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What Sorts of Things are Public Morals? A Liberal Cosmopolitan Approach to Article Xx GATT 什么是公共道德?对关贸总协定第20条的自由主义世界主义做法
Wiley-Blackwell: Modern Law Review Pub Date : 2017-07-01 DOI: 10.1111/1468-2230.12275
O. Suttle
{"title":"What Sorts of Things are Public Morals? A Liberal Cosmopolitan Approach to Article Xx GATT","authors":"O. Suttle","doi":"10.1111/1468-2230.12275","DOIUrl":"https://doi.org/10.1111/1468-2230.12275","url":null,"abstract":"Existing theories of WTO law cannot adequately explain the form or content of the GATT exceptions, in particular Article XX(a) Public Morals. Nor, in consequence, can they satisfactorily answer the interpretive questions they raise. This article explains Article XX in terms of self-determination as a political and moral value, and the choices it mandates peoples make for themselves. Drawing on debates in contemporary political philosophy, it distinguishes three categories of argument for self-determination: intrinsic, expressive and instrumental, each having implications for the scope of the choices a self-determining community must make for itself. This account of self-determination in trade regulation is used to reconstruct Article XX, both explaining the individual provisions, and suggesting how these might be developed and interpreted. It concludes by examining Article XX(a) in detail, highlighting the interpretive questions public morals pose, and how understanding Article XX in terms of self-determination suggests these should be answered.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132608255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
The Governance of Blockchain Financial Networks 区块链金融网络的治理
Wiley-Blackwell: Modern Law Review Pub Date : 2016-12-16 DOI: 10.1111/1468-2230.12303
P. Paech
{"title":"The Governance of Blockchain Financial Networks","authors":"P. Paech","doi":"10.1111/1468-2230.12303","DOIUrl":"https://doi.org/10.1111/1468-2230.12303","url":null,"abstract":"Since the emergence of the virtual currency Bitcoin in 2009, a new, Internet-based way of recording entitlements and enforcing rights has increasingly captured the interest of businesses and governments. The technology is commonly called ‘blockchain’ and is often associated with a closely related phenomenon, the ‘smart contract’. The market is now exploring ways of using these concepts for financial assets, such as securities, legal tender and derivative contracts. This article develops a conceptual framework for the governance of blockchain-based networks in financial markets. It constructs a vision of how financial regulation and private law should set the boundaries of this new technology in order to protect market participants and societies at large, while at the same time allowing for the necessary room for innovation.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123335719","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 87
Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009 法官与政治:1876-2009年上议院议员对议会的贡献
Wiley-Blackwell: Modern Law Review Pub Date : 2016-09-01 DOI: 10.1111/1468-2230.12215
P. O’brien
{"title":"Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009","authors":"P. O’brien","doi":"10.1111/1468-2230.12215","DOIUrl":"https://doi.org/10.1111/1468-2230.12215","url":null,"abstract":"There is a common perception that, prior to the exclusion of serving judges from the House of Lords in 2009, a ‘politics convention’ operated which required judges to avoid party-political controversy and ensured that they contributed to debate only rarely. On this view, the presence of the Law Lords in parliament prior to 2009 presented a judicial independence and separation of powers problem in theory only. An examination of the contributions of serving Law Lords and other judicial peers to debates in the House of Lords from 1876–2009 (and retired judges from 1876–2015) reveals that the convention either did not exist or was frequently ignored. While most judges were infrequent participants in parliamentary debate, some were enthusiastic – a small number among the most active parliamentarians in the Lords. The most active judicial peers were conservative in their politics and the best predictor that a judge would be active in the House was an association with conservative politics or causes.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"162 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131684222","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
The International Development (Official Development Assistance Target) Act 2015: Legislative Spending Targets, Poverty Alleviation and Aid Scrutiny 2015年国际发展(官方发展援助目标)法案:立法支出目标、扶贫和援助审查
Wiley-Blackwell: Modern Law Review Pub Date : 2016-07-01 DOI: 10.1111/1468-2230.12204
A. Manji
{"title":"The International Development (Official Development Assistance Target) Act 2015: Legislative Spending Targets, Poverty Alleviation and Aid Scrutiny","authors":"A. Manji","doi":"10.1111/1468-2230.12204","DOIUrl":"https://doi.org/10.1111/1468-2230.12204","url":null,"abstract":"With the enactment of the International Development (Official Development Assistance Target) Act 2015, the United Kingdom has enshrined an aid target in law. It is now under a legal duty to spend 0.7% of Gross National Income (GNI) each year on aid. This article assesses the implications of enshrining a spending target for development assistance in law. It argues that commentators have focused their analyses too narrowly on the legal target and that it is in fact the mechanisms for scrutinising development assistance contained in section 5 of the new Act that will be important in future. This is because judicial scrutiny of aid spending is a remote possibility as a result of the International Development Act 2002. The article provides an analysis of the new legislation in the context of the UK's now detailed legislative framework for international development aid and concludes that this framework is far from satisfactory.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"61 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128014363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 9
British Abortion Law: Speaking from the Past to Govern the Future 英国堕胎法:以史为鉴，治国理政
Wiley-Blackwell: Modern Law Review Pub Date : 2016-03-01 DOI: 10.1111/1468-2230.12180
S. Sheldon
{"title":"British Abortion Law: Speaking from the Past to Govern the Future","authors":"S. Sheldon","doi":"10.1111/1468-2230.12180","DOIUrl":"https://doi.org/10.1111/1468-2230.12180","url":null,"abstract":"This paper analyses the poor alignment of the aging statutory framework and modern understandings of medical best practice in the context of abortion services. With a particular focus on medical abortion, it assesses the significant challenges that the gulf between the two poses for clinicians, service providers, regulators and the courts. Law is said to be at its most effective where there is a shared regulatory community that accepts and endorses the values that underpin it. It is suggested that the example of abortion law provides a marked example of what happens when legal norms once justified by broadly shared moral understandings, concerns for patient safety and requirements of best practice are now either unsupported by or, indeed, sit in opposition to such concerns.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116187611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 19
GMOs in the Internal Market: New Legislation on National Flexibility 国内市场中的转基因生物:关于国家灵活性的新立法
Wiley-Blackwell: Modern Law Review Pub Date : 2016-03-01 DOI: 10.1111/1468-2230.12182
Maria Lee
{"title":"GMOs in the Internal Market: New Legislation on National Flexibility","authors":"Maria Lee","doi":"10.1111/1468-2230.12182","DOIUrl":"https://doi.org/10.1111/1468-2230.12182","url":null,"abstract":"In an area where until now national autonomy has been tenaciously resisted, new EU legislation provides Member States with ‘flexibility to decide whether or not they wish to cultivate GMOs on their territory’. This forces attention on to the subtle, and not so subtle, ways in which internal market law constrains political actors in the EU. But it is similarly suggestive of how political actors might contribute to the evolution of the internal market. As well as exploring this relationship between the new legislation and internal market law, this article reflects on the ways in which lessons from the past have been addressed by legislators. Whilst it takes somewhat seriously the politics of GMOs, the new legislation simultaneously reinforces some of the limitations of our dominant models for generating knowledge, including the EU's problematic dichotomy between facts and values, risk assessment and risk management.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130517863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 4
The Criminal Justice and Courts Act 2015 – Secure Colleges and the Legitimation of State Sponsored Violence 2015年刑事司法和法院法案-确保大学安全并使国家支持的暴力合法化
Wiley-Blackwell: Modern Law Review Pub Date : 2016-01-01 DOI: 10.1111/1468-2230.12168
Raymond Arthur
{"title":"The Criminal Justice and Courts Act 2015 – Secure Colleges and the Legitimation of State Sponsored Violence","authors":"Raymond Arthur","doi":"10.1111/1468-2230.12168","DOIUrl":"https://doi.org/10.1111/1468-2230.12168","url":null,"abstract":"The Criminal Justice and Courts Act 2015 empowers staff in secure colleges to subject young people in custody to dangerous force for the purpose of ensuring ‘good order and discipline’. The use of force to restrain young people in custody can cause serious physical injury, profound psychological damage and has contributed to the custodial deaths of two young people in 2004. Despite these dangers, in most youth custodial establishments the use of force remains high and has been increasing. The 2015 Act will further legitimise the use of coercive violence against vulnerable children, consequently sustaining the power imbalance between children and adults, diminishing the special status of childhood and violating the child's human rights. This comment considers the effectiveness of using force and argues that the deliberate infliction of pain should only be used as a last resort and exclusively to prevent harm to the child or others.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122037103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Privacy, Data Retention and Domination: Digital Rights Ireland Ltd v Minister for Communications 隐私，数据保留和支配:数字权利爱尔兰有限公司诉通信部长
Wiley-Blackwell: Modern Law Review Pub Date : 2015-05-01 DOI: 10.1111/1468-2230.12127
Andrew Roberts
{"title":"Privacy, Data Retention and Domination: Digital Rights Ireland Ltd v Minister for Communications","authors":"Andrew Roberts","doi":"10.1111/1468-2230.12127","DOIUrl":"https://doi.org/10.1111/1468-2230.12127","url":null,"abstract":"In Digital Rights Ireland Ltd v Minister for Communications, the European Court of Justice found the EU Data Retention Directive, which required the retention of communications data for up to two years, to be incompatible with Articles 7 and 8 of the EU Charter of Fundamental Rights – the rights to privacy and to the protection of personal data. It is argued in this note that the decision ought to be taken as one that is concerned with the exercise of arbitrary power, a concern that is captured by the concept of domination.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"146 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132294262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 14
Hidden Law‐Making in the Province of Medical Jurisprudence 隐藏的法律——在医学法学领域的制定
Wiley-Blackwell: Modern Law Review Pub Date : 2014-05-01 DOI: 10.1111/1468-2230.12070
J. Montgomery, Caroline Jones, H. Biggs
{"title":"Hidden Law‐Making in the Province of Medical Jurisprudence","authors":"J. Montgomery, Caroline Jones, H. Biggs","doi":"10.1111/1468-2230.12070","DOIUrl":"https://doi.org/10.1111/1468-2230.12070","url":null,"abstract":"Judges articulate their role in controversial cases of medical ethics in terms of deference to Parliament, lest their personal morality be improperly brought to bear. This hides a wide range of law-making activities, as parliamentary sovereignty is diffused by ‘intermediate law-makers’, and judicial activity is more subtle than the deference account implies. The nature of litigation raises questions about the contributions of other legal personnel and also the nature of the parties' interests in test-cases. While judges demonstrate an awareness of some of these issues and anxiety about the constitutional legitimacy of their work, a more nuanced account is needed of their proper role. This may be built on Austin's theory of tacit legislation. It may draw from human rights law. However, considerable work is required before the complexities of hidden law-making can be properly incorporated into the province of medical jurisprudence.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128049208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 6
Strict Liability for Police Nonfeasance? The Kinghan Report on the Riot (Damages) Act 1886 警察不作为的严格责任?1886年骚乱(损害)法案的金汗报告
Wiley-Blackwell: Modern Law Review Pub Date : 2014-05-01 DOI: 10.1111/1468-2230.12073
J. Morgan
{"title":"Strict Liability for Police Nonfeasance? The Kinghan Report on the Riot (Damages) Act 1886","authors":"J. Morgan","doi":"10.1111/1468-2230.12073","DOIUrl":"https://doi.org/10.1111/1468-2230.12073","url":null,"abstract":"The Riot (Damages) Act 1886 imposes a no‐fault obligation on police forces to compensate owners of property damaged in rioting. Following the riots across England in 2011 an independent Home Office review, the Kinghan Report, concluded that the fundamental principle of the Act should be retained, while the machinery should be modernised. The Report conceives of the Act as a useful, if highly unusual, compensation scheme that may ease socio‐economic problems in riot‐prone areas. This article questions that position. Strict liability offers potential advantages in contentious claims against public authorities, providing an incentive for the police to perform their duty to keep the peace while averting the questioning of police decision‐making that claims in negligence would inevitably require. The best alternative to negligence liability might not be ‘no liability’ (the general position now at common law), or liability based on ‘serious fault’ (as the Law Commission proposed in 2008), but liability without fault.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117075533","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
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