Oxford Journal of Legal Studies - recent issues

Political Safeguards in Democracies at War

Issacharoff, S. — 2009-06-04

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. — 2009-06-04

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. — 2009-06-04

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. — 2009-06-04

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. — 2009-06-04

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. — 2009-06-04

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. — 2009-06-04

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. — 2009-06-04

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. — 2009-03-05

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. — 2009-03-05

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. — 2009-03-05

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. — 2009-03-05

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. — 2009-03-05

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. — 2009-03-05

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. — 2009-03-05

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. — 2009-03-05

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.

Ignorance and Unjust Enrichment: The Problem of Title

Swadling, W. — 2008-12-06

There is an ongoing debate within the law of unjust enrichment whether the victim of a pickpocket has, in addition to a claim in tort against the thief, one in unjust enrichment. Those who argue that he does say that it follows a fortiori from the availability of claims in unjust enrichment for mistake. If the law gives a claim where the transferor's consent to the transfer was merely vitiated, as it does in cases of mistake, so too should it do so where he was ignorant, giving no consent whatever to the ‘transfer’. This idea is used by the protagonists of ignorance as the basis of an explanation of a number of controversial cases, especially Lipkin Gorman v Karpnale and Foskett v McKeown, as belonging within unjust enrichment. This article questions whether the argument is correct. Differently to the case of a mistaken transfer, where the claimant's title passes to the defendant, the pickpocket victim's title stays put. That would seem to be fatal to any unjust enrichment analysis, for an essential element of such a claim, an enrichment at the claimant's expense, now appears to be missing. The question then is whether that objection can be overcome. Various strategies have been proposed, that the law looks to ‘factual’ rather than ‘technical’ enrichments, that title can be electively transferred by the victim to the thief and that title can simply be renounced. None of these strategies work, however, with the consequence that any claim by a victim against his thief can only be in tort, not unjust enrichment.

The Common Frame of Reference for European Private Law--Policy Choices and Codification Problems

2008-12-06

At the beginning of the year, the Draft Common Frame of Reference (DCFR) was published. The text is the result of the work of a broad range of private law scholars from the Member States of the European Union, and it presents itself as an ‘academic’ document, committed to the precepts of scholarship rather than politics. Notwithstanding its unwieldy name, the text is nothing less than the draft of the central components of a European Civil Code. The following article aims to inform the reader about this potentially important document and to initiate further academic debate about it. Following an overview of the genesis and content of the DCFR (Part 1), the discussion focuses on whether, and to what extent, it is based upon consistent and convincing core aims and values (Part 2). The article then proceeds to address, more specifically, the significance of private autonomy, and it examines the extent to which the proposed rules satisfy the requirements of legal certainty and legal clarity (Part 3). Thereafter, the DCFR is measured against the criteria of internal consistency and systematic integrity (Part 4). Also (Part 5) the question is asked whether the Draft critically reflects and convincingly integrates the sources on which it is based (that is the Lando Commission's Principles of European Contract Law and the Acquis Principles, as well as the private law traditions of the Member States). Also deserving of attention is the inclusion of more than 120 definitions of central concepts of private law, which are not to be found in this form or level of detail in either the Lando Principles or the national private laws (Part 6).

Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution

Lakin, S. — 2008-12-06

This article explores the idea of Parliamentary sovereignty in British constitutional theory. Two general explanations for this idea are considered: firstly, that the existence of a sovereign entity is a conceptually necessary precondition for the existence of a state or constitution; secondly, that Parliament is sovereign, if it is, in virtue of a rule of recognition whose existence and content may be empirically determined. The former account, it is suggested, looms large in orthodox British constitutional theory but cannot be sustained. Herbert Hart's version of the latter account is examined by reference to the decision in Jackson v Attorney General but is also found wanting. Given the inadequacy of these accounts, it is contended that the idea of Parliamentary sovereignty is misconceived. Building on insights in the work of Hart and Dworkin, it is argued that the British constitution instead rests on the ideal of government under law or the principle of legality. The putative value of legality, it is contended, will shape or control the many different principles that condition the exercise of official power.

Gender, Nation and the Common Law Constitution

Robinson, T. — 2008-12-06

This article argues that the common law constitution can be thought of as the working out of a tradition within which notions of gender, national identity and citizenship are conveyed and secured. It looks at the making and interpretation of Commonwealth Caribbean Constitutions in the latter half of the twentieth century. It shows how the language of the common law constitution was employed to bolster the competence of West Indian male nationalists to govern and to legitimize measured progress for women. The article also explores the fundamental role played by common law constitutionalism in the conceptualization of Caribbean constitutions as evolutionary and the veneration of ordinary existing laws as an expression of valuable norms about gender relations. Narratives of continuity as well as discontinuity are identified with the Caribbean common law constitution. As judicial decisions on gender equality become more liberal, problematic earlier decisions are categorized as ‘badly decided’, signifying a clean break from the past and the abandonment of harmful practices. This article claims that these narratives of discontinuity are associated with the conventional faith in the common law's capacity for change and that they substantially conceal the force and persistence of gender asymmetries in Caribbean societies and the ideologies that have enabled and sustained them.

Guarding the Fiduciary's Conscience--A Justification of a Stringent Profit-stripping Rule

Samet, I. — 2008-12-06

This article argues that considerations of moral psychology support the traditional stringency of the rule according to which fiduciaries who get involved in a potential conflict of interest shall be stripped of all their gains. The application of the rule, regardless of good faith on the part of the fiduciary, is being contested by courts and academia alike. The article is focused on the ‘deterrence’ justification for the rule, and argues that its unusual strictness should be read as a response to a substantial risk of conscious-silencing self-deception. Given the knowledge gap between them, the principal is very much dependent on the fiduciary's personal integrity but, in the grip of self-deception, the fiduciary's inner checks break down so that manipulative transactions are approved as harmless ones. Two distinctive features of the fiduciary relationship increase the chances that even a professional and virtuous fiduciary will be moved by self-deception to misapprehend the harm which a conflict of interest might cause to the principal: first, the wide discretion in the application of the fiduciary's duty to specific situations; and, second, the power gap between the fiduciary and the principal which enhances the temptation to exploit the fiduciary's position. This risk can only be averted by the more stringent version of the rule, as it is only by preventing the fiduciary from ever considering the legitimacy of a specific conflict of interest that we can hinder the process of reflection which is so prone to being subverted by self-deception.

God, Terror and Law

Ward, I. — 2008-12-06

Welfare to Work: Myth and Fact, Social Inclusion and Labour Exclusion

Paz-Fuchs, A. — 2008-12-06