Pub Date : 2020-05-03DOI: 10.1080/09615768.2020.1789442
Tonia Novitz
The rapidly increasing hire of labour through platforms or ‘apps’ has attracted considerable attention. Most current debates focus on whether those engaged in ‘gig economy’ work can be characterise...
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Pub Date : 2020-05-03DOI: 10.1080/09615768.2020.1784077
J. López, Alexandre de le Court
‘My boss is not an algorithm’. With that slogan, platform workers have denounced the invisibility of the employer in some production systems in the gig economy. The issue posed by that invisibility...
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Pub Date : 2020-05-03DOI: 10.1080/09615768.2020.1790820
Angela C. Davies
Since the gig economy began to form part of the public consciousness, many labour lawyers have been preoccupied with one central question: are people working in the gig economy employees, or more l...
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Pub Date : 2020-05-03DOI: 10.1080/09615768.2020.1789443
Vincenzo Pietrogiovanni
The production structure that companies of the so-called ‘platform capitalism’ adopt is based—in very essential terms—on the idea of resorting to the collaboration of an indefinite quantity of work...
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Pub Date : 2020-04-28DOI: 10.1080/09615768.2020.1789433
A. Forsyth
There has been quite rapid growth in the size of the gig or platform economy in Australia over the last five years. In 2016, it was estimated that around 0.5% of the workforce or just under 80,000 ...
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Pub Date : 2020-01-02DOI: 10.1080/09615768.2020.1759398
K. Ewing
On 24 September 2019, the United Kingdom Supreme Court held that an attempt by the then Conservative government to prorogue Parliament was unlawful.1 In doing so, the Court powerfully re-asserted t...
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Pub Date : 2020-01-02DOI: 10.1080/09615768.2020.1741150
Eva Steiner
The subject of codification of the so-called unwritten or common law is a subject of extreme importance, not only to the lawyer but to the layman. The science of jurisprudence is of interest only t...
所谓不成文法或普通法的编纂问题，不仅对律师，而且对外行来说，都是一个极其重要的问题。法学只有在……
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Pub Date : 2020-01-02DOI: 10.1080/09615768.2020.1741160
Liron Shmilovits
The Greek philosopher Parmenides believed that nothing ever changed. The appearance of change, he claimed, was an illusion. His disciple, Zeno, invented a famous paradox— wherein Achilles could not outrun a tortoise —to prove that motion and change were impossible. It is said that Diogenes the Cynic responded by standing up and walking about. Unsurprisingly, the no-change theory never gained a wide following. But it was not until the development of calculus, in the seventeenth century, that the flaw in Zeno’s paradox was understood. Achilles finally won the race. And yet, Parmenides is not completely without followers these days. It is ‘trite law’, to use a trite expression, that judicial decisions have retroactive effect. By the magic of the declaratory theory, a judicial decision embodies the law as it has always been, notwithstanding previous decisions to the contrary. No change is possible. For no judge has the ability to change the law—only to declare what it has been from time immemorial. Achilles cannot outrun the tortoise. This is the paradox of the common law. On the one hand, judges abjure the declaratory theory, asserting the right to change the law. On the other hand, they say that their latest pronouncement is the law unchanged. Take Lord Hoffmann’s word for it: ‘To say that [judges] never change the law is a fiction... But... a judicial decision changes the law retrospectively... ’ The law changes, but it has always been the same. As the French say: plus ça change, plus c’est la même chose. The more things change, the more
希腊哲学家巴门尼德相信一切都不会改变。他声称，变化的表象是一种幻觉。他的弟子芝诺发明了一个著名的悖论——阿喀琉斯跑不过乌龟——来证明运动和变化是不可能的。据说，犬儒派第欧根尼的反应是站起来四处走动。不出所料，不变理论从未获得广泛的追随。但直到17世纪微积分的发展，芝诺悖论的缺陷才被理解。阿喀琉斯最终赢得了比赛。然而，巴门尼德现在并非完全没有追随者。用一个老生常谈的说法来说，司法判决具有追溯效力，这是“陈腐的法律”。由于声明性理论的魔力，一项司法判决一如既往地体现了法律，尽管以前的判决与之相反。改变是不可能的。因为没有一个法官有能力改变法律——他只能宣布自古以来的法律。阿喀琉斯跑不过乌龟。这就是普通法的悖论。一方面，法官放弃声明说，主张修改法律的权利。另一方面，他们说他们的最新声明是法律不变。就拿霍夫曼勋爵的话来说:“说(法官)从不改变法律是一种虚构……但是…一项司法判决追溯地改变了法律。“法律会变，但一直都是一样的。正如法国人所说:加上改变，加上c 'est la même选择。事情变化得越多，就越多
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Pub Date : 2020-01-02DOI: 10.1080/09615768.2020.1747790
Stephen Daly
The lawful means conspiracy tort provides an actionable claim where two (or more) parties combine to engage in a lawful activity, but do so with the predominant purpose of harming the claimant, and...
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Pub Date : 2020-01-02DOI: 10.1080/09615768.2020.1771814
Alan L. Bogg, K. Ewing
This volume is dedicated to an examination of the judicial role in law –making, inspired in part by the current debate about the legitimacy of the judicial role. We begin what is a lively and eclectic collection of excellent papers with a piece by Eva Steiner which goes to the heart of the matter by examining how judicial law-making through the common law can be justified in a democracy, making a powerful case for better codification of the law in the civilian style. This is followed by Mike MacNair’s paper in which he contests the idea that the judicial role can be eliminated, but asks instead how it can be better contained. Engaging with a familiar debate on the Left about the judicial role, in a historically rich and vivid analysis, Mike Macnair argues ‘that the idea of wholly eliminating either trust in judges, or the use of judicial office for political purposes, is illusory. What is possible is to reduce trust in judges’. He then shows how this would be possible. This is followed in turn by Liron Shmilovits who reverts to analytical jurisprudence to address the late Barry Nicholas’ dilemma for the lawyer, that the law is ‘something which has its own life, which exists independently of [him or her] and is merely applied by [him or her], and yet [he or she] must on occasion in practice make law’. The solution in a sophisticated paper is to re-adopt the ‘declaratory theory’ of judicial decision-making as ‘a beneficial fiction that should be retained for reasons of principle, justice and pragmatism’. In the final three papers of the collection the focus tilts from the theoretical to a consideration of the judicial role in a number of different areas of law. Gillian Douglas and Stephen Gilmore explore the ‘legitimate bounds of the judicial development of family law in England and Wales’, and in particular ‘the legitimate scope of judicial power to offer general guideline judgments ‘controlling’ the exercise of discretion’. This is an important paper, which raises questions about the similar exercise of judicial power in other fields.
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