Journals

Vandalizing Tainted Commemorations

Philosophy & Public Affairs - Wed, 2020-04-01 18:50
Philosophy & Public Affairs, EarlyView.
Categories: Journals

Durie v Gardiner: Public Libel Law and Stare Non Decisis

The Modern Law Review - Fri, 2020-03-27 09:19
Abstract

This note examines the controversial case of Durie v Gardiner, a recent decision of the Court of Appeal of New Zealand, which radically altered the nation's public libel jurisprudence. It argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie judgments failed to engage in freedom of expression theorising. Second, this undertheorising has caused significant confusion in Durie, including misinterpretation of material facts, breakdown of the ‘theory‐doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of Appeal's settled public libel principles. Third, owing to these difficulties, the Durie courts were in no position to import a new ‘public interest’ defence from foreign jurisdictions. Above all, by hastening towards wholesale law reform and ignoring its earlier comparative law deliberations, Durie arguably scuppers public libel law's best hope for advancement.

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The Managerial Ombudsman

The Modern Law Review - Fri, 2020-03-27 09:19
Abstract

This article identifies a major development in the role and practice of the ombudsman. It argues that the New Public Management practices that have transformed public administration in the last 30 years have led to a more managerial approach to the ombudsman's work. The article's argument is developed through analysis of an empirical case study of the Scottish Public Services Ombudsman, which illustrates how the aims and techniques of managerialism have been deployed in the ombudsman context. The article evaluates the significance of these developments for the ombudsman institution and for the wider justice system. It examines the risks and opportunities inherent in this turn to managerialism and whether it represents a departure from the ombudsman's mission or a necessary adaptation to a changed world of public administration. In identifying the rise of the ‘managerial ombudsman’, the article provides a new framework for conceptualising developments in the modern ombudsman institution.

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Where the Action Is: Macro and Micro Justice in Contract Law

The Modern Law Review - Fri, 2020-03-27 09:19
Abstract

In contemporary private law theory the relationship between ‘macro’ theories of distributive justice and the ‘micro’ site of interpersonal transactions remains under‐explored. In this paper, I draw on the ‘macro’ theory of justice articulated by John Rawls and offer an account of ‘micro contractual justice’ that helps us understand how the micro domains of contracting introduce particular relational constraints on the infusion of distributive considerations into contract law, resulting in constrained conception of ‘relational Rawlsianism’ operating in contractual domains. My framework provides a bridge between the macro and micro, helping us understand how they are in various senses separate yet interlocking, and also provides a ‘third way’ between all or nothing positions on the place of distributive justice in contract.

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The Evolution of EU Antitrust Policy: 1966–2017

The Modern Law Review - Fri, 2020-03-27 09:19
Abstract

This article describes, and puts in context, the evolution of the enforcement practice of the European Commission in the area of EU antitrust law (Articles 101 and 102 TFEU). It considers all formal decisions adopted in the period between 1966 – when the European Court of Justice delivered the two seminal rulings that marked the discipline – and the end of 2017. The article classifies Commission decisions in accordance with four enforcement paradigms. The descriptive statistics show that the cases that the Commission chooses to prioritise have changed over the years. First, enforcement has progressively moved towards the core and the outer boundaries of the system. Second, it has become policy‐driven rather than law‐driven. Third, the nature of the cases chosen by the Commission is consistent with its commitment to a ‘more economics‐based approach’ to enforcement. Finally, these cases signal a move towards a more ambitious stage in the process of the integration of Member States’ economies.

Categories: Journals

Soldiers as Public Officials: A Moral Justification for Combatant Immunity

Ratio Juris - Wed, 2020-03-25 08:14
Abstract

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny.

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Impunity and Hope

Ratio Juris - Wed, 2020-03-25 08:14
Abstract

Is there a duty to prosecute grave international crimes? Many have thought so, even if they recognize the obligation to be defeasible. However, the theoretical literature frequently leaves the grounds for such a duty inadequately specified, or unsystematically amalgamated, leaving it unclear which considerations should drive and shape processes of criminal accountability. Further, the circumstance leaves calls to end impunity vulnerable to skeptical worries concerning the risks and costs of punishing perpetrators. I argue that a qualified duty to prosecute can be substantiated on the basis of a single class of reasons, though also that standard justifications of international criminal law (as currently conceived) are not up to the task. The account exploits the expressive dimension of punishment, but locates the central good of criminal accountability in its capacity to appropriately enable an agential stance on the part of subjects in transitional circumstances. It can legitimate, in a way to be specified, hope. The approach also displays the cynicism of an anti‐impunity ethos in the absence of a robust commitment to securing basic human rights in transitional circumstances.

Categories: Journals

Human Dignity as a Sui Generis Principle

Ratio Juris - Wed, 2020-03-25 08:14
Abstract

This paper argues that human dignity is a sui generis status principle whose function lies in unifying our normative orders. More fully, human dignity denotes a basic status to be preserved in any institution or process; it is a principle demanding determination in different contexts; and it has its most characteristic application where the legal, moral, and political place competing obligations on individuals. The implication of this account is that we should not seek to reduce human dignity to either a legal norm or a legal principle.

Categories: Journals

What Is the Will Theory of Rights?

Ratio Juris - Wed, 2020-03-25 08:14
Abstract

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self‐described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman's and Arthur Ripstein's respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first place.

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Secret Law Revisited

Ratio Juris - Wed, 2020-03-25 08:14
Abstract

What follows is an attempt to do some conceptual housekeeping around the notion of secret law as provided by Christopher Kutz (2013). First I consider low‐salience (or merely obscure) law, suggesting that it fails to capture the legal and moral facts that are at stake in the case which Kutz used to motivate it. Then I outline a theoretical contrast between mere obscurity and secrecy, in contrast to the “neutral” account of secrecy provided by Sissela Bok (1989). The upshot of the two sections is that low‐salience law is neither secret law nor necessarily problematic, though it closely resembles a kind of law that is both secret and problematic, namely, those legal obscurities that subvert manifest interests related to the informational needs of citizens. The ensuing argument undermines the fiction of constructive presence found in Austin and Blackstone.

Categories: Journals

Ralf Dreier: In Memoriam

Ratio Juris - Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 529-530, December 2019.
Categories: Journals

Issue Information

Ratio Juris - Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 393-394, December 2019.
Categories: Journals

Issue Information

Ratio Juris - Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 531-532, December 2019.
Categories: Journals

Debating Sociological Jurisprudence: A Reply

Ratio Juris - Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 521-528, December 2019.
Categories: Journals

Thoughts on Sociological Jurisprudence: Juristic Thought and Social Inquiry (Roger Cotterrell)

Ratio Juris - Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 487-497, December 2019.
Categories: Journals

Durkheim in World Society: Roger Cotterrell’s Concept of Transnational Law

Ratio Juris - Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 498-508, December 2019.
Categories: Journals

How to Be a Transnational Jurist: Reflections on Cotterrell’s Sociological Jurisprudence

Ratio Juris - Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 509-520, December 2019.
Categories: Journals

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