Law : oso

Statutory and Common Law Interpretation

Kent Greenawalt — 2013-01-24

Author:: Kent Greenawalt
ISBN:: 9780199756148
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199756148.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book analyzes statutory and common law interpretation and compares the two. In respect to statutory interpretation, it first asks whether judges are “faithful agents” of the legislature or “independent cooperative partners.” It concludes that the obvious answer is that neither simple categorization really fits—that the function of judges involves a combination of roles. The next issue addressed is whether the intent of those in authority matters for interpreting the kinds of instructions contained in statutes. At the general level, the answer is “yes.” This answer follows even if one thinks interpretation should concentrate on the understanding of readers, because readers themselves would treat intentions as part of the relevant context of the language of statutes. It would take some special reasons, such as constitutional structure or unreliability, to discount actual intents of legislators and use of legislative history. The book argues that none of these special reasons are convincing. On the question whether judges should focus on the language of specific provision or overall purpose, both are relevant, and purpose should become more important as time passes. In an analysis of various other features of statutory interpretation, the book claims that presidential signing statements should not have weight, that subsequent legislative actions short of new statutes should only occasionally carry importance, that “canons of interpretation,” such as the rule of lenity, can provide some, limited, guidance, and that there are special reasons for courts to adhere to precedents in statutory cases, but these should not yield any absolute rule. A chapter on administrative interpretation of statutes claims that the standards agencies apply should differ to a degree from those of courts and that judicial deference to those interpretations is ordinarily warranted. The book's second part, on common law interpretation, considers the force of precedents, resisting any simple dichotomy between holding and dictum. It also defends the use of reasoning by analogy, not only in the initial stages thinking about a problem, but also in respect to some final justifications for decisions. An examination of the place of rules, principles, and policies argues that all three are relevant in common law interpretation; and shows that common law interpretation is not reducible to any formula. A final chapter compares statutory and common law interpretation, similarities, and differences, how each can affect the other, and the significance of having a legal system in which they both play prominent roles.

A Secular Europe

Lorenzo Zucca — 2013-01-24

Author:: Lorenzo Zucca
ISBN:: 9780199592784
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, EU Law
DOI:: 10.1093/acprof:oso/9780199592784.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

How to accommodate diverse religious practices and laws within a secular framework is one of the most pressing and controversial problems facing contemporary European public order. This book argues that traditional models of secularism, focusing on the relationship of state and church, are out-dated and that only by embracing a new picture of what secularism means can Europe move forward in the public reconciliation of its religious diversity. The book develops a new model of secularism suitable for Europe as a whole. The new model of secularism is concerned with the way in which modern secular states deal with the presence of diversity in the society. This new conception of secularism is more suited to the European Union whose overall aim is to promote a stable, peaceful and unified economic and political space starting from a wide range of different national experiences and perspectives. The new conception of secularism is also more suited for the Council of Europe at large, and in particular the European Court of Human Rights which faces growing demands for the recognition of freedom of religion in European states. The new model does not defend secularism as an ideological position, but aims to present secularism as our common constitutional tradition as well as the basis for our common constitutional future.

Philosophical Foundations of European Union Law

Julie Dickson and Pavlos Eleftheriadis — 2013-01-24

Author:: Julie Dickson, Pavlos Eleftheriadis
ISBN:: 9780199588770
Publisher:: Oxford University Press
Subjects:: Law, EU Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199588770.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

The supranational law of the European Union represents a uniquely powerful, far-reaching, and controversial instance of the growth of international legal governance, one that has forever altered the political and legal landscape of its Member States. The EU has attracted significant attention from political scientists, economists, and lawyers who have analyzed its polity and constructed theoretical models of the integration process. Yet it has been almost entirely neglected by analytic philosophers, and the philosophical tools that have been developed to analyze and evaluate the Union are still in their infancy. This book brings together legal philosophers, political philosophers, and EU legal academics in the service of developing the philosophical analysis of EU law. This book brings varied disciplinary expertise and theoretical perspectives to bear on central issues facing the Union and its law. Combining both abstract thought in legal and political philosophy and more tangible theoretical work on specific legal issues, the chapters in this volume hope to make a contribution to developing work on the philosophical foundations of EU law.

The Nature of Legislative Intent

Richard Ekins — 2013-01-24

Author:: Richard Ekins
ISBN:: 9780199646999
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780199646999.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Is legislative intent a fiction? The legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent, complex group intention. This book elucidates the nature of legislative intent, arguing that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. It argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation.

The Multicultural Prison

Coretta Phillips — 2013-01-24

Author:: Coretta Phillips
ISBN:: 9780199697229
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199697229.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

The Multicultural Prison presents a unique sociological analysis of the daily negotiation of ethnic difference within the closed world of the male prison. The political economy of racialized incarceration together with penal expansion has seen the disproportionate incarceration of diverse British national, foreign and migrant populations, brought into close proximity within the confines of the prison. The impact of broad social changes - globalised migration, the deepening of North-South economic inequalities, and the assertion of minority groups' claims for social and political recognition and equality — are considered at a time when issues of race, multiculture, and racialization inside the prison have been somewhat neglected. Recognising also the significance of religion, age, masculinity, national and local identifications, it considers how multiple identities configure social interactions among prisoners in late modern prisoner society. Using rich empirical material drawn from extensive qualitative research in Rochester Young Offenders' Institution and Maidstone prison, the negotiation and tensions of ‘doing multiculturalism’ in prison form the central part of this book. Prisoners' vivid accounts of economically and socially marginalised lives outside, some in multicultural, some in monocultural settings, provides a backdrop to the interior world of the prison where ethnicity shapes social relations but in a contingent fashion. Ethnic, faith, and masculine identities may be deeply invested in, disavowed, constituted through loose solidarities based on 'postcode identities', even providing a means for cultural hybridity in prison cultures, yet they can also act as a familiar fault line creating wary, unstable, and antagonistic relations among prisoners. The Multicultural Prison provides a unique insight into how race is written into prison social relations using stories from both white and minority ethnic prisoners. It considers challenging issues of discrimination, inequality, entitlement, and preferential treatment from the perspective of diverse groups of prisoners.

Mediation

Klaus J. Hopt and Felix Steffek — 2013-01-24

Author:: Klaus J.HoptProfessor of law and Director (emeritus) at the Max Planck Institute for Comparative and International Private Law, HamburgFelixSteffekSenior Research Fellow at the Max Planck Institute for Comparative and International Private Law, Hamburg
ISBN:: 9780199653485
Publisher:: Oxford University Press
Subjects:: Law, Comparative Law, Private International Law
DOI:: 10.1093/acprof:oso/9780199653485.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Mediation provides an attractive alternative to resolving disputes through court proceedings. Mediation promises just results in the interest of all parties concerned, a reduction of the court caseload, and cost savings for the parties involved as well as for the treasury. The European Directive on Mediation has given mediation in Europe new momentum by establishing a common framework for cross-border mediation. Beyond Europe, many states have tried in recent years to answer the question whether, and if so, how mediation should be regulated at a national and international level. The aim of this book is to promote the understanding and discussion of regulatory issues by presenting comparative research on mediation. It describes and analyses the law and practice of mediation in twenty-two countries. Europe is represented by chapters on mediation in Austria, Bulgaria, England, France, Germany, Greece, Hungary, Ireland, Italy, the Netherlands, Norway, Poland, Portugal and Spain. The world beyond Europe is analysed in chapters on mediation in Australia, Canada, China, Japan, New Zealand, Russia, Switzerland and the USA. Against this background, further chapters on fundamental issues identify possible regulatory models and discuss central principles of mediation law and practice. In particular, the work considers harmonisation and diversity in the law of mediation as well as the economic and constitutional problems associated with privatising civil justice. To the extent available, empirical research is used as a point of reference in the critical analysis

The Logic of Legal Requirements

Jordi Ferrer Beltrán and Giovanni Battista Ratti — 2013-01-24

Author:: JordiFerrer BeltránAssociate Professor and Director of the Chair of Legal Culture, University of GironaGiovanniBattista RattiJuan de la Cierva Fellow in Law, University of Girona
ISBN:: 9780199661640
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199661640.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

When a legal rule requires us to drive on the right, notarize our wills, or refrain from selling bootleg liquor, how are we to describe and understand that requirement? In particular, how does the logical form of such a requirement relate to the logical form of other requirements, such as moral requirements, or the requirements of logic itself? When a general legal rule is applied or distinguished in a particular case, how can we describe that process in logical form? Such questions have come to preoccupy modern legal philosophy as its methodology, drawing on the philosophy of logic, becomes ever more sophisticated. This book gathers together some of the most prominent legal philosophers in the Anglo-American and civil law traditions to analyse the logical structure of legal norms. They focus on the issue of defeasibility, which has become a central concern for both logicians and legal philosophers in recent years. The book is divided into four parts. Part One is devoted to unravelling the basic concepts related to legal defeasibility and the logical structure of legal norms, focusing on the idea that law, or its components, are liable to implicit exceptions, which cannot be specified before the law's application to particular cases. Part Two aims to disentangle the main relations between the issue of legal defeasibility and the issue of legal interpretation, exploring the topic of defeasibility as a product of certain argumentative techniques in the law. Part 3 of the volume is dedicated to one of the most problematic issues in the history of jurisprudence: the connections between law and morality. Finally, Part 4 of the volume is devoted to analysing the relationships between defeasibility and legal adjudication.

Linguistic Justice

Jacqueline Mowbray — 2013-01-24

Author:: Jacqueline Mowbray
ISBN:: 9780199646616
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199646616.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

As globalisation and migration produce societies of increasing linguistic diversity, the issue of how to ensure justice between speakers of different languages becomes a pressing social concern. Matters of ‘linguistic justice’ are therefore drawing increasing scholarly attention across a range of disciplines. How does international law contribute to linguistic justice? This book explores that question by conducting a comprehensive, interdisciplinary examination of international law on language, analysing the many disparate fields of international law which affect language use both directly (human rights, minority rights, and cultural heritage laws, for example) and indirectly (international trade law and international labour standards, among others). Moving beyond the technical analysis of legal provisions, the book explores the conceptual framework which underpins international law on language, unearthing underlying assumptions and ideas about what constitutes a ‘just’ language policy from a legal perspective. In doing so, the book draws on the methodology of sociologist Pierre Bourdieu, whose ideas of ‘habitus’ and ‘field’ offer a way of understanding the changing significance of language to human identity, and the way in which language becomes a focal point for the exercise of social power. This analysis reveals the limitations of contemporary international law on language, and charts a course towards the achievement of greater ‘linguistic justice’.

Legalism

Paul Dresch and Hannah Skoda — 2013-01-24

Author:: PaulDreschFellow by Special Election, St John's College, Oxford, University Lecturer in Social AnthropologyHannahSkodaTutor and Fellow in history, St John's College, Oxford
ISBN:: 9780199664269
Publisher:: Oxford University Press
Subjects:: Law, Comparative Law, Legal History
DOI:: 10.1093/acprof:oso/9780199664269.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Law and law-like institutions are visible in human societies very distant from each other in time and space. When it comes to observing and analysing such social constructs historians, anthropologists, and lawyers run into notorious difficulties in how to conceptualize them. Do they conform to a single category of ‘law’? How are divergent understandings of the nature and purpose of law to be described and explained? Such questions reach to the heart of philosophical attempts to understand the nature of law, but arise whenever we are confronted by law-like practices and concepts in societies not our own. This book analyses the nature and meaning of law in diverse societies. The book starts from the concept of legalism, taken from the anthropologist Lloyd Fallers, whose 1960s work on Africa engaged, unusually, with jurisprudence. The concept highlights appeal to categories and rules. The degree to which legalism in this sense informs people's lives varies within and between societies, and over time, but it can colour equally both ‘simple’ and ‘complex’ law. Breaking with recent emphases on ‘practice’, the chapters explore, in a set of cases, the place of legalism in the workings of social life. The chapters make obvious the need to question our parochial common sense where ideals of moral order at other times and places differ from those of modern North Atlantic governance. State-centred law, for instance, is far from a ‘central case’. Legalism may be ‘aspirational’, connecting people to wider visions of morality; duty may be as prominent a theme as rights; and rulers from thirteenth-century England to sixteenth-century Burma appropriate, as much they impose, a vision of justice as consistency. The use of explicit categories and rules does not reduce to simple questions of power.

The Legal Understanding of Slavery

Jean Allain — 2013-01-24

Author:: JeanAllainProfessor of Public International Law, Queen's University Belfast
ISBN:: 9780199660469
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Legal History
DOI:: 10.1093/acprof:oso/9780199660469.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

‘Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. So reads the legal definition of slavery agreed by the League of Nations in 1926. Further enshrined in law during international negotiations in 1956 and 1998, this definition has been interpreted in different ways by the international courts in the intervening years. What can be considered slavery? Should forced labour be considered slavery? Debt-bondage? Child soldiering? Or forced marriage? This book explores the limits of how slavery is understood in law. It shows how the definition of slavery in law and the contemporary understanding of slavery has continually evolved and continues to be contentious. It traces the evolution of concepts of slavery, from Roman law through the Middle Ages, the 18th and 19th centuries, up to the modern day manifestations, including manifestations of forced labour and trafficking in persons, and considers how the 1926 definition can distinguish slavery from lesser servitudes. The book includes a set of guidelines intended to clarify the law where slavery is concerned.

Law’s Evolution and Human Understanding

Laurence Claus — 2013-01-24

Author:: Laurence Claus
ISBN:: 9780199735099
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Legal Profession and Ethics
DOI:: 10.1093/acprof:oso/9780199735099.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book presents an evolutionary account of law and government. It contends that the law of any human community is a self-generating, self-recognizing system of human communications that signals likely action within that community. Law in effect is a system that uniquely serves and symbiotically defines a community regardless of any moral right claims. Understanding law as a self-fulfilling signaling system frees us to discard the fabrications of authority rooted in creationist accounts of law and government. The book articulates a fresh conception of law that builds on Oliver Wendell Holmes' celebrated insights concerning law's predictive potential. The book considers important implications of this new understanding for how we individually make moral choices, how we read law, and some of the many other ways that law affects our lives.

Law as a Leap of Faith

John Gardner — 2013-01-24

Author:: John Gardner
ISBN:: 9780199695553
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199695553.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

How do laws resemble rules of games, moral rules, personal rules, rules found in religious teachings, school rules, and so on? Are laws rules at all? Are they all made by human beings? And if so how should we go about interpreting them? How are they organized into systems, and what does it mean for these systems to have ‘constitutions’? Should everyone want to live under a system of law? Is there a special kind of ‘legal justice’? Does it consist simply in applying the law of the system? And how does it relate to the ideal of ‘the rule of law’? These and other classic questions in the philosophy of law form the subject-matter of this book. Taking an agenda broadly from H.L.A. Hart's The Concept of Law (1961), this book shows how the key ideas in that work live on, and how they have been and can still be improved in modest ways to meet important criticisms — in some cases by concession, in some cases by circumvention, and in some cases by restatement. In the process the book engages with key ideas of other modern giants of the subject including Kelsen, Holmes, Raz, and Dworkin.

Just Sentencing

Richard S. Frase — 2013-01-24

Author:: Richard S. Frase
ISBN:: 9780199757862
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199757862.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book presents a hybrid sentencing model integrating theory and practice. The theory is an expanded version of limiting retributivism that accommodates crime control and other nonretributive purposes of punishment, including utilitarian proportionality and minimizing racial disparity. The model’s procedures are inspired by the best American state guidelines systems and the revised Model Penal Code. A hybrid sentencing theory is normatively superior and practically necessary. It is unreasonable to propose a purely retributive or purely crime-control model that ignores competing values, and any one-dimensional model would not succeed in practice or even be adopted (all modern sentencing systems recognize both retributive and crime-control goals). Sentencing procedures must likewise achieve an acceptable balance, especially between two strongly competing procedural ideals—rule versus discretion—each of which has important advantages. Rules promote consistency and predictability; discretion promotes flexibility and efficiency (parsimony). Procedures must also strike a workable balance in the use of custodial and noncustodial sentencing options, and in the powers of systemic and case-level decision makers (the legislature, sentencing commission, judges, attorneys, and correctional officials). Sentencing guidelines are usually seen as reflecting strong preferences for rules over discretion, and for system-wide over case-level policymaking, but that is not how the best state guidelines systems actually work. Like the proposed model, these systems structure sentencing discretion but leave judges and other officials with a substantial degree of discretion to tailor the form and severity of sanctions to the facts of particular cases so as to achieve justice, effective crime control, and efficiency.

Islamic Law and International Human Rights Law

Anver M. Emon, Mark Ellis, and Benjamin Glahn — 2013-01-24

Author:: Anver M.EmonAssociate Professor, Faculty of Law, University of TorontoMarkEllisExecutive Director, International Bar AssociationBenjaminGlahnFormer Program Director, Salzburg Global Seminar
ISBN:: 9780199641444
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Comparative Law
DOI:: 10.1093/acprof:oso/9780199641444.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

The relationship between Islamic law and international human rights law has been the subject of considerable, and heated, debate in recent years. The usual starting point has been to test one system by the standards of the other, asking is Islamic law ‘compatible’ with international human rights standards, or vice versa. This approach quickly ends in acrimony and accusations of misunderstanding. By overlaying one set of norms on another we overlook the deeply contextual nature of how legal rules operate in a society, and meaningful comparison and discussion is impossible. Chapters in this book attempt to deepen the understanding of human rights and Islam, paving the way for a more meaningful debate. Focusing on central areas of controversy, such as freedom of speech and religion, gender equality, and minority rights, the chapters examine the contextual nature of how Islamic law and international human rights law are legitimately formed, interpreted, and applied within a community. They examine how these fundamental interests are recognized and protected within the law, and what restrictions are placed on the freedoms associated with them.

International Criminal Justice at the Yugoslav Tribunal

Mohamed Shahabuddeen — 2013-01-24

Author:: Mohamed Shahabuddeen
ISBN:: 9780199670826
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199670826.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

International criminal justice has undergone rapid recent development. Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in the following year, the field has changed beyond recognition. The traditional immunity of presidents or heads of government, prime ministers, and other functionaries acting in an official capacity no longer prevails; the doctrine of superior orders is inapplicable except, where appropriate, as in mitigation; and the gap between international armed conflict and non-international armed conflict has closed. More generally, the bridge has been crossed between the irresponsibility of the state and the criminal responsibility of the individual. As a result, the traditional impunity of the state has practically gone. This book assesses some of the workings of the ICTY that have shaped these developments. It provides an insightful overview of the nature of this criminal court, established on behalf of the whole of the international community. It reflects on its transformation into one of the leading fora for the growth of international criminal law first-hand, offering a unique perspective on the challenges it has faced.

Informal International Lawmaking

Joost Pauwelyn, Ramses Wessel, and Jan Wouters — 2013-01-24

Author:: JoostPauwelynProfessor of International Law and Co-Director of the Centre for Trade and Economic Integration, Graduate Institute of International and Development Studies in GenevaRamsesWesselProfessor of the Law of the European Union and other International Organizations and Co-director Centre for European Studies, University of TwenteJanWoutersJean Monnet Chair and Professor of International Law and International Organizations, Director of the Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven.
ISBN:: 9780199658589
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199658589.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Informal international lawmaking (IN-LAW) is on the rise. It seems to fall outside the strictures of both domestic law as well as international law. Hence, this activity raises questions of accountability deficit. The book’s aim is to be empirical and problem-oriented. It intends to gauge whether there is a problem related to informal international lawmaking and, if so, to think about how to solve this problem in a way that can assist policy-makers and their stakeholders. The book distinguishes informal lawmaking from traditional lawmaking by focusing on the actors, process, and output. It argues that the international legal discipline will have to find ways to take the rich, effective, and (more often than not) legitimate normative output stemming from IN-LAW onboard to remain relevant.

The Idea of Private Law

Ernest J Weinrib — 2013-01-24

Author:: Ernest J Weinrib
ISBN:: 9780199665815
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Law of Obligations
DOI:: 10.1093/acprof:oso/9780199665815.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book offers a new approach to understanding private law. Rejecting the functionalism popular among legal scholars, the book advances the idea that private law is an autonomous and non-instrumental moral practice, with its own structure and rationality. The book draws on Aristotle's account of corrective justice and Kant's legal philosophy to set out a formalist approach to private law that repudiates the identification of law with politics or economics. It argues that private law is to be understood as a juridical enterprise in which coherent public reason elaborates the norms implicit in the parties' interaction. Private law embodies a special morality that links the doer and the sufferer of injury. The book elucidates the standpoint internal to this morality and traces the implications of the formalism he proposes for our ideas of the structure, coherence, and normative grounding of private law. It also shows how this formalism manifests itself in the leading doctrines of private law. Finally, the book describes the public but non-political role of the courts in articulating the special morality of private law.

How Interpretation Makes International Law

Ingo Venzke — 2013-01-24

Author:: Ingo Venzke
ISBN:: 9780199657674
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199657674.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

The texts of international law cannot talk — they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive narrative suggesting that sovereign states make the law that constraints them, the book shows that in many and most constellations the contents of legal commitments is the product interpretation which shifts meanings and makes law. In the practice of interpretation actors compete over what the law really says and contribute to its making. What then matters in such discourse is an actor’s semantic authority — the capacity to find acceptance for interpretative claims and the ability to establish new reference points for legal discourse. The book identifies the practice of interpretation as a significant space of international lawmaking and draws specific attention to the increasing weight of international institutions in the struggle for the law. Past theoretical approaches come down with significant shortcomings in understanding interpretation as a bounded practice that has both the capacity to create as well as the faculty to control. The book leans on developments in linguistics and builds on semantic pragmatism to overcome old divides and to offer a fresh account of how the practice of interpretation makes international law. Its analytical ambition is paralleled by a discussion of the strong normative implications that immediately arise once received understandings of interpretation and sources doctrine are debunked as myopic and powerless in relation to semantic changes. The book thus closes with a discussion of the bittersweet taste of justice in legal argument, tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders the possibilities of democratic justification of semantic authority in a normative pluriverse.

'Grooming' and the Sexual Abuse of Children

Anne-Marie McAlinden — 2013-01-24

Author:: Anne-Marie McAlinden
ISBN:: 9780199583720
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199583720.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book critically examines the official and popular discourses on grooming, predominantly framed within the context of on-line sexual exploitation and abuse committed by strangers, and institutional child abuse committed by those in positions of trust. Set against the broader theoretical framework of risk, security, and governance, this book argues that due to the difficulties of drawing clear boundaries between innocuous and harmful motivations towards children, pre-emptive risk-based criminal law and policy are inherently limited in preventing, targeting, and criminalising ‘grooming’ behaviour prior to the manifestation of actual harm. Through examination of grooming against the complexities of the onset of sexual offending against children and its actual role in this process, the book broadens existing discourses by providing a fuller, more nuanced conceptualisation of grooming, including its role in intra-familial and extra-familial contexts. There is also timely discussion of new and emerging forms of grooming, such as ‘street’ or ‘localised’ grooming, as typified by recent cases in Rochdale and Oldham, and ‘peer-to-peer’ grooming. The book draws on extensive empirical research in the form of over fifty interviews with professionals, working in the fields of sex offender risk assessment, management, or treatment, as well as child protection or victim support in the four jurisdictions of the United Kingdom and the Republic of Ireland.

The Global Model of Constitutional Rights

Kai Möller — 2013-01-24

Author:: Kai Möller
ISBN:: 9780199664603
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199664603.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now globally. This global model of constitutional rights is characterised by an extremely broad approach to the scope of rights (sometimes referred to as ‘rights inflation’), the acceptance of horizontal effect of rights, positive obligations and increasingly also socio-economic rights, and the use of the doctrines of balancing and proportionality to determine the permissible limitations of rights. Drawing on analyses of a broad range of cases from the U.K., the European Court of Human Rights, Germany, Canada, the U.S., and South Africa, this book provides the first substantive moral, reconstructive theory of the global model. It shows that it is based on a coherent conception of constitutional rights which connects to attractive accounts of judicial review, democracy and the separation of powers. The first part of the book develops a theory of the scope of rights under the global model. It defends the idea of a general right to personal autonomy, that is, a right to everything which, according to the agent's self-conception, is in his or her interest. The function of this right is to acknowledge that every act by a public authority which places a burden on a person's autonomy requires justification. The second part of the book provides a theory of the structure of this justification by proposing original and useful accounts of the important doctrines of balancing and proportionality.

EU Anti-Discrimination Law

Evelyn Ellis and Philippa Watson — 2013-01-24

Author:: Evelyn Ellis, Philippa Watson
ISBN:: 9780199698462
Publisher:: Oxford University Press
Subjects:: Law, EU Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199698462.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

EU Anti-Discrimination Law provides a detailed and critical analysis of the corpus of EU law prohibiting discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation. It takes into account the changes brought about by the Treaty of Lisbon and it contains thorough examination of the relevant case law of the Court of Justice of the EU. The book examines the background to the legislation and explains the essential characteristics and doctrines of EU law, in so far as they are relevant to the topic of anti-discrimination. It also analyses the increasingly significant general principles of EU law, the Charter of Fundamental Rights, and the relevant law flowing from the European Convention on Human Rights. The key concepts contained in anti-discrimination law are subjected to close scrutiny. The substantive provisions of the law on equal pay and the workplace and non-workplace provisions of the governing directives are similarly examined, as are the numerous exceptions permitted to them. The complex rules governing the rights of pregnant women and those who have recently given birth are dealt with comprehensively in a separate chapter. Equality in social security schemes is also discussed. The book concludes with an assessment of the practical utility of the existing law and the current proposals for its reform.

The Enforcement of EU Law

Stine Andersen — 2013-01-24

Author:: Stine Andersen
ISBN:: 9780199645442
Publisher:: Oxford University Press
Subjects:: Law, EU Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780199645442.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

An analysis of the European Commission's general role in supervising member state compliance with EU law, this book provides a detailed assessment of centralized EU enforcement. It starts out by asking whether it is viable to establish stronger Commission powers of enforcement at this point in time. Against this backdrop, and as a means of exploring the role of the Commission, the chapters examine a number of different aspects pertaining to the enforcement of EU law. Beginning with an appraisal of the Commission's function under the general EU infringement procedure stipulated in Articles 258 and 260 TFEU, the volume argues that the EU lacks independent self-sustained regime authority. Moreover, this is reflected in both substantive EU law and procedural law, including the general EU infringement procedure. Chapter Two makes the case that Article 258 TFEU can usefully be explained in terms of managerialism. Chapter Three analyses Article 260 TFEU concerning repetitive infringements. In particular, it asserts, EU member state sanctions sustain the managerial approach. It then goes on to examine the Commission's unsuccessful attempts to gain sharper enforcement powers through secondary legislation, and identifies the effective points of functional overlap between enforcement powers and certain types of implementing tools. Finally, it discusses the Commission's role under various non-binding, ad hoc arrangements. The concluding chapter places the general EU infringement procedure in the broader context of a comprehensive (negotiated) policy process. It argues that the enforcement stage shares many features with earlier steps in the legislative process, including flexibility and deliberation.

The Design of Competition Law Institutions

Eleanor M Fox and Michael J Trebilcock — 2013-01-24

Author:: Eleanor MFoxWalter J. Derenberg Professor of Trade Regulation at New York University School of LawMichael JTrebilcockUniversity Professor and Professor of Law and Economics, University of Toronto
ISBN:: 9780199670048
Publisher:: Oxford University Press
Subjects:: Law, Competition Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199670048.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Competition (or antitrust) law is national law. More than 120 jurisdictions have adopted their own competition law. Is there a need for convergence of the competition law systems of the world? Much effort has been devoted to nudging substantive law convergence in the absence of an international law of competition. But it is widely acknowledged that institutions play as great a role as substantive principles in the harmonious — or dissonant — application of the law. This book provides an in-depth study of the institutions of antitrust. It does so through a particular inquiry: Do the competition systems of the world embrace substantially the same process norms? Are global norms embedded in the institutional arrangements, however disparate? Delving deeply into their jurisdictions, the chapters illuminate the inner workings of the systems and expose the process norms embedded within. Case studies feature Australia/New Zealand, Canada, Chile, China, Japan, South Africa, the USA, and the European Union, as well as the four leading international institutions involved in competition: the World Trade Organization, the Organization for Economic Cooperation and Development, the United Nations Conference on Trade and Development, and the International Competition Network; and the introductory and synthesizing chapter draws also from the new institutional arrangements of Brazil and India. The book reveals that there are indeed common process norms across the very different systems; thus, this study is a counterpart to studies on convergence of substantive rules. The synthesizing chapter observes an emerging ‘sympathy of systems’ in which global process norms, along with substantive norms, play a critical role. The book provides benchmarks for the field and suggests possibilities for future development when the norms are embraced in aspiration but not yet in practice.

A Debtor World

Ralph Brubaker, Robert M. Lawless, and Charles J. Tabb — 2013-01-24

Author:: RalphBrubakerUniversity of IllinoisRobert M.LawlessUniversity of IllinoisCharles J.TabbUniversity of Illinois
ISBN:: 9780199873722
Publisher:: Oxford University Press
Subjects:: Law, Company and Commercial Law
DOI:: 10.1093/acprof:oso/9780199873722.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book contains chapters about the societal implications of private debt. The chapters comprising this volume are authored by dozens of leading U.S. and international academics who have written about debt or issues related to debt in a wide range of disciplines including law, sociology, psychology, history, economics, and more. The goal of this book is to explore debt neither as a problem nor a solution but as a phenomenon and to promote the exchange of knowledge to comprehend better why consumers and businesses decide to borrow money. It asks what happens to businesses and consumers under a heavy debt load, and what legal norms and institutions societies need to encourage the efficient use of debt while promoting a greater understanding of the global phenomenon of increased indebtedness and societal dependence.

Corrective Justice

Ernest J. Weinrib — 2013-01-24

Author:: Ernest J. Weinrib
ISBN:: 9780199660643
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Law of Obligations
DOI:: 10.1093/acprof:oso/9780199660643.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book develops the implications of that venerable Aristotelian notion of justice for understanding contemporary private law. Over the last decades corrective justice has become a central but controversial idea among legal scholars and theorists. This book presents corrective justice as the normative idea latent in the institutions and concepts of a fair and coherent regime of liability. It begins by setting out the conceptual components of corrective justice: the correlativity of the parties normative positions as the structuring idea of their relationship, and a robust notion of rights and their correlative duties (conceived in Kantian terms) as the content appropriate to legal relationships structured in that way. It then describes the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor. The book integrates the concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Combining legal and philosophical analysis, it presents private law in non-instrumental terms, as a distinctive mode of moral discourse that focuses on the normativity intrinsic to the parties relationship.

Constitutional Nationalism and Legal Exclusion

Mara Malagodi — 2013-01-24

Author:: Mara Malagodi
ISBN:: 9780198082910
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198082910.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Since Nepal was created as a nation, its constitutional history has been inextricably linked to the tortuous process of democratization and the efforts to create a more equitable and inclusive polity. A specific segment of Nepal's constitutional trajectory is the 1990 constitutional experience. This book investigates the relationship between constitutional nationalism and patterns of legal exclusion during the 1990 constitutional experience of Nepal, focusing on the institutional management of socio-cultural diversity by the state in the context of post-Cold War re-democratization and the outcome of such strategy. The ‘unity in diversity’ approach embraced by Nepali state actors resulted in growing discontent among many social groups since 1990 and strong opposition to the 1990 Constitution itself. This book examines the legacy of this institutional strategy and how it is intertwined with the enduring socio-political conflict that Nepal has had to deal with even after the abrogation of the 1990 document in January 2007. It assesses the path-dependent importance of sedimented institutional structures and their resilience to change and considers the connection between law and politics in processes of constitutional change. It demonstrates that the recent reconfiguration of law primarily as ‘right’ places great expectations on the emancipatory potential of law in redressing historical injustices and initiating political change by legal means.

Conscience and Conviction

Kimberley Brownlee — 2013-01-24

Author:: Kimberley Brownlee
ISBN:: 9780199592944
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199592944.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

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.

Comparative Constitutionalism in South Asia

Sunil Khilnani, Vikram Raghavan, and Arun K. Thiruvengadam — 2013-01-24

Author:: SunilKhilnaniVikramRaghavanArun K.Thiruvengadam
ISBN:: 9780198081760
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198081760.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book seeks to fill a void in the representation of South Asian constitutions and constitutionalism in international discourse. Although parts of South Asia have remained obscure and unstable on the fine balance of constitutional stability and constitutionalism, an appreciable number of countries have successfully operated constitutional schemes that are based on systems developed in the West through a process of trial and error. In this volume, an array of experts studies the successes and failures of constitutionalism in this extremely diverse region. Their well-researched essays address diverse and crucial issues affecting South Asian constitutionalism with a view to bringing this subject to the centre-stage of constitutional discourse globally, as well as within the South Asian region. A comparative study of the processes of framing, interpretation, and application of constitutional principles of countries like Afghanistan, Bangladesh, Bhutan, India, the Maldives, Myanmar, Nepal, Pakistan, and Sri Lanka are included. Given that those involved in these processes resort to transnational ‘borrowing’, an analysis of such borrowings is also presented. The essays provide deep insights into the historical, political, legislative, and judicial evolution of constitutionalism in South Asian countries.

Colonial Copyright

Michael D. Birnhack — 2013-01-24

Author:: Michael D. Birnhack
ISBN:: 9780199661138
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Intellectual Property, IT, and Media Law
DOI:: 10.1093/acprof:oso/9780199661138.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

When the British Empire enacted copyright law for its colonies, it called it colonial copyright, or imperial copyright, but it had only one kind of interest in mind: its own. This book deconstructs the imperial policy regarding copyright, by reversing the order and asking how British copyright was received in the colonies. Colonial copyright is told here from the point of view of the colonized, rather than the colonizer’s standpoint. The book suggests a general model of Colonial Copyright, understood as the intersection of legal transplants, colonial law, and the particular features of copyright, especially authorship. Mandate Palestine (1917–48) is the leading case study. The book tells a yet-untold history of copyright law that was the basis of Israeli law, and still is the law in the Palestinian Authority. The discussion is a critical cultural legal history, told from a postcolonial stance. It queries the British motivation in enacting copyright law, traces their first, indifferent reaction, and continues with the gradual absorption into the local legal and cultural systems. The story unfolded explores the emergence of local literary activities, the introduction of telegraph and radio, and the business models of the content industries. We shall meet many pioneers, in literature, music, film, and the law. The discussion is acutely aware of the role of identity politics, and of the meeting point of the foreign, colonial law with the local norms and cultures. It suggests that we view colonial copyright as an early case of globalization.

Civil Rights in the Shadow of Slavery

George A. Rutherglen — 2013-01-24

Author:: George A. Rutherglen
ISBN:: 9780199739707
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199739707.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book recounts the history of the nation's first civil rights act, from its passage in 1866 through its interpretation and reenactment in developments that reach the present day. The Civil Rights Act of 1866 created civil rights as we now know them, and it exercised a deep and continuing influence over the constitutional and statutory protection of these rights. Almost all of the controversy over civil rights, from the scope of federal prohibitions against private discrimination to the remedies available to victims of civil rights violations, finds its roots in debates over the act. These issues are important in themselves, and all the more so because they exemplify the complementary roles of the legislature and the judiciary in giving meaning to the constitutional ideal of equality in public life. This book offers an appreciation of the Civil Rights Act of 1866, hitherto regarded in only selective and partial perspective, and provides a comprehensive view of the act over nearly a century and a half and a detailed account of its leading role in making civil rights a reality.

Beyond Disagreement

Aruna Sathanapally — 2013-01-24

Author:: Aruna Sathanapally
ISBN:: 9780199669301
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199669301.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Examining the role of ‘open remedies’ in human rights adjudication, this book provides a new perspective informing comparative constitutional debates on how to structure institutional relationships over fundamental rights and freedoms. Open remedies declare a human rights violation but invite the other branches of government to decide what corrective action should be taken. Open remedies are premised on the need to engage institutions beyond courts in the process of thinking about and acting on human rights problems. This book considers examples across the United States, South Africa, Canada, and internationally, emphasising their similarities and differences in design and the diverse ways they could operate in practice. The book investigates these possibilities through the first systematic legal and empirical study of the declaration of incompatibility model under the United Kingdom Human Rights Act. This new model provides a non-binding declaration that the law has infringed human rights standards, for the legislature's consideration. By design, it has the potential to support democratic deliberation on what human rights require of the laws and policies of the State, however, it also carries uncertainties and risks. Providing a lucid account of existing debates on the relative roles of courts and legislatures to determine the requirements of fundamental rights commitments, the book argues that we need to look beyond the theoretical focus on rights disagreements, to how these remedies have operated in practice across the courts and the political branches of government. Importantly, we should pay attention to the nature and scope of legislative engagement in deliberation on the human rights matters raised by declarations of incompatibility. Adopting this approach, this book presents a carefully argued view of how courts have exercised this power, as well as how the UK executive and Parliament have responded to its use.

Working a Democratic Constitution

Granville Austin — 2012-10-18

Author:: Granville Austin
ISBN:: 9780195656107
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780195656107.001.0001
Published in print:: 2003
Published Online:: 2012-10-18

This is a history of the working of the Indian Constitution from 1950 to 1985, written for Indians and non-Indians — who are interested in India and in its constitutional experience. Because the Constitution is used as benchmark and measuring stick for citizens and officials touching lives in many ways, learning of its working truly opens a window into India. This book talks about politics, economics, conditions, and culture; about politicians, civil servants, lawyers, judges, and journalists. It is about success and failure, hope and despair, power, sacrifice, and motivations, both selfish and grand. It is about those who acted upon the Constitution, how and why they did so, and about those the Constitution acted upon, or neglected. The book begins with the Constitution's inauguration in January 1950 and ends with Prime Minister Indira Gandhi's passing, late in 1984. It also looks at the, post 1985 developments, such as the Supreme Court's 1993 decision on the appointment and transfer of judges, and ‘judicial activism’ during the 1990s; the implementation in 1990 of the Mandal Commission report on special consideration for the Other Backward Classes; and the failure in 1992 to use central government forces to protect the Babri mosque at Ayodhya.

Scaling Justice

Shylashri Shankar — 2012-10-18

Author:: Shylashri Shankar
ISBN:: 9780195693201
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195693201.001.0001
Published in print:: 2009
Published Online:: 2012-10-18

Most experts agree that India's Supreme Court and lower courts' pro-active behaviour on social rights can be traced back to the immediate post-Emergency era. Post-Emergency, judges have become ‘embedded negotiators’. Their judgments have carefully avoided conflict with the political wings while being mindful of their role as safe keepers of the rights of citizens. While the Court has sometimes been charged with judicial overreach, this book attempts to understand why certain choices were made by the Supreme Court judges and the circumstances in which they were made. Qualitative analysis of the constitutional and legal framework, landmark rulings, and dissenting opinion, along with a multivariate analysis of civil liberties and social rights cases are used. This book evaluates the judgments on preventive detention, anti-terror, health, and education cases and shows how judges seek legitimacy for their decisions.

Resolving Disputes in Telecommunications

R. U. S Prasad — 2012-10-18

Author:: R. U. S Prasad
ISBN:: 9780198066453
Publisher:: Oxford University Press
Subjects:: Law, Competition Law
DOI:: 10.1093/acprof:oso/9780198066453.001.0001
Published in print:: 2010
Published Online:: 2012-10-18

Resolving Disputes in Telecommunications: Global Practices and Challenges not only introduces the concept of dispute resolution, but also stresses the urgent need to revise the various laws in telecommunication. This book is composed of eight chapters, each of which addresses a particular topic on dispute resolution and the telecom sector. Chapter 1 serves as an introduction to the present situation of telecommunications, while Chapter 2 examines the theoretical background of dispute resolutions. Chapter 3 presents the various methods of dispute resolution that are being used today, including the Alternative Dispute Resolution (ADR) methods. Chapter 4 then looks at some countries and the methods they use for dispute resolution and dispute management. Chapters 5 and 6 are concentrated on the policy and regulatory initiatives and considerations, while a thorough assessment of the dispute resolution mechanisms is provided in Chapter 7. The last chapter in the book looks at some suggestions for dispute resolution mechanisms.

Postcolonial Politics and Personal Laws

Rina Verma Williams — 2012-10-18

Author:: Rina Verma Williams
ISBN:: 9780195680140
Publisher:: Oxford University Press
Subjects:: Law, Family Law
DOI:: 10.1093/acprof:oso/9780195680140.001.0001
Published in print:: 2006
Published Online:: 2012-10-18

This book explores the postcolonial state in India in a longitudinal perspective. It concentrates on the religious legal system of personal laws in India. These laws are a prime example of continuity between the colonial and postcolonial Indian state. In addition, this book investigates how the postcolonial state in India has formed policies on the personal laws through the 1990s. It tries to improve the understanding of how the postcolonial state has exerted power in the post-independence era, and the extent to which that exercise of power has been affected by the legacies of the colonial state. Indian independence came in the form of a legal statute and it is precisely for such reasons that the case of India can provide significant insight into the forms and limits of legal continuity between the colonial and postcolonial eras. Furthermore, the personal laws in India are important for the study of this continuity. This book then reviews the evolution of Indian government policy on the personal laws to identify the extent to which colonial legal institutions persisted after independence and shaped the policies of the postcolonial government.

Medieval Hindu Law

Ashutosh Dayal Mathur — 2012-10-18

Author:: Ashutosh DayalMathurUniversity of Delhi
ISBN:: 9780195685589
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780195685589.001.0001
Published in print:: 2007
Published Online:: 2012-10-18

This book seeks to study the changes which took place in the field of Hindu law as it evolved between the eighth and the fourteenth centuries and as reflected in selected Sanskrit texts written during this period. It also tries to explore the reasons which brought about those changes. Hindu law has a history of nearly four to five millennia recorded in an astonishingly large and varied range of texts. During this long journey, it has appeared in many different manifestations and has gone through several transformations with different sources, validating factors or justifications, methodologies and operative machinery. The Indian textual tradition can be broadly covered under three major stages, namely the stage of the Vedas, the stage of the ṣrtis, which includes both the later Vaidika texts called the dharma sūtras and the metrical sṃrtis, and the stage of commentaries and digests. This book argues that in the early medieval period, Hindu law emerged from the shadows of dharma and established itself independently as ‘vyvahāra’. This process is called the secularization of Hindu law. The book is an intensive study of seven leading ‘vyvahāra’ texts ranging from eighth to fourteenth-century.

Law and Gender Inequality

Flavia Agnes — 2012-10-18

Author:: Flavia Agnes
ISBN:: 9780195655247
Publisher:: Oxford University Press
Subjects:: Law, Family Law
DOI:: 10.1093/acprof:oso/9780195655247.001.0001
Published in print:: 2001
Published Online:: 2012-10-18

This volume explores gender inequality and the politics of women’s rights in India. It provides an invaluable analysis of the current trends of the debate on Uniform Civil Code located within a highly charged political scenario. It examines the condition of women’s rights under the plurality of Hindu law and during the evolution of Islamic law. It discusses the history of the politicisation of women’s rights, the erosion of secular principles, and the stilted Hindu law reforms aimed at promoting gender justice. It also investigates the legal significance of the Parsi community’s personal law for women’s rights and evaluates the impact of the political reformulation of Christian personal law.

Knowledge as Property

Rajshree Chandra — 2012-10-18

Author:: Rajshree Chandra
ISBN:: 9780198065579
Publisher:: Oxford University Press
Subjects:: Law, Intellectual Property, IT, and Media Law
DOI:: 10.1093/acprof:oso/9780198065579.001.0001
Published in print:: 2010
Published Online:: 2012-10-18

The book is an inquiry into the nature and scope of intellectual property rights (IPRs) using three different approaches: the philosophical, the empirical, and the theoretical. It studies the different justifications usually put forward in favour of protecting rights in intellectual property and shows how such rights come into conflict with other rights in society. The author contends that rights can and should be ‘structured in a lexical order of priority where rights which are linked to survival strategies ought to have enough legal teeth to trump rights which are more in the nature of economic entitlements, like IPRs are’.

The International Law of the Sea

O.P. Sharma — 2012-10-18

Author:: O.P. Sharma
ISBN:: 9780198060000
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198060000.001.0001
Published in print:: 2010
Published Online:: 2012-10-18

This book discusses the developments that have taken place in the laws of the sea in the last sixty years. The earlier European Law of the Sea was the special concern of a few seafaring nations and the dominant interests of the big maritime powers largely determined its shape and content. The United Nations Convention on the Law of the Sea (1982) now governs almost diverse uses of oceans during wartime as well as peace time, including international and domestic maritime trade. The author discusses how the Conventions’ regime on navigation through the territorial sea, international straits, exclusive economic zone, abatement and control of marine pollution, marine scientific research, and the international sea bed are fully in accord with India’s national interests. The author also analyses concepts like ocean governance, the limitations on the freedom and the importance of maritime cooperation in various spheres of the law of the sea. In terms of security issues in the future, the book asks for the creation of a cooperative (rather than a competitive) paradigm to prevent emerging threats from trans-national crimes and terrorism. The book also provides an overview of contentious issues between States, and discusses some cases that were dealt with by the International Court of Justice, the Law of the sea Tribunal, and national courts.

India in the Shadows of Empire

Mithi Mukherjee — 2012-10-18

Author:: Mithi Mukherjee
ISBN:: 9780198062509
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198062509.001.0001
Published in print:: 2009
Published Online:: 2012-10-18

This book explains the postcolonial Indian polity by presenting an alternative historical narrative of the British Empire in India and India's struggle for independence. It pursues this narrative along two major trajectories. On the one hand, it focuses on the role of imperial judicial institutions and practices in the making of both the British Empire and the anti-colonial movement under the Congress, with the lawyer as political leader. On the other hand, it offers a novel interpretation of Gandhi's non-violent resistance movement as being different from the Congress. It shows that the Gandhian movement, as the most powerful force largely responsible for India's independence, was anchored not in western discourses of political and legislative freedom but rather in Indic traditions of renunciative freedom, with the renouncer as leader.

Human Rights in a Posthuman World

Upendra Baxi — 2012-10-18

Author:: Upendra Baxi
ISBN:: 9780198061762
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198061762.001.0001
Published in print:: 2009
Published Online:: 2012-10-18

This book discusses and combines the different reflections on the human rights theory in the contemporary human condition, which was delineated by the discourses on development, terror, and the emergent posthuman. The six chapters cover a variety of topics, from theory-aversion, to the terror wars, and the posthuman. This book suggests that any general social theory of human rights needs to increase its domain in order to take the discourses on terror and the posthuman seriously.

Hinduism and Human Rights

Arvind Sharma — 2012-10-18

Author:: Arvind Sharma
ISBN:: 9780195665857
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195665857.001.0001
Published in print:: 2004
Published Online:: 2012-10-18

This book adopts a conceptual approach to the issue of Hinduism and human rights in a cultural ethos in which they are perceived, at least initially, as antithetical, if not antagonistic to each other, perhaps even displaying an aversion to each other bordering on hostility. It offers a rich network of interrelated questions about human rights from a variety of Hindu and non-Hindu angles. The study focuses on the conceptual level of debate and tries to show that there is room for classical or traditional Hindu concepts and ideas in the current international debates on human rights’ protection. The book raises many pertinent issues concerning the relation between Hinduism and human rights. The indological literature on Hinduism and Hindu culture has never addressed the human rights’ perspective, and the author has analysed this issue by discussing issues like the caste system (varṇa, jati), the stages of life (asrama), the four Ages (yugas), and freedom of conscience and Hinduism.

Hindu Law

Werner Menski — 2012-10-18

Author:: Werner Menski
ISBN:: 9780195699210
Publisher:: Oxford University Press
Subjects:: Law, Family Law
DOI:: 10.1093/acprof:oso/9780195699210.001.0001
Published in print:: 2009
Published Online:: 2012-10-18

This book presents a study on a postmodernist analysis of classical Hindu law, which has become neglected due to the modernist assumptions about the increasing irrelevance of ‘religious’ legal systems. The book is split into three parts. The first part focuses on the historical and conceptual background of Hindu law, while the second part concentrates on five facets of Hindu law that go beyond tradition and modernity, namely the Hindu marriage law, child marriage, polygamy, divorce, and the maintenance law. Finally, the third part presents a concluding analysis to the preceding chapters, where it presents the postmodern condition of Hindu law.

The Future of Human Rights

Upendra Baxi — 2012-10-18

Author:: Upendra Baxi
ISBN:: 9780195690439
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195690439.001.0001
Published in print:: 2008
Published Online:: 2012-10-18

This book hopes to further contribute to teaching, research, and activist contention about the uncertain futures of human rights in a hyperglobalizing world. The issue of politics — the combined and uneven labours of practices of domination and governance and of counter-power — is addressed in this work. Power and resistance have articulated themselves in terms of alternate languages of normative politics in a pre-human rights epoch through various notions such as ‘justice’, ‘righteous’ conduct (both on the part of the rulers and the ruled), moral responsibility to avoid causing harm to others in everyday conduct, the virtues of honour and chivalry (upon which even until this day thrive the genre, texts, and corpus of international law of humanitarian intervention and of warfare), and fidelity to the divine being rendered intelligible only through the pious interpretation of God’s word. This book also further addresses some ways in which politics of production (inter/intra-governmental labours as well as a wide variety of related social practices) bears upon the production of politics. Human rights activism, the politics of identity and difference, relativism, human rights movements, human rights markets, and business ethics are also discussed.

The Court and the Constitution of India

O. Chinnappa Reddy — 2012-10-18

Author:: O. Chinnappa Reddy
ISBN:: 9780198066286
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198066286.001.0001
Published in print:: 2010
Published Online:: 2012-10-18

This book provides a comprehensive, and a reader-friendly narrative of the working of the Indian Supreme Court in ways that enable us to assess its collective strength and fragility as an institution of national governance. In thirty-odd chapters, the book guides us through the maze of constitutional interpretation created by India's most eminent justices. This book marks a contribution towards civic and republican education about the role of summit justices in a rapidly changing post-colonial, and now also hyperglobalizing, India. What makes this work arresting are the ways in which some reflexive justices of the apex court seize the contingent moment to readdress the future of Indian human rights and constitutionalism against the forces and tendencies of co-optation and even confiscation of people's rights. This remarkable study carries several messages, perhaps the most important being that the Constitution and the Supreme Court should be taken seriously by all citizens.

CONSTITUTIONAL QUESTIONS AND CITIZENS' RIGHTS

A. G. Noorani — 2012-10-18

Author:: A. G. Noorani
ISBN:: 9780195678291
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780195678291.001.0001
Published in print:: 2006
Published Online:: 2012-10-18

This omnibus is a collection of essays that focuses on issues concerning the president of India, along with parliament, the judiciary, the states, the armed forces, the process of accountability, the Election Commission, and the civil services. It brings together two volumes, Constitutional Questions in India and Citizens' Rights, Judges and State Accountability, published in 2000 and 2002 respectively. The first volume looks at the politically tumultuous years between 1989 and 1999, while the second examines the elections, institutions, and various commissions of enquiry created by the government. The two volumes revolve around a central theme, the rule of law in democratic society, and discusses issues ranging from Parliament's powers and responsibilities, respect for federalism, judges' powers and duties, and citizen's rights as well as the corresponding duty of accountability that devolves on the state. Other topics covered by the omnibus include freedom of information and the citizen's right to know, foreign policy, the sanctity of the Constitution, parliamentary resolutions, the court's powers of contempt, and the right to strike. While the volume highlights the process of accountability across India's institutions, it demonstrates how citizens can assert their rights in the face of institutional disinterest and injustice.

Child Rights in India

Asha Bajpai — 2012-10-18

Author:: Asha Bajpai
ISBN:: 9780195670820
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195670820.001.0001
Published in print:: 2006
Published Online:: 2012-10-18

This book presents important legislation and judgments on child rights in India. Each chapter includes constitutional provisions, and statutory and decisional law. It also stresses various relevant regional and international mechanisms and international standards of behaviour towards children, and a host of inadequacies in laws and procedures. It cites some examples and discusses certain approaches of current nongovernmental organizations’ (NGOs) interventions and strategies in the field to enhance and protect the rights of the child. This volume specifically addresses issues such as child custody and guardianship, adoption, child labour, child sexual abuse and trafficking, juvenile justice, education, health and nutrition of children, and their right to play and recreation. Education is the most efficient tool for empowerment and human development. The Juvenile Justice (Care and Protection of Children) Act 2000 strengthens the role of the State as the guardian of any child in its custody. Addressing the problem of neglect of children's healthcare is a challenge for healthcare providers. Clearly, children do not receive ‘the best that mankind has to offer’ but they can be shielded from the worst.

Articles of Faith

Ronojoy Sen — 2012-10-18

Author:: Ronojoy Sen
ISBN:: 9780198063803
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198063803.001.0001
Published in print:: 2010
Published Online:: 2012-10-18

This book is a small contribution towards understanding the place of religion in modern India and the nature of Indian secularism. While there are several possible ways to approach this complex task, this book has chosen to do so by looking at the Indian Supreme Court judgments. This is not intended to be a comprehensive account of the Supreme Court's understanding of religion and secularism, but a discussion of judicial interventions in areas which are important to the life of the Indian nation and Indian secularism. Several public events have shaped the argument of this book, even though it might not be apparent from the text itself: the riots following the assassination of Indira Gandhi; the terrorist bombing of the World Trade Center in New York City on September 11, 2001; and the Mumbai terror attacks. One reaction to these acts of terrible violence, where religion or religious extremism could be seen to be central, might have been to argue for banishing religion from the public sphere. This book traverses an opposite path because it believes that religion and religiosity were not at the heart of these violent events. It argues that religious pluralism and religious tolerance are critical for the survival of the Indian nation, and it seeks to bring this view back to centre stage in the context of the courts in particular and public policy in general.

Are Human Rights Western?

Arvin Sharma — 2012-10-18

Author:: Arvin Sharma
ISBN:: 9780195679489
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195679489.001.0001
Published in print:: 2006
Published Online:: 2012-10-18

This book attempts to examine the assumptions that human rights are Western, that Westerners have ‘their own concept of human rights’, and that ‘Western ideas of human rights have dominated international discourse’. If Westerners have their own concept of human rights, and if they are ‘human’ rights at the same time, then the following question arises: In precisely what way are they Western? And if they were in some sense Western in 1948, are they still so in 2005? The book is organized as follows. Part I presents arguments which tend to claim that human rights are Western on the basis of their historical background. Part II focuses on arguments based on the secular basis of human rights. Part III engages the economic dimension of the issue, with the rise of capitalism and its role in the context of human rights constituting the distinguishing feature of this dimension. The arguments in Part IV involve concepts of universality, rationality, philosophy, and ethics, each in turn providing the basis for a set of arguments. Part V presents arguments in which the claim that human rights are Western is associated with the concept of modernity. Part VI comprises arguments regarding the alleged Westernness of human rights in which the religious element plays a major role. The experience of the non-Western world in relation to the West, as characterized by colonialism, imperialism, racism, and parochialism, constitutes a natural grouping by itself and forms Part VII of the book. Part VIII presents arguments that take aim at the Westernness of human rights, without necessarily resorting to larger frames of references which characterized the preceding arguments. Finally, Part IX brings together arguments which are related to the institutional dimension of the human rights discourse as distinguished from the ideological and other dimensions of the discourse.

Appropriation and Invention of Tradition

Nandini Bhattacharya-Panda — 2012-10-18

Author:: Nandini Bhattacharya-Panda
ISBN:: 9780195690484
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780195690484.001.0001
Published in print:: 2007
Published Online:: 2012-10-18

The beginning of Anglo–Hindu jurisprudence was occasioned by decisive developments in the cultural, intellectual, and legal history of India. This book deals with the appropriation of the Dharmaśāstras — a powerful written tradition — and its codification, in the construction of Hindu law. It explores the significant connections between this process of formalization and the consolidation of the empire in Bengal. It analyses the shifting administrative and political needs of the colonial regime as well as the perceptions and attitudes of the officials in this process of codification. Through a careful study of the compilations, Vivādarṇavasetu and Vivādabhangārṇava alongside their late eighteenth-century colonial translations, the book brings out the ways in which ancient textual traditions — the prescriptive, normative, and moralistic rules of the Dharmaśāstras — were metamorphosed into legal rules to be directly administered in courts. Investigating the intricate and dynamic links between power and knowledge in the evolution of institutions under colonial rule, this book underlines innovative ways of looking at the legal history of colonial India.

Water Law in India

Philippe Cullet and Sujith Koonan — 2012-09-20

Author:: PhilippeCulletProfessor of Law at the School of International and Environmental Law, Oriental and African StudiesSujithKoonanProgramme Coordinator, Environmental Law Research Society,
ISBN:: 9780198070818
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198070818.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

India's dependence on water is critical owing to its large agricultural base, the water needs of its billion-plus population, and the recent economic growth trends. Despite the plethora of material on environmental law, legal scholarship on water law in particular has been negligible. This book discusses the policy framework for the use of water in India. It also brings out the complexity in the structure of laws due to variations at the levels of their implementation, i.e., at the international, national, state, municipal, and panchayat levels. It covers a wide range of issues such as centre-state relations; management, appropriation, and control of water; irrigation; sanitation; drinking water; ground water; pollution; and water-dependent activities like power generation, and fisheries. The book further explores water-related environmental and health concerns. The work also examines the importance of various conflict resolution processes for resolving water-related disputes. It offers a range of legal ideas on water management in India, and thus, provides crucial insights into the field.

A Theory of Unborn Life

Anja J. Karnein — 2012-09-20

Author:: Anja J. Karnein
ISBN:: 9780199782475
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199782475.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

In light of new biomedical technologies, such as artificial reproduction, stem cell research, genetic selection and design, the question of what we owe to future persons and unborn life more generally, is as contested as ever. This book offers a new theory by showing how our commitments to persons can help us make sense of our obligations to unborn life. These commitments give us reasons to treat embryos that will develop into persons in anticipation of these persons. By contrast, embryos, which women want to abort or refuse to implant, can be discarded or used for research purposes. How viable is this theory? The book explores its attractiveness for Germany and the U.S.—two countries with very different approaches to valuing unborn life. However, another question raised by modern biomedical technologies concerns the legitimacy of genetically selecting and manipulating embryos. Parents might want to create persons with particular genetic properties. The book maintains that only some uses of these technologies do not violate what respect for persons, including those of the future, requires. Genetic interventions can only be legitimate if used to insure future persons’ independence. With this claim the book’s theory runs counter to liberal eugenic approaches that give parents wide-ranging entitlements to interfere with their future child’s genome, in the names of reproductive freedom, enhancing the species or social justice.

Targeted Killings

Claire Finkelstein, Jens David Ohlin, and Andrew Altman — 2012-09-20

Author:: ClaireFinkelsteinAlgernon Biddle Professor of Law and Professor of Philosophy, University of Pennsylvania; Co-Director, University of Pennsylvania Institute of Law and PhilosophyJens DavidOhlinAssociate Professor of Law, Cornell Law SchoolAndrewAltmanProfessor of Philosophy, Georgia State University; Director of Research, Jean Beer Blumenfeld Center for Ethics
ISBN:: 9780199646470
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199646470.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The war on terror is remaking conventional warfare. The protracted battle against a non-state organization, the demise of the confinement of hostilities to an identifiable battlefield, the extensive involvement of civilian combatants, and the development of new and more precise military technologies have all conspired to require a rethinking of the law and morality of war. Just war theory, as traditionally articulated, seems ill-suited to justify many of the practices of the war on terror. The raid against Osama Bin Laden's Pakistani compound was the highest profile example of this strategy, but the issues raised by this technique cast a far broader net: every week the U.S. military and CIA launch remotely piloted drones to track suspected terrorists in hopes of launching a missile strike against them. In addition to the public condemnation that these attacks have generated in some countries, the legal and moral basis for the use of this technique is problematic. Is the U.S. government correct that nations attacked by terrorists have the right to respond in self-defense by targeting specific terrorists for summary killing? Is there a limit to who can legitimately be placed on the list? There is also widespread disagreement about whether suspected terrorists should be considered combatants subject to the risk of lawful killing under the laws of war or civilians protected by international humanitarian law. Complicating the moral and legal calculus is the fact that innocent bystanders are often killed or injured in these attacks. It discusses all aspects of targeted killing.

Seduction by Contract

Oren Bar-Gill — 2012-09-20

Author:: Oren Bar-Gill
ISBN:: 9780199663361
Publisher:: Oxford University Press
Subjects:: Law, Company and Commercial Law
DOI:: 10.1093/acprof:oso/9780199663361.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

Consumers routinely enter into long-term contracts with providers of goods and services — from credit cards, mortgages, mobile phones, insurance, TV, and internet services to household appliances, events, health clubs, magazines, and transportation. Across these consumer markets certain design features of contracts are recurrent, and puzzling. Why do sellers design contracts to provide short-term benefits and impose long-term costs? Why are low introductory prices so common? Why are the contracts themselves so complex, with numerous fees and interest rates, tariffs, and penalties? This book explains how consumer contracts emerge from the interaction between market forces and consumer psychology. Consumers are short-sighted and optimistic, so sellers compete to offer short-term benefits, while imposing long-term costs. Consumers are imperfectly rational, so sellers hide the true costs of products and services in complex contracts. Consumers are seduced by contracts that increase perceived benefits, without actually providing more benefits, and decrease perceived costs, without actually reducing the costs that consumers ultimately bear. Competition does not help this behavioural market failure. It may even exacerbate it. Sellers, operating in a competitive market, have no choice but to align contract design with the psychology of consumers. Put bluntly, competition forces sellers to exploit the biases and misperceptions of their customers. This book argues that better legal policy can help consumers and enhance market efficiency. Disclosure mandates provide a promising avenue for regulatory intervention. Simple, aggregate disclosures can help consumers make better choices. Comprehensive disclosures can facilitate the work of intermediaries, enabling them better to advise consumers. Effective disclosure would expose the seductive nature of consumer contracts and, as a result, reduce sellers' incentives to write inefficient contracts.

The Right to Information Act 2005

Sudhir Naib — 2012-09-20

Author:: Sudhir Naib
ISBN:: 9780198067474
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198067474.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

This handbook provides a comprehensive and detailed introduction to the Right to Information Act 2005. The Act, one of the most remarkable piece of legislation in the world, for the first time empowers Indian citizens to access information in the possession of public officials and authorities. This handbook serves as a guide to the implementation of the Right to Information Act, and is separated into eight detailed chapters. The first chapter introduces the concept of freedom of information (FOI), and views it within a global perspective. The following chapter quickly places the right to information within the India, as it examines the primary source of the right to information (RTI) movement. The third chapter is focused on the ways one can effectively use the RTI Act, 2005. The next two chapters discuss the roles, obligations, and duties of public authorities and the Public Information Officers (PIOs). Chapters 6 and 7 are concerned with exempted information, and the last chapter takes a look at the appellate authorities and their roles.

The Right of Nonuse

Jan G. Laitos — 2012-09-20

Author:: Jan G. Laitos
ISBN:: 9780195386066
Publisher:: Oxford University Press
Subjects:: Law, Environmental and Energy Law
DOI:: 10.1093/acprof:oso/9780195386066.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book provides a different perspective on the real causes of the ills plaguing the world's resources and environment. It re-examines the very nature of nature, and from this new perspective, argues that what is needed is for humans to grant to natural resources a legal right to be left alone—a right of nonuse. In the process, it explores the following questions: Why do natural resources continue to be depleted and removed at an alarming rate? Why are species becoming extinct at a pace that may be unprecedented? Why does the environment continue to be polluted? Why do the weather and climate seem to be changing? Perhaps most important, why have laws, legal institutions and governments been unable to address and correct these problems? This book reviews the history of our relationship with the natural environment and develops new ways of thinking about nature and its protection. Instead of proceeding with human-based goals, the book argues that we should protect environmental resources for their own intrinsic value. Instead of giving humans more and more rights to clean up the environment, and to halt resources depletion, a right of nonuse held by the resource itself should be created. Natural resources have always possessed this parallel nonuse function, and society should recognize and legitimize it.

Religious Pluralism and Islamic Law

Anver M. Emon — 2012-09-20

Author:: Anver M. Emon
ISBN:: 9780199661633
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Comparative Law
DOI:: 10.1093/acprof:oso/9780199661633.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book problematizes tolerance as a conceptually helpful or coherent concept for understanding the significance of the dhimmī rules, the Islamic legal doctrines that governed and regulated non-Muslim permanent residents in Islamic lands. In doing so, it suggests that the Islamic legal treatment of non-Muslims is symptomatic of the more general challenge of governing a diverse polity. Far from being constitutive of an Islamic ethos, the dhimmī rules are symptomatic of the messy business of ordering and regulating a diverse society. This understanding of the dhimmī rules allows us to view the dhimmī rules in the larger context of law and pluralism, and in that fashion, creates new spaces for analyzing Sharīʿa as one among many legal systems that, far from being unique, suffers similar challenges as other legal systems that also contend with the challenges of governing amidst diversity.

Realizing Utopia

The Late Antonio Cassese — 2012-09-20

Author:: The Late AntonioCasseseFormer President, Special Tribunal for Lebanon
ISBN:: 9780199691661
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199691661.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book is a collection by a group of innovative international jurists. Its contributors reflect on some of the major legal problems facing the international community and analyse the inconsistencies or inadequacies of current law. They highlight the elements — even if minor, hidden, or emerging — that are likely to lead to future changes or improvements. Finally, the chapters suggest how these elements can be developed, enhanced, and brought to fruition in the next two or three decades, with a view to achieving an improved architecture of world society or, at a minimum, to reshaping some major aspects of international dealings. Contributions to the book thus try to discern the potential, in the present legal construct of world society, that might one day be brought to light in a better world. As the impact of international law on national legal orders continues to increase, this volume takes stock of how far international law has come and how it should continue to develop.

Principles and Values in Criminal Law and Criminal Justice

Lucia Zedner and Julian V. Roberts — 2012-09-20

Author:: LuciaZednerProfessor of Criminal Justice, Faculty of Law and Corpus Christi College, University of Oxford, and Conjoint Professor, Faculty of Law University of New South Wales, SydneyJulian V.RobertsProfessor of Criminology, University of Oxford
ISBN:: 9780199696796
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199696796.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

Celebrating the scholarship of Andrew Ashworth, Vinerian Professor of English Law at the University of Oxford, this book explores questions of principle and value in criminal law and criminal justice. Internationally renowned for elaborating a body of principles and values that should underpin criminalization, the criminal process, and sentencing, Ashworth's contribution to the field over forty years of scholarship has been immense. Advancing his project of exploring normative issues at the heart of criminal law and criminal justice, the chapters examine the important and fascinating debates in which Ashworth's influence has been greatest. The chapters fall into three distinct but related areas, reflecting Ashworth's primary spheres of influence. Those in Part 1 address the import and role of principles in the development of a just criminal law, with contributions focusing upon core tenets such as the presumption of innocence, fairness, accountability, the principles of criminal liability, and the grounds for defences. Part 2 addresses questions of human rights and due process protections in both domestic and international law. In Part 3 the chapters are addressed to core issues in sentencing and punishment: they explore questions of equality, proportionality, adherence to the rule of law, the totality principle (in respect of multiple offences), wrongful acquittals, and unduly lenient sentences. Together they demonstrate how important Ashworth's work has been in shaping how we think about criminal law and criminal justice, and make their own invaluable contribution to contemporary discussions of criminalization and punishment.

Patent and Trade Disparities in Developing Countries

Srividhya Ragavan — 2012-09-20

Author:: Srividhya Ragavan
ISBN:: 9780199840670
Publisher:: Oxford University Press
Subjects:: Law, Intellectual Property, IT, and Media Law
DOI:: 10.1093/acprof:oso/9780199840670.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

For developing countries, the concept of sustainable development, as opposed to rapid pockets of development, embodies great promise for socio-political reasons. Most analyses of development, however, have focused on either trade mechanisms or intellectual-property regimes, which has resulted in overly narrow and sometimes paradoxical conclusions, with corresponding policy measures that have promised far more than they can deliver. While each of these mechanisms has benefits and disadvantages, questions about how they would interact and what kind of results they produce remain largely unexplored. Similarly, almost all of these regimes provide generalized solutions that developing countries tend to denounce as ill-fitting. There are several flexibilities that can be used as effective tools, but knowing which flexibility applies best to what context remains contentious. This book examines the interaction between trade and intellectual-property regimes (using the patent regime in India as the focal point) in an integrated developmental framework to determine whether and how sustainable economic growth can be achieved in developing countries. This book examines a number of important questions: Is compulsory licensing the best way to provide access to medication or is patent protection more efficient? Should innovation in plant breeding be protected at all? If so, should it be using patents or a sui generis mechanism?

The Oxford History of the Laws of England

John Hudson — 2012-09-20

Author:: John Hudson
ISBN:: 9780198260301
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198260301.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This volume, in the Oxford History of the Laws of England series, spans three centuries that encompassed the tumultuous years of the Norman conquest, and during which the common law as we know it today began to emerge. It treats all aspects of the early development of the English common law in a century, and features research into the original sources that bring the era to life, and provides an interpretative account, a subject analysis, and glimpses into medieval disputes. Starting with King Alfred (871–899), this book examines the particular contributions of the Anglo‐Saxon period to the development of English law, including the development of a powerful machinery of royal government, significant aspects of a long-lasting court structure, and important elements of law relating to theft and violence. Until the reign of King Stephen (1135–54), these Anglo‐Saxon contributions were maintained by the Norman rulers, whilst the Conquest of 1066 led to the development of key aspects of landholding that were to have a continuing effect on the emerging common law. The Angevin period saw the establishment of more routine royal administration of justice, closer links between central government and individuals in the localities, and growing bureaucratization. Finally, the later twelfth and earlier thirteenth century saw influential changes in legal expertise. The book concludes with the rebellion against King John in 1215 and the production of the Magna Carta.

Mistake and Non-Disclosure of Facts

Hugh Beale QC FBA — 2012-09-20

Author:: Hugh Beale QC FBA
ISBN:: 9780199593880
Publisher:: Oxford University Press
Subjects:: Law, Law of Obligations
DOI:: 10.1093/acprof:oso/9780199593880.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book examines the case for reforming the law on mistake and non-disclosure of fact to bring English law closer to the law in much of continental Europe. There, and in common law countries like the US, a party may avoid a contract for mistake of fact on a more liberal basis, and a party who deliberately keeps silent knowing that the other party is making a mistake may be guilty of fraud. This is not necessarily the case in England and Wales. Developing a proposal for law reform, the book concedes that the English courts require a law that puts great emphasis on certainty and expects parties to look out for their own interests; but posits that this individualistic approach is not suitable for smaller businesses which are less sophisticated and which are likely to be making low value contracts, so that relative cost of taking advice will be high. The book argues that the solution may not be to reform English contract law generally, but to support the development of an optional instrument on contract law, along the lines of the Common European Sales Law recently proposed by the European Commission. This measure is aimed specifically at the needs of small and medium enterprises, and contains the protective rules found in the other jurisdictions. It is aimed primarily at cross-border sales, but Member States would be given the option of adopting it for domestic transactions too. This would give small businesses the choice of using the current ‘hard-nosed’ law or adopting the more protective optional instrument, recognizing that different parties require different things from the law governing their contract.

The Margin of Appreciation in International Human Rights Law

Andrew Legg — 2012-09-20

Author:: Andrew Legg
ISBN:: 9780199650453
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199650453.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can Lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the European Court of Human Rights system. It provides a comprehensive justification of the doctrine, and catalogues the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.

The Law and Ethics of Medicine

John Keown — 2012-09-20

Author:: John Keown
ISBN:: 9780199589555
Publisher:: Oxford University Press
Subjects:: Law, Medical Law
DOI:: 10.1093/acprof:oso/9780199589555.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The book explains the principle of the sanctity or inviolability of human life and its continuing relevance to English law governing aspects of medical practice at the beginning and end of life. It shows that the principle, though widely recognized as an historic and foundational principle of the common law, has been widely misunderstood, not least in the legal academy, at the Bar and on the Bench. Part I of the book identifies the confusion and clarifies the principle, distinguishing it from “vitalism” on the one hand and a “qualitative” evaluation of human life on the other. Part II addresses legal aspects of the beginning of life, including the history of the law against abortion and its relevance to the ongoing abortion debate in the US; the law relating to the “morning after” pill; and the legal status of the human embryo in vitro. Part III addresses legal aspects of the end of life, including the euthanasia debate; the withdrawal of tube-feeding from patients in a “persistent vegetative state”; and the duty to provide palliative care.

Judges of the Supreme Court of India

George H. Gadbois, Jr — 2012-09-20

Author:: George H. Gadbois, Jr
ISBN:: 9780198070610
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198070610.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

Despite the critical role played by the Supreme Court of India (SCI), the lives of the judges have never been studied before. This book presents biographical essays for each of the first ninety-three judges who served on the Court from 1950 through mid-1989. The essays are based on interviews the author conducted with sixty-four of the sixty-eight judges who were alive in the 1980s, and on meetings and correspondence with relatives, friends, and associates of the deceased judges. The book provides account for why certain judges rather than others were chosen and who were the people that selected them. It provides a collective portrait of these judges, paying particular attention to changes in their background characteristics — fathers’ occupation, education, pre-SCI career, caste, religion, state of birth, and region, over four decades, and post-retirement activities. This is an invaluable reference book for teachers and students of law as well as judges and advocates. Scholars and students from the disciplines of sociology, political science, along with journalists and general readers will also find the book useful.

International Prosecutors

Luc Reydams, Jan Wouters, and Cedric Ryngaert — 2012-09-20

Author:: LucReydamsAssociate Professional Specialist, Department of Political Science, University of Notre Dame, Notre Dame, IN, USAJanWoutersJean Monnet Chair Ad Personam EU and Global Governance Professor of International Law and International Organizations Director, Leuven Centre for Global Governance StudiesCedricRyngaertAssistant Professor of International Law at the Universities of Leuven and Utrecht
ISBN:: 9780199554294
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199554294.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book examines the prosecution as an institution and a function in a dozen international and hybrid criminal tribunals, from Nuremberg to the International Criminal Court. It is the result of a sustained collaborative effort among some twenty scholars and (former) tribunal staffers. The starting point is that the prosecution shapes a tribunal's practice and legacy more than any other organ and that a systematic examination of international prosecutors is therefore warranted. The chapters are organized chronologically, according to the successive phases of the life of the institution and the various stages of the trials. The analysis includes each institution's establishment, mandate, and jurisdiction, as well as the prosecutorial framework and strategy, the prosecutor's external relations, and the completion of the institution's work. The book also considers the prosecutors'independence and impartiality, and their accountability for their decisions. The volume thus provides a picture of the mandate, organization, and operation of the prosecution in international criminal trials.

International Law as Social Construct

Carlo Focarelli — 2012-09-20

Author:: Carlo Focarelli
ISBN:: 9780199584833
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199584833.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The book distils and articulates international law as a social construct. It does so by analysing its social foundations, essence, and roots in practical and socially workable (as opposed to ‘pure’) reason. In addition to well-known doctrines of jurisprudence and international law, it draws upon psycho-analytic insights into the origins and nature of law, as well as philosophical social constructivism. The work suggests that seeing law as a social construct is crucial to our understanding of international law and to the struggle to create better working rules. The book re-conceptualizes both past and new doctrines of international law as ‘constructs’, namely, as strategies of concomitantly de-mythologizing and re-mythologizing international law. Key areas of international law, including subjects, sources, hierarchy, values, and remedies, are shown to be part of this process. The social impact on international law of transnational actors and stakeholders, normative fragmentation, global justice, legitimacy of rules and players, dynamics and hierarchization of norms, compliance and implementation in municipal law is also extensively investigated. Five basic values of the international community, namely security, humanity, wealth, environment, and knowledge, are explored by stressing their inter- and intra-tensions. Finally, the analysis is extended to the role that international courts play in the prosecution of heads of state and other transnational players who violate international law.

The Insecurity State

Peter Ramsay — 2012-09-20

Author:: Peter Ramsay
ISBN:: 9780199581061
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199581061.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the liabilities found in much of the expansive criminal legislation enacted under that government. This book identifies the normative source of the right to security in the idea of vulnerable autonomy. It demonstrates that this idea is axiomatic to political theories that have enjoyed a preponderant influence across the political mainstream, well beyond the ranks of the Labour government. It considers the continuing influence of these normative commitments on the Coalition government's policy. The book explores how the contemporary criminal law's institutionalization of a right to security differs from the law's earlier protection of security interests. It exposes the paradox presented by laws that declare their own lack of authority by threatening punishments that are justified on the assumption that the normal condition of the representative subject of law is one of feeling vulnerable to criminal victimization. The book presents unorthodox criminal law theory in two respects. First, it offers an explanatory political sociology of a contemporary trend in the criminal law's ‘special part’ rather than a philosophical treatment of the law's general principles. Second, rather than applying a pre-existing sociological or philosophical theory to the law, it develops its theoretical explanation from a detailed legal analysis and reconstruction of New Labour's flagship criminal justice policy, the Anti-Social Behaviour Order.

Homicide and the Politics of Law Reform

Jeremy Horder — 2012-09-20

Author:: Jeremy Horder
ISBN:: 9780199561919
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199561919.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book begins with the story of efforts to reform the law of homicide in England and Wales. Having wrested control over the direction of reform from the judiciary, successive governments have been content to oversee a narrowly focused, pluralist model of reform. Under this model, individuals and interest groups — extending to bureaucratised lay bodies representing a variety of special interests — compete for a reforming influence with civil servants and ministers. However, what has remained neglected is any serious attempt by government to discover the views of the general public on homicide law reform. The book argues that comprehensive research into, and a degree of deference to, public opinion on the scope of homicide is essential to the reform process. It is essential principally as a means of conferring true legitimacy on homicide reform in a democracy. Elite or expert opinion alone will never authentically secure such legitimacy. A true liberal democracy will build in to legislation opportunities for citizens in good conscience periodically to oppose cherished liberal principles currently governing homicide law. The book goes on to examine many of the key issues in the current law, such as the ever-weakening case for ‘partial’ defences to murder, the need to hold public authorities to account for corporate manslaughter, secondary liability for murder, the case for ‘one-punch’ manslaughter, and the bureaucratisation of some forms of homicide, such as causing death by dangerous driving, that have departed in their structure and operation from the common law manslaughter principles that formerly governed them.

The History of ICSID

Antonio R. Parra — 2012-09-20

Author:: Antonio R. Parra
ISBN:: 9780199660568
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Legal History
DOI:: 10.1093/acprof:oso/9780199660568.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book details the history and development of the International Centre for Settlement of Investment Disputes (ICSID) and its constituent treaty, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, covering the years from 1955 to 2010. The book traces the immediate origins of the Convention, in the years 1955 to 1962, and gives a stage-by-stage narrative of the drafting of the Convention between 1962 and 1965. It recounts details of bringing the Convention into force in 1966 and the elaboration of the initial versions of the Regulations and Rules of ICSID adopted at the first meetings of its Administrative Council in 1967. The three periods 1968 to 1988, 1989 to 1999, and 2000 to June 30, 2010, are covered in separate chapters which examine the expansion of the Centre's activities and changes made to the Regulations and Rules over the years. There are also overviews of the conciliation and arbitration cases submitted to ICSID in the respective periods, followed by in-depth discussions of selected cases and key issues within them. A concluding chapter discusses some of the broad themes and findings of the book, and includes several suggestions for further changes at ICSID to help ensure its continued success.

Growing Up and Away

Vijayalakshmi Balakrishnan — 2012-09-20

Author:: Vijayalakshmi Balakrishnan
ISBN:: 9780198071266
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198071266.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

This book aims to expand our understanding of the role of institutions, norms, and key players in shaping the evolution of child rights in India. It traces the evolution of the child rights discourse in post-Independence India, suggesting that there are different and political ways of thinking about childhoods. Divided into three parts, the book begins with analyses of the effects of Partition, which while creating new political and cultural identities framed the child-State relationship. The second part further examines the ways in which the multiplicity of discourses during the nationalist struggle gave way to a singular view, seen in later public conversations on children and their rights. The third part explores the narratives of continuity and change, and maps the departures of memory, history, and identity. The book emphasizes the point that more than any other event or process, the violence and fears aroused by Partition have influenced the course of modern child development related policy-making. The relationship between the political and cultural identities of all the actors, who influenced the experience of childhoods, had also been deeply affected by these events.

Governance by Indicators

Kevin Davis, Angelina Fisher, Benedict Kingsbury, and Sally Engle Merry — 2012-09-20

Author:: KevinDavisBeller Family Professor of Business Law, New York University School of LawAngelinaFisherProgramme Director, NYU's Institute for International Law and BusinessBenedictKingsburyMurray and Ida Becker Professor of Law, New York University School of LawSallyEngle MerryProfessor of Anthropology, Law, and Society, New York University
ISBN:: 9780199658244
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199658244.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The use of indicators as a technique of global governance is increasing rapidly. Major examples include the World Bank's Doing Business Indicators, the World Bank's Good Governance and Rule of Law indicators, the Millennium Development Goals, and the indicators produced by Transparency International. Human rights indicators are being developed in the UN and regional and advocacy organizations. The burgeoning production and use of indicators has not, however, been accompanied by systematic comparative study of, or reflection on, the implications, possibilities, and pitfalls of this practice. This book furthers the study of these issues by examining the production and history of indicators, as well as relationships between the producers, users, subjects, and audiences of indicators. It also explores the creation, use, and effects of indicators as forms of knowledge and as mechanisms of making and implementing decisions in global governance. Using insights from case studies, empirical work, and theoretical approaches from several disciplines, the book identifies legal, policy, and normative implications of the production and use of indicators as a tool of global governance.

Globalization, International Law, and Human Rights

Jeffery F. Addicott, Md Jahid Hossain Bhuiyan, and Tareq M.R. Chowdhury — 2012-09-20

Author:: Jeffery F.AddicottSt Mary's University School of Law, San Antonio, TexasMd Jahid HossainBhuiyanASA University, BangladeshTareq M.R.ChowdhuryASA University, Bangladesh
ISBN:: 9780198074151
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198074151.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

This volume analyses human rights in the context of globalization. Focusing on a broad range of human rights themes, it examines the human rights experiences of various countries. It covers important contemporary issues such as the relationship between human rights and globalization, climate change, unbridled corporate capitalism, global terrorism, and globalization and its impact on trade, investments, and people’s movement. Establishing an interface between good governance and human rights, the work emphasizes the significance of new modern rights such as fundamental right to water. The volume also examines the framework of international legal provisions to deal with human rights violations. Providing a broad picture of the current and emerging human rights policy framework for the recognition of human rights, it puts in perspective the conflicting tendencies of modern world towards the persistent struggle for recognizing human rights.

The Future of Disability Law in India

Jayna Kothari — 2012-09-20

Author:: Jayna Kothari
ISBN:: 9780198077626
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198077626.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This volume critically reviews the Persons with Disabilities (PWD) Act of 1995 in India. It addresses the core themes of the statute, which revolve around equality and non-discrimination. It argues that due to the lack of clarity of the Act, civil society groups, judges, and even lawyers often find it difficult to interpret its provisions. It highlights possible amendments to the PWD in order to bring it compliance with the United Nations Convention on the Rights of Persons with Disabilities (CPRD) and discusses the potential role of the private sector in providing social security to the disabled. Some of the key issues covered by this volume include public employment for persons with disability, right to education, and right to access.

The Future of Criminology

Rolf Loeber and Brandon C. Welsh — 2012-09-20

Author:: RolfLoeberDepartment of Psychiatry, School of Medicine, University of PittsburghBrandon C.WelshNortheastern University
ISBN:: 9780199917938
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199917938.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

Criminology is a dynamic and evolving field of study. In recent decades, the study of the causes, development, prevention, and treatment of juvenile delinquency and adult crime has produced many important discoveries. This volume address two questions about crucial topics facing criminology—from causation to prevention to public policy: Where are we now? What does the future hold? This book has been written by more than forty scholars from across the world. Chapters present the future of research, policy, and practice in the discipline. They examine five important areas of criminological knowledge (development and causation, criminal careers and justice, prevention, intervention and treatment, and public policy).

From Single Market to Economic Union

Niamh Nic Shuibhne and Laurence W. Gormley — 2012-09-20

Author:: NiamhNic ShuibhneChair of European Union Law, School of Law, University of EdinburghLaurence W.GormleyProfessor of European Law & Jean Monnet Professor, University of Groningen; Professor at the College of Europe, Bruges
ISBN:: 9780199695706
Publisher:: Oxford University Press
Subjects:: Law, EU Law
DOI:: 10.1093/acprof:oso/9780199695706.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The path from single market to economic union is a continuing — and controversial — story; raising questions about the present and future regulation, structures, and purpose of economic union within the broader objectives of the EU legal and political order. This book focuses on the evolution and regulation of the EU as an economic union, in tribute to the scholarship of the late Professor John A Usher. The process of treaty reform within the EU has now reached fruition and attention is being re-focused on substantive aspects of EU law and policy. The chapters in the collection consider the EU internal market in its broadest sense: the fundamental free movement provisions remain at the core, but the concept of the transnational market must also accommodate competing interests to which the EU is committed but the implications of which can nonetheless distort, and thus need to be carefully balanced within, the basic free trade framework (for example, intellectual property rights and the protection of innovation, and also the implementation of social policy objectives). The book also situates the market in its broader politico-economic context. The global economic climate remains precarious and questions about optimal financial and fiscal regulation, and monetary stability, remain critically significant, especially in a transnational context given the degree of inter-dependency generated by the EU integration project.

Family Law Volume 2

Flavia Agnes — 2012-09-20

Author:: Flavia Agnes
ISBN:: 9780198072201
Publisher:: Oxford University Press
Subjects:: Law, Family Law
DOI:: 10.1093/acprof:oso/9780198072201.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book fills the void within the rubric of a contemporary and evolving discipline, ‘gender and law’, which is interdisciplinary in its approach. In this context, it specifically fills the gap between the theory and practice of law, between the ‘doctrinal’ and ‘non-doctrinal’, between the ‘ideal’ and the ‘technical’ and hopes to blur these binaries through a comprehensive and inclusive approach. Women’s rights within the law of marriage and divorce, matrimonial rights and obligations, and the procedural aspect of the functioning of family courts in India are the three distinct concerns of this volume.

Family Law Volume 1

Flavia Agnes — 2012-09-20

Author:: Flavia Agnes
ISBN:: 9780198067900
Publisher:: Oxford University Press
Subjects:: Law, Family Law
DOI:: 10.1093/acprof:oso/9780198067900.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

This book is a detailed study on family law in India. It attempts to combine women’s rights into legal theory, and uses case laws extensively. The book is composed of three chapters, starting with a discussion on the concepts of justice, law, and gender. The next chapter examines various personal laws — Parsi, Jewish, Hindu, Islamic, and Christian — related to marriage, property rights, succession, and divorce. Each of these laws is examined for the colonial and post-colonial periods. The final chapter focuses on the different constitutional provisions important to personal laws and in the role of the judiciary in the reconciliation of personal laws of each community and the supreme constitutional provisions. This chapter also attempts to determine whether the law can be conformed to the modern changes made through and in both the statutory law, formal, and the pluralistic and fluid community-based practices. The book presents a comparison of the personal laws of the majority and minority communities, as well as a study of the Uniform Civil Code. These discussions prepare the reader for the second volume, where the author acknowledges and discusses three distinct concerns: matrimonial rights, the obligations and the procedural aspect of the functioning of family courts in India, and women’s rights within the law of marriage and divorce.

Democracy and Constitutionalism in India

Sudhir Krishnaswamy — 2012-09-20

Author:: Sudhir Krishnaswamy
ISBN:: 9780198071617
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198071617.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

The basic structure doctrine was announced by the Supreme Court in Kesavananda Bharati v. State of Kerala in 1973. This book argues that basic structure review in India is an independent and distinct type of constitutional judicial review which applies to all forms of state action to ensure that such action does not ‘damage or destroy’ the ‘basic features of the Constitution’. These basic features of the constitution are identified through a common law technique and are general constitutional rules which are supported by several provisions of the Constitution. The book argues that the basic structure doctrine like other types of constitutional judicial review possesses a sound constitutional basis and rests on a sound and justifiable interpretation of the Constitution. The legitimacy of basic structure review may be assessed under three categories: legal, moral, and sociological. The legal legitimacy of such review is established by defending a structuralist interpretation as a coherent and justifiable model of constitutional interpretation. The moral legitimacy of basic structure review rests on a rejection of majoritarian versions of democracy and the adoption of a dualist model of deliberative decision-making in a constitutional democracy. The sociological legitimacy of the doctrine is, to a large extent, contingent on the success of the moral and legal legitimacy arguments.

Debating Patriarchy

Chitra Sinha — 2012-09-20

Author:: Chitra Sinha
ISBN:: 9780198078944
Publisher:: Oxford University Press
Subjects:: Law, Family Law
DOI:: 10.1093/acprof:oso/9780198078944.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The book explores a significant episode of Indian social history, the Hindu Code Bill controversy that stirred the Indian social consciousness in the mid-twentieth century. Revisiting the communicative processes surrounding the reform of Hindu customary laws relating to marriage, divorce, succession, adoption, and maintenance, the book provides an in-depth account of the intense debate that took place in and outside the legislature involving political groups, social associations, religious organizations, legal associations, and the women’s movement. Placing the debate in a historical continuum, the author traces the genesis of the Hindu Code Bill by exploring the linkages of late eighteenth century initiatives of colonial administration, the efforts of eighteenth century social reformers, and the contribution of Indian national movement as well as women’s organizations in early twentieth century. The book analyses the relationship of discourses in the public and legislative spheres and emphasizes the role of Nehru, Ambedkar, B.N. Rau and other prominent personalities in the promotion of gender justice. The book argues that while effective implementation of enabling legal provisions were impeded by deeply entrenched patriarchal structures in Independent India, the debate contributed towards a gradual transformation of the Indian social consciousness, thus contributing towards gender justice in Indian society.

Corruption and Human Rights in India

C. Raj Kumar — 2012-09-20

Author:: C. Raj Kumar
ISBN:: 9780198077329
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198077329.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

The malaise of corruption has become deeply embedded in the political and social fabric of the Indian society. The increased scale and frequency of corruption has negatively affected human rights, as well as development initiatives, economic growth, and access to justice. This work adopts a new approach for analysing corruption — corruption as a violation of human rights. It proposes the adoption of a multi-pronged strategy for eliminating corruption, including the creation of a new legislative framework, a new and independent empowered commission against corruption, and an effective institutional mechanism. It also compares India's experiences in fighting corruption with other governments in Asia including Singapore and Hong Kong.

Constitutionalism and the Enlargement of Europe

Wojciech Sadurski — 2012-09-20

Author:: Wojciech Sadurski
ISBN:: 9780199696789
Publisher:: Oxford University Press
Subjects:: Law, EU Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199696789.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

After the fall of Communism in Central and Eastern Europe, the newly democratized countries of this region joined two main pan‐European political and legal structures: the Council of Europe and the European Union. This book shows how the eastward enlargement of these two structures fostered the ‘constitutionalization’ both of the Council of Europe and of the EU. As for the human‐rights focused Council of Europe, the book shows that its main judicial body, the European Court of Human Rights, became a quasi ‘constitutional court’ of Europe as a result of the widening of its agenda and the resulting need to make activist decisions about the compatibility of national laws with the European Convention. Essentially, this move has been prompted by the enlargement of the Council of Europe and the admission of a number of countries which brought unique and often more substantial problems onto the Court’s agenda. In terms of the EU, the book shows that the enlargement (both prospective and actual) has been an important agenda‐setter for the constitutionalization of the EU; in particular, for openly placing the issue of fundamental rights on the EU agenda as a legitimate (indeed, indispensable) matter of concern for the EU. But the ‘constitutional synergies’ are a two‐way street: the accession to both pan‐European structures has also affected the development of democratic constitutionalism in Central and Eastern European (CEE) states, raising difficult issues regarding the relationships between national sovereignty, democracy, and human rights that CEE policy‐makers have grappled with. These issues and responses by CEE member states have also had implications for the ‘old’ EU member states. It is these dynamics that will be explored through various case studies, providing a new perspective on the development of legal norms and institutions within European supranational bodies.

The Constitutional Structure of Proportionality

Matthias Klatt and Moritz Meister — 2012-09-20

Author:: Matthias Klatt, Moritz Meister
ISBN:: 9780199662463
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199662463.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

As constitutional law is being globalized, the quest for a common grammar or ‘generic constitutional law’ becomes more pressing. That proportionality may be one element of such common grammar is both widely accepted and highly contested. In view of this alarming tension between the triumphant success of proportionality and the severity of criticism, the book engages in an in-depth analysis of this criticism and demonstrate that the objections against the proportionality test are not convincing. The book clarifies and further develops the current theories of proportionality and balancing. While the book is broadly based on Alexy’s principles theory, it suggests several modifications to this theory. Examples are taken from the case law of the European Court of Human Rights, the European Court of Justice and various national constitutional courts in order to exemplify the argument and demonstrate its relevance for deciding concrete cases. The book defends proportionality analysis as an instrument located this side of, rather than beyond, constitutionalism. But given the often underestimated capability of instruments like the proportionality test, the limitations of constitutionalism are farther away than it is sometimes considered.

Constitutional Referendums

Stephen Tierney — 2012-09-20

Author:: Stephen Tierney
ISBN:: 9780199592791
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780199592791.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This book addresses the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny. The book identifies four substantive constitutional processes where the referendum is regularly used today: the founding of new states; the creation or amendment of constitutions; the establishment of complex new models of sub-state autonomy, particularly in multinational states; and the transfer of sovereign powers from European states to the European Union. The book, as a study in constitutional theory, addresses the challenges this phenomenon poses not only for particular constitutional orders, which are typically structured around a representative model of democracy, but for constitutional theory more broadly. The main theoretical focus of the book is the relationship between the referendum and democracy. It addresses the standard criticisms which the referendum is subjected to by democratic theorists and deploys both civic republican theory and the recent turn in deliberative democracy to ask whether by good process-design the constitutional referendum is capable of facilitating the engagement of citizens in deliberative acts of constitution-making.

The Constitution of India

Sarbani Sen — 2012-09-20

Author:: Sarbani Sen
ISBN:: 9780198071600
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198071600.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

The relationship between constitutionalism and popular sovereignty in the Indian context is the critical focus of this original work in political theory, jurisprudence, and constitutionalism. This book examines fundamental issues about the basic law of the land. The author contends that it is necessary to go beyond viewing democracy merely as the vesting of fundamental authority in institutions of elected representatives. It examines the founding of the Indian constitution and the emergence of its text in the background of the ideas of leading constitutional law theorists, such as Habermas and Ackerman. The author suggests that the constitution can be more meaningfully understood by adopting a more complex concept of democracy—one that is able to distinguish between popular sovereign power in the hands of the people themselves, and in those of their agents in government. She establishes that underlying the bedrock doctrine of the basic structure of the constitution are fundamental questions about the relationship between constitutionalism and popular sovereignty. The text is a conscious effort to institutionalize the country's revolutionary experience during its anti-colonial struggle.

Constituting Economic and Social Rights

Katharine G. Young — 2012-09-20

Author:: Katharine G. Young
ISBN:: 9780199641932
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199641932.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

Food, water, health, housing and education are as fundamental to human freedom and dignity as are privacy, religion or speech. Yet only recently have legal systems began to secure these fundamental individual interests as rights. This book looks at the dynamic processes that "constitute" the legality of economic and social rights. It argues that processes of interpretation, enforcement and contestation each reveal how economic and social interests can be protected as human and constitutional rights, and how their protection changes public law. Using constitutional examples from South Africa, Colombia, Ghana, India, the United Kingdom, the United States and elsewhere, the book examines innovations in the design and role of institutions such as courts, legislatures, executives, and agencies, in the organization of social movements and in the links established with market actors. This comparative study shows how legal systems protect economic and social rights by shifting the focus from minimum bundles of commodities or entitlements to processes of value-based, deliberative problem solving. Theories of constitutionalism and governance inform the potential of this approach to reconcile economic and social rights with both democratic and market principles, while addressing the material inequality, poverty and social conflict caused, in part, by law itself.

Confidentiality, Transparency, and the U.S. Civil Justice System

Joseph W. Doherty, Robert T. Reville, and Laura Zakaras — 2012-09-20

Author:: Joseph W. Doherty, Robert T. Reville, Laura Zakaras
ISBN:: 9780199914333
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780199914333.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The lawsuit is the cornerstone of the civil justice system in America, and an open court the foundation of American jurisprudence. In a public setting, we resolve disputes, determine liability, and compensate injuries. In recent decades, however, more civil disputes have been resolved out of court and the outcomes have been kept secret. Fewer than 5% of the tens of millions of injury claims annually are actually resolved through a public trial with a jury, and the vast majority are settled out of court or through private forums, such as mediation or arbitration, with undisclosed terms. Some argue that the confidentiality of the system keeps it working efficiently and fairly; others argue that the public is being denied information about hazards that may cause harm and that a public system with no data lacks oversight. This book approaches the issue in a multidisciplinary, nonpartisan, and empirical manner. The chapters provide empirical analyses and case studies of the impact of greater disclosure on various aspects of the system, ranging from settlement values to fraud, and propose several novel prescriptions for reform. With special attention to the emergence of modern mass litigation, the chapters identify a number of benefits to increasing access to information, including decreased fraud, improved public understanding and confidence in the system, and lower transactions costs. The chapters make policy recommendations—such as expanding access to existing databases and using technology to create new databases—that increase transparency while protecting the need for privacy.

Challenges to Civil Rights Guarantees in India

A.G Noorani and SAHRDC — 2012-09-20

Author:: A.GNoorani, SAHRDC
ISBN:: 9780198074144
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198074144.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

Civil liberty is a complex issue with unchanging fundamentals. Cases that were decided hundreds of years ago yield principles that are still applicable and relevant today. India used to have a rich tradition of civil liberties. Today, there are no national civil liberties organisations in India like Liberty in Britain or the American Civil Liberties Union. India has enacted draconian laws to counter terrorism. Despite the vast scope or misuse of these legislative measures, the judiciary seems to have no intention of striking them down as unconstitutional or introducing sufficient safeguards from a civil rights perspective. This book provides an overview of challenges to civil rights guarantees in India. It examines preventive detention, extra-judicial killings, counter-terrorism and human rights, death penalty, narcoanalysis, undertrials and videoconferencing, acts of bad faith (focusing on anti-conversion laws), impunity, and the Armed Forces (Special Powers) Act.

Binding Corporate Rules

Lokke Moerel — 2012-09-20

Author:: Lokke Moerel
ISBN:: 9780199662913
Publisher:: Oxford University Press
Subjects:: Law, Intellectual Property, IT, and Media Law
DOI:: 10.1093/acprof:oso/9780199662913.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The digital era shows an unprecedented flow of data both within multinational companies as well as their external service providers. Binding Corporate Rules (BCR) are a form of corporate self-regulation designed to facilitate global inter-company data transfers in compliance with EU Data Protection Law. This book discusses the origins of the regime and the material requirements of Binding Corporate Rules (BCR), as well as how they should be applied in practice and made binding on the companies and employees. It includes a template BCR for employee data and a template BCR for customer data which have been approved by various EU data protection authorities, showing how the material requirements of the BCR regime may be implemented in practice. It also covers how BCRs may provide for enforceable rights for the beneficiaries of the regime, and how they should be brought in line with requirements of European rules on private international law. Furthermore, the book analyses a number of significant academic debates in the areas of transnational private regulation and data protection. It reflects on the legitimacy of transnational private regulation as a method of regulating corporate conduct, and also focuses on the merits and shortcomings of BCR as a method for regulating global data transfers.

Arrest, Detention, and Criminal Justice System

Bellary Uma Devi — 2012-09-20

Author:: Bellary Uma Devi
ISBN:: 9780198075998
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198075998.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The right to life and personal liberty is the most cherished one of all the human rights. The enjoyment of all other rights depends upon this basic right. This book is a significant contribution to the literature on the right to personal liberty. This book covers the provisions of criminal law, particularly those dealing with powers of arrest and detention and the safeguards against arbitrary exercise of those powers. It deals with preventive detention, detention pending investigation and trial, and punitive detention following conviction. It makes a strong case for further safeguards to reinforce the right to personal liberty. The discussion highlights what needs to be done further to ensure full enjoyment of the most precious right. The book shows that the justifications for punitive detention, namely, deterrence, reformation, and rehabilitation have turned out to be illogical and irrational. It advocates prevention of crime and reparation rather than punishment by way of imprisonment following conviction.

Aftermath

Daniel Kanstroom — 2012-09-20

Author:: Daniel Kanstroom
ISBN:: 9780199742721
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199742721.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The United States has undertaken a radical, unprecedented social experiment with massive immigration and deportation enforcement. Since the passage of harsh new deportation laws in 1996, the U.S. has deported tens of millions of noncitizens (“aliens”). Many are undocumented, but many others are long-term legal residents with U.S. families. Deportation has torn through many communities like a capricious tornado: touching down suddenly and leaving a trail of devastation in its wake. It has had profound, though still-understudied, effects on individuals, families, and communities, both in the U.S. and in the countries to which deportees are sent. The Obama Administration has continued—and actually expanded—the deportation system. The U.S. has now created what may be termed, somewhat provocatively, a new American diaspora: a forcibly uprooted population of people with deep and cohesive connections to each other and to the nation-state from which they were removed. Once deportees have been expelled to places like Guatemala, Cambodia, Haiti, and El Salvador, many face severe isolation, alienation, persecution and, sometimes, death. Many may never be able to return. This book now considers the current U.S. system. It examines U.S. deportation as it works and as it might work more justly and fairly. Addressing various political, social, philosophical and legal issues, the author considers how deportation works within the ‘rule of law.’ Concluding that the U.S. deportation system remains an anachronistic, ad hoc, legally dubious affair, the book proposes a more human rights-oriented, humane and rational deportation system.

Unimaginable Atrocities

William Schabas — 2012-05-24

Author:: William Schabas
ISBN:: 9780199653072
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199653072.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

As international criminal courts and tribunals have proliferated and international criminal law is increasingly seen as a key tool for bringing the world's worst perpetrators to account, the controversies surrounding the international trials of war criminals have grown. War crimes tribunals have to deal with accusations of victor's justice, bad prosecutorial policy and case management, and of jeopardizing fragile peace in post-conflict situations. This book explores these controversial issues in a manner that is accessible.

The System of the Constitution

Adrian Vermeule — 2012-05-24

Author:: Adrian Vermeule
ISBN:: 9780199838455
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780199838455.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

A constitutional order is a system of systems. It is an aggregate of interacting institutions, which are themselves aggregates of interacting individuals. This book analyzes constitutionalism through the lens of systems theory, originally developed in biology, computer science, political science, and other disciplines. Systems theory illuminates both the structural constitution and constitutional judging, and reveals that standard views and claims about constitutional theory commit fallacies of aggregation and are thus invalid. By contrast, this book explains and illustrates an approach to constitutionalism that considers the systemic interactions of legal and political institutions and of the individuals who act within them.

Rwanda's Gacaca Courts

Paul Christoph Bornkamm — 2012-05-24

Author:: Paul Christoph Bornkamm
ISBN:: 9780199694471
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199694471.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

Rwanda's Gacaca courts provide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in line with recent trends to revive traditional grassroots mechanisms as a way of addressing a violent past. Having been devised as a holistic approach to prosecution and punishment as well as to healing and repairing, they also reflect the increasing importance of victim participation in international criminal justice. This book critically examines the Gacaca courts' achievements as a mechanism of criminal justice and as a tool for healing, repairing, and reconciling the shattered communities. Having prosecuted over one million people suspected of crimes during the 1994 genocide, the courts have been both praised for their efficiency and condemned for their lack of due process. Drawing upon extensive observations of trial proceedings, this book provides a detailed analysis of the Gacaca legislation and its practical implementation. It discusses the Gacaca courts within the framework of transitional and international criminal justice and argues that, despite the trend towards local, tailor-made solutions to the challenges of political transition, there is a common set of principles to be respected in addressing the past. Evaluating the Gacaca courts against the backdrop of existing or emerging principles, such as the duties to investigate and prosecute, and the right to the truth, the book provides a sophisticated critique of Rwanda's reconciliation policy. In doing so, it contributes to the development and the clarification of these principles. It concludes that Gacaca courts have achieved a great deal in stimulating a basic discourse on the genocide, but they have also contributed to assigning collective responsibility and may thus end up deepening the divides within Rwandan society.

The Right to Have Rights

Alison Kesby — 2012-05-24

Author:: Alison Kesby
ISBN:: 9780199600823
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199600823.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ‘right to have rights’. This right to have rights was the right to citizenship—to membership of a political community. Since then, and especially in recent years, theorists have continued to grapple with the meaning of the right to have rights. In the context of enduring statelessness, mass migration, people flows, and the contested nature of democratic politics, the question of the right to have rights remains of pressing concern for writers and advocates across the disciplines. This book provides the first in-depth examination of the right to have rights in the context of the international protection of human rights. It explores two overarching questions. First, how do different and competing conceptions of the right to have rights shed light on right-bearing in the contemporary context, and in particular on concepts and relationships central to the protection of human rights in public international law? Secondly, given these competing conceptions, how is the right to have rights to be understood in the context of public international law? In the course of the analysis, the author examines the significance and limits of citizenship, nationality, humanity, and politics for right-bearing, and argues that their complex interrelation points to how the right to have rights might be rearticulated for the purposes of international legal thought and practice.

Remedies for Breach of Contract

Solène Rowan — 2012-05-24

Author:: Solène Rowan
ISBN:: 9780199606603
Publisher:: Oxford University Press
Subjects:: Law, Company and Commercial Law
DOI:: 10.1093/acprof:oso/9780199606603.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

The book examines the commitment of English law to the protection of contractual performance. It considers specific remedies, termination, compensatory damages, gain-based monetary awards, punitive damages and contractually negotiated remedies. It also looks forward by considering how the protection of performance could be strengthened in the future. English law remedies for breach of contract are considered through the comparative study of French law, which offers significant scope for informative contrast. It sheds new light on contractual remedies in both jurisdictions and challenges fundamental aspects of English law in this area. The book covers recent academic debates and developments in the case law on both sides of the Channel. It also comments on aspects of two recent far-reaching reform projects relating to the French Civil code and of the Draft Common Frame of Reference.

Religious Liberty in Western and Islamic Law

Kristine Kalanges — 2012-05-24

Author:: Kristine Kalanges
ISBN:: 9780199859467
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Comparative Law
DOI:: 10.1093/acprof:oso/9780199859467.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This book argues that differences between Western and Islamic legal formulations of religious freedom are attributable, in substantial part, to variations in their respective religious and intellectual histories. The book suggests that while divergence between the two bodies of law challenges the characterization of religious liberty as a universal human right, the “dilemma of religious freedom”—the difficult choice between the universality of religious liberty rights and peaceful co-existence of diverse legal cultures—may yet be transformed through the cultivation of a world legal tradition. This argument is advanced through comparative analysis of human rights instruments from the Western and Muslim worlds, with attention to the legal-political processes by which religious and philosophical ideas have been institutionalized.

Reimagining Child Soldiers in International Law and Policy

Mark A. Drumbl — 2012-05-24

Author:: Mark A. Drumbl
ISBN:: 9780199592654
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199592654.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

The international community's efforts to halt child soldiering have yielded some successes. But this pernicious practice persists. It may shift locally, but it endures globally. Preventative measures therefore remain inadequate. Former child soldiers experience challenges readjusting to civilian life. Reintegration is complex and eventful. The homecoming is only the beginning. Reconciliation within communities afflicted by violence committed by and against child soldiers is incomplete. Shortfalls linger on the restorative front. Still, conversations about child soldiers mostly involve the same story, told over and over, and repeat the same assumptions, over and over. Current humanitarian discourse sees child soldiers as passive victims, tools of war, vulnerable, psychologically devastated, and not responsible for their violent acts. This perception has come to suffuse international law and policy. Although reflecting much of the lives of child soldiers, this portrayal also omits critical aspects. This book pursues an alternate path by reimagining the child soldier. It approaches child soldiers with a more nuanced and less judgmental mind. It offers a way to think about child soldiers that would invigorate international law, policy, and best practices. Where does this reimagination lead? Not toward retributive criminal trials, but instead toward restorative forms of justice. Toward forgiveness instead of excuse, thereby facilitating reintegration and promoting social repair within afflicted communities. Toward a better understanding of child soldiering, without which the practice cannot be ended. This book also offers fresh thinking on related issues, ranging from juvenile justice, to humanitarian interventions, to the universality of human rights, to the role of law in responding to mass atrocity.

Regulating Services in the European Union

Vassilis Hatzopoulos — 2012-05-24

Author:: Vassilis Hatzopoulos
ISBN:: 9780199572663
Publisher:: Oxford University Press
Subjects:: Law, EU Law
DOI:: 10.1093/acprof:oso/9780199572663.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

Across the EU services are the cornerstone of the modern economy, accounting for over 70% of national GDPs and over 90% of new jobs created. Fostering trade in services has, accordingly, become central to the EU's vision for developing the internal market. Yet regulating services and their international trade is notoriously complex, and controversial. For years the EU's efforts were limited to sector-specific regulation in key areas, until the adoption of the general Services Directive in 2006. Since then, confronted by the limited success of traditional legal intervention, the EU's attentions have shifted to alternative forms of regulation. This book looks back on the historical development of services law, discusses the nature of impediments to trade in services in the EU, and explains the basic rules and principles applicable to such trade. It also examines the recent development of alternative regulatory methods, such as networking, the use of common standards, private regulation, self-regulation, open methods of coordination, and administrative cooperation. Taking a broad perspective and placing services regulation within its economic context, the book offers a thorough evaluation of current regulatory methods alongside the alternative methods which could be deployed.

A Neofederalist Vision of TRIPS

Graeme B. Dinwoodie and Rochelle C. Dreyfuss — 2012-05-24

Author:: Graeme B. Dinwoodie, Rochelle C. Dreyfuss
ISBN:: 9780195304619
Publisher:: Oxford University Press
Subjects:: Law, Intellectual Property, IT, and Media Law, Private International Law
DOI:: 10.1093/acprof:oso/9780195304619.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This book examines the TRIPS Agreement: its interpretation, its impact on the creative environment, and its effect on national and international lawmaking. It propounds a vision of TRIPS as creating a neofederalist regime, one that will ensure the resilience of the international intellectual property system in time of rapid change. In this vision, WTO members retain considerable flexibility to tailor intellectual property law to their national priorities and to experiment with changes necessary to meet new technological and social challenges, but agree to operate within an international framework. This framework, while less powerful than the central administration of a federal government, comprises a series of substantive and procedural commitments that promote the coordination of both the present intellectual property system as well as future international intellectual property lawmaking. Part I demonstrates the centrality of national autonomy throughout the history of international negotiations over intellectual property. Part II analyzes the decisions of the WTO in intellectual property cases, and finds them lacking in many respects. Looking to the future, Part III develops a framework for integrating the increasingly fragmented international system and proposes the recognition of an international intellectual property acquis, a set of longstanding principles that have informed, and should continue to inform intellectual property lawmaking. The acquis would include both express and latent components of the international regime, put access-regarding guarantees such as user rights on a par with proprietary interests and enshrine the fundamental importance of national autonomy in the international system.