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Preview: Oxford Journal of Legal Studies - current issue

Oxford Journal of Legal Studies Current Issue

Published: Thu, 30 Nov 2017 00:00:00 GMT

Last Build Date: Fri, 08 Dec 2017 15:09:40 GMT


Comparative Administrative Law and Political Structure†

Thu, 30 Nov 2017 00:00:00 GMT

Comparative Administrative law is a difficult subject. It is necessary to steer a course between the assumption that all systems are singular, shaped by a plethora of distinctive features that are never replicated elsewhere; and the equally extreme assumption that differences are merely on the surface, such that if propositions are stated at a sufficiently abstract level, then there will be commonality between all systems. The ascription of cause and effect when considering the rationale for differences is equally challenging, and is the principal focus of this review article, which considers the strengths and weaknesses of a structural explanation for divergence in administrative law in different countries.

Should the Payee Pay?

Wed, 25 Oct 2017 00:00:00 GMT

Other things being equal, the recipient of a mistaken payment must pay the money back. I argue that no one has given a good explanation of this rule; in particular, I argue that justifications have failed to explain why the payee is the appropriate person to fix the payor’s problem.

The United Kingdom’s New Opt-Out Class Action

Sat, 07 Oct 2017 00:00:00 GMT

On 1 October 2015, a sea change in English civil procedure occurred, when the UK’s first opt-out class action regime took effect. Its drafting choices occurred against a backdrop of considerable comparative jurisprudence from Australia, Canada and the United States. For example, the regime’s flexible standing provisions avoid difficulties that have arisen in class action regimes in other jurisdictions, by enabling a class action to be brought either by a directly affected class member as representative or by a suitable representative who has no cause of action. On the other hand, the preliminary merits criteria which the class representative will need to prove are far-reaching and more onerous than those implemented elsewhere. In the first certification decision delivered under the regime—a moment of history created on 31 March 2017—the Competition Appeal Tribunal has made it plain that comparative insights will be highly relevant. This article analyses that milestone event, by examining this first decision in light of the drafting choices made under the UK regime, whilst also suggesting further ways in which comparative law may be helpful on key interpretive words and phraseology in cases to come.

Constitutional Directive Principles

Fri, 18 Aug 2017 00:00:00 GMT

This article is the first step toward developing a general and systematic account of constitutional directive principles. Directive principles are an increasingly common way of constitutionally entrenching social values and provide an alternative to conventional rights provisions that has yet to be adequately understood. They place binding but typically non-justiciable obligations on the state to promote social values, and they are designed to be given effect by means other than direct judicial enforcement—predominantly, by legislation. This innovative design inserts an element of political constitutionalism within legal constitutionalism. Understanding directive principles thus presents important challenges for the standard legal constitutionalist picture of social values constitutionalism, associated with judicially enforceable rights provisions. This article both defines these challenges and presents a new theoretical framework for analysing directive principles. In doing so, it challenges the adequacy of the dominant judicial rights-enforcement paradigm that continues to frame the analysis of social values constitutionalism.

Germline Genetic Modification and Identity: the Mitochondrial and Nuclear Genomes

Fri, 11 Aug 2017 00:00:00 GMT

In a legal ‘first’, the UK removed a prohibition against modifying embryos in human reproduction, to enable mitochondrial replacement techniques (MRTs), a move the Government distanced from ‘germline genetic modification’, which it aligned with modifying the nuclear genome. This paper (1) analyzes the uses and meanings of this term in UK/US legal and policy debates; and (2) evaluates related ethical concerns about identity. It shows that, with respect to identity, MRTs and nuclear genome editing techniques such as CRISPR/Cas-9 (now a policy topic), are not as different as has been supposed. While it does not follow that the two should be treated exactly alike, one of the central reasons offered for treating MRTs more permissively than nuclear genetic modification, and for not regarding MRTs as ‘germline genetic modification’, is thereby in doubt. Identity cannot, by itself, do the work thus far assigned to it, explicitly or otherwise, in law and policy.

Dignity and Human Rights: A Reconceptualisation

Thu, 03 Aug 2017 00:00:00 GMT

Human rights are often defined as entitlements that human beings possess just by virtue of their inherent dignity. This conceptual link between human rights and inherent dignity is as popular as it is unhelpful. It invites metaphysical disputes about what, exactly, endows human beings with inherent dignity, and distracts from the core function of human rights: placing constraints on powerful actors, especially states. In response to this difficulty, I reconceptualise the relationship between human rights and dignity in a way that maximally serves human rights’ purpose. I do so by distinguishing between ‘inherent dignity’ and ‘status dignity’, and by linking human rights to the latter, not the former. First, I argue that human rights articulate standards for respecting the status dignity of the subjects of sovereign authority, rather than the inherent dignity of human beings qua humans. Secondly, I suggest that not only individuals but also corporate agents possess status dignity. In particular, states that violate human rights lose their status dignity, thereby becoming liable to interference.

The Normative Jinx

Tue, 01 Aug 2017 00:00:00 GMT

In this article I present and defend the claim that law and morality cannot be considered to be valid simultaneously. This claim is the result of the combination of two theses, normative monism and legal/moral incompatibilism. The first thesis maintains that we can only make sense of norms if we consider them to be part of one normative system. The second thesis claims that law and morality cannot form part of one normative system. The result of the combination of both theses produces what I call the normative jinx: if we take law to be valid, then there is no moral point of view from which to assess the law; if we consider morality to be valid, there cannot possibly be valid law that could be the object of moral assessment.

Lord Eldon Redux: Information Asymmetry, Accountability and Fiduciary Loyalty

Thu, 06 Apr 2017 00:00:00 GMT

This article investigates the development of accountability and fiduciary loyalty as an institutional response to information asymmetries in agency relations, especially in firm-like settings. Lord Eldon articulated the crucial role of information asymmetries in opportunistic behaviour in the early 19th century, but its roots are much older. A 13th-century trend towards direct farming of English manors and the transformation of feudal accounting after the Domesday Book and early Exchequer period engendered profound developments. The manor emerged as (possibly the first) profit-maximising firm, complete with separation of ownership and control and a hierarchy of professional managers. This primordial firm relied on primordial fiduciary loyalty—an accountability regime backed by social norms that was tailored for addressing the acute information asymmetries in agency relations. Courts have gradually expanded this regime, which in due course enabled Equity to develop the modern duty of loyalty. These insights suggest implications for contemporary fiduciary loyalty.

Declaring Crimes

Fri, 31 Mar 2017 00:00:00 GMT

For centuries, Scots criminal law has been renowned for its flexibility and adaptability. One striking example of this characteristic is the so-called declaratory power: the power of Scotland’s highest criminal court to declare conduct punishable in the absence of statutory authority or direct precedent. This article considers the origins and early use of the declaratory power in light of some of the questions that occupied key thinkers in Enlightenment Scotland to show how, in contrast to its contemporary opprobrium, the power might once have appeared unobjectionable. It then considers some more recent examples of judicial law making in Scots criminal law and suggests that this nuanced historical understanding casts them in a potentially more favourable light. Beyond their relevance to Scots law, these observations resonate with more general debates about the requirements of legality, legal authority, the limits of judicial discretion and the relationship between laws and the community.