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":" ","pages":""},"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}
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":" ","pages":""},"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":"7 1","pages":"0"},"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":" ","pages":""},"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":"1 1","pages":""},"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":" ","pages":""},"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":" ","pages":""},"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}
In most Western jurisdictions, welfare law utilises means testing to determine whether individuals are eligible for welfare allowances, often using property ownership as one of the eligibility criteria. Crucially, the prevailing conception of property ownership is premised on the notion that property rights are applied equally to all owners in matters relating to the control and management of that property. When this assumption proves not to reflect reality, it can have devastating consequences for those most in need of the support ostensibly provided by welfare law. The present qualitative empirical study examines two cases in which such adverse consequences are felt: in the two largest minority communities in Israel—the Palestinians and the Ultraorthodox Jews (Charedi). The findings show that property ownership in these communities is realised hierarchically, along patriarchal lines, and that family members occupy and manage property in accordance with community customs and traditional norms, often far removed from state laws. Beyond theoretical debates or ethnographic observations, the discrepancies between the state’s ideas of ownership and those recognised by members of the Palestinian and Charedi communities in Israel often result in the denial of financial aid to those who need it most. This article will identify such differences in conception and will describe how they provide an additional explanation for the high levels of poverty in minority communities. Finally, it will examine two private law doctrines that can be used as inspiration to better interpret welfare law and make it more nuanced and culturally sensitive, especially when it encounters people in poverty and marginalised groups.
{"title":"Unbundling Property in Welfare","authors":"Yael Cohen-Rimer, Shai Stern","doi":"10.1093/ojls/gqad012","DOIUrl":"https://doi.org/10.1093/ojls/gqad012","url":null,"abstract":"\u0000 In most Western jurisdictions, welfare law utilises means testing to determine whether individuals are eligible for welfare allowances, often using property ownership as one of the eligibility criteria. Crucially, the prevailing conception of property ownership is premised on the notion that property rights are applied equally to all owners in matters relating to the control and management of that property. When this assumption proves not to reflect reality, it can have devastating consequences for those most in need of the support ostensibly provided by welfare law. The present qualitative empirical study examines two cases in which such adverse consequences are felt: in the two largest minority communities in Israel—the Palestinians and the Ultraorthodox Jews (Charedi). The findings show that property ownership in these communities is realised hierarchically, along patriarchal lines, and that family members occupy and manage property in accordance with community customs and traditional norms, often far removed from state laws. Beyond theoretical debates or ethnographic observations, the discrepancies between the state’s ideas of ownership and those recognised by members of the Palestinian and Charedi communities in Israel often result in the denial of financial aid to those who need it most. This article will identify such differences in conception and will describe how they provide an additional explanation for the high levels of poverty in minority communities. Finally, it will examine two private law doctrines that can be used as inspiration to better interpret welfare law and make it more nuanced and culturally sensitive, especially when it encounters people in poverty and marginalised groups.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45904525","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 : 2023-06-10eCollection Date: 2023-01-01DOI: 10.1093/ojls/gqad010
David Hamer, Thomas Crofts
Children who do not understand the serious wrongness of their actions lack criminal capacity and cannot be convicted. At common law, children under seven are deemed to lack criminal capacity, children over 14 possess full capacity and children between seven and 14 are rebuttably presumed to lack capacity; the prosecution must prove capacity beyond reasonable doubt. Australia has increased the minimum age of criminal responsibility (MACR) to 10 and is considering a further increase. England & Wales and Northern Ireland have raised the MACR to 10 but have abolished the rebuttable presumption: at age 10, all children are assigned full criminal capacity. This article agrees with international calls for the MACR to be raised but argues that it is more important that the rebuttable presumption should be retained and extended. Children's brains and decision-making capacities continue to develop throughout their teenage years at different rates. The rebuttable presumption provides individualised justice for children facing developmental difficulties. To wrongfully convict a child who lacks capacity will unjustly damage their life chances. Where a child does have capacity, a variety of evidence may be available to the prosecution to prove it. If the prosecution fails to discharge the burden, the child should be acquitted. The acquittal may be mistaken, but this error is far less harmful than a wrongful conviction.
{"title":"The Logic and Value of the Presumption of <i>Doli Incapax</i> (Failing That, an Incapacity Defence).","authors":"David Hamer, Thomas Crofts","doi":"10.1093/ojls/gqad010","DOIUrl":"https://doi.org/10.1093/ojls/gqad010","url":null,"abstract":"<p><p>Children who do not understand the serious wrongness of their actions lack criminal capacity and cannot be convicted. At common law, children under seven are deemed to lack criminal capacity, children over 14 possess full capacity and children between seven and 14 are rebuttably presumed to lack capacity; the prosecution must prove capacity beyond reasonable doubt. Australia has increased the minimum age of criminal responsibility (MACR) to 10 and is considering a further increase. England & Wales and Northern Ireland have raised the MACR to 10 but have abolished the rebuttable presumption: at age 10, all children are assigned full criminal capacity. This article agrees with international calls for the MACR to be raised but argues that it is more important that the rebuttable presumption should be retained and extended. Children's brains and decision-making capacities continue to develop throughout their teenage years at different rates. The rebuttable presumption provides individualised justice for children facing developmental difficulties. To wrongfully convict a child who lacks capacity will unjustly damage their life chances. Where a child does have capacity, a variety of evidence may be available to the prosecution to prove it. If the prosecution fails to discharge the burden, the child should be acquitted. The acquittal may be mistaken, but this error is far less harmful than a wrongful conviction.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"43 3","pages":"546-573"},"PeriodicalIF":1.2,"publicationDate":"2023-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10550278/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41162913","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 review article offers a critical analysis of Horst Eidenmüller and Gerhard Wagner’s Law by Algorithm by focusing on four major sets of issues that are covered in this important work: (i) separate legal personality for artificial intelligence (AI) systems; (ii) the exploitation and protection of consumers; (iii) liability; and (iv) online dispute resolution. On separate legal personality, it is shown that neither unbundled products nor difficulties in proving that the systems resulted in damage or losses necessarily justify giving legal personality to AI systems. On consumer protection, it is argued that exploitation of consumers can be regulated by consumer protection legislation provided that reforms are made to remove enforcement hurdles. On liability, the issues arising from product liability legislation and problems associated with proving causation are critically examined. On online dispute resolution, smart contracts and self-driving contracts are distinguished, and a distinction is drawn between AI-assisted and AI-substitutionary adjudication.
{"title":"Law by Algorithm","authors":"Ernest Lim","doi":"10.1093/ojls/gqad009","DOIUrl":"https://doi.org/10.1093/ojls/gqad009","url":null,"abstract":"\u0000 This review article offers a critical analysis of Horst Eidenmüller and Gerhard Wagner’s Law by Algorithm by focusing on four major sets of issues that are covered in this important work: (i) separate legal personality for artificial intelligence (AI) systems; (ii) the exploitation and protection of consumers; (iii) liability; and (iv) online dispute resolution. On separate legal personality, it is shown that neither unbundled products nor difficulties in proving that the systems resulted in damage or losses necessarily justify giving legal personality to AI systems. On consumer protection, it is argued that exploitation of consumers can be regulated by consumer protection legislation provided that reforms are made to remove enforcement hurdles. On liability, the issues arising from product liability legislation and problems associated with proving causation are critically examined. On online dispute resolution, smart contracts and self-driving contracts are distinguished, and a distinction is drawn between AI-assisted and AI-substitutionary adjudication.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44126511","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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