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This chapter focuses on jurisdictional reasonableness. It argues that reasonable jurisdiction could emerge through transnational communicative networks wiring State, international, and private actors. It proposes that States apply their own laws only on a subsidiary basis. Subsidiarity serves to restrain the exercise of jurisdiction by giving the State with the strongest nexus the primary right to exercise jurisdiction. If the ‘primary’ State fails to exercise jurisdiction, even if, from a global perspective, such were desirable, the ‘subsidiary’ State has the right — and, it may be argued, sometimes the duty — to step in, in the interest of the global community. Such a jurisdictional system connects sovereign interests with global interests, and ensures that impunity and globally harmful underregulation do not arise.

This chapter discusses the administration of criminal justice in Germany under military government. The report claims that German criminal law conflicts in many respects not only with the theories and practices for which German criminal law had previously stood, but also with the theories which, in Anglo-American countries, are traditionally linked to the functions of criminal law. This conflict alone does not suffice to impose upon military government a duty to revise or revoke criminal legislation. The chapter considers changes in the German criminal justice system which are necessary not only for the security of the occupying army and the orderly development of German political and social life, but also for the execution of the policies and purposes of the United Nations. It also makes a number of recommendations with respect to military government's approach to criminal law, substantive law, procedural law, problems of jurisdiction, amnesty problems, prosecution of Nazi offenders against German citizens, and problems of administration.

This chapter evaluates the contribution of the House of Lords to the development of English criminal law. By this, it means substantive law: for reasons of space, and to avoid overlap with other chapters, the broader aspects of criminal justice are be touched upon. The chapter begins with an introduction, with some dates and figures, and other background matters. It continues with a central section in which the work of the House of Lords is examined. In the final section, the chapter weighs up the strengths and weaknesses of the Law Lords' contribution to this area of law, and express a personal view as to which way the final balance tips.

This chapter explains why our relationship with technology will move from use to interaction. It also explains why the approach we have relied upon to control misuse then becomes unsuitable. It offers an alternative approach for controlling misuse, and demonstrates how it addresses the problem. Law has not realized there must be two types of rules: rules about technology and rules about human behavior (which may or may not involve technology). Law tends to conflate the two. This is the result of expediency and history, and must be revised. The chapter explains that this approach also influenced the procedural rules that govern what law enforcement can, and cannot, do in investigative criminal activity. Finally, it explains that the approach it advocates applies with equal validity outside the criminal context — to civil rules, such as tort rules, that are also about human behavior.

This chapter analyses the law and principles of mediation from a comparative perspective and develops regulatory models. The chapter commences with an overview of the development of mediation in the European Union and the wider world, followed by an explanation of the outline and approach of the book. Then an extensive functional comparison of the regulation of mediation in the 22 countries covered by the book is undertaken. In particular, comparison is made between the definition of mediation and models of regulation, the institutional integration of mediation in dispute resolution procedures and substantive law, the structure of the mediation procedure, specific fields of law and the professional law of mediators. Finally, there is a comparative analysis of empirical evidence, a critical evaluation of mediation law and a development of guidelines for regulating mediation.

This chapter addresses questions concerning the kinds of reason that the criminal law of a tolerably just society offers those whom it claims to bind. It defends three claims. First, the normative reasons we have for obeying the criminal law are, typically or paradigmatically, relational and civic: in a liberal republic, of the kind in which contemporary democrats should aspire to live, they are grounded in our relationship not to the law or the state as such, but to our fellow citizens as members of the polity whose law it is; we should obey the criminal law because that is what we owe to our fellow citizens — and because it is our law. Second, we do not typically have such relational reasons for obeying the substantive criminal law: indeed, we do not typically have any normative reason to obey the substantive criminal law, nor does that law seek our obedience. Third, the criminal law's authority does not consist in the power to make wrongful conduct that was not already independently wrongful: it rather lies primarily in its procedural dimension, as the power to call alleged wrongdoers to public account, to judge their conduct, and to condemn and punish their criminal wrongdoing; and that authority is relational, in that it depends on the criminal law's status as the law of a political community whose members can collectively claim such authority over each other.

Chapter 1 introduces the concept of a remedy and the associated concept of remedial law. Identifying remedies with ‘judicial orders’, Chapter 1 explains why this definition captures a distinctive and important legal phenomenon—albeit one that common law lawyers have failed to take seriously. In particular, the common law has not clearly distinguished remedial law from substantive law, with the consequence that its understanding of both subjects has been impeded. The chapter identifies four fundamental (but until now largely ignored) questions about remedial law—What is a remedy? Why does the law provide remedies? On what grounds are remedies issued? What kinds of remedies are issued?—and summarizes the book’s answers to these questions. Chapter 1 also describes different kinds of remedies, and briefly discusses the book’s terminology, methodology, and jurisdictional scope.

This chapter reviews the differences in the systems of substantive English and French governmental law in liability in terms of the approach, philosophy, and procedural factors, and similarities in the division between personal and state liability, concepts, approach, system of reparation, outcomes, and reasonable limitations of liability that make the two jurisdictions less divergent than they may at first seem. They also have parallels in the evolution of liability and the gradual liberalising of the substantive law. French law might learn from English law, as English law might learn from French law, to cope with the limitations of each system and to provide reference for progress and significant improvement.

This chapter discusses Max Weber's aims in the ‘Sociology of Law’. Before exploring in detail Weber's ‘Sociology of Law’, its essential assumptions and conclusions, as well as its conceptual apparatus, it is necessary to outline briefly its two opening sections. In the first section, established areas of the law are treated in brief, such as public law, private law, criminal law, procedural law, and substantive law. In the second section, the most important forms/categories of subjective law are presented in overview, including the classical civil rights and liberties. Weber also provides an overview of contract and the development of freedom of contract. For all their heterogeneity, Weber's remarks in his ‘Sociology of Law’ can be brought together into a historically grounded ‘theory’ of the rationalization of the law and its developmental conditions. This theory of the rationalization of the law has various basic ‘building blocks’. First and foremost, it requires a standard measure for the level of rationalization that has been reached. In a process of rationalization, ideal-typical stages of development are required. Weber also pays particular attention to two basic types of legal training or legal teaching: first, the ‘craft’ approach in the sense of the ‘empirically’ driven training of lawyers; and second, university education organized in a theoretical and academic manner.

This chapter discusses how there is some significance in expanding the rule of law to include a procedural dimension, particularly given contemporary national, global, and political realities. Due to suffering a deficit of procedural fairness in various courts of criminal justice, complementing the property-centered rule of law ideology with something that highlights people rather than profit certainly cannot hurt. A little bit of rule of law idealism—whether formal, procedural, or substantive—might help make the case for robust procedural protections, or at least complement rule of law interpretations that focus on profit with one that centers on individual dignity and intelligence. The chapter presents four objections to this proposal, characterized as suggested friendly amendments, and a fifth crucial remark about some of the features of all three paradigms of rule of law scholarship that Professor Jeremy Waldron has identified: formal, procedural, and substantive.

Issues of state responsibility have engaged the attention of both the Permanent Court of International Justice and the International Court of Justice (ICJ). Issues of state responsibility before the ICJ may be said to have fallen into several broad categories: attribution of conduct to the state, the relationship of state responsibility to the jurisdictional basis for the dispute, the relationship of state responsibility to substantive law, and state responsibility and the designation of appropriate remedies for a breach. On October 10, 2002, in the ICJ’s judgment in the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) case, a fifth aspect of the law of state responsibility, came very much into focus, namely, the place of the law of responsibility in a case principally concerning territorial title. This chapter also discusses requests for separate findings of state responsibility as a consequence of findings of illegal conduct, claims of state responsibility in territorial disputes, and when a distinct finding on responsibility should be requested.

In contrast to inculpating mistakes which are asserted by those whose claims are based on carelessness or faulty decision of the mistaken party, alleviating mistakes are asserted by the mistaken party as justifications for receiving relief. When law asserts how legal rule may applied only after satisfying the prerequisite of a state of mind or an intent, claims to forgiveness or to reversal in alleviating mistakes may be brought about. While this book has attempted to discuss how the law takes on such mistakes within the structure of today's substantive law, this chapter analyzes both the similarities and differences in function in the operation of such rules, looks into the development of alleviating mistakes, and also identifies some reasons for such development.

This chapter deals with a number of equitable remedies which do or may replicate rights arising from wrongs. It shows that the substantive law in this area is still in a process of development. Therefore, it places particular emphasis on determining, where possible, that the awards and orders considered here actually are replicating secondary rights rather than creating rights with an entirely new content; that is, that these remedies ought to be placed in the replicative rather than the transformative category.

The provisions of the Constitution, mainly the Preamble and Parts III and IV are examined and analysed to evaluate if they go beyond formalism. Focusing on equality, fraternity, and liberty as revolutionary concepts that were introduced by the Constitution, this chapter seeks to answer the question whether the Constitution heralds a complete break from India’s past. The Constituent Assembly debates and the works of Ambedkar, Baxi, Austin, Khilnani, Mehta, and Kothari are reviewed and analysed to understand the values and choices made in the Constitution and whether they were a mere continuation of existing values and choices or if they were a completely new set of values and choices. An extremely important factor that needs to be studied in the Indian context is the central role attributed to the state in the fulfilment of political, social, and economic goals.