Oxford Journal of Legal Studies最新文献

This article addresses three fundamental questions about a key phenomenon in special jurisprudence, 'areas of law': (i) what is an area of law; (ii) what are the consequences of dividing law into distinct areas; and (iii) what constitutes the foundations of an area of law. It claims that (i) 'an area of law' is a set of legal norms that are intersubjectively recognised by the legal complex as a subset of legal norms in a given jurisdiction; (ii) the sub-division of law into multiple areas matters to the content and scope of legal doctrine, to law's perceived legitimacy and possibly to its effectiveness; and (iii) the search for the normative foundations of an area of law is typically an inquiry into its 'aims' or 'functions'. This article systematically articulates, explains and answers these three questions generally, ie in relation to areas of law as such.

Contract terms can be express or implied. But what does that mean? I argue that the distinction can be illuminated by reference to the philosophy of language. Express terms are best understood by reference to the truth-conditional content of the parties' agreement; implied terms are derived from express terms by a process of reasoning, albeit one aimed at establishing the parties' commitments.

UK constitutional law establishes priority rules governing the relations among legal sources. According to the implied repeal rule, a later statute is preferred to and repeals an earlier statute where the two cannot stand together. There is a vast literature testing the rule's application in future-facing scenarios: whether Parliament in enacting legislation is capable of legally binding its successors. This article instead adopts a backward-facing perspective, focusing on past enactments. I examine Parliament's legislative power to disrupt how implied repeal applies to earlier, inconsistent statutes. This sheds light on Parliament's capacity to shape the constitution's architecture-here, by rearranging priority relations among existing statutes. I juxtapose the technique against the doctrine of constitutional statutes, and also address the implications for the doctrine of parliamentary sovereignty. Nor is the technique simply of academic interest. A backward-facing reprioritising regime has already been established in the legislation governing UK withdrawal from the EU. Lastly, the argument may be generalised to encompass other legislatures that also enjoy powers to disrupt the implied repeal rule normally operating among past statutes.

A legal system's 'official story' is its shared account of the law's structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules-if either-is the law? We defend the legal relevance of the official story, on largely Hartian grounds. Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word.

In discussing whether legal systems are necessarily coercive, legal philosophers usually appeal to thought experiments involving angels or other morally driven beings who need no coercion to organise their social lives. Such appeals have invited criticism. Critics have not only challenged the relevance of such thought experiments to our understanding of legal systems; they have also argued that, contrary to the intuitions of most legal philosophers, the 'man on the Clapham Omnibus' would not hold that there is law in a society of angels because the view that law is necessarily coercive 'enjoys widespread support among laypersons'. This is obviously an empirical claim. Critics, however, never systematically polled the 'man on the Clapham Omnibus'. We boarded that bus. This article discusses findings from five empirical studies on the relationship between law and coercion.

Philosophical accounts of status understand it either pejoratively, as social rank, or laudatorily, as the dignity possessed by all in virtue of our shared humanity. Status is considered to be something either we all have or no one should have. This article aims to show that there is a third, neglected, sense of status. It refers to the moral rights and duties one holds in virtue of one's social position or role. Employees, refugees, doctors, teachers and judges all hold social roles in virtue of which they have distinctive obligations, rights, privileges, powers and the like. This article aims to do two things: first, to distinguish the role-based notion of status from ideas of social rank, and to identify the various ways in which it constitutes a distinct category of moral wrongdoing; and second, to show that status, thus understood, is justified on egalitarian grounds even though, unlike dignity, not everyone has it. The moral point of status, I argue, is to regulate asymmetrical relations in which one of the parties suffers from background vulnerabilities and dependencies. Status as a moral idea vests both parties with a complex set of rights and duties, whose aim is to restore moral equality between the parties.

This article examines the jurisprudential arguments elaborated in David Dyzenhaus's The Long Arc of Legality. In particular, it looks into the main claim of the book: that the fact of 'very unjust laws' is central to illuminating the idea of law's authority, the elaboration of which Dyzenhaus takes to be the purpose of legal theory. The article analyses Dyzenhaus's own normative proposal in this matter, which consists of a version of legal positivism committed to Lon Fuller's principles of the internal morality of law, with the corollary of a conception of the judicial role as bound to a duty to apply these internal principles of legality when exercising their main function. While I cast some doubts on the feasibility of constructing the judge's function that way, in the end I celebrate Dyzenhaus's attempt at refining legal positivism's identity, especially in light of the ongoing debate with contemporary anti-positivism.

Countries all over the world document their statutory law in official legal databases (OLD), but the extent to which these provide effective access to (statutory) law remains unexamined. Ideally, an OLD should be (i) provided online and free for all without requiring registration or payment, (ii) searchable with regard to statutes' titles, (iii) searchable with regard to the full texts of statutes, (iv) provided in a reusable text-based format and (v) comprehensive in its coverage of at least the laws currently in force. To highlight the nature of OLDs as consumer products, we borrow a term from business operations research and refer to a database fulfilling these basic criteria as a 'minimum viable' OLD. We survey 204 states and jurisdictions to assess how far their country-level OLDs adhere to the minimum viability standard. We find that only 48% of them do; 12% of states do not seem to offer any online OLD at all; and a further 40% of countries offer legal databases that lack at least one of the criteria listed above. The quality of legal access is associated with geographical distribution (with Europe faring the best), economic development and a population's overall Internet usage. The results suggest that comparative legal research faces considerable hurdles when dealing with the Global South; that metadata-enriched digitalisation of legal corpora still remains a desideratum for at least half the world; and that the inaccessibility of law may carry high costs for legal practitioners and the wider public.

This article explains and critiques the protection of love within judgments concerning relationships under the Human Rights Act 1998. Using theory of emotion to conduct doctrinal analysis of the protection of love within international human rights laws and under the Human Rights Act 1998, it reveals a shift in the conception of love underlying the domestic judicial application of huamn rights. Whereas previously the law was underpinned by values of duty and property, judgments concerning relationships now protect the capacity of individuals to choose how to live. However, the protection of this modern conception of love is limited by judicial deference, allowing the values underpinning the historical conception of love to continue to influence the law.