Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.001.0001
- Subject:
- Law, Philosophy of Law
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit ...
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Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.Less
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.
David M. Malone
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780199278572
- eISBN:
- 9780191604119
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199278571.003.0005
- Subject:
- Political Science, International Relations and Politics
This chapter examines the inspections-plus-sanctions approach to Iraqi disarmament, which characterized the enforcement aspects of this third phase of UN involvement in Iraq. The sanctions regime ...
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This chapter examines the inspections-plus-sanctions approach to Iraqi disarmament, which characterized the enforcement aspects of this third phase of UN involvement in Iraq. The sanctions regime against Iraq stands as a paradigm of both the virtues and vices of the sanctions approach. It was the Iraq sanctions regime that demonstrated the utility and the challenges of Security Council subsidiary bodies operating as delegated regulators, through a supervisory committee established to monitor implementation of the sanctions. Although Haiti and other cases provided lessons, it was also the Iraq sanctions regime that demonstrated most clearly how a cunning target government could turn sanctions to its own ends, and how terrible the resulting cost to civilians might be.Less
This chapter examines the inspections-plus-sanctions approach to Iraqi disarmament, which characterized the enforcement aspects of this third phase of UN involvement in Iraq. The sanctions regime against Iraq stands as a paradigm of both the virtues and vices of the sanctions approach. It was the Iraq sanctions regime that demonstrated the utility and the challenges of Security Council subsidiary bodies operating as delegated regulators, through a supervisory committee established to monitor implementation of the sanctions. Although Haiti and other cases provided lessons, it was also the Iraq sanctions regime that demonstrated most clearly how a cunning target government could turn sanctions to its own ends, and how terrible the resulting cost to civilians might be.
August Reinisch (ed.)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199595297
- eISBN:
- 9780191595752
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199595297.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book ...
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The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.Less
The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.
George A. Lopez and David Cortright
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195395914
- eISBN:
- 9780199776801
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195395914.003.0007
- Subject:
- Political Science, International Relations and Politics
The development and reform of smart sanctions makes them a critical element of strategic peacebuilding, specifically in their ability to restrict war and to counter terrorism. Lopez and Cortright ...
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The development and reform of smart sanctions makes them a critical element of strategic peacebuilding, specifically in their ability to restrict war and to counter terrorism. Lopez and Cortright examine the shortcomings and lessons learned from counter-terrorism efforts, in particular those led by the UN Counter-Terrorism Committee (CTC) and Counter-Terrorism Executive Directorate (CTED). To address the root causes of terrorism, they argue, efforts must promote good governance, economic development, and human rights—all of which are central aims of strategic peacebuilding. The authors provide recommendations for increasing regional capacities and decreasing redundancy and overlap in UN Security Council counter-terrorism efforts.Less
The development and reform of smart sanctions makes them a critical element of strategic peacebuilding, specifically in their ability to restrict war and to counter terrorism. Lopez and Cortright examine the shortcomings and lessons learned from counter-terrorism efforts, in particular those led by the UN Counter-Terrorism Committee (CTC) and Counter-Terrorism Executive Directorate (CTED). To address the root causes of terrorism, they argue, efforts must promote good governance, economic development, and human rights—all of which are central aims of strategic peacebuilding. The authors provide recommendations for increasing regional capacities and decreasing redundancy and overlap in UN Security Council counter-terrorism efforts.
Robert J. Flanagan
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780195306002
- eISBN:
- 9780199783564
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195306007.003.0004
- Subject:
- Economics and Finance, International
This chapter examines the effect of international trade on labor conditions around the world. Evidence developed in the chapter shows that open trade policies improve working conditions by raising ...
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This chapter examines the effect of international trade on labor conditions around the world. Evidence developed in the chapter shows that open trade policies improve working conditions by raising per capita income, as international trade theory predicts. Countries with open trade policies also have superior labor rights, and labor rights improve over time in countries that adopt open trade policies. In the short run, trade clearly enhances the working conditions of workers in export industries (including those working in export processing zones) but threatens the conditions of workers whose companies compete with imports. The evidence shows that with the passage of time, all workers benefit by moving into more productive employment settings. The evidence in this chapter implies that trade sanctions are likely to worsen labor conditions in target countries.Less
This chapter examines the effect of international trade on labor conditions around the world. Evidence developed in the chapter shows that open trade policies improve working conditions by raising per capita income, as international trade theory predicts. Countries with open trade policies also have superior labor rights, and labor rights improve over time in countries that adopt open trade policies. In the short run, trade clearly enhances the working conditions of workers in export industries (including those working in export processing zones) but threatens the conditions of workers whose companies compete with imports. The evidence shows that with the passage of time, all workers benefit by moving into more productive employment settings. The evidence in this chapter implies that trade sanctions are likely to worsen labor conditions in target countries.
Robert J. Flanagan
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780195306002
- eISBN:
- 9780199783564
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195306007.003.0008
- Subject:
- Economics and Finance, International
This final chapter summarizes the findings of the earlier analyses of the impact of globalization on labor conditions and considers the principles that should inform future policies to improve labor ...
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This final chapter summarizes the findings of the earlier analyses of the impact of globalization on labor conditions and considers the principles that should inform future policies to improve labor conditions. Broadly speaking, the evidence indicates that international trade, international migration, and the activities of multinational companies generally advance working conditions and labor rights around the world. In contrast, some policy proposals, such as the use of trade sanctions against countries that do not adopt international labor standards, are likely to worsen rather than improve labor conditions. A very useful guide to policy choice is to favor policies that expand, rather than contract, opportunities for target groups. The chapter reviews a number of targeted incentive policies that satisfy this principle in general and in particular areas such as child labor and forced labor.Less
This final chapter summarizes the findings of the earlier analyses of the impact of globalization on labor conditions and considers the principles that should inform future policies to improve labor conditions. Broadly speaking, the evidence indicates that international trade, international migration, and the activities of multinational companies generally advance working conditions and labor rights around the world. In contrast, some policy proposals, such as the use of trade sanctions against countries that do not adopt international labor standards, are likely to worsen rather than improve labor conditions. A very useful guide to policy choice is to favor policies that expand, rather than contract, opportunities for target groups. The chapter reviews a number of targeted incentive policies that satisfy this principle in general and in particular areas such as child labor and forced labor.
Sydney D. Bailey and Sam Daws
- Published in print:
- 1998
- Published Online:
- November 2003
- ISBN:
- 9780198280736
- eISBN:
- 9780191598746
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280734.001.0001
- Subject:
- Political Science, International Relations and Politics
The Procedure of the UN Security Council is the definitive book of its kind and has been widely used by UN practitioners and scholars for over twenty years. This new revised and ...
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The Procedure of the UN Security Council is the definitive book of its kind and has been widely used by UN practitioners and scholars for over twenty years. This new revised and thoroughly updated third edition encompasses the many changes in Council procedure that have occurred since the end of the Cold War, which ushered in new possibilities for international co‐operation, and increased recourse to the UN. The last decade has seen the Gulf War and a plethora of new and often complex peacekeeping operations, from Bosnia to Rwanda, and such increased demands and associated expectations have placed a spotlight on the role and functioning of the Security Council. Recent years have seen a greater recourse to informal consultations of Council members prior to Council meetings, and the search for consensual Council decision‐making has led to differences of opinion on both procedural and substantive matters being dealt with largely during such consultations. This has produced calls from non‐members for greater Council transparency. Other proposals, both from within and outside the UN, have advocated reforms to the Council's composition or working methods to ensure its continued effectiveness and legitimacy. The new edition attempts to reflect the many recent developments in the procedure of the Security Council, while still reflecting the considerable continuity that exists with the past. In particular, to illustrate and illuminate aspects of Council procedure, many examples have been used from the UN's early years, since this was the time when many of the original precedents were created. Some of the anecdotes that touch on the human side of Council diplomacy have also been retained. The new edition includes new information on the following: the Provisional Rules of Procedure; public and private meetings; consultations and briefings with non‐members and troop‐contributors, including transparency, Presidential briefings, and orientation debates; informal consultations and ‘Arria formula’ meetings; the appointment of the Secretary‐General of the UN; relationships with the UN General Assembly, the UN International Court of Justice, the UN Trusteeship Council, and the UN Military Staff Committee; subsidiary organs, including sanctions committees; the veto and Security Council membership; Chapter VII resolutions, UN peacekeeping and UN‐authorized enforcement; Council enlargement and de jure and de facto Charter amendments; changes in Council documentation; and ad hoc and regional groupings in the Council.Less
The Procedure of the UN Security Council is the definitive book of its kind and has been widely used by UN practitioners and scholars for over twenty years. This new revised and thoroughly updated third edition encompasses the many changes in Council procedure that have occurred since the end of the Cold War, which ushered in new possibilities for international co‐operation, and increased recourse to the UN. The last decade has seen the Gulf War and a plethora of new and often complex peacekeeping operations, from Bosnia to Rwanda, and such increased demands and associated expectations have placed a spotlight on the role and functioning of the Security Council. Recent years have seen a greater recourse to informal consultations of Council members prior to Council meetings, and the search for consensual Council decision‐making has led to differences of opinion on both procedural and substantive matters being dealt with largely during such consultations. This has produced calls from non‐members for greater Council transparency. Other proposals, both from within and outside the UN, have advocated reforms to the Council's composition or working methods to ensure its continued effectiveness and legitimacy. The new edition attempts to reflect the many recent developments in the procedure of the Security Council, while still reflecting the considerable continuity that exists with the past. In particular, to illustrate and illuminate aspects of Council procedure, many examples have been used from the UN's early years, since this was the time when many of the original precedents were created. Some of the anecdotes that touch on the human side of Council diplomacy have also been retained. The new edition includes new information on the following: the Provisional Rules of Procedure; public and private meetings; consultations and briefings with non‐members and troop‐contributors, including transparency, Presidential briefings, and orientation debates; informal consultations and ‘Arria formula’ meetings; the appointment of the Secretary‐General of the UN; relationships with the UN General Assembly, the UN International Court of Justice, the UN Trusteeship Council, and the UN Military Staff Committee; subsidiary organs, including sanctions committees; the veto and Security Council membership; Chapter VII resolutions, UN peacekeeping and UN‐authorized enforcement; Council enlargement and de jure and de facto Charter amendments; changes in Council documentation; and ad hoc and regional groupings in the Council.
Christopher Hood, Colin Scott, Oliver James, George Jones, and Tony Travers
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198280996
- eISBN:
- 9780191599491
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280998.003.0007
- Subject:
- Political Science, UK Politics
Explores the complex institutional jungle of regulators involved in regulating state schools in England. In this sector, in contrast with the prisons sector, regulators were able to link their ...
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Explores the complex institutional jungle of regulators involved in regulating state schools in England. In this sector, in contrast with the prisons sector, regulators were able to link their monitoring to sanctions as drastic as closing schools down. The study found no clear evidence of the benefits of the enhanced regulatory regime in terms of examination performance (the main performance indicator set by government for schools).Less
Explores the complex institutional jungle of regulators involved in regulating state schools in England. In this sector, in contrast with the prisons sector, regulators were able to link their monitoring to sanctions as drastic as closing schools down. The study found no clear evidence of the benefits of the enhanced regulatory regime in terms of examination performance (the main performance indicator set by government for schools).
Christopher Hood, Colin Scott, Oliver James, George Jones, and Tony Travers
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198280996
- eISBN:
- 9780191599491
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280998.003.0008
- Subject:
- Political Science, UK Politics
Examines European Union oversight of UK public sector activity, over compliance with EU norms and financial rules. EU regulators, and particularly those within the European Commission, possess ...
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Examines European Union oversight of UK public sector activity, over compliance with EU norms and financial rules. EU regulators, and particularly those within the European Commission, possess financial sanctions to an extent unusual among domestic regulators over the UK public sector. However, the tendency towards politicization in many domains appeared to generate what, in terms of the rationality of the EU, looked like under‐enforcement.Less
Examines European Union oversight of UK public sector activity, over compliance with EU norms and financial rules. EU regulators, and particularly those within the European Commission, possess financial sanctions to an extent unusual among domestic regulators over the UK public sector. However, the tendency towards politicization in many domains appeared to generate what, in terms of the rationality of the EU, looked like under‐enforcement.
Christina Eckes
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199573769
- eISBN:
- 9780191722158
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199573769.001.0001
- Subject:
- Law, Human Rights and Immigration, EU Law
Sanctions against private individuals have been widely used in the fight against terrorism, but not without significant controversy. This book examines the complex institutional and substantive ...
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Sanctions against private individuals have been widely used in the fight against terrorism, but not without significant controversy. This book examines the complex institutional and substantive issues arising from the European Union's practice of listing and sanctioning private individuals suspected of supporting terrorism. It provides a comprehensive analysis of the issues raised by individual sanctions adopted to give legal effect to United Nations lists and those drawn up by the EU itself. The book demonstrates that individual sanctions endanger the protection of fundamental rights and the functioning of the European legal order. While the ECJ has in principle confirmed that all Community sanctions are subject to full judicial review irrespective of whether they give effect to UN lists or EU lists, in practice individuals do not have the necessary procedural rights at their disposal. Additionally, protection from listings of individuals as terrorist suspects in the second and third pillar remains very limited. This raises the possibility that national constitutional courts could challenge the supremacy of European law in reaction to this disregard of fundamental rights and foundational principles. The book provides a comprehensive analysis of these complex legal issues, and situates them in their international context. The basis of the book is a critical review of the case-law of the CFI and the ECJ on individual sanctions. Conclusions are drawn as to how the EU Courts should provide fundamental rights protection, and suggestions are made for how the adoption procedure of individual sanctions could comply with general principles of EU law.Less
Sanctions against private individuals have been widely used in the fight against terrorism, but not without significant controversy. This book examines the complex institutional and substantive issues arising from the European Union's practice of listing and sanctioning private individuals suspected of supporting terrorism. It provides a comprehensive analysis of the issues raised by individual sanctions adopted to give legal effect to United Nations lists and those drawn up by the EU itself. The book demonstrates that individual sanctions endanger the protection of fundamental rights and the functioning of the European legal order. While the ECJ has in principle confirmed that all Community sanctions are subject to full judicial review irrespective of whether they give effect to UN lists or EU lists, in practice individuals do not have the necessary procedural rights at their disposal. Additionally, protection from listings of individuals as terrorist suspects in the second and third pillar remains very limited. This raises the possibility that national constitutional courts could challenge the supremacy of European law in reaction to this disregard of fundamental rights and foundational principles. The book provides a comprehensive analysis of these complex legal issues, and situates them in their international context. The basis of the book is a critical review of the case-law of the CFI and the ECJ on individual sanctions. Conclusions are drawn as to how the EU Courts should provide fundamental rights protection, and suggestions are made for how the adoption procedure of individual sanctions could comply with general principles of EU law.
Tanja A. Börzel
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199257409
- eISBN:
- 9780191600951
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019925740X.003.0009
- Subject:
- Political Science, European Union
Analyses the role of the European Commission as guardian of the European Treaty in ensuring compliance with EU law. The study shows that the Commission relies on four different compliance strategies, ...
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Analyses the role of the European Commission as guardian of the European Treaty in ensuring compliance with EU law. The study shows that the Commission relies on four different compliance strategies, which include monitoring and (the threat of) sanctions (enforcement), capacity‐building and contracting (management), persuasion and learning, and legal internalization (litigation). National mobilized interests prove to be a key element to all four of these compliance mechanisms. Draws on a database compiled by its author to evaluate how effective the Commission is in bringing member states into compliance with EU law. The first part of the chapter develops a conceptual framework, and identifies the different compliance strategies used by the Commission; the second shows that the Commission uses all four compliance strategies; the third looks at the effectiveness of the Commission's compliance strategies; and the concluding section considers how the four strategies used may relate to one another.Less
Analyses the role of the European Commission as guardian of the European Treaty in ensuring compliance with EU law. The study shows that the Commission relies on four different compliance strategies, which include monitoring and (the threat of) sanctions (enforcement), capacity‐building and contracting (management), persuasion and learning, and legal internalization (litigation). National mobilized interests prove to be a key element to all four of these compliance mechanisms. Draws on a database compiled by its author to evaluate how effective the Commission is in bringing member states into compliance with EU law. The first part of the chapter develops a conceptual framework, and identifies the different compliance strategies used by the Commission; the second shows that the Commission uses all four compliance strategies; the third looks at the effectiveness of the Commission's compliance strategies; and the concluding section considers how the four strategies used may relate to one another.
Philip Pettit
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198296423
- eISBN:
- 9780191600081
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198296428.003.0008
- Subject:
- Political Science, Political Theory
What steps can be taken to place checks on those who run the republic, given the imperfections of human nature? The institutional resources available for guarding against corruptibility boil down to ...
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What steps can be taken to place checks on those who run the republic, given the imperfections of human nature? The institutional resources available for guarding against corruptibility boil down to possibilities of sanctioning and screening: possibilities of punishing or rewarding what people do and possibilities of screening for the presence of suitable agents and options. One strategy in institutional design is to start from the need to cope with the worst agents around—the so‐called knaves—and to introduce sanctions that will serve even to control such anti‐social types, but this is subject to well‐known difficulties, all of which derive from the fact that most people are not knaves: they may be corruptible but they are not corrupt. A better strategy starts from the assumption that many people are not knaves and tries to build to that strength; it would support a screening for suitable agents; then a form of sanctioning designed to work with such non‐knavish agents; and, finally, a structure of fall‐back sanctioning that can cope with occasional knaves. The most important element required under this complier‐centred strategy is associated with the way in which people reward one another with their esteem, punish one another with their disesteem. Such a regard‐based form of sanctioning, which operates in an essentially non‐intentional way—as if by an intangible hand—can discipline agents while communicating a positive image of their virtue.Less
What steps can be taken to place checks on those who run the republic, given the imperfections of human nature? The institutional resources available for guarding against corruptibility boil down to possibilities of sanctioning and screening: possibilities of punishing or rewarding what people do and possibilities of screening for the presence of suitable agents and options. One strategy in institutional design is to start from the need to cope with the worst agents around—the so‐called knaves—and to introduce sanctions that will serve even to control such anti‐social types, but this is subject to well‐known difficulties, all of which derive from the fact that most people are not knaves: they may be corruptible but they are not corrupt. A better strategy starts from the assumption that many people are not knaves and tries to build to that strength; it would support a screening for suitable agents; then a form of sanctioning designed to work with such non‐knavish agents; and, finally, a structure of fall‐back sanctioning that can cope with occasional knaves. The most important element required under this complier‐centred strategy is associated with the way in which people reward one another with their esteem, punish one another with their disesteem. Such a regard‐based form of sanctioning, which operates in an essentially non‐intentional way—as if by an intangible hand—can discipline agents while communicating a positive image of their virtue.
Philip Pettit
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198296423
- eISBN:
- 9780191600081
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198296428.003.0009
- Subject:
- Political Science, Political Theory
The laws that advance the aims of the republic, institutionalize its forms, and establish regulatory controls need to be supported by republican civil norms; the legal republic needs to become a ...
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The laws that advance the aims of the republic, institutionalize its forms, and establish regulatory controls need to be supported by republican civil norms; the legal republic needs to become a civil reality. One reason that widespread civility is needed is that people can be assured of their non‐domination only so far as others recognize normative reasons for respecting them, not just reasons connected to fear of legal sanctions. Another is that if the republic is to be systematically sensitive to the interests and ideas of people—often newly emergent, newly articulated interests and ideas—then there have to be people who are virtuous enough to press appropriate claims; this applies both in the politics of difference and in the politics of common concerns. And a last reason why widespread civility is needed is that the public authorities cannot hope to identify and sanction all offences against republican laws and norms; ordinary people also have to be committed enough to perform in that role or to support the efforts of the authorities. Widespread civility is likely to be supported by the intangible hand of regard‐based sanctioning, since the honourable are destined in most circumstances to be the honoured, and the state must be careful not to impose forms of sanctioning, which might get in the way of that process. Civility or civic virtue may not be so difficult to achieve, as it often seems. It involves not just the internalization of public values and the disciplining of personal desires; given the communitarian nature of freedom as non‐domination, it also involves identification with larger groups, even with the polity as a whole, and access to new and satisfying identities.Less
The laws that advance the aims of the republic, institutionalize its forms, and establish regulatory controls need to be supported by republican civil norms; the legal republic needs to become a civil reality. One reason that widespread civility is needed is that people can be assured of their non‐domination only so far as others recognize normative reasons for respecting them, not just reasons connected to fear of legal sanctions. Another is that if the republic is to be systematically sensitive to the interests and ideas of people—often newly emergent, newly articulated interests and ideas—then there have to be people who are virtuous enough to press appropriate claims; this applies both in the politics of difference and in the politics of common concerns. And a last reason why widespread civility is needed is that the public authorities cannot hope to identify and sanction all offences against republican laws and norms; ordinary people also have to be committed enough to perform in that role or to support the efforts of the authorities. Widespread civility is likely to be supported by the intangible hand of regard‐based sanctioning, since the honourable are destined in most circumstances to be the honoured, and the state must be careful not to impose forms of sanctioning, which might get in the way of that process. Civility or civic virtue may not be so difficult to achieve, as it often seems. It involves not just the internalization of public values and the disciplining of personal desires; given the communitarian nature of freedom as non‐domination, it also involves identification with larger groups, even with the polity as a whole, and access to new and satisfying identities.
Desmond King
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198296294
- eISBN:
- 9780191599668
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198296290.003.0011
- Subject:
- Political Science, Comparative Politics
Uses historical and contemporary evidence to demonstrate how British government policies toward the unemployed have increasingly come to rest on the notion of duties and obligations arising from a ...
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Uses historical and contemporary evidence to demonstrate how British government policies toward the unemployed have increasingly come to rest on the notion of duties and obligations arising from a commitment to liberal contractualism. King explores 150 years of welfare policy, beginning with the 1834 New Poor Law and ending with modern Labour workfare schemes of the late 1990s. He argues that more contemporary versions of workfare—although sharing affinities with previous programmes—signal a sharp break from the past by establishing conditions and enforcing sanctions on individuals who fail to comply with policy requirements.Less
Uses historical and contemporary evidence to demonstrate how British government policies toward the unemployed have increasingly come to rest on the notion of duties and obligations arising from a commitment to liberal contractualism. King explores 150 years of welfare policy, beginning with the 1834 New Poor Law and ending with modern Labour workfare schemes of the late 1990s. He argues that more contemporary versions of workfare—although sharing affinities with previous programmes—signal a sharp break from the past by establishing conditions and enforcing sanctions on individuals who fail to comply with policy requirements.
Rex Martin
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198292937
- eISBN:
- 9780191599811
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198292937.003.0010
- Subject:
- Political Science, Political Theory
This chapter begins with a brief characterization of punishment under law. The central claim is then made that punishment would be justified in a system of civil rights if (1) it prevents or at least ...
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This chapter begins with a brief characterization of punishment under law. The central claim is then made that punishment would be justified in a system of civil rights if (1) it prevents or at least substantially deters violations of rights while at the same time being necessary to this particular task (either in that no alternative which altogether dispenses with punishment can do the job at all or that none can do it as well). Of course, we realize that punitive sanctions often infringe rights of the violator; accordingly, we must also require (drawing here on the notion of the competitive weight of rights) that (2) the right protected is not outweighed by the right infringed by sanction and that it cannot be substantially better protected by a sanction that infringes a right of roughly the same weight (or, of course, one of even lesser weight). Thus, the important grounds for punitive sanctions in a system of rights are: overall necessity (as in 1 above), compatibility with rights, and relative deterrent effectiveness (as in 2 above).On these same grounds, a policy of not punishing the innocent, of punishing only adjudged violators, would be incorporated in the background institutions,in particular, the trial system, that served to admit people, upon determination of their guilt, into the practice of being punished.Less
This chapter begins with a brief characterization of punishment under law. The central claim is then made that punishment would be justified in a system of civil rights if (1) it prevents or at least substantially deters violations of rights while at the same time being necessary to this particular task (either in that no alternative which altogether dispenses with punishment can do the job at all or that none can do it as well). Of course, we realize that punitive sanctions often infringe rights of the violator; accordingly, we must also require (drawing here on the notion of the competitive weight of rights) that (2) the right protected is not outweighed by the right infringed by sanction and that it cannot be substantially better protected by a sanction that infringes a right of roughly the same weight (or, of course, one of even lesser weight). Thus, the important grounds for punitive sanctions in a system of rights are: overall necessity (as in 1 above), compatibility with rights, and relative deterrent effectiveness (as in 2 above).
On these same grounds, a policy of not punishing the innocent, of punishing only adjudged violators, would be incorporated in the background institutions,in particular, the trial system, that served to admit people, upon determination of their guilt, into the practice of being punished.
Michael Dougan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199644735
- eISBN:
- 9780191740695
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199644735.003.0004
- Subject:
- Law, EU Law, Public International Law
This chapter analyses the obligations concerning the enforcement of substantive Union policies by the member states within the national legal systems. The use of criminal penalties for the ...
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This chapter analyses the obligations concerning the enforcement of substantive Union policies by the member states within the national legal systems. The use of criminal penalties for the enforcement of substantive Union law arises in two main categories of situation. The first can usefully be termed the ‘velvet glove’: in the absence of Union legislation prescribing precise sanctions for its own enforcement, the member states are free to impose appropriate sanctions within their own legal systems — including penalties of a criminal nature — subject to various obligations imposed under Union law as interpreted by the Court in the famous Greek Maize ruling. In the second situation, the Union legislature positively requires the member states to criminalize certain infringements of Union law, and may even prescribe the detailed rules governing the imposition of liability and the type/level of sanction. That ‘iron fist’ can claim a constitutional provenance both more recent and more rumbustious than the Greek Maize jurisprudence: pre-Lisbon, bitter institutional disputes about whether criminal sanctions could or should be imposed under the First (or instead the Third) Pillar culminated in the Court's controversial rulings in the Environmental Crimes and Ship-Source Pollution cases; since 1 December 2009, the revised provisions of the Treaty on the Functioning of the European Union have radically changed the relevant legal framework once again.Less
This chapter analyses the obligations concerning the enforcement of substantive Union policies by the member states within the national legal systems. The use of criminal penalties for the enforcement of substantive Union law arises in two main categories of situation. The first can usefully be termed the ‘velvet glove’: in the absence of Union legislation prescribing precise sanctions for its own enforcement, the member states are free to impose appropriate sanctions within their own legal systems — including penalties of a criminal nature — subject to various obligations imposed under Union law as interpreted by the Court in the famous Greek Maize ruling. In the second situation, the Union legislature positively requires the member states to criminalize certain infringements of Union law, and may even prescribe the detailed rules governing the imposition of liability and the type/level of sanction. That ‘iron fist’ can claim a constitutional provenance both more recent and more rumbustious than the Greek Maize jurisprudence: pre-Lisbon, bitter institutional disputes about whether criminal sanctions could or should be imposed under the First (or instead the Third) Pillar culminated in the Court's controversial rulings in the Environmental Crimes and Ship-Source Pollution cases; since 1 December 2009, the revised provisions of the Treaty on the Functioning of the European Union have radically changed the relevant legal framework once again.
Louis Kaplow
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691158624
- eISBN:
- 9781400846078
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691158624.003.0013
- Subject:
- Economics and Finance, Economic History
This chapter analyzes sanctions, concentrating primarily on deterrence. In many instances, reflecting current practice, the most important instruments are fines levied by government enforcers and, ...
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This chapter analyzes sanctions, concentrating primarily on deterrence. In many instances, reflecting current practice, the most important instruments are fines levied by government enforcers and, where permitted, damages collected by injured parties. If the probability of sanctions and their magnitude are sufficient, most coordinated price elevation will be deterred. A major challenge in setting monetary sanctions is determining the extent of price elevation. The measurement problem is conceptually the same whether price elevation was accomplished through secret meetings, mere recognition of interdependence, or in any other manner. The threat of imprisonment as well as fines assessed against individual actors can be a useful supplement, particularly in light of agency problems within firms. Injunctions are also considered. Although much academic commentary fixates on injunctive relief, it is not evident that it is important in controlling coordinated oligopoly pricing.Less
This chapter analyzes sanctions, concentrating primarily on deterrence. In many instances, reflecting current practice, the most important instruments are fines levied by government enforcers and, where permitted, damages collected by injured parties. If the probability of sanctions and their magnitude are sufficient, most coordinated price elevation will be deterred. A major challenge in setting monetary sanctions is determining the extent of price elevation. The measurement problem is conceptually the same whether price elevation was accomplished through secret meetings, mere recognition of interdependence, or in any other manner. The threat of imprisonment as well as fines assessed against individual actors can be a useful supplement, particularly in light of agency problems within firms. Injunctions are also considered. Although much academic commentary fixates on injunctive relief, it is not evident that it is important in controlling coordinated oligopoly pricing.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0002
- Subject:
- Law, Comparative Law
This chapter considers a misalignment between the standards of care and damages due to a court's lack of information regarding causation. It first explains the distinction between prices and ...
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This chapter considers a misalignment between the standards of care and damages due to a court's lack of information regarding causation. It first explains the distinction between prices and sanctions before discussing the discontinuity problem in tort law and contract law. It then examines how, under negligence law, an injurer who fails to satisfy the standard of care is liable for the harm caused by his negligence and how courts impose liability on the slightly negligent injurer for all harms caused by his behavior. It also explores how discontinuity in liability under negligence law creates misalignments that may result in overdeterrence or underdeterrence. The chapter concludes by suggesting how these misalignments could be mitigated.Less
This chapter considers a misalignment between the standards of care and damages due to a court's lack of information regarding causation. It first explains the distinction between prices and sanctions before discussing the discontinuity problem in tort law and contract law. It then examines how, under negligence law, an injurer who fails to satisfy the standard of care is liable for the harm caused by his negligence and how courts impose liability on the slightly negligent injurer for all harms caused by his behavior. It also explores how discontinuity in liability under negligence law creates misalignments that may result in overdeterrence or underdeterrence. The chapter concludes by suggesting how these misalignments could be mitigated.
Bardo Fassbender (ed.)
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199641499
- eISBN:
- 9780191732218
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199641499.001.0001
- Subject:
- Law, Public International Law, Human Rights and Immigration
The contributions to this book, which are based on lectures delivered at the Academy of European Law in Florence, take a closer look at the two sides of the United Nations Security Council's ...
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The contributions to this book, which are based on lectures delivered at the Academy of European Law in Florence, take a closer look at the two sides of the United Nations Security Council's involvement in human rights — its efforts to promote and enforce human rights on the one hand, and the imperiling of those same rights by action of the Council meant to maintain or restore international peace and security, on the other hand. The book offers a collection of individual views and appraisals, presented by leading experts in international law, of how the Council has dealt with human rights issues, especially in the post-Cold War phase of its life, and of possible avenues for improvement. The opening chapter analyses how the role of the Council in the promotion and protection of human rights has developed since 1945: an organ not endowed with any specific powers in the field of human rights became the ‘centre-piece of the human rights protection system’ of the international community. Another chapter focuses on the legal issues of the Council's actions in favour of human rights. In particular, the legal problems of a qualification of human rights violations as a threat to international peace are addressed. Procedural questions take centre stage in a contribution on the role for human rights in the decision-making process of the Security Council. The following chapters then turn to a practice of the Council which has been sharply criticized because of its negative effects on human rights — ‘targeted sanctions’ imposed on individuals in the form of travel bans, arms embargoes, and the freezing of financial assets. In no other area of its work has the Security Council been so vulnerable to attack by human rights activists and lawyers. In particular, the enforcement of targeted sanctions in Europe and its supervision by European courts is closely analysed.Less
The contributions to this book, which are based on lectures delivered at the Academy of European Law in Florence, take a closer look at the two sides of the United Nations Security Council's involvement in human rights — its efforts to promote and enforce human rights on the one hand, and the imperiling of those same rights by action of the Council meant to maintain or restore international peace and security, on the other hand. The book offers a collection of individual views and appraisals, presented by leading experts in international law, of how the Council has dealt with human rights issues, especially in the post-Cold War phase of its life, and of possible avenues for improvement. The opening chapter analyses how the role of the Council in the promotion and protection of human rights has developed since 1945: an organ not endowed with any specific powers in the field of human rights became the ‘centre-piece of the human rights protection system’ of the international community. Another chapter focuses on the legal issues of the Council's actions in favour of human rights. In particular, the legal problems of a qualification of human rights violations as a threat to international peace are addressed. Procedural questions take centre stage in a contribution on the role for human rights in the decision-making process of the Security Council. The following chapters then turn to a practice of the Council which has been sharply criticized because of its negative effects on human rights — ‘targeted sanctions’ imposed on individuals in the form of travel bans, arms embargoes, and the freezing of financial assets. In no other area of its work has the Security Council been so vulnerable to attack by human rights activists and lawyers. In particular, the enforcement of targeted sanctions in Europe and its supervision by European courts is closely analysed.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0012
- Subject:
- Law, Comparative Law
This chapter examines positive externalities caused by nonlegal sanctions. It first considers a wrongdoer's incentives in cases where nonlegal sanctions are dead-weight losses versus cases where ...
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This chapter examines positive externalities caused by nonlegal sanctions. It first considers a wrongdoer's incentives in cases where nonlegal sanctions are dead-weight losses versus cases where nonlegal sanctions transfer or create value. It then presents theoretical arguments about victims' incentives before making the case for deducting nonlegal sanctions and explaining how this affects legal standards of care and damages. It also describes three elements of social costs and benefits and whether each is internalized by wrongdoers: plaintiff's harm from the wrong, defendant's harm from the nonlegal sanctions, and other peoples' benefit from the nonlegal sanctions. The chapter introduces the notion of “ideal net damages,” which it asserts should be awarded by courts in the typical case where nonlegal sanctions benefit other people, and “practical net damages,” suggesting that courts must deduct the burden of the nonlegal sanction on the wrongdoer.Less
This chapter examines positive externalities caused by nonlegal sanctions. It first considers a wrongdoer's incentives in cases where nonlegal sanctions are dead-weight losses versus cases where nonlegal sanctions transfer or create value. It then presents theoretical arguments about victims' incentives before making the case for deducting nonlegal sanctions and explaining how this affects legal standards of care and damages. It also describes three elements of social costs and benefits and whether each is internalized by wrongdoers: plaintiff's harm from the wrong, defendant's harm from the nonlegal sanctions, and other peoples' benefit from the nonlegal sanctions. The chapter introduces the notion of “ideal net damages,” which it asserts should be awarded by courts in the typical case where nonlegal sanctions benefit other people, and “practical net damages,” suggesting that courts must deduct the burden of the nonlegal sanction on the wrongdoer.
