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Administrative Justice in the Modern Mixed Administrative State: Moving Beyond Taxonomies Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-04-21 Janina Boughey
The challenges that government outsourcing presents for administrative law were the topic of considerable scholarly discussion in the 1990s and early 2000s, with broad agreement amongst public lawyers that outsourcing should not result in a loss of the particular kind of accountability with which administrative justice is concerned. Yet, over the past two decades, while government outsourcing has continued
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The Pluralities of Property Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-04-16 Luke Rostill
In Property Rights: A Re-Examination, James Penner returns to and develops a project that he has been engaged in for nearly three decades: to replace the influential ‘bundle of rights’ picture of property, which he regards as irredeemably flawed, with an alternative account—one that regards property as a unified entitlement. In this review article, I expound and analyse the central features of Penner’s
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Discrimination as a Public Wrong Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-04-15 Adi Goldiner
The enforcement mechanisms of anti-discrimination law manifest a puzzle: while the dominant view is that discrimination is a wrongdoing against individuals, which suggests that discriminatees should have the power to vindicate their rights, legal provisions sometimes authorise public officials to file claims against alleged discriminators, regardless of discriminatees’ preferences. Seeking to make
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Convicting Peaceful Protesters: Proportionality’s Proper Place at Criminal Trial Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-04-03 Richard Martin
Suppose that a defendant’s conviction would amount to an interference with their right to peaceful protest, protected by articles 10 and 11 of the European Convention on Human Rights. Is a court then obliged to make a conviction turn on a fact-sensitive proportionality assessment justifying the interference? Drawing on the jurisprudence of the domestic and Strasbourg courts, this article argues that
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Tax and Globalisation: Toward a New Social Contract Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-03-30 Tsilly Dagan
Taxation and representation are famously linked in the coercive co-authored project of political governance described through the social contract metaphor. Globalisation transforms this canonical account of the state. Many people can relocate and operate beyond state borders, consuming goods and services publicly offered by other jurisdictions. Expanding people’s opportunities to satisfy their preferences
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Tangled Webs of Trust: A Study of Public Trust in Risk Regulation Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-03-11 Joanne Hawkins
This article provides an empirically grounded understanding of public trust in the context of risk regulation, specifically through a case study of shale gas exploration and fracking. It offers insight into the factors underpinning public trust and explores the empirical reality of the socially embedded and relational nature of trust. The article engages with the often-neglected dynamics of trust and
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A Critical Inquiry into ‘Abuse’ in EU Competition Law Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-03-07 Pınar Akman
Disagreement abounds on what exactly constitutes an ‘abuse’ within article 102 TFEU, EU competition law’s prohibition of an abuse of a dominant position. This situation is highly undesirable, given the important role this prohibition is expected to play in alleviating concerns about substantial market power and its use in important sectors, typified by actions against ‘Big Tech’. This article responds
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The Dignity of Legal Subjects Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-03-07 Aziz Z Huq
The dignitary account of the rule of law proposes that values of human dignity and agency are appropriately recognised through legal rules and institutions that create opportunities for legal subjects to engage in deliberation and the exercise of practical reason. In a collection of essays published over a period of almost two decades, Thoughtfulness and the Rule of Law, Jeremy Waldron offers a comprehensive
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Partisan Legal Traditions in the Age of Camden and Mansfield Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-03-05 T T Arvind, Christian R Burset
The 18th century is often treated by scholars as a period of juristic consensus. This article argues, in contrast, that the late 18th century saw the emergence of rival ‘Patriot’ and ‘Tory’ legal traditions. Through a detailed study of the jurisprudence of Lords Camden and Mansfield—who were both pillars of the law, as well as political and juristic rivals—we show that they differed systematically
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Contract Law When the Poor Pay More Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-02-19 Joseph Spooner
Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society’s wealth distribution curve. It then highlights
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Legislative Intent and Agency: A Rational Unity Account Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-02-09 Stephanie Collins, David Tan
Realist theories of legislative intent can be divided between aggregative theories (on which legislative intent is what some proportion of legislators intend) and common intent theories (on which legislative intent is a unanimous intent among legislators). In this article, we advance and defend an alternative realist conception of legislative intent: the rational unity account. On this account, the
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You Might be an Anarchist if … Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-01-12 Kenneth M Ehrenberg
I show that conceptual philosophical anarchism, the claim that law cannot give reasons for action, is entailed by several popular theories about law. Reductionists about practical authority believe that all supposedly legitimate practical authority reduces to forms of theoretical authority. They tend to embrace anarchism, but some readers might not be clear why. Trigger theorists about reason-giving
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The Making of Corporate Legal Concession Theory Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-01-10 Jonathan Hardman
Professor Watson’s The Making of the Modern Company traces the development of the modern corporate form back to the East India Company, disproving a common notion that company law originated solely with small, private companies. This review article argues three key implications of this excellent book. First, Watson focuses on the duality of the modern company—with state-provided and private features
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Are Rape Myths ‘Myths’? Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2024-01-05 David J Hayes
Little attention has been paid to what the word ‘myth’ contributes to the concept of rape myths. Rape myths tend to be regarded as widely believed falsehoods that need to be debunked in order to address patriarchal injustices. This account draws upon a long-standing vernacular English association between myth and falsehood which originated in the Enlightenment. But it is not the only possible definition
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How Reasons Make Law Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-12-14 Angelo Ryu
According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which
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Beyond the Tram Lines: Disability Discrimination, Reproductive Rights and Anachronistic Abortion Law Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-12-02 Sally Sheldon
This article takes as its starting point the recent case of Crowter, which challenged the law permitting provision of abortion on the grounds of fetal anomaly. It begins by briefly locating the case within a longer ‘biography’ of the Abortion Act 1967, casting important light on the issue raised within it. It then focuses in detail on the claims made in Crowter, exploring how important moral, social
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How (Not) to Break Up: Constituent Power and Alternative Pathways to Scottish Independence Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-11-06 Raffael N Fasel, Shona Wilson Stark
— In October 2022, the UK Supreme Court unanimously held that the Scottish Parliament lacks the power to legislate for a second referendum on Scottish independence (Indyref 2) absent an enabling Order by the UK government under section 30 of the Scotland Act 1998. With no such Order forthcoming, alternative pathways to Indyref 2 are being investigated. In this article, we examine two such potential
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The Origin of Asymmetric Information: Revisiting the Rationale for Regulation Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-10-23 Gareth Downing
Akerlof’s seminal model on asymmetric information forms the basis for a broad range of regulatory interventions aimed at addressing the adverse effects of unequal information between transacting parties. While a groundbreaking model of the effects of information asymmetries in markets, Akerlof’s model does not examine why information asymmetries emerge. This article argues that an examination of the
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Metarules, Judgment and the Algorithmic Future of Financial Regulation in the UK Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-08-20 Andromachi Georgosouli
UK financial regulators are experimenting with the conversion of rulebook content into machine-readable and executable code. A major driver of these initiatives is the belief that the use of algorithms will eliminate the need for human interpretation as a deliberative process, and that this would be a welcome development because it will improve effectiveness while cutting time and costs for regulators
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Rousseau’s Republican Judges Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-08-20 Stephen Winter
— Judges occupy important roles in Rousseau’s constitutional theory. Placing the Social Contract alongside Rousseau’s lesser-known Letters Written from the Mountain and The Government of Poland, this article examines how Rousseau constructs judicial institutions and explores a problem he confronts. Although necessary for the republic to enjoy the rule of law, Rousseau worries that adjudicative bodies
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The Necessity of Institutional Pluralism Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-08-19 Avihay Dorfman, Alon Harel
This article defends the claim that the institutional source of a legal norm—be it the constitution, legislation or whatever—affects its nature and value. We argue that institutions are not merely vessels through which norms get public recognition. When different institutions use identically worded norms, say, ‘everyone is equally entitled to X’, they may nevertheless produce different norms and provide
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Law and Stock Market Development in the UK over Time: An Uneasy Match Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-08-11 Brian R Cheffins, Bobby V Reddy
Britain has a reputation for having a stock market-oriented corporate economy and there is an extensive literature maintaining that laws affording substantial protection to outside investors are needed for a thriving stock market. Historically, however, UK equity markets have not always flourished and, when they have, law’s contribution has been open to question. This article considers the uneasy match
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Against the Spirit of the Age: The Rationale of Relational Contracts Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-07-15 Peter Goodrich
In his long-awaited treatise on the relational theory of contracting, David Campbell provides a rigorous, systematic and consistently lucid account of mutual recognition as the basis of all volitional obligations. Fiercely negotiated economic transactions find their social expression in legally enforceable agreements that are to be followed scrupulously to the letter both by the parties and by the
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The Enigma of Interpersonal Justice in Private Law Theory Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-07-08 Zhong Xing Tan
The purpose of this article is to establish that contemporary private law theory has located no foolproof conception of interpersonal justice. I examine four accounts and find them wanting: the instrumentalist deterrence and loss-spreading approaches of economists; Kantian right and corrective justice; critical and social justice accounts; and the human flourishing approach. If my critiques are justified
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Expressive Procedure Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-07-04 Rabeea Assy
This article explores the expressive dimension of procedural law, arguing that some procedural rules can be usefully understood as instruments of expression: they can express, or be employed to express, values, preferences and attitudes—independently of the economic incentives such rules create and regardless of the specific substantive law that governs the dispute. This is illustrated through two
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Catalytic Climate Litigation: Rights and Statutes Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-06-23 Sam Bookman
Rights-based climate litigation has captured the global legal imagination in part because of its aspiration to achieve a certain function: catalysing political and policy processes into more ambitious climate action across the entire government apparatus. But many jurisdictions lack the legal opportunity structure that allows rights to perform this function. Instead, litigants might look to framework
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The Logic and Value of the Presumption of Doli Incapax (Failing That, an Incapacity Defence). Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-06-10 David Hamer,Thomas Crofts
Children who do not understand the serious wrongness of their actions lack criminal capacity and cannot be convicted. At common law, children under seven are deemed to lack criminal capacity, children over 14 possess full capacity and children between seven and 14 are rebuttably presumed to lack capacity; the prosecution must prove capacity beyond reasonable doubt. Australia has increased the minimum
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Unbundling Property in Welfare Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-06-10 Yael Cohen-Rimer, Shai Stern
In most Western jurisdictions, welfare law utilises means testing to determine whether individuals are eligible for welfare allowances, often using property ownership as one of the eligibility criteria. Crucially, the prevailing conception of property ownership is premised on the notion that property rights are applied equally to all owners in matters relating to the control and management of that
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Law by Algorithm Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-05-31 Ernest W K Lim
This review article offers a critical analysis of Horst Eidenmüller and Gerhard Wagner’s Law by Algorithm by focusing on four major sets of issues that are covered in this important work: (i) separate legal personality for artificial intelligence (AI) systems; (ii) the exploitation and protection of consumers; (iii) liability; and (iv) online dispute resolution. On separate legal personality, it is
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Choice of Law Meets Private Law Theory Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-05-19 Hanoch Dagan, Sagi Peari
Choice of law can, and often should, be an important feature of an autonomy-enhancing law as it expands the possible frameworks within which people can govern their affairs. The theory of choice of law we develop in this article builds on three core notions that dominate existing doctrine: states, party autonomy and what we loosely refer to as ‘limitations’; but it releases choice of law from its subordination
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Towards Non-essentialism – Tracking Rival Views of Legitimacy as a Right to Rule Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-04-29 Matthias Brinkmann, Johan Vorland Wibye
It is common in the literature to claim that legitimacy is the right to rule and that, accordingly, Hohfeldian rights analysis can be used to understand the concept. However, we argue that authors in the legitimacy literature have not generally realised the full potential of Hohfeldian analysis. We discuss extant approaches in the literature that conceptually identify legitimacy with one particular
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Theorising Evidence Law Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-04-25 Paul Roberts
What does it mean for a specialist department of legal studies, such as the Law of Evidence, to have, or to acquire, ‘philosophical foundations’? In what sense are the theoretical foundations of procedural scholarship and teaching distinctively or uniquely philosophical? The publication of Philosophical Foundations of Evidence Law (OUP, 2021), edited by Christian Dahlman, Alex Stein and Giovanni Tuzet
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The Internal Morality of Criminal Law Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-04-01 James Edwards, Tarek Yusari
According to a popular picture, criminal law lives up to the demands of its internal morality when its norms have counterparts with the same content in morality—when it conforms to what we call the mirror principle. This article argues that the popular picture must be redrawn by relying on a second principle, which we call the instrumental principle. Criminal law conforms to the instrumental principle
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Parliament’s Constitution: Legislative Disruption of Implied Repeal Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-03-13 Asif Hameed
UK constitutional law establishes priority rules governing the relations among legal sources. According to the implied repeal rule, a later statute is preferred to and repeals an earlier statute where the two cannot stand together. There is a vast literature testing the rule’s application in future-facing scenarios: whether Parliament in enacting legislation is capable of legally binding its successors
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Sentience and Intrinsic Worth as a Pluralist Foundation for Fundamental Animal Rights Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-02-18 Jane Kotzmann
To date, welfare protections have failed animals. In this context, many animal advocates and scholars have supported recognition of animal rights. Animal rights theory, however, remains underdeveloped. This article contributes to the development of animal rights theory and, in this respect, proposes the utilisation of sentience and intrinsic worth concepts as a pluralist foundation for prospective
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Abusive Unconstitutional Constitutional Amendments: Indonesia, the Pancasila and the Spectre of Authoritarianism Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-02-09 Ignatius Yordan Nugraha
This article explores how an unconstitutional constitutional amendments doctrine could be abused to advance an illiberal or even authoritarian agenda, with Indonesia as a case study. In Indonesia, there is a pervasive belief that the five fundamental principles of the state (the Pancasila) are the ‘basic norm’ of the Indonesian legal order. Based on this understanding, it has been argued that all positive
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From the Inside Out: The Coercive Power of Deportation and the Erosion of the Liberal Democratic State Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-02-07 Asha Kaushal
Deportation is the expulsion of a non-citizen from the territory of a state by force or coercion. Largely because it is perceived to be a necessary extension of the state’s immigration power, deportation carries the same prerogative force, benefits from the same sweeping ambit of executive discretion and is subject to the same diminished scrutiny. Deportation is, however, a distinct legal phenomenon
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Offences against Status Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-02-07 George Letsas
Philosophical accounts of status understand it either pejoratively, as social rank, or laudatorily, as the dignity possessed by all in virtue of our shared humanity. Status is considered to be something either we all have or no one should have. This article aims to show that there is a third, neglected, sense of status. It refers to the moral rights and duties one holds in virtue of one’s social position
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Is Every Law for Everyone? Assessing Access to National Legislation through Official Legal Databases around the World. Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2023-02-04 Andreas Nishikawa-Pacher,Hanjo Hamann
Countries all over the world document their statutory law in official legal databases (OLD), but the extent to which these provide effective access to (statutory) law remains unexamined. Ideally, an OLD should be (i) provided online and free for all without requiring registration or payment, (ii) searchable with regard to statutes' titles, (iii) searchable with regard to the full texts of statutes
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Legal Positivism’s Internal Morality Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-12-22 Javier Gallego
This article examines the jurisprudential arguments elaborated in David Dyzenhaus’s The Long Arc of Legality. In particular, it looks into the main claim of the book: that the fact of ‘very unjust laws’ is central to illuminating the idea of law’s authority, the elaboration of which Dyzenhaus takes to be the purpose of legal theory. The article analyses Dyzenhaus’s own normative proposal in this matter
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Fair Market Constitutionalism: From Neo-liberal to Democratic Liberal Economic Governance Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-11-22 Rosalind Dixon
Neo-liberalism was in crisis well before COVID-19; and COVID-19 has only further highlighted the gaps and fault lines in existing liberal democratic models. But this does not mean that we should walk away from liberal ideals, or the general idea of globalisation or market-based forms of ordering. Instead, we should seek a new, more ‘democratic’ or pro-social understanding of the liberal ideal, which
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Transforming Perceptions: The Development of Pre-pack Regulations in England and Wales Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-10-29 Bolanle Adebola
The article systematically assesses the extent to which the Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2021 achieve the goal of the government to quell the negative perceptions of pre-pack administration. The pre-pack has generated much criticism from disenfranchised groups who regard the practice with much suspicion. These criticisms have triggered questions as
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Enthymising Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-10-29 Maksymilian Del Mar
This article offers, through a reading of James Fredal’s new study, The Enthymeme, an argument for the value of the history of rhetoric to theories of legal reasoning. The argument is inspired by Fredal’s call, in his ingenious reading of the practice of Ancient Greek oratory, for a shift in thinking of the enthymeme as a logical form, and an inadequate or imperfect one (when compared to the logical
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The Official Story of the Law. Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-10-29 William Baude,Stephen E Sachs
A legal system's 'official story' is its shared account of the law's structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which
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Areas of Law: Three Questions in Special Jurisprudence. Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-10-26 Tarunabh Khaitan,Sandy Steel
This article addresses three fundamental questions about a key phenomenon in special jurisprudence, 'areas of law': (i) what is an area of law; (ii) what are the consequences of dividing law into distinct areas; and (iii) what constitutes the foundations of an area of law. It claims that (i) 'an area of law' is a set of legal norms that are intersubjectively recognised by the legal complex as a subset
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Express and Implied Terms Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-10-19 Frederick Wilmot-Smith
Contract terms can be express or implied. But what does that mean? I argue that the distinction can be illuminated by reference to the philosophy of language. Express terms are best understood by reference to the truth-conditional content of the parties’ agreement; implied terms are derived from express terms by a process of reasoning, albeit one aimed at establishing the parties’ commitments.
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Punishing Atrocity Crimes in Transitional Contexts: Advancing Discussions on Adequacy of Alternative Criminal Sanctions Using the Case of Colombia Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-10-11 Beatriz E Mayans-Hermida, Barbora Holá
Criminal trials and proportional prison sentences are generally seen as the most suitable way to deal with perpetrators of atrocity crimes. Notwithstanding, traditionally conceived criminal penalties, such as imprisonment, may discourage active responsibility-taking by offenders, disaffect victims by not meeting their needs and impede meaningful engagement between perpetrators and survivors. Arguably
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Demystifying Legal Personhood for Non-Human Entities: A Kelsenian Approach Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-09-28 Thomas Buocz, Iris Eisenberger
This article aims to show that minimalist theories of legal personhood are particularly well suited to evaluating legal personhood proposals for non-humans. It adopts the perspective of Hans Kelsen’s theory of legal personhood, which reduces legal persons to bundles of legal norms. Through the lens of Kelsen’s theory, the article discusses two case studies: legal personhood for natural features in
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Future-Proof Regulation against the Test of Time: The Evolution of European Telecommunications Regulation. Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-09-16 Pablo Ibáñez Colomo
Regulation is sometimes designed to be future-proof, so that it can adapt to changing economic and technological realities. The EU (and UK) Regulatory Framework for electronic communications was expressly crafted to be able to adjust to the evolution of the industry. This article considers how well the regime has stood the test of time and, based on this analysis, what lessons can be drawn for regulation
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Constitutional Reform by Legal Transplantation: The United Kingdom Internal Market Act 2020. Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-09-16 Thomas Horsley
This article develops the comparative law framework on legal transplantation to theorise the impact of the United Kingdom Internal Market Act 2020 (UKIMA) on the UK constitution across three registers of analysis-the territorial, the material and the conceptual. It arrives at three conclusions. First, in relation to the territorial constitution, this article argues that the UKIMA introduces something
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Identification as the Process to Determine the Content of Customary International Law Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-08-30 Massimo Lando
Scholars recently have been arguing that one can interpret rules of customary international law. This article argues that the case for the interpretability of custom is unpersuasive and that the content of customary rules is determined by the process to ascertain the existence of such rules, known as identification. The main thrust of this article is that state practice and opinio juris are central
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Autonomy and Institutionalism in the Law of Contract Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-08-30 Ryan Catterwell
This article considers the extent to which the law of contract is dictated by promise, agreement or intention rather than prevailing norms and standards. It argues that, over the last century, contract law has developed along two different lines. Through statute, policy objectives have been increasingly implemented in contract, in particular, with respect to consumer protection. By contrast, judge-made
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The Normativity of Law: Has the Dispositional Model Solved our Problem? Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-06-23 Andreas Vassiliou
In Legal Directives and Practical Reasons, Noam Gur has presented a novel account, called the dispositional model, to explain how law bears on our normative practical reasons. Gur holds that his model is superior to the current models, namely the standard weighing model and Joseph Raz’s exclusionary model. Although his work provides useful insights into the practical impact of law, I argue that: (i)
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Comparative Lessons in Sectional Title Laws: Mitigating Urban Inequality in South Africa Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-06-17 Edward S W Ti
Urban inequality in South Africa is a formidable problem that is linked to the injustices of its historical apartheid past. This paper identifies sectional titles, a form of property ownership where proprietors wholly own their apartment unit while co-owning the land and common property, as critical to providing more affordable housing. Sectional title schemes mitigate urban inequality by giving a
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Two Attitudes towards Textuality in International Law: The Battle for Dualism. Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-06-11 Jean d'Aspremont
This article sketches out two distinct attitudes towards textuality in international law, namely international hermeneutics and international poetics. It argues that these two attitudes towards textuality espouse very different types of dualism of thought. This difference bears major implications on how the international lawyer approaches international legal texts. In exposing these two attitudes towards
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Sentencing Policy, Social Values and Discretionary Justice Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-06-07 Ralph Henham
Despite the recent consolidation of sentencing law and procedure, the fundamental values which underpin the policy and practice of sentencing in England and Wales have remained largely unchanged since the deserts-based model introduced by the Criminal Justice Act of 1991. It is argued that this paradigm is no longer appropriate and presents a significant impediment to reducing imprisonment and mainstreaming
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Piercing the Parliamentary Veil against Judicial Review: The Case against Parliamentary Privilege Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-05-31 Edward Lui
For centuries, parliamentary privilege has stood as a bar against judicial review over the internal affairs of Parliament. The literature surrounding parliamentary privilege has mostly been about the scope of the privilege; few have discussed if the existence of the privilege itself is justified. This article undertakes that task, by examining parliamentary privilege as a defence against judicial review
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Beyond Fair Labelling: Offence Differentiation in Criminal Law. Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-05-28 Andrew Cornford
How should criminal conduct be divided among different offences? To date, this question has received only one serious answer: the fair labelling principle, which states that distinctions among offences should reflect distinctions in the nature and seriousness of the wrongdoing that they criminalise. This article argues that the fair labelling principle should not be the sole or main principle governing
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Legitimacy-not Justice-and the Case for Judicial Review. Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-05-24 Tom Hickey
Sceptics of judicial review-from Jeremy Waldron to those in the Judicial Power Project-have tended to attribute to their opponents an erroneous prioritisation of 'justice' over 'legitimacy'. They claim that those who make the case for judicial review do so on the grounds that 'judges know best', and that judicial review therefore helps promote the overall justness of a state's social order-rather than
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What the Tortoise Says about Statutory Interpretation: The Semantic Canons of Construction Do Not Tip the Balance Oxford Journal of Legal Studies (IF 1.443) Pub Date : 2022-04-09 Amin Ebrahimi Afrouzi
Abstract Karl Llewellyn’s critique of the canons of statutory interpretation led to a decline in their use for several decades. His critique, however, faced sustained resistance from some corners of the academy and the judiciary. Although this resistance has had only a selective uptake, it animated a gradual revival of the canons and brought the state of scholarship to an impasse that is for the most