This chapter points to a dilemma at the heart of the judicial role. How can courts robustly review legislation for compliance with rights without exceeding the limits of the judicial role? And how can they pay respect to the democratically elected branches of government without ceding their obligations to uphold rights? Presenting courts as a form of constitutional ‘quality control’, this chapter argues they solve this dilemma by engaging in calibrated constitutional review. This requires judges to carefully calibrate the grounds and intensity of review depending on a complex analysis of legal and institutional concerns.

Chapter 7 examines both second-person pronouns and nominal terms of address (vocatives). In Middle English, the original singular and plural second-person pronouns came to distinguish differences between interlocutors, with the singular thou denoting lesser status/age power or increased solidarity, intimacy, or informality and the plural you denoting higher status/age/power or greater emotional distance or formality. In Early Modern English, the use of the pronouns for affective purposes was common, showing “retractability”. Loss of thou for various sociolinguistic reasons was complete by 1700, leaving English without an honorific form or a number distinction in the second person. Vocatives underwent less systematic change, but moved in the same general direction. The elaborate vocatives of Early Modern English, which delineated a person’s rank and status, were replaced by a more diffuse collection of vocatives, with preference increasingly given to first names, family names, “familiarizers,” and endearments, all of which served to increase rapport and create a sense of equality. They form part of the phenomenon of “camaraderie politeness” dominant in Present-day English.

Chapter 3 shows how we can intend language as a social tool. The first part focuses on language and interaction; the second part on how we outsource our knowledge benefiting from others’ knowledge. First, I show that the traditional separations between phonetics, phonology, syntax, and semantics and between production and comprehension do not hold. Rather, language is profoundly interactive. Then I overview innovative approaches that investigate real-time linguistic interactions, illustrating new methods, such as hyperscanning. In the second part , I contend that language is also a social tool because it allows us to strengthen our knowledge by relying on others. I introduce the notion of "community of knowledge," show that we outsource part of our knowledge, and illustrate how children develop the ability to defer toward experts in acquiring and mastering linguistic meaning. Finally, I discuss the possible theoretical consequences of outsourcing knowledge.

The Convention contains an inherent tension between, the one hand, the aim to provide effective protection of Convention rights and, on the other hand, the need for the ECtHR to allow sufficient freedom to the States and respect their special abilities and powers to make choices and decisions, also in light of the inherent indeterminacy of the Convention provisions. It is against this backdrop that the Court has developed its famous yet complex margin of appreciation doctrine, on which this chapter is focused. Insight is given into the development of this doctrine in the Court’s case law, its main rationale and functions, and the types of cases where the doctrine is (and is not) applied. In addition, the main factors determining the scope of the margin and their interaction are explained (common ground facter, better placed factor, nature and intensity of the interference). Finally, some attention is paid to the difference between doctrine and reality in the Court’s case law.

This chapter focuses on grammatical resources for enacting social relations – mood. A basic distinction is drawn between the systems of formal mood and addressee deference on the one hand and the systems of informal mood, stance and politeness on the other. Subsequently the systems of polarity, modality, participant deference, highlight, comment and expletion are outlined. For each system the relevant choices for meaning are consolidated in system networks and their realisation in structure at clause, group/phrase and word ranks is specified.

This chapter introduces and discusses the approach of each body to deference and subsidiarity, and assesses how the differences may affect convergence and fragmentation. From the margin of appreciation (MoA), typical of the European Court, to the conventionality control (CC) of the Inter-American Court, the chapter investigates all the different shades of subsidiarity and deference and put them in a comparative perspective. Moreover, through specific examples, this chapter shows how different approaches may trigger fragmentation (such as in the headscarf cases) and how convergence on the level of deference and subsidiarity may, on the contrary, foster convergence (such as in defamation cases).

The idea of determinatio – first identified and analysed in natural law theory – is crucial for understanding international human rights adjudication. Human rights, as they appear formulated in international human rights treatises and declarations, require specification, implementation, concretisation, i.e., determinatio, at the domestic level. I argue that there are good reasons for this to be so. One such reason is that determinatio allows for the application of a norm to be sensitive to the particular circumstances in which it takes place. Determinatio entails deference in human rights adjudication, the latter being the legal consequence of the reasonable space for discretion granted to states which is entailed by determiatio in international human rights law. Close attention to determinatio allows us to see well-known doctrines of deference (such as the doctrine of the margin of appreciation, of regional consensus and of incrementalism) in a different light—not as concessions to state sovereignty, but as grounded on reasons internal to the legal practice of human rights law, of which determinatio is an integral part.

Finally, the checks and balances of sovereign debt restructuring by investment tribunals are also implemented as a matter of the interpretation of the substantive provisions. Given that investment arbitral jurisprudence has incorporated the doctrine of margin of appreciation, the study has concluded that a deferential review of policy decision-making by debtor sovereigns is available and appropriate for arbitral tribunals. Concretely, the arbitral jurisprudence on the provisions providing standards of protection and defence on merits may afford a balancing exercise that enables safeguarding the legitimate policy of debt restructuring without sacrificing bondholder protection.

dated conception of international law that refuses to die lies at the heart of today’s global refugee crisis. It posits states as sovereignly impervious and self-contained units and as the only apposite actors on the world stage. Efforts to incentivize countries generally to welcome more people seeking refuge and specifically to adopt fair standards of entry crash against this still entrenched outlook. Activists and practitioners must simultaneously debunk the prevailing standpoint and, against all odds, construct an alternative. The latter desperately needs definition and elaboration. As a whole, it must re-imagine the planet as inclusive of the traditionally excluded: such as nongovernmental organizations; non-organized groups; societal communities; persons of all races, ethnicities, genders, and religions; animals; plants; minerals; and so forth. As a most elemental part of this narrative, self-determining and solely partially sovereign nations may neither do as they please within or at their borders nor expect to be left alone in so doing. Instead, they must honor their responsibilities to a wide array of private and public parties, both at home and abroad, while acting autonomously and resisting heteronomy or domination.

Chapter 14 covers the provision on dispute settlement and consultations in the Agreement on Safeguards. This provision follows the general dispute settlement rules and procedures contained in the WTO Dispute Settlement Understanding and Articles XXII and XXIII of the GATT 1994. It is technically the legal basis for the handling of disputes on the application of the Agreement on Safeguards. Chapter 14 explains how the dispute settlement process operates at its different stages and the usual issues that arise in the conduct of safeguard disputes. The chapter also provides statistics on the performance of the WTO dispute settlement mechanism in respect of safeguard investigations and safeguard measures. It provides practical considerations derived from the experience of the author as an active litigant in dispute settlement proceedings.

This chapter explores what it means for cleaners to enter the upperworld. It discusses how cleaners approach the upperworld, and interact with upperworlders. Forays into the upperworld constitute both blessing and curse. Through access, cleaners may gain insight, and stories, and the upperworld’s exclusivity may rub off onto cleaners. More often than not, however, the opposite is true. The more exposure cleaners get to the upperworld, the more they come face-to-face with an inflexible status hierarchy that poses a serious ongoing threat to their dignity. The issue is not just stigmatization and abuse by customers, but denial of the cleaners’ personhood. Cleaners are not passive victims, though. They frame their situation and debunk their environment in ways that provide them with a defensive superiority. To varying degrees, they confront upperworlders, sometimes just by making themselves seen and heard. As to escape from the indignities in the upperworld, cleaners also turn to the invisible underworld. Call it the Potsdamer Platz paradox: encounters between those who work and live in the upperworld and those who labor there out of sight tend to drive the worlds further apart.

In the eighteenth century, the Massachusetts House criminalized speech, and the general sessions courts prosecuted it, for being impolite as well as ungodly. Politeness became a core element of social order and elite white masculine identity. This study identified more than 1,600 criminal speech prosecutions in the records of justices and courts. These include any document that specified verbal threats or abuse; profane cursing or swearing; verbal noise; lying; false reports; defamatory speech; or perjury. Criminal procedure was simple and discretionary, and required widespread community participation in order to effectively prosecute impolite speech. Such prosecutions helped to define elite identity and status around matrices of sensibility, civility, and credibility. Sensibility was a moral and genteel quality not manifested by those prosecuted for noisy or abusive speech. Civility connoted pleasurable sociability that was undermined by contempt, cursing, and defamation. Credibility was the gentlemanly reputation for truthfulness, destroyed by lying, perjury, false news, and mumpers (pretended gentlemen). The Revolution replaced this regime with one based on respectability.

This chapter presents the story of how proportionality became a core concept in English public law. This is a story of continuity and change. It is only since its connection to European law during the 1980s that proportionality acquired conceptual autonomy and was distinguished from the common law concept of reasonableness. While its application in domestic judicial review was rejected during the 1990s, the promoters of proportionality sought continuity between the common law and European human rights standards, among them proportionality. Since the incorporation of the convention in the domestic sphere, proportionality applies as a different head of review from irrationality. As a prong-structured test, it is very akin to the global proportionality model and it involves a significant extension of judicial powers. Still, the doctrine of deference ensures that the role of courts remains different from the one ascribed to the primary decision-makers.

This chapter deconstructs the main argument of orthodox doctrinal scholarship on regulatory expropriation. It argues that the strong impetus of orthodox scholarship to solve problems leads both those favouring strong investor protection and those arguing for a wide state freedom to regulate to see the problem in virtually the same terms and to develop the same solution. The problem identified is that neither of the two extremes is sustainable; the solution is that a balance has to be struck. Yet such a view is ideological, not legal, because it cannot contemplate and must deny a priori the possibility that IIA expropriation clauses are skewed in one direction or that the law does not provide for a balanced, proportional solution. Doctrinal scholarship, however, must analyse the law as it is, not as we may wish it to be.

At first glance, administrative law in Canada, where courts regularly defer to administrative decision-makers’ interpretations of law and judicial review of administrative action is organised around the concept of reasonableness, is very different to administrative law in England, where courts do not defer to administrative interpretations of law and prefer to conceive of the justification for judicial oversight of administrative action in terms of grounds of review and jurisdictional error. One might think, based on this first glance, that the differences must be attributable to deep-seated disagreement about the nature of judicial power and the appropriate allocation of interpretive authority between the branches of government. One might even suspect that such disagreement must rest on long-settled historical foundations. I will argue, however, that the difference between Canadian and English administrative law is best explained by relatively recent accidents of history. Indeed, I will suggest, a prolonged period of divergence may be coming to an end, with the Transatlantic rise of reasonableness review ushering in a new era of convergence. I will develop this argument by tracing the pattern of divergence and convergence in Canadian and English administrative law from the 1970s to the present day. From the common starting point identified in Part I, the two jurisdictions diverged dramatically between the 1970s and 2000s, as I will explain in Part II. Since then, the administrative law of the two jurisdiction has converged to some extent, as outlined in Part III. One of the implications of my argument is, as I discuss in Part IV, is that further convergence in the future is possible. Moreover, a corollary of this argument is that there is room for fruitful comparisons of English and Canadian administrative law. My message, to those who fear – for whatever reason – that “there be dragons”, is that they can safely venture forward in an Anglo-Canadian comparative administrative law endeavour. A reader interested in undertaking comparative analysis might well conclude that the nature of judicial power, the appropriate allocation of interpretive authority and long-settled historical foundations are substantially similar in both jurisdictions.

Investment treaties grant foreign investors certain protections, which they can invoke before international arbitral tribunals. Those treaties do not apply to local investors. This different treatment raises constitutional objections based on the principle of equality. Courts in various jurisdictions have had to deal with this challenge when ruling on the constitutionality of investment treaties. The different treatment that derives from the current investment regime is sometimes defended on the instrumental ground that it helps attract external capital, which is beneficial for the economy of the host state. Another theory, in contrast, argues that investment treaties are necessary to counteract the potential vulnerability of foreigners. The chapter develops an equality-based theory that constitutional courts could use in their decisions, and explores the doctrinal legal consequences that should follow from it.