Oxford Journal of Legal Studies - recent issues

Private Life and the English Judges

Buxton, R. — Mon, 24 Aug 2009 07:44:45 PDT

Developments in both Convention jurisprudence and the English courts since the passing of the Human Rights Act 1998 have significantly extended the reach of article 8 of the European Convention on Human Rights, and thus the powers of the judges who administer that broadly-defined provision. Those developments include confirmation that article 8 operates horizontally between private citizens as well as in public law; extension of article 8 to issues of personal autonomy as well as to more narrowly understood issues of privacy; increased emphasis on (judicially determined) proportionality and fair balance; and softening of the criteria for the engagement of article 8 in the first place. The English courts at the highest level have recognized that these developments require them to make decisions on issues of social or even moral priority, extending as far as critical scrutiny of criminal practice and sentencing. Recent cases in the House of Lords such as Countryside Alliance and R v G demonstrate a significant level of disagreement as to how those powers should be exercised, with the result that the outcome of future article 8 cases may depend on the judges’ personality and view of social priorities.

The Quest for Constitutionalism in UK Public Law Discourse

Murkens, J. E. K. — Mon, 24 Aug 2009 07:44:45 PDT

At first sight constitutionalism appears to be a key concept in public law discourse in the United Kingdom. It appears in all the major academic discussions from the rule of law and judicial review to the ‘new constitutional settlement’ and in relation to constitutional culture. And yet attempts to define the scope, meaning and role of constitutionalism remain vague. This article discusses the different fields in which constitutionalism is discussed and the different meanings that are attributed to the concept. It shows that constitutionalism is routinely conflated by public law scholars with other constitutional values and principles, like the rule of law or separation of powers. This article argues that constitutionalism should either be conceived as distinct from those concepts or, failing that, can safely be eliminated from public law discourse. The article concludes by asking whether a nuanced and normative discussion of constitutionalism could have any meaningful application in the United Kingdom constitution.

'Listing Concentrates the Mind': the English Civil Court as an Arena for Structured Negotiation

Roberts, S. — Mon, 24 Aug 2009 07:44:45 PDT

The dominant image of courts as agencies of trial and judgment has a long history in the common law world. Yet across that region sponsorship of settlement is now widely identified as the courts’ primary responsibility, transforming them into sites where the profoundly different rationalities that ground negotiated agreement increasingly supersede those of rule-based adjudication. This study examines the work of one English court—the Mayor's and City of London Court—in sponsoring settlement and considers how that role is legitimated on both propositional and symbolic levels. This evolving role raises questions about the Victorian court premises themselves. How are we to regard the now frequently empty courtrooms, designed for trial and judgment and decorated with Gothic elevations linking them symbolically with processes of medieval kingship? Should we simply see this Victorian site of contemporary settlement processes as no more than the quaint residue of a vanished era? Or can these historic features retain potency and relevance at a symbolic level, providing legitimacy for bilateral negotiation rather than the open processes of trial and judgment for which they were originally constructed?

Abstraction and the Rule of Law

Lucy, W. — Mon, 24 Aug 2009 07:44:45 PDT

This article tackles two issues: the nature of law's judgment and what, if anything, might be said in its favour. As to the first issue, the article reminds lawyers of the obvious, namely, that law's judgment is abstract, elucidating both what this entails and why it may be thought problematic. The main burden of the article is to consider what might be said in favour of law's abstract judgment. Only one family of arguments, part of a wider but still not all-encompassing class, are considered here: arguments from the rule of law ideal. Three different arguments from the rule of law are examined, the conclusion being that two of three cannot provide unproblematic and unambiguous support for law's abstract judgment.

Inducing Breach of Contract, Conversion and Contract as Property

Lee, P.-W. — Mon, 24 Aug 2009 07:44:45 PDT

This article seeks to understand contractual rights through an examination of the possible ‘property’ content in contracts in the context of the inducement tort and conversion. It argues that, contrary to popular perception, contracts and property are different shades of a similar phenomenon. Not being a reified ‘thing’ with stable features and structure, property is a relative rather than an absolute concept. To determine whether the holder of an intangible resource ought to be conferred with ‘property’ or exclusive control of access to such resource, one has to evaluate the relevant practical, legal and moral considerations. Applied to the context of inducing breach of contract and conversion, this analysis demonstrates that a contractual right is in fact a composite collection of distinct interests and each tort may be protective of one or more of such interests. Thus, liability is imposed for inducing breach of contract because tort law recognizes the promisee's exclusive right to the peremptory status of the promisor's promise. On the other hand, the wrongfulness of converting a contract lies in the usurpation of a contracting party's control, or the exclusive entitlement to decide whether and how to exercise her rights under the contract.

Global Error and Legal Truth

Bix, B. H. — Mon, 24 Aug 2009 07:44:45 PDT

One standard criterion for there being objectivity in an area of discourse is that there is conceptual space between what someone thinks to be the case and what actually is the case. That is, participants can be mistaken. This article explores one aspect of the objectivity debate as regards law: does it make sense to say that all legal officials or practitioners in a jurisdiction are mistaken (over a significant period of time) about some legal proposition? The possibility of legal error is important to discourse within and about the law. In contrast to the views of some American legal realists, it is important to deny that law is only what the officials declare it to be. However, as this article argues, claims of long-term global error in law are more problematic. The truth of legal propositions seems to be a complex function of official actions and the meaning of the terms used in authoritative legal texts. Because of the conventional nature of law, there are problems with claiming global error regarding propositions of (within) law, the existence of legal norms, and structural priorities among types of legal norms. At times, the law may in fact simply be what officials (collectively) say it is, over the long term. However, the article also notes areas where claims of long-term global error are more sustainable: where the law incorporates a term from another discourse, or where the law purports to interpret an authoritative text.

Taking Values Seriously: Towards a Philosophy of EU Law

Williams, A. T. — Mon, 24 Aug 2009 07:44:45 PDT

This article argues that the existing philosophy of EU law, such as it may be perceived, is flawed. Through a series of propositions it claims that EU law is infected by an underlying indeterminacy of ideal that has deeply affected the appreciation and realization of stated values. These values, the most fundamental of which appear in Article 6(1) of the Treaty of European Union, have been applied in a haphazard fashion and without an understanding of normative content. The European Court of Justice has instead adopted a largely pragmatic approach that has focused on principles or virtues of governance rather than attempting to offer a way of satisfactorily defining values or ensuring their realization. The underlying philosophy thus appears to be based on a theory of interpretation (of original political will) rather than a theory of justice. The recent decision in Kadi paradoxically offers not only confirmation of the argument presented but also a judicial appreciation that a new direction may be desirable, one inspired by a law based on the predominance of fundamental values with particular emphasis on respect for fundamental rights.

From Myth to Fiction: Why a Legalist-Constructivist Rescue of European Constitutional Ordering Fails

Kuo, M.-S. — Mon, 24 Aug 2009 07:44:45 PDT

The defeat of the Constitutional Treaty by French and Dutch voters in 2005 and the following stalemate of the Lisbon Treaty have sparked a soul-searching process for European constitutional scholarship. Among the numerous academic efforts devoted to contemplating the future of European constitution, Michelle Everson and Julia Eisner's The Making of a European Constitution: Judges and Law Beyond Constitutive Power deserves a close look. Everson and Eisner argue for a postconstituent view of European constitutionalization, which they call ‘Rechtsverfassungsrecht’. Departing from the myth of the constituent power, they interpret the development of a European constitution as a self-creating process by which the ordinary legal system gives itself a set of core values and thereby remakes itself into a constitutional order. Moreover, against the criticisms of juridification, they defend this lawyer-centred process of European constitutionalization as incorporating politics into the daily operation of the legal system. Engaging with Everson and Eisner's argumentation, I argue that their account of European constitutional development does not so much put out a realist theory of the EU constitutionalization as sets out a realist academic lawyering for the next round of European constitutional politics, which is shared among European constitutional scholars. Contrasting this community-based legal profession in Europe with the situation of epistemic pluralism in American jurisprudence, in this article I observe that a lawyer-centred European constitutional theory as Everson and Eisner's book illustrates is premised on an inherited consensus that has held a European legal profession together. However, this lawyer-centred account of European constitutionalization presumes either the projection of a professional community onto a Europe-wide civic culture or the self-appointment of legal professionals as the fiduciary of the citizenry. Each is a fiction, however. This fictional character of the legalist-constructivist strategy to European constitutional politics is the underlying cause of the dilemma facing European constitutional ordering.

Political Safeguards in Democracies at War

Issacharoff, S. — Thu, 04 Jun 2009 00:35:06 PDT

Wartime challenges democracies both from without and within. The need to marshal resources against a foreign enemy prompts the centralization of authority which, in turn, threatens to compromise domestic liberty. This article, originally delivered as the 2008 Hart Lecture, examines the ability of democracies to survive military threat with their core liberties intact. The focus is not on the more familiar liberty versus security trade-offs, but on the ways in which divided political authority in democracies serves as a check to both military misadventure and excessive internal suppression. The article begins with a historic account of how political accountability in democracy, from Athens forward, helps explain the relative military success that democracies have enjoyed. Furthermore, even where military emergency has forced emergency measures, the longer-term result tended to be an expansion of democratic accountability, as with the grant of the franchise to those who had served. The core argument is that the political accountability of executive authority, even in times of war, has had both military and political benefits. The article then turns to an examination of the modern war on terror. Here the historic advantages of democracy in terms of citizen involvement and common enterprise are least apparent. The final sections of the article question how well our inherited institutions will perform over long-term conditions of asymmetric warfare against non-state adversaries. The final conclusion is that the new frontier of war may place greater strains on judicial oversight of executive claims of exceptional authority precisely because the political safeguards of democracy, while still critical, may not be sufficient.

What is Unjust Enrichment?

Webb, C. — Thu, 04 Jun 2009 00:35:06 PDT

That there exists a law of restitution concerned with reversing unjust enrichments is widely considered to be uncontroversial. However, the once orthodox view that unjust enrichment explains all instances of restitutionary liability is fast becoming a minority position. Indeed, the ability of ‘unjust enrichment’ to account for all restitutionary claims has been doubted by many of those who fought most strongly for its recognition as an independent head or source of liability, chief amongst these Professor Peter Birks. Because of this, while there is widespread acceptance that unjust enrichment plays some role within the law of restitution, there is considerable uncertainty as to what this exact role is, so much so that what is meant by unjust enrichment can be seen to be in doubt. Beginning with an examination of Birks’ understanding of unjust enrichment and the classificatory scheme into which it slots, this article addresses the question of what role a conception of unjust enrichment can and should play in presenting and justifying the law of restitution.

Manifesting Trust

Harding, M. — Thu, 04 Jun 2009 00:35:06 PDT

Trust may be an important organizing idea when thinking about law. However, if trust is to be deployed usefully as an organizing idea when thinking about law, work must be done to understand what trust is, what it does and what effect it has. This article explores one aspect of interpersonal trust that may be relevant when thinking about law. The article considers how one person might manifest trust to another. In so doing, the article considers types of action that are ill- and well-suited to manifesting trust. It then considers why it might be important to manifest trust. Finally, the article suggests some lines of future inquiry by pointing to how the phenomenology of trust might be significant when assessing the sorts of claims about trust that lawyers typically make.

Searching for the Long-Lost Soul of Article 82EC

Akman, P. — Thu, 04 Jun 2009 00:35:06 PDT

This article has two interrelated purposes, one of historical and one of contemporary significance. It first seeks to challenge the common view in the literature that Article 82EC is a product of ordoliberalism. This is done by directly examining the travaux préparatoires of the competition rules of the EC Treaty to discover the intent of the drafters of Article 82EC. This inquiry is important for a modernized approach to Article 82EC since it must be determined whether Article 82EC can be applied with a ‘consumer welfare’ standard without a Treaty amendment. This is because, if the provision is ‘ordoliberal’, its objective cannot be the enhancement of ‘consumer welfare’. As its second and policy-driven purpose, this article suggests that the intent of the drafters of Article 82EC provides the EC Commission and the courts with the means to apply Article 82EC in a modernized manner with a ‘more economic approach’. The article shows that the drafters of Article 82EC were mainly concerned with increasing ‘efficiency’. Hence, adopting a welfarist objective would not imply a fundamental change in the goals of Article 82EC. On the contrary, including efficiencies in the assessment would be a late but welcome recognition since efficiency is already imbedded in the provision.

Collective Intentional Activities and the Law

Brigido, R. S. — Thu, 04 Jun 2009 00:35:06 PDT

We ascribe the performance of intentional actions to groups. We claim, for instance, that the orchestra is playing a symphony, that a gang has robbed a bank, and so on. But what is a collective intentional action? Most accounts suggest that, for there to be a collective intentional action, at least two necessary conditions should be met. First, participants must act in accordance with, and because of, the intentions that the group perform a certain action. Second, there must be common knowledge. These accounts, however, face two difficulties. On the one hand, they are uninformatively circular, for they employ in the analysis the very notion of group-action that they are trying to elucidate. On the other hand, they are too demanding, for there are cases of collective intentional action where neither of the conditions is met. The article proposes, by developing further an account put forward by Christopher Kutz, a model of collective intentional actions that overcomes these two problems. It also suggests why such a model is important for our understanding of the law.

Justifying Gain-Based Remedies for Invasions of Privacy

Witzleb, N. — Thu, 04 Jun 2009 00:35:06 PDT

In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 the House of Lords approved of protecting privacy interests through incrementally developing the existing action for breach of confidence. Lord Hoffmann suggested that this modified cause of action, instead of being based upon the duty of good faith, focuses upon the protection of human autonomy and dignity. This article explores how this change in underlying values affects the availability of gain-based remedies, where breach of confidence is relied upon against the wrongful publication of private information. An account of profits is generally available where a defendant profited from disclosing confidential information in breach of a pre-existing relationship of confidence. It can also be awarded for certain breaches of contractual non-disclosure agreements and to protect proprietary interests. This article argues that these existing rationales for an account of profits can, where they apply in a particular case, also support gain-based relief in a privacy context. The article then considers that the particular nature and vulnerability of privacy make it necessary to allow gain-based relief in circumstances beyond these established categories. In order to provide effective deterrence and protection against commercially motivated infringements, in particular by the media, gain-based remedies should also be available where the privacy invasion is deliberate and a particularly outrageous infringement of the claimant's rights.

Fair Trials and Procedural Tradition in Europe

Field, S. — Thu, 04 Jun 2009 00:35:06 PDT

This review discusses the thesis advanced by Sarah Summers in her recent book. In particular it examines the three radical claims that structure her argument. First, that the commonly used analytical distinction between adversarial and inquisitorial traditions in criminal procedure should be abandoned. Secondly, that since the Continental reforms of the 19th century, criminal procedure can best be understood in terms of a single European procedural tradition. Thirdly, that the European Court of Human Rights has misconstrued the logic of that single European procedural tradition by failing to understand that it involves the rejection of a ‘determinative’ pre-trial phase. Each of Summers’ three arguments is subjected to critical analysis and ultimately rejected as innovative and stimulating but flawed.

Law, Morality and the Egalitarian Philosophy of Government

Mullender, R. — Thu, 04 Jun 2009 00:35:06 PDT

Herbert Hart and the positivists influenced by him have, according to Nigel Simmonds, deflected attention from the question that has always been at the heart of philosophical reflection on law. This question concerns the relationship between law and morality and how we should understand it. Simmonds argues that law and morality are necessarily related and seeks to explain their relationship by reference to an archetype that actually existing legal institutions approximate more or less adequately. He identifies this archetype as providing the basis for an analysis of law that is free from metaphysics and universally applicable. This review article raises doubts concerning Simmonds’ claims to offer a metaphysics-free and universal analysis. It also offers an argument in support of the conclusion that he has failed to point up the complexity of the positivist tradition he criticizes. While Simmonds is vulnerable to these criticisms, he throws light on an egalitarian philosophy of government that informs legal institutions in the West and is relevant to positivist analyses of law.

Pre-verdict Judicial Fact-finding in Criminal Trials with Juries

Pattenden, R. — Thu, 05 Mar 2009 04:07:11 PST

In criminal trials with a jury, judges have many opportunities to engage in adjudicative fact-finding before the jury retires. English law has no conceptual framework for examining this judicial fact-finding which encompasses two categories of collateral fact (preliminary and underlying fact) and foreign law. A third category of collateral fact (conditional fact) is decided by the jury. The article examines the nature of judicial fact-finding and the history and rationale for this allocation of fact-finding responsibility between judge and jury.

Attempt: The Conduct Requirement

Clarkson, C. M.V. — Thu, 05 Mar 2009 04:07:11 PST

The law relating to the conduct requirement for criminal attempts is confused and incoherent. This article examines this incoherence, rejects the Law Commission's provisional proposals to split the crime of attempt into two separate inchoate offences and suggests a reformulation of the conduct requirement in attempts.

Assisting the Factually Innocent: The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission

Roberts, S., Weathered, L. — Thu, 05 Mar 2009 04:07:11 PST

The Criminal Cases Review Commission (CCRC) was the first publicly funded body created to investigate claims of wrongful conviction, with the power to refer cases to the Court of Appeal. In other countries, such as Australia, Canada and the United States, many regard the CCRC as the optimal solution to wrongful conviction and, for years, Innocence Projects in these countries have called for the establishment of a CCRC-style body in their own jurisdictions. However, it is now Innocence Projects which are being introduced in England and Wales to try to assist applicants who are innocent but convicted. This article reviews why the CCRC was created, discusses the role of factual innocence within this body and within the criminal justice system generally and explores why Innocence Projects are being created in England and Wales, despite the presence of the CCRC. It explains how these different organizations may work together to assist factually innocent people who have been wrongly convicted, and the role Innocence Projects may play generally in criminal justice reform and legal education.

Waldron, Waluchow and the Merits of Constitutionalism

Mildenberger, J. — Thu, 05 Mar 2009 04:07:11 PST

In this article, I critically evaluate the positions of Professors Jeremy Waldron and W.J. Waluchow on the right-based merits of entrenched constitutions and strong judicial review. I support Waluchow in arguing that (i) prohibitions on the constitutional entrenchment of rights and resultant prohibitions of strong judicial review may be only superficially fair or democratic, since fair procedure alone can neither eliminate pre-existing inequalities nor ultimately take the autonomy vital to self-governance seriously (whether individual or collective). Secondly, (ii) if deep dissensus fails to exist on all substantive matters of rights, the constitutional entrenchment of rights combined with strong judicial review can indeed be achieved fairly. I then propose that (iii) the anti-constitutionalist concern about being governed by the ‘dead hand of the past’ is self-refuting, for the alternative is simply another constraint on autonomy. While this is largely consistent with Waluchow's position vis-à-vis Waldron's majoritarianism, I end by expressing serious concerns regarding whether the common law (and the ‘constitutional morality’ that Waluchow claims can be derived from it) can act as a sufficiently robust basis for the protection of liberal and egalitarian rights.

Defending the Possibility of a Neutral Functional Theory of Law

Ehrenberg, K. M. — Thu, 05 Mar 2009 04:07:11 PST

I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis.

In Defence of the Anarchist

Chartier, G. — Thu, 05 Mar 2009 04:07:11 PST

Mark Murphy contends that, whatever the merits of any philosophical argument for anarchism, most people are obligated to obey the law. Murphy defends a moral argument designed to show that most people in reasonably just political communities are obligated to obey the law. And he advances epistemological arguments calculated to support two key claims. First, people who believe they are obligated to obey the law are entitled to retain their belief in the face of anarchist criticism. Second, a credible account of political obligation can accommodate the concerns that drive anarchist arguments in such a way that no anarchist argument against political obligation could, in principle, be successful. I argue that Murphy's moral argument yields relatively limited results, and that his epistemological arguments do not succeed in showing that anarchists could not convict folk-believers in political obligation of unreasonableness.

Power Politics and the Rule of Law: Shakespeare's First Historical Tetralogy and Law's 'Foundations'

Heinze, E. — Thu, 05 Mar 2009 04:07:11 PST

Legal scholars’ interest in Shakespeare has often focused on conventional legal rules and procedures, such as those of The Merchant of Venice or Measure for Measure. Those plays certainly reveal systemic injustice, but within stable, prosperous societies, which enjoy a generally well-functioning legal order. In contrast, Shakespeare's first historical tetralogy explores the conditions for the very possibility of a legal system, in terms not unlike those described by Hobbes a half-century later. The first tetralogy's deeply collapsed, quasi-anarchic society lacks any functioning legal regime. Its power politics are not, as in many of Shakespeare's other plays, merely latent, lurking beneath the patina of an otherwise functioning legal order. They pervade all of society. Dissenting from a long critical tradition, this article suggests that the figure of Henry VI does not merely represent antiquated medievalism or inept rule. Through Henry's constant recourse to legal process, arbitration and anti-militarism, the first tetralogy goes beyond questions about how to establish a functioning legal order. It examines the possibility, and meaning, of a just one.

Gardner on the Philosophy of Criminal Law

Husak, D. — Thu, 05 Mar 2009 04:07:11 PST

Offences and Defences is an outstanding collection of eleven of John Gardner's previously published papers in the philosophy of criminal law. I briefly examine his views on five central issues: his claims about basic responsibility and whether it should be construed as relational; his positions on agent neutrality; his arguments about whether moral and criminal wrongs are typically strict; his thoughts about the structure of defences, and, finally, what his account of rape reveals about the content of the harm principle.