reduce their pernicious influence on the criminal justice system. It also enables legal scholars to more generally reassess how the concept of ‘myth’ is used across our discipline(s).","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"105 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139376379","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}
According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.
{"title":"How Reasons Make Law","authors":"Angelo Ryu","doi":"10.1093/ojls/gqad026","DOIUrl":"https://doi.org/10.1093/ojls/gqad026","url":null,"abstract":"According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"69 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138686840","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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