William Lucy
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780198700685
- eISBN:
- 9780191706745
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198700685.001.0001
- Subject:
- Law, Philosophy of Law
On what basis does tort law hold us responsible to those who suffer as a result of our carelessness? Why, when we breach our contracts, should we make good the losses of those with whom we ...
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On what basis does tort law hold us responsible to those who suffer as a result of our carelessness? Why, when we breach our contracts, should we make good the losses of those with whom we contracted? In what sense are our torts and our breaches of contract ‘wrongs’? These two branches of private law have for centuries provided philosophers and jurists with grounds for puzzlement. This book provides an outline of, and intervention in, contemporary jurisprudential debates about the nature and foundation of liability in private law. After outlining the realm of the philosophy of private law, the book divides into two. Part I examines the various components of liability responsibility in private law, including the notions of basic responsibility, conduct, causation, and wrongfulness. Part II considers arguments purporting to show that private law does and should embody a conception of either distributive or corrective justice or some combination of the two. Throughout the book a number of distinctions — between conceptual and normative argument, between jurisprudential ‘theory’ and private law ‘practice’, between legal obligation and moral obligation — are analyzed.Less
On what basis does tort law hold us responsible to those who suffer as a result of our carelessness? Why, when we breach our contracts, should we make good the losses of those with whom we contracted? In what sense are our torts and our breaches of contract ‘wrongs’? These two branches of private law have for centuries provided philosophers and jurists with grounds for puzzlement. This book provides an outline of, and intervention in, contemporary jurisprudential debates about the nature and foundation of liability in private law. After outlining the realm of the philosophy of private law, the book divides into two. Part I examines the various components of liability responsibility in private law, including the notions of basic responsibility, conduct, causation, and wrongfulness. Part II considers arguments purporting to show that private law does and should embody a conception of either distributive or corrective justice or some combination of the two. Throughout the book a number of distinctions — between conceptual and normative argument, between jurisprudential ‘theory’ and private law ‘practice’, between legal obligation and moral obligation — are analyzed.
Douglas Husak
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780195328714
- eISBN:
- 9780199869947
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328714.003.0002
- Subject:
- Philosophy, Moral Philosophy
This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal ...
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This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal offenses: crimes must be designed to proscribe a harm or evil; criminal conduct must be wrongful; persons may only be punished according to their desert; and the state must bear the burden of proof to justify a penal offense. These constraints are derived from an understanding of what the criminal law is: that body of law that subjects persons to punishment and thus implicates valuable rights. Each constraint is given a novel defense and applied to a handful of examples. In particular, these constraints create difficulties in attempts to justify many of the mala prohibita offenses that have been enacted recently.Less
This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal offenses: crimes must be designed to proscribe a harm or evil; criminal conduct must be wrongful; persons may only be punished according to their desert; and the state must bear the burden of proof to justify a penal offense. These constraints are derived from an understanding of what the criminal law is: that body of law that subjects persons to punishment and thus implicates valuable rights. Each constraint is given a novel defense and applied to a handful of examples. In particular, these constraints create difficulties in attempts to justify many of the mala prohibita offenses that have been enacted recently.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546220
- eISBN:
- 9780191720000
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546220.003.0006
- Subject:
- Law, Public International Law
This chapter is the first ever comprehensive examination of how fact and law relate to each other in international law. After the critique of doctrinal approaches, the analysis examines how facts ...
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This chapter is the first ever comprehensive examination of how fact and law relate to each other in international law. After the critique of doctrinal approaches, the analysis examines how facts aspire producing legal regulation and to what extent they can do so. The analysis covers the relationship between title and effectivites in the law of territory, and the impact of treaties on factual situation. It also examines how rules can make facts relevant, at the example of certain rights under the European Convention on Human Rights and nationality of claims. Separate attention is paid to the notion of ‘effective control’ that has been frequently used in jurisprudence both of ICJ and European Court of Human Rights. Finally, the systemic relevance of facts in the law of treaties and law of State responsibility is examined. The chapter covers the jurisprudence of all major international tribunals, notably ICJ, arbitral tribunals, ECtHR, and WTO dispute settlement bodies.Less
This chapter is the first ever comprehensive examination of how fact and law relate to each other in international law. After the critique of doctrinal approaches, the analysis examines how facts aspire producing legal regulation and to what extent they can do so. The analysis covers the relationship between title and effectivites in the law of territory, and the impact of treaties on factual situation. It also examines how rules can make facts relevant, at the example of certain rights under the European Convention on Human Rights and nationality of claims. Separate attention is paid to the notion of ‘effective control’ that has been frequently used in jurisprudence both of ICJ and European Court of Human Rights. Finally, the systemic relevance of facts in the law of treaties and law of State responsibility is examined. The chapter covers the jurisprudence of all major international tribunals, notably ICJ, arbitral tribunals, ECtHR, and WTO dispute settlement bodies.
STUART P GREEN
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199225804
- eISBN:
- 9780191708411
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199225804.003.0004
- Subject:
- Law, Philosophy of Law, Employment Law
This chapter focuses on three kinds of moral element found in any criminal offense: (1) mens rea (or omission of mens rea), (2) harmfulness, and (3) moral wrongfulness. This three-part framework is ...
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This chapter focuses on three kinds of moral element found in any criminal offense: (1) mens rea (or omission of mens rea), (2) harmfulness, and (3) moral wrongfulness. This three-part framework is used as an analytical framework for describing white-collar crime's moral complexity.Less
This chapter focuses on three kinds of moral element found in any criminal offense: (1) mens rea (or omission of mens rea), (2) harmfulness, and (3) moral wrongfulness. This three-part framework is used as an analytical framework for describing white-collar crime's moral complexity.
STUART P GREEN
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199225804
- eISBN:
- 9780191708411
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199225804.003.0005
- Subject:
- Law, Philosophy of Law, Employment Law
This chapter offers a ‘normative reconstruction’ of the concept of cheating. It seeks to develop a framework for thinking critically about a paradigmatic concept of cheating; and, if not to reach ...
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This chapter offers a ‘normative reconstruction’ of the concept of cheating. It seeks to develop a framework for thinking critically about a paradigmatic concept of cheating; and, if not to reach consensus on every point, then at least to identify those aspects of cheating about which there is likely to be agreement (or disagreement). It shows that there is, in fact, a widely recognized concept of cheating that it is distinguishable — both analytically and expressively — from other forms of moral wrongfulness.Less
This chapter offers a ‘normative reconstruction’ of the concept of cheating. It seeks to develop a framework for thinking critically about a paradigmatic concept of cheating; and, if not to reach consensus on every point, then at least to identify those aspects of cheating about which there is likely to be agreement (or disagreement). It shows that there is, in fact, a widely recognized concept of cheating that it is distinguishable — both analytically and expressively — from other forms of moral wrongfulness.
STUART P GREEN
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199225804
- eISBN:
- 9780191708411
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199225804.003.0010
- Subject:
- Law, Philosophy of Law, Employment Law
Legal theorists have made significant contributions to our understanding of the concept of promising. But their focus has almost invariably been on the law of contract. In light of the minimal degree ...
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Legal theorists have made significant contributions to our understanding of the concept of promising. But their focus has almost invariably been on the law of contract. In light of the minimal degree of opprobrium that usually attaches to promise-breaking in that context, the idea that such moral wrongfulness might play a role in defining the moral content of crimes seems at first thought improbable. This chapter presents a brief examination of the norm against promise-breaking to explain how it differs from the other norms. It turns out that the moral content of a small but interesting collection of white-collar and regulatory offenses does in fact owe something to the concept of promise-breaking.Less
Legal theorists have made significant contributions to our understanding of the concept of promising. But their focus has almost invariably been on the law of contract. In light of the minimal degree of opprobrium that usually attaches to promise-breaking in that context, the idea that such moral wrongfulness might play a role in defining the moral content of crimes seems at first thought improbable. This chapter presents a brief examination of the norm against promise-breaking to explain how it differs from the other norms. It turns out that the moral content of a small but interesting collection of white-collar and regulatory offenses does in fact owe something to the concept of promise-breaking.
STUART P GREEN
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199225804
- eISBN:
- 9780191708411
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199225804.003.0017
- Subject:
- Law, Philosophy of Law, Employment Law
Bribery has a claim to being the quintessential white-collar crime: its perpetrators are typically upper-income professionals; it is invariably committed in the context of governmental or commercial ...
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Bribery has a claim to being the quintessential white-collar crime: its perpetrators are typically upper-income professionals; it is invariably committed in the context of governmental or commercial activities; its harms are subtle and often attenuated; its victims are difficult to detect; and, often, the only thing that separates bribery from legitimate ‘gifts’ is a hard-to-prove mental element of willfulness or, even more obscurely, ‘corruption’. The potential for moral ambiguity in the crime of bribery is illustrated by the case of House Majority Leader Tom DeLay, who allegedly told Congressman Nick Smith that, in return for his vote for President George W Bush's Medicare bill, they would give his son, Brad, substantial financial and political support in his congressional campaign. The question is: was this bribery or just political log-rolling? This chapter uses this and other problematic cases to analyze two more foundational issues: (1) why is bribery morally wrong?; and (2) where should the outer limits of the offense lie?Less
Bribery has a claim to being the quintessential white-collar crime: its perpetrators are typically upper-income professionals; it is invariably committed in the context of governmental or commercial activities; its harms are subtle and often attenuated; its victims are difficult to detect; and, often, the only thing that separates bribery from legitimate ‘gifts’ is a hard-to-prove mental element of willfulness or, even more obscurely, ‘corruption’. The potential for moral ambiguity in the crime of bribery is illustrated by the case of House Majority Leader Tom DeLay, who allegedly told Congressman Nick Smith that, in return for his vote for President George W Bush's Medicare bill, they would give his son, Brad, substantial financial and political support in his congressional campaign. The question is: was this bribery or just political log-rolling? This chapter uses this and other problematic cases to analyze two more foundational issues: (1) why is bribery morally wrong?; and (2) where should the outer limits of the offense lie?
Jules L. Coleman
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780199253616
- eISBN:
- 9780191719776
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199253616.003.0018
- Subject:
- Law, Law of Obligations, Philosophy of Law
There are two essential components in the concept of corrective justice: wrongfulness and responsibility. Only wrongful losses fall within the ambit of corrective justice. Responsibility for them ...
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There are two essential components in the concept of corrective justice: wrongfulness and responsibility. Only wrongful losses fall within the ambit of corrective justice. Responsibility for them grounds the agent-relative duty to repair. The principle of corrective justice requires a theory of wrongfulness and a theory of responsibility. This chapter develops the relevant conception of wrongfulness and outlines the relevant theory of responsibility.Less
There are two essential components in the concept of corrective justice: wrongfulness and responsibility. Only wrongful losses fall within the ambit of corrective justice. Responsibility for them grounds the agent-relative duty to repair. The principle of corrective justice requires a theory of wrongfulness and a theory of responsibility. This chapter develops the relevant conception of wrongfulness and outlines the relevant theory of responsibility.
Kenneth W Simons
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199559152
- eISBN:
- 9780191725265
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559152.003.0011
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter explores the following questions. Should criminal law norms be relatively general? Or instead should criminal law norms be relatively specific? Recent codification movements tend to ...
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This chapter explores the following questions. Should criminal law norms be relatively general? Or instead should criminal law norms be relatively specific? Recent codification movements tend to simplify offence definitions by limiting the number of harms or wrongs that the criminal law addresses, and also by restricting the number of mens rea categories that are employed for purposes of grading the seriousness of a crime. Does that simplification come at too great a price? At the same time, a more particularist approach increases the chance that criminal law norms will be incommensurable. Is this outcome regrettable, or instead desirable? Finally, what is at stake in the decision whether to have the legal fact-finder employ descriptive or instead explicitly evaluative criteria, as criteria either of mens rea or of actus reus? Are evaluative criteria preferable, simply because criminal law norms depend, to some extent, on moral norms? The chapter takes a non-consequentialist perspective, for the most part, and concentrates on the justification for punishing malum in se rather than malum prohibitum crimes. The focus is not on the narrower (but important) questions of how to distinguish mens rea from actus reus, or culpability from wrongfulness.Less
This chapter explores the following questions. Should criminal law norms be relatively general? Or instead should criminal law norms be relatively specific? Recent codification movements tend to simplify offence definitions by limiting the number of harms or wrongs that the criminal law addresses, and also by restricting the number of mens rea categories that are employed for purposes of grading the seriousness of a crime. Does that simplification come at too great a price? At the same time, a more particularist approach increases the chance that criminal law norms will be incommensurable. Is this outcome regrettable, or instead desirable? Finally, what is at stake in the decision whether to have the legal fact-finder employ descriptive or instead explicitly evaluative criteria, as criteria either of mens rea or of actus reus? Are evaluative criteria preferable, simply because criminal law norms depend, to some extent, on moral norms? The chapter takes a non-consequentialist perspective, for the most part, and concentrates on the justification for punishing malum in se rather than malum prohibitum crimes. The focus is not on the narrower (but important) questions of how to distinguish mens rea from actus reus, or culpability from wrongfulness.
Kimberley N. Trapp
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199592999
- eISBN:
- 9780191729102
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592999.003.0005
- Subject:
- Law, Public International Law, Criminal Law and Criminology
Chapter 5 analyses the implementation of State responsibility for international terrorism through the adoption of non-military measures aimed at securing a wrongdoing State’s compliance with its ...
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Chapter 5 analyses the implementation of State responsibility for international terrorism through the adoption of non-military measures aimed at securing a wrongdoing State’s compliance with its secondary obligations of cessation and reparation, in particular the adoption of retorsive measures and countermeasures. It assesses potential problems with the adoption of countermeasures in the terrorism context, including the potential for misevaluating the wrongfulness of a target State’s conduct and continued uncertainty surrounding the legitimacy of collective countermeasures. Finally, Chapter 5 explores the extent to which sub-systems of international law, including diplomatic law and the WTO, affect the right to adopt countermeasures in response to breaches of international terrorism obligations, including the extent to which such sub-system exclude the application of the secondary rules of State responsibility or restrict the scope of their wrongfulness preclusion.Less
Chapter 5 analyses the implementation of State responsibility for international terrorism through the adoption of non-military measures aimed at securing a wrongdoing State’s compliance with its secondary obligations of cessation and reparation, in particular the adoption of retorsive measures and countermeasures. It assesses potential problems with the adoption of countermeasures in the terrorism context, including the potential for misevaluating the wrongfulness of a target State’s conduct and continued uncertainty surrounding the legitimacy of collective countermeasures. Finally, Chapter 5 explores the extent to which sub-systems of international law, including diplomatic law and the WTO, affect the right to adopt countermeasures in response to breaches of international terrorism obligations, including the extent to which such sub-system exclude the application of the secondary rules of State responsibility or restrict the scope of their wrongfulness preclusion.
DAVID G. OWEN
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198265795
- eISBN:
- 9780191682971
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198265795.003.0010
- Subject:
- Law, Philosophy of Law
In this chapter, the inquiry into the nature of fault in tort law involves an examination of the philosophical foundations of choice, action, and harmful conduct. First to be explored are the broad ...
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In this chapter, the inquiry into the nature of fault in tort law involves an examination of the philosophical foundations of choice, action, and harmful conduct. First to be explored are the broad ideals that give moral character to a person’s actions: freedom, equality, and community or common good. Freedom (or autonomy), equality (in a ‘weak’ form), and community (in the ‘hard’ form of utility) are seen collectively to shape significantly the moral quality of human behavior. After these fundamental values are examined generally, their relative priority is next considered, followed by a discussion of the nature and ordering of the basic interests at stake in tort law. Finally, the chapter focuses briefly on the more specific questions of how the underlying values help define the wrongfulness, first, of intentionally harmful conduct; and second, of conduct that accidentally causes harm.Less
In this chapter, the inquiry into the nature of fault in tort law involves an examination of the philosophical foundations of choice, action, and harmful conduct. First to be explored are the broad ideals that give moral character to a person’s actions: freedom, equality, and community or common good. Freedom (or autonomy), equality (in a ‘weak’ form), and community (in the ‘hard’ form of utility) are seen collectively to shape significantly the moral quality of human behavior. After these fundamental values are examined generally, their relative priority is next considered, followed by a discussion of the nature and ordering of the basic interests at stake in tort law. Finally, the chapter focuses briefly on the more specific questions of how the underlying values help define the wrongfulness, first, of intentionally harmful conduct; and second, of conduct that accidentally causes harm.
Peter Birks
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780198719274
- eISBN:
- 9780191788543
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198719274.003.0009
- Subject:
- Law, Law of Obligations, Legal History
This chapter examines the delict of loss wrongfully caused (damnum iniuria datum). It pays particular attention to the notions of loss (damnum), wrongfulness (iniuria) and fault (culpa) under the ...
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This chapter examines the delict of loss wrongfully caused (damnum iniuria datum). It pays particular attention to the notions of loss (damnum), wrongfulness (iniuria) and fault (culpa) under the delict, as well as the distinction between the statutory action based on the lex Aquilia and its praetorian extensions, and controversies surrounding the measure of recovery.Less
This chapter examines the delict of loss wrongfully caused (damnum iniuria datum). It pays particular attention to the notions of loss (damnum), wrongfulness (iniuria) and fault (culpa) under the delict, as well as the distinction between the statutory action based on the lex Aquilia and its praetorian extensions, and controversies surrounding the measure of recovery.
Vincent Chiao
- Published in print:
- 2018
- Published Online:
- December 2018
- ISBN:
- 9780190273941
- eISBN:
- 9780190273965
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190273941.003.0005
- Subject:
- Law, Criminal Law and Criminology, Philosophy of Law
This chapter extends the public law conception to the theory of criminalization. The first half of the chapter is devoted to considering whether the criminal law has a privileged subject matter or ...
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This chapter extends the public law conception to the theory of criminalization. The first half of the chapter is devoted to considering whether the criminal law has a privileged subject matter or “core,” focusing especially on Feinberg’s influential account of the criminal law as a system of direct prohibitions. The chapter argues that a subject-matter-based approach has difficulty coming to grips with actual criminal law systems in modern administrative states, in which so-called mala prohibita offenses predominate. The second half of the chapter turns to sketching how we might approach the question of criminalization from a public law point of view, both in general and with reference to the political ideal of anti-deference (sketched in Chapter 3) in particular. Along the way, the chapter argues that the (very popular) wrongfulness principle turns out to be either empty or implausible, and hence that we should reject any version of the harm principle, or of legal moralism, that presupposes it.Less
This chapter extends the public law conception to the theory of criminalization. The first half of the chapter is devoted to considering whether the criminal law has a privileged subject matter or “core,” focusing especially on Feinberg’s influential account of the criminal law as a system of direct prohibitions. The chapter argues that a subject-matter-based approach has difficulty coming to grips with actual criminal law systems in modern administrative states, in which so-called mala prohibita offenses predominate. The second half of the chapter turns to sketching how we might approach the question of criminalization from a public law point of view, both in general and with reference to the political ideal of anti-deference (sketched in Chapter 3) in particular. Along the way, the chapter argues that the (very popular) wrongfulness principle turns out to be either empty or implausible, and hence that we should reject any version of the harm principle, or of legal moralism, that presupposes it.
Paul Behrens
- Published in print:
- 2017
- Published Online:
- August 2017
- ISBN:
- 9780198795940
- eISBN:
- 9780191837128
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198795940.003.0006
- Subject:
- Law, Public International Law, Private International Law
Personal inviolability is one of the oldest rights of diplomatic agents and is often considered to be at the root of diplomatic immunity. The wording it received in the Vienna Convention does not ...
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Personal inviolability is one of the oldest rights of diplomatic agents and is often considered to be at the root of diplomatic immunity. The wording it received in the Vienna Convention does not allow for any exceptions. But the absolute nature of the right can lead to difficulties—especially in situations in which diplomats themselves cause a danger to the general public or particular individuals. This chapter explores potential inroads under international law into the concept of inviolability and thus discusses the applicability of self-defence, necessity, and distress in situations of emergency. It also raises the question whether the human right to life imposes certain obligations on the receiving State which are capable of limiting diplomatic inviolability. In a concluding section, the chapter reflects on the justifications which are particularly likely to carry validity in situations marked by a need to deal with dangers arising from diplomatic actions.Less
Personal inviolability is one of the oldest rights of diplomatic agents and is often considered to be at the root of diplomatic immunity. The wording it received in the Vienna Convention does not allow for any exceptions. But the absolute nature of the right can lead to difficulties—especially in situations in which diplomats themselves cause a danger to the general public or particular individuals. This chapter explores potential inroads under international law into the concept of inviolability and thus discusses the applicability of self-defence, necessity, and distress in situations of emergency. It also raises the question whether the human right to life imposes certain obligations on the receiving State which are capable of limiting diplomatic inviolability. In a concluding section, the chapter reflects on the justifications which are particularly likely to carry validity in situations marked by a need to deal with dangers arising from diplomatic actions.
Jure Zrilič
- Published in print:
- 2019
- Published Online:
- November 2019
- ISBN:
- 9780198830375
- eISBN:
- 9780191868634
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198830375.003.0005
- Subject:
- Law, Public International Law
This chapter explores the defence tools that a host state can use against conflict-related investment claims. The first part analyses security exceptions which have been introduced to investment ...
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This chapter explores the defence tools that a host state can use against conflict-related investment claims. The first part analyses security exceptions which have been introduced to investment protection law after the Second World War. While it is widely believed that such exceptions provide for the most persuasive safeguard of the state’s security interests, it is argued that their effectiveness will depend on the wording of the provision, determining their scope, the degree of autonomy given to a state in responding to a security threat, and their relationship with other treaty provisions. The chapter addresses these aspects. The second part focuses on the defences in the general law of state responsibility (necessity, force majeure, and countermeasures), explaining why their potential as a defence is limited.Less
This chapter explores the defence tools that a host state can use against conflict-related investment claims. The first part analyses security exceptions which have been introduced to investment protection law after the Second World War. While it is widely believed that such exceptions provide for the most persuasive safeguard of the state’s security interests, it is argued that their effectiveness will depend on the wording of the provision, determining their scope, the degree of autonomy given to a state in responding to a security threat, and their relationship with other treaty provisions. The chapter addresses these aspects. The second part focuses on the defences in the general law of state responsibility (necessity, force majeure, and countermeasures), explaining why their potential as a defence is limited.
Valentin Jeutner
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780198808374
- eISBN:
- 9780191846090
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198808374.003.0003
- Subject:
- Law, Public International Law
The second part validates the stipulative definition of Part I by identifying those norm conflicts which contemporary international law cannot satisfactorily resolve. In doing so, this part answers ...
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The second part validates the stipulative definition of Part I by identifying those norm conflicts which contemporary international law cannot satisfactorily resolve. In doing so, this part answers the second research question—whether legal dilemmas could exist in international law—in the affirmative and demarcates the doctrinal space that legal dilemmas occupy. The argument develops in three sections. The first section identifies the inherent limitations of norm conflict resolution devices. Norm conflict resolution devices deal with a norm conflict by establishing a hierarchy or a compromise between norms. They thereby identify a course of action that avoids impairing either norm unduly. The second section considers the limitation of norm conflict accommodation devices. The third section explains why measures of last resort do not preclude the possibility of the existence of legal dilemmas.Less
The second part validates the stipulative definition of Part I by identifying those norm conflicts which contemporary international law cannot satisfactorily resolve. In doing so, this part answers the second research question—whether legal dilemmas could exist in international law—in the affirmative and demarcates the doctrinal space that legal dilemmas occupy. The argument develops in three sections. The first section identifies the inherent limitations of norm conflict resolution devices. Norm conflict resolution devices deal with a norm conflict by establishing a hierarchy or a compromise between norms. They thereby identify a course of action that avoids impairing either norm unduly. The second section considers the limitation of norm conflict accommodation devices. The third section explains why measures of last resort do not preclude the possibility of the existence of legal dilemmas.
Peter Whelan
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780199670062
- eISBN:
- 9780191749445
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670062.003.0004
- Subject:
- Law, Employment Law, Competition Law
This chapter aims to analyse the challenge of retribution theory for European antitrust criminalization and therefore whether retribution theory can actually be relied upon as a solid foundation for ...
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This chapter aims to analyse the challenge of retribution theory for European antitrust criminalization and therefore whether retribution theory can actually be relied upon as a solid foundation for such criminalization. A two-step approach is taken in this chapter: the first step involves the establishment of a framework to determine the ‘moral content’ of a given behaviour; the second applies that framework to cartel activity and in the process examines: (i) the extent to which such activity displays sufficient (negative) moral content to be put forward as a suitable candidate for criminalization if retribution theory is employed as a rationale; and (ii) the limitations and weaknesses of a retribution-based antitrust criminalization argument and, hence, the theoretical challenge of retribution in the context of European antitrust criminalization.Less
This chapter aims to analyse the challenge of retribution theory for European antitrust criminalization and therefore whether retribution theory can actually be relied upon as a solid foundation for such criminalization. A two-step approach is taken in this chapter: the first step involves the establishment of a framework to determine the ‘moral content’ of a given behaviour; the second applies that framework to cartel activity and in the process examines: (i) the extent to which such activity displays sufficient (negative) moral content to be put forward as a suitable candidate for criminalization if retribution theory is employed as a rationale; and (ii) the limitations and weaknesses of a retribution-based antitrust criminalization argument and, hence, the theoretical challenge of retribution in the context of European antitrust criminalization.
Douglas Husak
- Published in print:
- 2014
- Published Online:
- January 2015
- ISBN:
- 9780198726357
- eISBN:
- 9780191793677
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198726357.003.0008
- Subject:
- Law, Criminal Law and Criminology, Philosophy of Law
The test of a theory of criminalization consists in whether it asks the right questions (and neglects the wrong questions) in assessing whether given laws are a justifiable imposition of the penal ...
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The test of a theory of criminalization consists in whether it asks the right questions (and neglects the wrong questions) in assessing whether given laws are a justifiable imposition of the penal sanction. The chapter describes whether the theory of criminalization the author defended in Over-criminalization (Oxford, 2008) passes this test by considering its application to bans on polygamy—a prohibition about which reasonable minds might be expected to differ. The chapter assesses whether polygamy is wrongful, harmful, and whether polygamists can be said to deserve punishment. It evaluates whether the state has a substantial interest in proscribing it and whether its proscription is likely to further that interest, In the end, criminalization depends mostly on unanswered empirical questions, but is probably unjustified according to the theory I have defended.Less
The test of a theory of criminalization consists in whether it asks the right questions (and neglects the wrong questions) in assessing whether given laws are a justifiable imposition of the penal sanction. The chapter describes whether the theory of criminalization the author defended in Over-criminalization (Oxford, 2008) passes this test by considering its application to bans on polygamy—a prohibition about which reasonable minds might be expected to differ. The chapter assesses whether polygamy is wrongful, harmful, and whether polygamists can be said to deserve punishment. It evaluates whether the state has a substantial interest in proscribing it and whether its proscription is likely to further that interest, In the end, criminalization depends mostly on unanswered empirical questions, but is probably unjustified according to the theory I have defended.
Gideon Yaffe
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198803324
- eISBN:
- 9780191841514
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198803324.003.0004
- Subject:
- Philosophy, Moral Philosophy, Political Philosophy
This chapter offers and defends a theory of criminal culpability according to which to be criminally culpable for a wrongful act is for the act to manifest faulty dispositions for recognizing, ...
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This chapter offers and defends a theory of criminal culpability according to which to be criminally culpable for a wrongful act is for the act to manifest faulty dispositions for recognizing, weighing, or responding to the legal reasons to refrain from the act. The chapter clarifies this position by explaining what such dispositions are, what it is for them to be faulty, and the conditions under which they are manifested in an act. Under the position presented here, there is a distinction between criminal culpability and moral culpability corresponding to the distinction between legal and moral reasons to refrain from an act. The chapter also distinguishes the view proposed from both character theories of responsibility and quality of will theories.Less
This chapter offers and defends a theory of criminal culpability according to which to be criminally culpable for a wrongful act is for the act to manifest faulty dispositions for recognizing, weighing, or responding to the legal reasons to refrain from the act. The chapter clarifies this position by explaining what such dispositions are, what it is for them to be faulty, and the conditions under which they are manifested in an act. Under the position presented here, there is a distinction between criminal culpability and moral culpability corresponding to the distinction between legal and moral reasons to refrain from an act. The chapter also distinguishes the view proposed from both character theories of responsibility and quality of will theories.
Olivier Corten
- Published in print:
- 2013
- Published Online:
- April 2015
- ISBN:
- 9780199332304
- eISBN:
- 9780190259815
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780199332304.003.0014
- Subject:
- Law, Public International Law
The prohibition of the use of force in international relations is now considered a jus cogens rule and circumstances of force majeure, distress or necessity cannot be invoked even exceptionally to ...
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The prohibition of the use of force in international relations is now considered a jus cogens rule and circumstances of force majeure, distress or necessity cannot be invoked even exceptionally to justify a violation of this rule. This chapter shows that even if disregarding its peremptory nature there are no circumstances precluding the wrongfulness of conduct contrary to Articles 2 § 4 of the UN Charter other than those foreseen by the rule. The inability to invoke such circumstances from an interpretation of existing legal texts is then confirmed by the practice of states.Less
The prohibition of the use of force in international relations is now considered a jus cogens rule and circumstances of force majeure, distress or necessity cannot be invoked even exceptionally to justify a violation of this rule. This chapter shows that even if disregarding its peremptory nature there are no circumstances precluding the wrongfulness of conduct contrary to Articles 2 § 4 of the UN Charter other than those foreseen by the rule. The inability to invoke such circumstances from an interpretation of existing legal texts is then confirmed by the practice of states.
