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Taking as a starting point the book by Grundmann, Micklitz and Renner, New Private Law Theory, the author briefly examines the methods practised today in the most important legal systems for studying private law. There is no unanimous consensus on the definition of “private law”, nor on its functions. The formalistic method prevails, using terms, concepts, dogmas stratified over time, with an apparently technical content. In reality, as the three authors demonstrate, and as has been preached in Italy for more than half a century, law is a social science and its function can only be fully understood by combining the formalistic method with economic, sociological and political analysis and considering its historical development.
Andras Gyorgy Kovács researched the effectiveness of competition sanctions from the perspective of an administrative judge. Undertakings in breach of competition law rules are most likely expected to be fined. His hypothesis, ,to be examined through the courts’ case law, is that the level of competition fines is significantly higher than that of criminal penalties. Nevertheless, it is not unusual for the very same undertaking to be reinvestigated by the competition authority for a second or even third time. It seems that the expected legal policy aim of fines in competition matters, i.e. the individual and general prevention of anticompetitive practices, cannot be achieved in all cases. His chapter aims at identifying the reasons thereof and presenting a number of conclusions, to be drawn from the Hungarian administrative courts’ jurisprudence, in respect of the effectiveness of the imposition of fines. He argues that judicial case law can resolve some of the efficiency problems, while others require modification of the legislation. As regards repeated infringements, evaluating this as an aggravating factor may be used in an effective and reassuring way when imposing a fine. He argues for laws which stipulate the imposition of fines proportionate to the infringing undertakings’ income and assets.
Chapter 2 is a detailed explanation of the theoretical methodology that the remainder of the monograph follows. It begins with an explanation of the main philosophical positions that are traditionally considered as relevant in situations of human–wildlife conflict, including anthropocentric, ecological and animal rights/welfare perspectives. Because the very nature of human–wildlife conflict is centred on differences in held values, these types of value-driven positions are not, by themselves, useful in responding to conflict, because of the alternate value positions that they alienate. The chapter then moves to an analysis of two theories – Martha Fineman’s Vulnerability Theory and Ecofeminism. The purpose of the chapter is to analyse the principles of both sets of theories and combine them to develop a new theory of environmental jurisprudence, which will be referred to as ‘Ecological-Vulnerability’. The chapter demonstrates that an ecofeminist approach to vulnerability theory (eco-vulnerability) not only explains the individual and institutional limitations in current methods of addressing human–wildlife conflict but can help to formulate principles that work to transform it.
In this chapter the authors discuss their empirical research strategies through which innovative questions relating to the impact of language and multilingualism on the production of jurisprudence by the ECJ can be examined. Focusing specifically on the significance of language for Advocates General (AGs) at the ECJ, the authors examine how semi-structured interviews and corpus linguistics analysis can shine a light on processes within the ECJ that are otherwise invisible: semi-structured interviews are uniquely suited to uncovering otherwise invisible factors that impact the institutional culture of the ECJ; and corpus linguistics analysis can help to investigate whether those invisible factors can in fact be ‘seen’ in the output of that institution – its jurisprudence. The chapter demonstrates step by step how this unique research design can help to develop original objects of inquiry that speak to broader research questions relating to the impact of language on EU law more generally. By focusing specifically on the ‘added value’ of this type of empirical research to the body of work on the ECJ, the authors show how such methods can be used in an interdisciplinary way to gain a nuanced and rich understanding of the many layers that come together to produce EU jurisprudence.
Depending upon how one defines the term ‘international commercial court’, the twenty-first century has witnessed a growth, particularly in the Middle East and Asia, of specialist courts which appear to have been established with the resolution of international commercial disputes in mind. This chapter considers the role these new courts are fulfilling in the field of international commercial dispute resolution, with a particular emphasis on the role and character of the judiciary and the development of jurisprudence, as well as broader issues relating to access to justice more generally. There also features a short case study in relation to the Qatar International Court and Dispute Resolution Centre.
This chapter considers the role of textbooks in constituting the field of medical jurisprudence or ‘law and medical ethics’. This inquiry helps us to understand the importance of Graeme Laurie’s work as the author of Law and Medical Ethics, a leading textbook in this field. The chapter begins by considering the relationship between scholarship and research in academic work in general terms. It then moves to a particular consideration of the nature of the field of medical jurisprudence, and how this arose out of deliberate assemblage by some early scholars in the emerging field of pre-existing legal materials and other academic resources. It focuses especially on the relationship between law and ethics, arguing against an understanding of ethics as a theoretical foundation for law and in favour of seeing principles as emerging through the practice of the common law. It concludes by discussing how textbooks give shape to this material, in the form of what Thomas Kuhn called a ‘paradigm’. In this way, they are essential tools of shaping and passing on the legacy of the field of ‘law and medical ethics’.
Critics have raised concerns that investment arbitration tribunals treat like cases differently – raising problems of consistency – and different cases the same – creating problems of correctness. Using network analyses of case citations, this chapter examines an observable selection of what a tribunal considers to be ‘relevant’ precedent. The author finds that tribunals are more concerned with consistency than correctness, with many tribunals citing precedents based on textually dissimilar treaties. However, this is contrary to what states consider the priority in ISDS reform debates – in which correctness is higher than consistency in the hierarchy of policy preferences. The chapter concludes that states can resolve that mismatch by hard-coding their policy preferences into institutional design. It is argued that, as part of the ISDS reform, states should make the ordering between correctness and consistency considerations explicit when reshaping adjudicatory authority in future ISDS institutions.
The issue of intra-church property disputes is one that is simultaneously quite old in American history and perhaps of greater relevance now than ever before. Given ever-increasing dissension within Christian church bodies over issues including homosexuality, women's ordination and racial justice, there are currently numerous church property disputes outstanding in the courts, and there are likely to be many more in the near future. From 1871 until 1979, the Supreme Court of the United States consistently took a deferential approach in property cases that involved church bodies with their own authorities and tribunals. When a dispute arose over church doctrine, polity or discipline and a hierarchical church reached its own decisions regarding proper ownership of the church's property, the Supreme Court determined that civil courts should defer to that church's internal decision-making process. The court first created this doctrine as a matter of ‘federal common law’ but in 1952 anchored it in the First Amendment's Free Exercise and Establishment clauses, applied to the states through the Fourteenth Amendment. During the mid-twentieth century, the Supreme Court consistently extended the deference standard against any state-level attempts to restrict or circumvent it. However, in the 1979 case of Jones v Wolf the court changed its standard significantly and adopted a ‘neutral principles’ approach, which weighs a church's internal documents and deliberations against property deeds, state property and trust statutes, and other sources, in an attempt to allow secular courts to rule on such cases while avoiding potential First Amendment concerns.
Carl Schmitt and AV Dicey are two of history's most influential constitutional theorists, and they offer two of history's most influential accounts of referendums. In most respects, their approaches to referendums are in direct opposition to each other. On Schmitt's view, the purpose of referendums is to acclaim executive actors. On Dicey's view, the role of referendums is to constrain them. Despite disagreeing about whether referendums should acclaim or constrain the executive, Schmitt and Dicey agree that an agenda-setting role for representatives in referendums is inevitable. This paper argues that, in the UK context, if Schmitt and Dicey are right about the necessary agenda-setting power of representatives in referendums, then the accounts of referendums they each offer must be two sides of the same coin. Given the dominance of the executive over the legislature in the UK and the uncodified nature of the constitution, referendums are processes that necessarily both acclaim and limit the executive.
British Islam and English Law presents a novel argument about the nature and place of groups in society. The encounter with Islam has led English law to tread a line between two theoretical models, liberal individualism and multiculturalism, competing for dominance over the law of organised religion. This philosophical rivalry has generated a set of seemingly intractable conflicts between individual and community, religion and state, nation and culture. This book resurrects the long-buried theory of classical pluralism to address and resolve these tensions. Applying this to five understudied institutions that give structure and form to British Islam – banks, charities, schools, elections, clans – it outlines and justifies the reforms that would optimise the relationship between law and religion. Unflinching and unorthodox, this book places law and theory in context, employs innovative methods such as nudge theory and applied history, and provides detailed answers to hard questions about British Islam.
H. L. A. Hart famously suggested to understand legal systems as consisting not only of primary rules (rules that require or forbid certain conduct) but also of secondary rules (rules that determine how rules are created, changed and abolished). This is enough for law within one system, but it cannot account for relations between different legal systems. For this purpose, the chapter introduces the concept of tertiary rules that determine a legal system’s relation with another legal system. The most fundamental such tertiary rule is the rule of external recognition – the rule with which a legal system recognizes a foreign law as law. But this is not the only tertiary rule – choice-of-law rules and certain other rules also count as tertiary rules. The chapter demonstrates the empirical and theoretical importance of the concept of tertiary rules and discusses other examples.
This first comprehensive account of the utilitarians' historical thought intellectually resituates their conceptions of philosophy and politics, at a time when the past acquired new significances as both a means and object of study. Drawing on published and unpublished writings - and set against the intellectual backdrops of Scottish philosophical history, German and French historicism, romanticism, positivism, and the rise of social science and scientific history - Callum Barrell recovers the depth with which Jeremy Bentham, James Mill, George Grote, and John Stuart Mill thought about history as a site of philosophy and politics. He argues that the utilitarians, contrary to their reputations as ahistorical and even antihistorical thinkers, developed complex frameworks in which to learn from and negotiate the past, inviting us to rethink the foundations of their ideas, as well as their place in - and relationship to - nineteenth-century philosophy and political thought.
Grotius lived through a time of great upheaval in Europe as well as in his country of birth, the Dutch Republic. The religious, political and constitutional convulsions that struck the Republic destroyed Grotius' career but also, in combination with fundamental changes in the intellectual outlook of early seventeenth-century Europe formed his views of God, nature, society, politics and law. This chapter introduces the extraordinary polymath Grotius was from the perspective of this background and offers a map to the five parts of this volume, and their respective chapters.
The Cambridge Companion to Grotius offers a comprehensive overview of Hugo Grotius (1583–1645) for students, teachers, and general readers, while its chapters also draw upon and contribute to recent specialised discussions of Grotius' oeuvre and its later reception. Contributors to this volume cover the width and breadth of Grotius' work and thought, ranging from his literary work, including his historical, theological and political writing, to his seminal legal interventions. While giving these various fields a separate treatment, the book also delves into the underlying conceptions and outlooks that formed Grotius' intellectual map of the world as he understood it, and as he wanted it to become, giving a new political and religious context to his forays into international and domestic law.
This chapter looks at how other ICTR actors influenced the way in which the archive was contested. It begins by returning to the themes set out at the end of Chapter 2 and explores how the legal actors of the court initially pursued an expansive approach to the trials in search of truth, justice and reconciliation. However, this approach to prosecutions changed over time as the tribunal began to focus simply on getting as many verdicts as possible, as quickly as possible. As such, the conception of justice underpinning the archive became far more restricted and more closely resembled a more traditional form of retributive justice. This, then, shows the fragmenting of the tribunal’s initial purpose. This chapter identifies three main factors behind this shift: the solidification of the legal rules that underpinned the trials; the relationship between the tribunal and other UN organs – and particularly the Security Council’s decision in early 2000s that the tribunal had to close down as quickly as possible; and the ICTR’s acquiescence to the RPF’s demands that the tribunal halt investigations into RPF crimes during the genocide.
Chapters 4 and 5 explore how various subject positions (or what Foucault describes as enunciative modalities) influenced how knowledge was produced within the archive, from which perspective records were constructed and, ultimately, what was to be archived. In Chapter 4, ‘Contesting the Archive’, I focus on the witnesses, who played a far more significant role in constructing the archive than scholars normally credit. Whilst this shows how legal actors constrained what witnesses could record within the archive, it also demonstrates how witnesses were able to contest these parameters both in terms of which crimes would be recorded, but also how the law was to account for violence. This contestation also destabilised many of the objects and subjects that the legal discourse tried to produce, such as what constituted a victim or perpetrator.
The Arches Court, the court of appeal of the Province of Canterbury in the Church of England, has existed for more than 700 years. Its evolution – driven by principle, politics and pragmatism – is a fascinating reflection of a key tribunal in the court system of the English Church, and the site of major historical and often contentious developments within the Church. Its appellate status has not changed; it still has jurisdiction over faculties and clergy discipline; its judge is still appointed by the archbishop; and its jurisprudence has contributed much to the development of English ecclesiastical law. However, over the centuries its jurisdiction has contracted; the courts to which appeals against its decisions lie have changed; its historical lawyers of civilian advocates and proctors have been replaced by common law barristers and solicitors; the title for its judge, Dean of Arches, has survived by accident; its procedure has been simplified; and its decisions have throughout its history been respected but today have the authority of binding precedents. The article takes the story up to 2018, when the Ecclesiastical Jurisdiction and Care of Churches Measure provided that a decision of the Arches and of the provincial Chancery Court of York is today to be followed as if it were a decision of the other court.
This chapter starts from the proposition that legal substance may be inherently connected to legal form. In particular, consideration is given to the claim that individualistic norms tend to be manifested in highly administrable rules while altruistic norms lend themselves to expression as standards in the legal system. An examination of specific standards in the international legal order that provide a regulatory space for altruism ensues. In doing so, the chapter builds on the insights offered in the previous chapters on substantive international law and reveals that there are certain common legal vehicles through which altruism is compelled or promoted by the law. In a context where the altruistic behaviour of individual states waxes and wanes, the chapter concludes by making a call for greater institutionalisation of altruism.
This concluding chapter reflects on the findings of the study and suggests what they mean for the future of altruism in international law. In particular, it assesses the threats to altruism in our world and proposes several developments that would help to safeguard the fragile promise of altruism in international law.