Abstract This article examines the epistemic bias of comparative law scholarship. Comparatists are unable or unwilling to recognise the religious dimensions in Western law as they see religion only in the context of non-Western law. This problem is typical of modern macro-comparative law, which fails to recount the influence of Christianity on Western law and legal culture. The article invites legal scholars to reach beyond the notions of ‘religious law’ and ‘secular law’ in terms of classifying the world’s legal systems. Firstly, the article explains how comparative law has a problematic relationship with religion; secondly, it shows that, despite Christianity having been deemed a thing of the past, its influence can and should also be charted in modern law. I argue for a need to rethink the manner in which Western law is depicted as a thoroughly secular law as opposed to the religious law of exoticised others.
{"title":"̀Comparative Law and Christianity—A Plank in the Eye?","authors":"Jaakko Husa","doi":"10.1093/ojls/gqad021","DOIUrl":"https://doi.org/10.1093/ojls/gqad021","url":null,"abstract":"Abstract This article examines the epistemic bias of comparative law scholarship. Comparatists are unable or unwilling to recognise the religious dimensions in Western law as they see religion only in the context of non-Western law. This problem is typical of modern macro-comparative law, which fails to recount the influence of Christianity on Western law and legal culture. The article invites legal scholars to reach beyond the notions of ‘religious law’ and ‘secular law’ in terms of classifying the world’s legal systems. Firstly, the article explains how comparative law has a problematic relationship with religion; secondly, it shows that, despite Christianity having been deemed a thing of the past, its influence can and should also be charted in modern law. I argue for a need to rethink the manner in which Western law is depicted as a thoroughly secular law as opposed to the religious law of exoticised others.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134973933","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 Some recent work in legal theory argues that legal questions boil down to moral questions. On this view, lawyers and judges are ultimately interested in the moral effect of things done by legal institutions. This view has been called the ‘new legal anti-positivism’. So far, it has not given a convincing account of precedent. That is, it has not explained how moral reasons can account for what judges do in practice when they follow past decisions. Any successful account must explain the central features of this practice: why lower courts follow higher courts, and not the other way around; the difference between ratio and obiter; and the situations in which judges distinguish or overrule past decisions. This article gives a non-positivist account that meets this challenge, by giving a prominent place to the moral importance of roles. The account avoids some problems faced by existing non-positivist accounts of precedent.
{"title":"Roles and the Moral Practice of Precedent","authors":"Nathan Van Wees","doi":"10.1093/ojls/gqad020","DOIUrl":"https://doi.org/10.1093/ojls/gqad020","url":null,"abstract":"Abstract Some recent work in legal theory argues that legal questions boil down to moral questions. On this view, lawyers and judges are ultimately interested in the moral effect of things done by legal institutions. This view has been called the ‘new legal anti-positivism’. So far, it has not given a convincing account of precedent. That is, it has not explained how moral reasons can account for what judges do in practice when they follow past decisions. Any successful account must explain the central features of this practice: why lower courts follow higher courts, and not the other way around; the difference between ratio and obiter; and the situations in which judges distinguish or overrule past decisions. This article gives a non-positivist account that meets this challenge, by giving a prominent place to the moral importance of roles. The account avoids some problems faced by existing non-positivist accounts of precedent.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135477834","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}
Judges occupy important roles in Rousseau’s constitutional theory. Placing the Social Contract alongside Rousseau’s lesser-known Letters Written from the Mountain and The Government of Poland, this article examines how Rousseau constructs judicial institutions and explores a problem he confronts. Although necessary for the republic to enjoy the rule of law, Rousseau worries that adjudicative bodies threaten the citizens’ freedom. This article describes Rousseau’s constitutional solution, which combines a conservative-yet-progressive legislative ethos, with pluralist institutionalism and judicial non-professionalism.
{"title":"Rousseau’s Republican Judges","authors":"S. Winter","doi":"10.1093/ojls/gqad017","DOIUrl":"https://doi.org/10.1093/ojls/gqad017","url":null,"abstract":"\u0000 Judges occupy important roles in Rousseau’s constitutional theory. Placing the Social Contract alongside Rousseau’s lesser-known Letters Written from the Mountain and The Government of Poland, this article examines how Rousseau constructs judicial institutions and explores a problem he confronts. Although necessary for the republic to enjoy the rule of law, Rousseau worries that adjudicative bodies threaten the citizens’ freedom. This article describes Rousseau’s constitutional solution, which combines a conservative-yet-progressive legislative ethos, with pluralist institutionalism and judicial non-professionalism.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44140742","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 : 2023-08-20eCollection Date: 2023-01-01DOI: 10.1093/ojls/gqad014
Andromachi Georgosouli
UK financial regulators are experimenting with the conversion of rulebook content into machine-readable and executable code. A major driver of these initiatives is the belief that the use of algorithms will eliminate the need for human interpretation as a deliberative process, and that this would be a welcome development because it will improve effectiveness while cutting time and costs for regulators and the industry alike. In this article, I set out to explain why human interpretation should be preserved and further harnessed if data-driven governance is to work at all. To support my thesis, I bring attention to the limited translatability of rulebook content into code, and to the difficulties for machines to engage with the full spectrum of tasks of analogical reasoning. I further contend that it would be desirable to preserve human interpretation on procedural grounds pertaining to the legitimacy of financial regulators. I conclude with recommendations about the future design of the financial rulebooks.
{"title":"Metarules, Judgment and the Algorithmic Future of Financial Regulation in the UK.","authors":"Andromachi Georgosouli","doi":"10.1093/ojls/gqad014","DOIUrl":"10.1093/ojls/gqad014","url":null,"abstract":"<p><p>UK financial regulators are experimenting with the conversion of rulebook content into machine-readable and executable code. A major driver of these initiatives is the belief that the use of algorithms will eliminate the need for human interpretation as a deliberative process, and that this would be a welcome development because it will improve effectiveness while cutting time and costs for regulators and the industry alike. In this article, I set out to explain why human interpretation should be preserved and further harnessed if data-driven governance is to work at all. To support my thesis, I bring attention to the limited translatability of rulebook content into code, and to the difficulties for machines to engage with the full spectrum of tasks of analogical reasoning. I further contend that it would be desirable to preserve human interpretation on procedural grounds pertaining to the legitimacy of financial regulators. I conclude with recommendations about the future design of the financial rulebooks.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10708903/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42970547","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}
This article defends the claim that the institutional source of a legal norm—be it the constitution, legislation or whatever—affects its nature and value. We argue that institutions are not merely vessels through which norms get public recognition. When different institutions use identically worded norms, say, ‘everyone is equally entitled to X’, they may nevertheless produce different norms and provide different goods. For instance, a constitutional protection of a basic right differs from a statutory right to the same right not (only) because the former is less likely to be changed, but (also) because a constitutional decision marks the right in question as one that makes no essential reference to the actual choice of the majority of the political community. We extend this argument to other institutional settings, especially the common law tradition of judge-made law.
{"title":"The Necessity of Institutional Pluralism","authors":"Avihay Dorfman, Alon Harel","doi":"10.1093/ojls/gqad018","DOIUrl":"https://doi.org/10.1093/ojls/gqad018","url":null,"abstract":"\u0000 This article defends the claim that the institutional source of a legal norm—be it the constitution, legislation or whatever—affects its nature and value. We argue that institutions are not merely vessels through which norms get public recognition. When different institutions use identically worded norms, say, ‘everyone is equally entitled to X’, they may nevertheless produce different norms and provide different goods. For instance, a constitutional protection of a basic right differs from a statutory right to the same right not (only) because the former is less likely to be changed, but (also) because a constitutional decision marks the right in question as one that makes no essential reference to the actual choice of the majority of the political community. We extend this argument to other institutional settings, especially the common law tradition of judge-made law.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44275205","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 Britain has a reputation for having a stock market-oriented corporate economy and there is an extensive literature maintaining that laws affording substantial protection to outside investors are needed for a thriving stock market. Historically, however, UK equity markets have not always flourished and, when they have, law’s contribution has been open to question. This article considers the uneasy match between law and Britain’s stock market development from when shares first began to trade publicly through to the present day, offering in so doing insights into the relationship between law and equity markets and current reforms intended to revive a flagging UK stock exchange.
{"title":"Law and Stock Market Development in the UK over Time: An Uneasy Match","authors":"Brian R Cheffins, Bobby V Reddy","doi":"10.1093/ojls/gqad019","DOIUrl":"https://doi.org/10.1093/ojls/gqad019","url":null,"abstract":"Abstract Britain has a reputation for having a stock market-oriented corporate economy and there is an extensive literature maintaining that laws affording substantial protection to outside investors are needed for a thriving stock market. Historically, however, UK equity markets have not always flourished and, when they have, law’s contribution has been open to question. This article considers the uneasy match between law and Britain’s stock market development from when shares first began to trade publicly through to the present day, offering in so doing insights into the relationship between law and equity markets and current reforms intended to revive a flagging UK stock exchange.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135396814","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 his long-awaited treatise on the relational theory of contracting, David Campbell provides a rigorous, systematic and consistently lucid account of mutual recognition as the basis of all volitional obligations. Fiercely negotiated economic transactions find their social expression in legally enforceable agreements that are to be followed scrupulously to the letter both by the parties and by the courts. This is because, in his view, mutual recognition, the co-operative economic enterprise, is memorialised in the legal instrument. Using the example of the emergent doctrine of good faith, this article argues that while such literalism proffers an admirably bright line for enforcement of agreements, it reduces the import and value of the relational theory of contract as an ethical and political accounting of market transactions. Literalism here is problematic not simply because of the inherent historicity and social diversity of language, but because in concepts such as good faith or reasonable interpretation, the purpose of the inscribed transaction has to be evaluated not only in terms of the plurality of the contract’s clauses, but also with a view to the overall shared intent of the exchange. For the relational theory of contract to have the impact that it merits, it needs to strengthen its account of how mutual recognition and the ethical and political dimensions of relationship best gain expression in the good-faith interpretation of the proximities manifest in agreement.
{"title":"Against the Spirit of the Age: The Rationale of Relational Contracts","authors":"P. Goodrich","doi":"10.1093/ojls/gqad016","DOIUrl":"https://doi.org/10.1093/ojls/gqad016","url":null,"abstract":"\u0000 In his long-awaited treatise on the relational theory of contracting, David Campbell provides a rigorous, systematic and consistently lucid account of mutual recognition as the basis of all volitional obligations. Fiercely negotiated economic transactions find their social expression in legally enforceable agreements that are to be followed scrupulously to the letter both by the parties and by the courts. This is because, in his view, mutual recognition, the co-operative economic enterprise, is memorialised in the legal instrument. Using the example of the emergent doctrine of good faith, this article argues that while such literalism proffers an admirably bright line for enforcement of agreements, it reduces the import and value of the relational theory of contract as an ethical and political accounting of market transactions. Literalism here is problematic not simply because of the inherent historicity and social diversity of language, but because in concepts such as good faith or reasonable interpretation, the purpose of the inscribed transaction has to be evaluated not only in terms of the plurality of the contract’s clauses, but also with a view to the overall shared intent of the exchange. For the relational theory of contract to have the impact that it merits, it needs to strengthen its account of how mutual recognition and the ethical and political dimensions of relationship best gain expression in the good-faith interpretation of the proximities manifest in agreement.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45150069","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 purpose of this article is to establish that contemporary private law theory has located no foolproof conception of interpersonal justice. I examine four accounts and find them wanting: the instrumentalist deterrence and loss-spreading approaches of economists; Kantian right and corrective justice; critical and social justice accounts; and the human flourishing approach. If my critiques are justified, this leaves us with the enigma of ‘interpersonal justice’. I consider three options going forward, rejecting the suggestion that we should abandon the search for a theoretical concept or be content with a modus vivendi. I sketch a third option, ‘emancipating interpersonal justice’, drawing from the resources of contractualist philosophy, to suggest that interpersonal justice is not a unitary concept or single regulative idea but a framework for determining what we owe each other in different spheres of interaction, and propose how this might illume certain questions of private law theory.
{"title":"The Enigma of Interpersonal Justice in Private Law Theory","authors":"Z. Tan","doi":"10.1093/ojls/gqad015","DOIUrl":"https://doi.org/10.1093/ojls/gqad015","url":null,"abstract":"\u0000 The purpose of this article is to establish that contemporary private law theory has located no foolproof conception of interpersonal justice. I examine four accounts and find them wanting: the instrumentalist deterrence and loss-spreading approaches of economists; Kantian right and corrective justice; critical and social justice accounts; and the human flourishing approach. If my critiques are justified, this leaves us with the enigma of ‘interpersonal justice’. I consider three options going forward, rejecting the suggestion that we should abandon the search for a theoretical concept or be content with a modus vivendi. I sketch a third option, ‘emancipating interpersonal justice’, drawing from the resources of contractualist philosophy, to suggest that interpersonal justice is not a unitary concept or single regulative idea but a framework for determining what we owe each other in different spheres of interaction, and propose how this might illume certain questions of private law theory.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42399350","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 explores the expressive dimension of procedural law, arguing that some procedural rules can be usefully understood as instruments of expression: they can express, or be employed to express, values, preferences and attitudes—independently of the economic incentives such rules create and regardless of the specific substantive law that governs the dispute. This is illustrated through two case studies that demonstrate how expressive considerations can underlie procedural rules, court decisions in relation to procedural matters and procedural choices that litigants make. The first is the requirement that litigants conduct civil proceedings in a diligent, honest and otherwise appropriate manner, which operates in part as an expressive norm, allowing courts to impose procedural sanctions as a way to condemn litigants’ behaviour. The second case study is the right to self-representation, which has been used by litigants in certain contexts as an act of protest against the legitimacy of the proceedings.
{"title":"Expressive Procedure","authors":"Rabeea Assy","doi":"10.1093/ojls/gqad013","DOIUrl":"https://doi.org/10.1093/ojls/gqad013","url":null,"abstract":"\u0000 This article explores the expressive dimension of procedural law, arguing that some procedural rules can be usefully understood as instruments of expression: they can express, or be employed to express, values, preferences and attitudes—independently of the economic incentives such rules create and regardless of the specific substantive law that governs the dispute. This is illustrated through two case studies that demonstrate how expressive considerations can underlie procedural rules, court decisions in relation to procedural matters and procedural choices that litigants make. The first is the requirement that litigants conduct civil proceedings in a diligent, honest and otherwise appropriate manner, which operates in part as an expressive norm, allowing courts to impose procedural sanctions as a way to condemn litigants’ behaviour. The second case study is the right to self-representation, which has been used by litigants in certain contexts as an act of protest against the legitimacy of the proceedings.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42839406","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}
Rights-based climate litigation has captured the global legal imagination in part because of its aspiration to achieve a certain function: catalysing political and policy processes into more ambitious climate action across the entire government apparatus. But many jurisdictions lack the legal opportunity structure that allows rights to perform this function. Instead, litigants might look to framework statutes as a way to trigger climate catalysis through litigation. Legal and mobilisation strategies drawing on both rights and framework statutes could prove an effective approach in future litigation.
{"title":"Catalytic Climate Litigation: Rights and Statutes","authors":"Sam Bookman","doi":"10.1093/ojls/gqad011","DOIUrl":"https://doi.org/10.1093/ojls/gqad011","url":null,"abstract":"\u0000 Rights-based climate litigation has captured the global legal imagination in part because of its aspiration to achieve a certain function: catalysing political and policy processes into more ambitious climate action across the entire government apparatus. But many jurisdictions lack the legal opportunity structure that allows rights to perform this function. Instead, litigants might look to framework statutes as a way to trigger climate catalysis through litigation. Legal and mobilisation strategies drawing on both rights and framework statutes could prove an effective approach in future litigation.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45262524","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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