Cedric Ryngaert
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199544714
- eISBN:
- 9780191719943
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199544714.003.0006
- Subject:
- Law, Public International Law
This chapter focuses on jurisdictional reasonableness. It argues that reasonable jurisdiction could emerge through transnational communicative networks wiring State, international, and private ...
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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.Less
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.
Otto Kircheimer
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691134130
- eISBN:
- 9781400846467
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691134130.003.0021
- Subject:
- History, Military History
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 ...
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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.Less
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.
JR Spencer
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199532711
- eISBN:
- 9780191705489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199532711.003.0038
- Subject:
- Law, Legal History
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 ...
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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.Less
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.
Susan W. Brenner
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780195333480
- eISBN:
- 9780199855353
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195333480.003.0007
- Subject:
- Law, Intellectual Property, IT, and Media Law
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 ...
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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.Less
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.
Ross Cranston
- Published in print:
- 1993
- Published Online:
- March 2012
- ISBN:
- 9780199292073
- eISBN:
- 9780191700699
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199292073.001.0001
- Subject:
- Law, Legal Profession and Ethics
Access to justice, equality before the law, and the rule of law are three fundamental values underpinning the civil justice system. This book examines these values and ...
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Access to justice, equality before the law, and the rule of law are three fundamental values underpinning the civil justice system. This book examines these values and how they are a crucial foundation of the civil justice system and a powerful argument for arrangements such as legal aid, the impartial application of law, and the independence of the judiciary. It also considers the role of procedure, often regarded as of secondary importance compared with substantive law. It discusses Lord Woolf's inquiry, and demonstrates how procedural reform can maximize a fundamental value like access to justice. This linkage is furthered in a later analysis of access to justice comparatively, in relation to civil and commercial law. It then looks at understanding how law works, and how it could be made to work better, and concludes that this demands both knowledge of law and of law's context. This theme deals with the machinery of the law, and discusses what the courts do, civil procedure, and the ethics of lawyers' conduct, all in relation to the broader context of access to justice. This broader context of the law is particularly prominent in the latter half of the book, which deals with various dimensions of the impact of the law.Less
Access to justice, equality before the law, and the rule of law are three fundamental values underpinning the civil justice system. This book examines these values and how they are a crucial foundation of the civil justice system and a powerful argument for arrangements such as legal aid, the impartial application of law, and the independence of the judiciary. It also considers the role of procedure, often regarded as of secondary importance compared with substantive law. It discusses Lord Woolf's inquiry, and demonstrates how procedural reform can maximize a fundamental value like access to justice. This linkage is furthered in a later analysis of access to justice comparatively, in relation to civil and commercial law. It then looks at understanding how law works, and how it could be made to work better, and concludes that this demands both knowledge of law and of law's context. This theme deals with the machinery of the law, and discusses what the courts do, civil procedure, and the ethics of lawyers' conduct, all in relation to the broader context of access to justice. This broader context of the law is particularly prominent in the latter half of the book, which deals with various dimensions of the impact of the law.
Klaus J. Hopt and Felix Steffek
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199653485
- eISBN:
- 9780191758270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653485.003.0001
- Subject:
- Law, Comparative Law, Private International Law
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 ...
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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.Less
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.
R. A. Duff
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199679829
- eISBN:
- 9780191760051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199679829.003.0006
- Subject:
- Law, Philosophy of Law
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 ...
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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.Less
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.
F. A. Mann
- Published in print:
- 1986
- Published Online:
- March 2012
- ISBN:
- 9780198255642
- eISBN:
- 9780191681615
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198255642.001.0001
- Subject:
- Law, Public International Law
This book describes and analyses the attitudes and techniques which English judges adopt or ought to adopt when confronted with problems arising from the conduct of foreign policy by the Executive. ...
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This book describes and analyses the attitudes and techniques which English judges adopt or ought to adopt when confronted with problems arising from the conduct of foreign policy by the Executive. Its central theme, therefore, is the relationship of the Executive and the judiciary in matters involving foreign relations rather than the formulation of rules of substantive law, whether municipal or international law.Less
This book describes and analyses the attitudes and techniques which English judges adopt or ought to adopt when confronted with problems arising from the conduct of foreign policy by the Executive. Its central theme, therefore, is the relationship of the Executive and the judiciary in matters involving foreign relations rather than the formulation of rules of substantive law, whether municipal or international law.
Anthony Arnull, Piet Eeckhout, and Takis Tridimas (eds)
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199219032
- eISBN:
- 9780191711862
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199219032.001.0001
- Subject:
- Law, EU Law
This book commemorates the career of Sir Francis Jacobs KCMG QC, who served as British Advocate General at the European Court of Justice in Luxembourg from October 1988 until January 2006. This ...
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This book commemorates the career of Sir Francis Jacobs KCMG QC, who served as British Advocate General at the European Court of Justice in Luxembourg from October 1988 until January 2006. This collection of essays examines the key developments in EU law over the period that Sir Francis served as Advocate General, one that saw momentous changes in the character of the Union and its legal order. It encompassed the Treaty of Maastricht, which superimposed the Union on the pre-existing European Community, as well as the Treaties of Amsterdam and Nice; the proclamation of the Union's Charter of Fundamental Rights; the drafting of the Treaty establishing a Constitution for Europe; the creation of the Court of First Instance and the EU Civil Service Tribunal; the completion of the single market; and the enlargement of the Union to 15 Member States in 1995 and 25 Member States in 2004. The period also witnessed a profound change in the nature of much academic scholarship on the law of the Union. The book is divided into five sections dealing respectively with: general issues and institutional questions; fundamental rights; substantive law; external relations; and national perspectives. The contributors are distinguished figures drawn from a variety of constituencies, including the national and European judiciaries, legal practice, and the academic world.Less
This book commemorates the career of Sir Francis Jacobs KCMG QC, who served as British Advocate General at the European Court of Justice in Luxembourg from October 1988 until January 2006. This collection of essays examines the key developments in EU law over the period that Sir Francis served as Advocate General, one that saw momentous changes in the character of the Union and its legal order. It encompassed the Treaty of Maastricht, which superimposed the Union on the pre-existing European Community, as well as the Treaties of Amsterdam and Nice; the proclamation of the Union's Charter of Fundamental Rights; the drafting of the Treaty establishing a Constitution for Europe; the creation of the Court of First Instance and the EU Civil Service Tribunal; the completion of the single market; and the enlargement of the Union to 15 Member States in 1995 and 25 Member States in 2004. The period also witnessed a profound change in the nature of much academic scholarship on the law of the Union. The book is divided into five sections dealing respectively with: general issues and institutional questions; fundamental rights; substantive law; external relations; and national perspectives. The contributors are distinguished figures drawn from a variety of constituencies, including the national and European judiciaries, legal practice, and the academic world.
Jens Iverson
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199685899
- eISBN:
- 9780191765841
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685899.003.0006
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter contrasts Transitional Justice and jus post bellum in order to create a clearer definition and understanding of each. The terms are evaluated not as essentialist truths but as terms that ...
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This chapter contrasts Transitional Justice and jus post bellum in order to create a clearer definition and understanding of each. The terms are evaluated not as essentialist truths but as terms that have evolved and will continue to change. The chapter begins with a review of Hersch Lauterpacht’s concept of the Grotian Tradition, and how it relates to Transitional Justice and jus post bellum. Jus post bellum and Transitional Justice are then contrasted and analyzed with respect to their varied legal or political emphases, their content, their geographical scope, their contrasting historical foundations, and their current usage. The chapter seeks to clarify where the extensive literature and experience regarding Transitional Justice is more or less likely to be helpful to those interested in jus post bellum. Additionally, the author hopes that the concept of jus post bellum may help those interested in Transitional Justice to refocus and strengthen their field.Less
This chapter contrasts Transitional Justice and jus post bellum in order to create a clearer definition and understanding of each. The terms are evaluated not as essentialist truths but as terms that have evolved and will continue to change. The chapter begins with a review of Hersch Lauterpacht’s concept of the Grotian Tradition, and how it relates to Transitional Justice and jus post bellum. Jus post bellum and Transitional Justice are then contrasted and analyzed with respect to their varied legal or political emphases, their content, their geographical scope, their contrasting historical foundations, and their current usage. The chapter seeks to clarify where the extensive literature and experience regarding Transitional Justice is more or less likely to be helpful to those interested in jus post bellum. Additionally, the author hopes that the concept of jus post bellum may help those interested in Transitional Justice to refocus and strengthen their field.
Duncan Fairgrieve
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780199258055
- eISBN:
- 9780191698507
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258055.003.0009
- Subject:
- Law, Law of Obligations
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 ...
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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.Less
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.
Eva Steiner
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198790884
- eISBN:
- 9780191833342
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198790884.001.0001
- Subject:
- Law, Comparative Law
This second edition provides an authoritative, thorough, and updated account of the French Legal System and its internal workings. It explains both the institutions and substantive law along with the ...
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This second edition provides an authoritative, thorough, and updated account of the French Legal System and its internal workings. It explains both the institutions and substantive law along with the methodology that underpins the system. As well as being a key to understanding the civil law way of thinking, the book focuses on the various processes that go into making and enforcing law in France. Landmark legal cases that have shaped modern French law are discussed within the particular area of law under scrutiny. Illuminating and insightful comparisons to other legal jurisdictions, especially England, are made throughout, helping readers to appreciate the distinctions and specific nature of French law.Less
This second edition provides an authoritative, thorough, and updated account of the French Legal System and its internal workings. It explains both the institutions and substantive law along with the methodology that underpins the system. As well as being a key to understanding the civil law way of thinking, the book focuses on the various processes that go into making and enforcing law in France. Landmark legal cases that have shaped modern French law are discussed within the particular area of law under scrutiny. Illuminating and insightful comparisons to other legal jurisdictions, especially England, are made throughout, helping readers to appreciate the distinctions and specific nature of French law.
Robin West
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814728437
- eISBN:
- 9780814728789
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814728437.003.0002
- Subject:
- Political Science, Political Theory
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 ...
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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.Less
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.
James Chalmers and Fiona Leverick
- Published in print:
- 2010
- Published Online:
- March 2012
- ISBN:
- 9780748640706
- eISBN:
- 9780748651450
- Item type:
- book
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748640706.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book honours the work of Sir Gerald Gordon CBE QC LLD (1929– ). In modern times few, if any, individuals can have been as important to a single country's criminal law as Sir Gerald has been to ...
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This book honours the work of Sir Gerald Gordon CBE QC LLD (1929– ). In modern times few, if any, individuals can have been as important to a single country's criminal law as Sir Gerald has been to the criminal law of Scotland. His monumental work The Criminal Law of Scotland (1967) is the foundation of modern Scottish criminal law and is recognised internationally as a major contribution to academic work on the subject. Elsewhere, he has made significant contributions as an academic, judge and as a member of the Scottish Criminal Cases Review Commission. Reflecting the academic rigour and practical application of Sir Gerald's work, this volume includes chapters on criminal law theory, substantive law and evidence and procedure by practitioners and academics within and outside of Scotland, including contributions from England, Ireland, and the USA.Less
This book honours the work of Sir Gerald Gordon CBE QC LLD (1929– ). In modern times few, if any, individuals can have been as important to a single country's criminal law as Sir Gerald has been to the criminal law of Scotland. His monumental work The Criminal Law of Scotland (1967) is the foundation of modern Scottish criminal law and is recognised internationally as a major contribution to academic work on the subject. Elsewhere, he has made significant contributions as an academic, judge and as a member of the Scottish Criminal Cases Review Commission. Reflecting the academic rigour and practical application of Sir Gerald's work, this volume includes chapters on criminal law theory, substantive law and evidence and procedure by practitioners and academics within and outside of Scotland, including contributions from England, Ireland, and the USA.
Rosalyn Higgins Dbe Qc
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9780198262350
- eISBN:
- 9780191682322
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198262350.003.0081
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
E. Allan Farnsworth
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199276110
- eISBN:
- 9780191699887
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276110.003.0014
- Subject:
- Law, Law of Obligations
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 ...
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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.Less
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.
Rafal Zakrzewski
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199278756
- eISBN:
- 9780191699993
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199278756.003.0011
- Subject:
- Law, Constitutional and Administrative Law
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. ...
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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.Less
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.
Harish Narasappa
- Published in print:
- 2018
- Published Online:
- January 2019
- ISBN:
- 9780199484669
- eISBN:
- 9780199093717
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199484669.003.0002
- Subject:
- Law, Constitutional and Administrative Law
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 ...
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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.Less
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.
Rosalyn Higgins Dbe Qc
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9780198262350
- eISBN:
- 9780191682322
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198262350.003.0080
- Subject:
- Law, Public International Law
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 ...
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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 three broad categories: attribution of conduct to the state, appropriate remedies and the relationship of state responsibility to jurisdiction, and the relationship of state responsibility to substantive law. On October 10, 2002, in the ICJ’s judgment in the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) case, a fourth aspect of the law of state responsibility was very much in focus, although the case principally concerned territorial title. This fourth category concerns requests for separate findings of state responsibility as a consequence of findings of illegal conduct, and yields a number of issues including claims of state responsibility in territorial disputes.Less
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 three broad categories: attribution of conduct to the state, appropriate remedies and the relationship of state responsibility to jurisdiction, and the relationship of state responsibility to substantive law. On October 10, 2002, in the ICJ’s judgment in the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) case, a fourth aspect of the law of state responsibility was very much in focus, although the case principally concerned territorial title. This fourth category concerns requests for separate findings of state responsibility as a consequence of findings of illegal conduct, and yields a number of issues including claims of state responsibility in territorial disputes.
Robin Stryker and LaDawn Haglund
- Published in print:
- 2015
- Published Online:
- September 2015
- ISBN:
- 9780520283091
- eISBN:
- 9780520958920
- Item type:
- chapter
- Publisher:
- University of California Press
- DOI:
- 10.1525/california/9780520283091.003.0015
- Subject:
- Sociology, Law, Crime and Deviance
This chapter uses the MAPs framework to organize and synthesize findings presented in this volume, offering an inter-related set of 40 hypotheses to guide future theorizing, research, advocacy, and ...
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This chapter uses the MAPs framework to organize and synthesize findings presented in this volume, offering an inter-related set of 40 hypotheses to guide future theorizing, research, advocacy, and practice related to the realization of economic, social, cultural, political, and civil rights around the world. The chapter explores parallels between ESR, CPR, and cultural rights; global-local linkages for rights realization in the developed and developing world; and possibilities for, and consequences of, combining litigation and court enforcement with a diverse array of non-formal legal mechanisms (political, informational, symbolic, and cooperative) for ensuring accountability. It further specifies opportunities and constraints that may arise in efforts to promote ESCR. To the extent that rights realization on behalf of the marginalized and disadvantaged proceeds through litigation, judicial doctrine oriented to institutions and collectivities and to establishing group and results-based determinations of liability and remedy is necessary for equality and social justice-promoting social transformation. Such doctrine is not, however, sufficient. It must be combined with pathways that mobilize political mechanisms, including top-down and bottom up political activism, and with pathways that mobilize informational mechanisms including systematic data collection, dissemination and monitoring and global-local networks linking research and advocacy.Less
This chapter uses the MAPs framework to organize and synthesize findings presented in this volume, offering an inter-related set of 40 hypotheses to guide future theorizing, research, advocacy, and practice related to the realization of economic, social, cultural, political, and civil rights around the world. The chapter explores parallels between ESR, CPR, and cultural rights; global-local linkages for rights realization in the developed and developing world; and possibilities for, and consequences of, combining litigation and court enforcement with a diverse array of non-formal legal mechanisms (political, informational, symbolic, and cooperative) for ensuring accountability. It further specifies opportunities and constraints that may arise in efforts to promote ESCR. To the extent that rights realization on behalf of the marginalized and disadvantaged proceeds through litigation, judicial doctrine oriented to institutions and collectivities and to establishing group and results-based determinations of liability and remedy is necessary for equality and social justice-promoting social transformation. Such doctrine is not, however, sufficient. It must be combined with pathways that mobilize political mechanisms, including top-down and bottom up political activism, and with pathways that mobilize informational mechanisms including systematic data collection, dissemination and monitoring and global-local networks linking research and advocacy.
