Human Rights Law

This book shows that civil disobedience is more defensible than private conscientious objection. Part I distinguishes conviction from conscience, shedding light on the former as something non-evasive and communicative, and on the latter as something much richer, namely, genuine moral responsiveness. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private ‘conscientious’ objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing. The conscience argument is narrower and shows that genuinely morally responsive civil disobedience honours the best of our moral responsibilities and is protected by a duty-based moral right of conscience. Part II translates the conviction argument and conscience argument into two legal defences. The first is a demands-of-conviction defence. The second is a necessity defence. Both of these defences apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished.

One noticeable feature of modern legal systems is the extent to which power is conferred upon government officials and agencies to be exercised at their discretion, according to policy considerations, rather than according to precise legal standards. This book is a legal and jurisprudential analysis of discretionary power in modern legal systems, with particular emphasis on the consequences of discretion in the relationship between the individual and the state.

Due process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this book, the author offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework. In landmark decisions such as Ridge v. Baldwin (1968) the courts in Britain and other parts of the Commonwealth have begun to recognize the importance of procedural fairness across a broad spectrum of official powers and decisions. Principles have begun to emerge, and yet the courts have not so far developed an approach that is entirely adequate to the task. In this book, the author traces the development of these principles within a framework which includes analysis and critique of legal developments in the major common law jurisdictions, and which relates these developments to similar ideas under both the European Convention on Human Rights and the American Constitution.

This collection of essays celebrates the life and work of Peter Birks, who was Regius Professor of Civil Law at the University of Oxford, and Fellow of All Souls College. Widely known as one of the most prolific legal scholars for over twenty years, his contribution to English obligations law is legendary. He was Founder of the Clarendon Law Lectures, editor of the Clarendon Law Series, editor of the Oxford English Law Series, and author of several works on the English law of restitution, comparative restitution, and unjust enrichment. The works in this volume cover a wide range of topics of interest to private law scholars, ranging from the English law of unjust enrichment and restitution, comparative perspectives on unjust enrichment and restitution, Roman law, and legal history, reflecting the range on Peter Birks's work and influence. As one of the most distinguished academic lawyers of his generation Peter Birks's contribution to legal scholarship grew to be recognised as one of the most outstanding by a British jurist in the second half of the twentieth century. This collection attempts to acknowledge and pay tribute to Peter Birks's work.

This book on habeas corpus throughout the Commonwealth explores the theme of the fortunes of the writ and the conditions under which it has either flourished or waned. Drawing upon a wide range of Commonwealth authorities, and including materials from the colonial period as well as from ex-Commonwealth or ex-empire states, this book considers the diffusion of the writ, the myths surrounding it, and the uses to which the writ has been put which distinguish the remedy from the English experience. The reach of the writ in time and space is considered especially in multi-jurisdictional and federal legal systems, as well as the availability of habeas corpus in non-custodial situations such as bail, house arrest, parole, and probation. Given the ubiquity of emergencies and military government for long periods in several jurisdictions, the fate of the writ under conditions of martial law and emergency rule is also considered. The constitutional status of the writ and the expansion of the role of the writ in states with a bill of rights are shown to have both enlivened the jurisprudence on the writ and expanded the ambit of habeas corpus review. Finally, a neglected aspect of the writ as used against detentions ordered by Parliament is discussed in the final chapter, where it is shown that the reach of review is far wider in a number of Commonwealth jurisdictions than in England itself.

This book provides a philosophical study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-American legal, political, and moral philosophy, it also aims to provide a normative theory of the foundations of the ECHR rights. The author argues that, unlike the role of human rights in theories of global justice, the purpose of the ECHR is not to set conditions for the legitimate tolerance of states at the international level; and unlike the role of human rights in the work of international human rights organisations, the purpose of the ECHR is not to set acceptable political goals that all states have a reason to pursue, albeit progressively and at their own discretion. Rather, the ECHR is best seen as enshrining human rights that are both legal and liberal: they are founded upon liberal egalitarian principles that impose conditions on the legitimate use of coercion by member states against persons within their jurisdiction. The normative role of the Convention rights is therefore no different to that of domestic constitutional rights within a liberal democracy. The book provides a critical account of the use of state consensus, evolutive interpretation, and the doctrine of the margin of appreciation in the case law of the European Court of Human Rights. It defends the view that the ECHR rights, properly understood, are absolute rights which must be applied in a principled manner across the 47 European member states, regardless of drafters' intentions and states' current consensus.

This is the only full-scale modern account of the life and work of the early 3rd-century lawyer from Syria who contributed two-fifths of Justinian’s 6th-century Digest, which for many centuries formed the staple of European legal education. His writing has been at least as influential as that of any lawyer, ancient or modern. As an intellectual in government he not only wrote about Roman law and administration, public and private, on a massive scale but also played a full part in the turbulent life of the Severan dynasty (193–235), until his murder by rebellious troops in 223 or 224 AD. The second edition stresses Ulpian’s claim to be the first lawyer to adumbrate human rights. He expounded Roman law to the cosmopolitan society of his time, in which citizenship was extended to all free people of the empire, as a system based on reason and equity designed for people, including slaves, who were by nature free and equal. In dealing with legal problems his works argue from example and analogy and appeal to consideration of utility and equity in a way not unlike that of Anglo-American lawyers. The book examines Ulpian’s claim that law is the true ‘philosophy’.