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Ideologies of Political Constitutionalism. 政治宪政意识形态。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-09-04 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae028
Robert Greally
{"title":"Ideologies of Political Constitutionalism.","authors":"Robert Greally","doi":"10.1093/ojls/gqae028","DOIUrl":"https://doi.org/10.1093/ojls/gqae028","url":null,"abstract":"<p><p>For many political constitutionalists, the ordinary democratic process should be the constitution; constitutional entrenchment and strong-form judicial review should be avoided. But how is ordinary democratic politics understood by political constitutionalists? To answer this question, this article engages in an interpretative inquiry to delineate four distinct ideological readings of political constitutionalism-democratic socialist, liberal, republican and conservative-that are alive within the existing literature. It does so to explain how these readings articulate subtly different understandings of ordinary democratic politics. In doing so, it reflects on how to identify political constitutionalist thought; how political constitutionalism can appeal to different ideologies; how ideologies have influenced the theory's intellectual development; and the ideological conditions required to sustain a political constitution.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 4","pages":"949-978"},"PeriodicalIF":1.4,"publicationDate":"2024-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11604276/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142773533","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Capacity to Consent to Sex: A Historical Perspective. 同意性行为的能力：一个历史的视角。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-08-31 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae029
Laura Lammasniemi
{"title":"Capacity to Consent to Sex: A Historical Perspective.","authors":"Laura Lammasniemi","doi":"10.1093/ojls/gqae029","DOIUrl":"https://doi.org/10.1093/ojls/gqae029","url":null,"abstract":"<p><p>This article provides a historical perspective on capacity to consent to sex. It examines who could make decisions about sex, whose consent mattered and why. The article draws from legal history and from transcripts and testimonies in unreported sexual offence cases in England, heard in the Central Criminal Court in London and the regional assizes between the years of 1918 and 1950. These cases, often involving vulnerable complainants below the age of consent and those with mental disabilities, show that the concept of capacity was neither fixed nor clearly articulated. The article argues that, historically, capacity was not a biological or medical construct, but rather a social one, influenced by notions of class, gender and even eugenic ideals. The article demonstrates that, during this period, sexual offence law enabled social and population control, and that, despite significant legislative advances, capacity remains a fraught concept.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 4","pages":"979-1001"},"PeriodicalIF":1.4,"publicationDate":"2024-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11604273/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142773576","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Ships of State and Empty Vessels: Critical Reflections on ‘Territorial Status in International Law’ 国家船舶和空船：对 "国际法中的领土地位 "的批判性思考
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-08-10 DOI: 10.1093/ojls/gqae026
Alex Green
{"title":"Ships of State and Empty Vessels: Critical Reflections on ‘Territorial Status in International Law’","authors":"Alex Green","doi":"10.1093/ojls/gqae026","DOIUrl":"https://doi.org/10.1093/ojls/gqae026","url":null,"abstract":"In his recent monograph, Territorial Status in International Law, Jure Vidmar offers ‘a new theory of statehood’ that consolidates his existing work and departs in important ways from legal orthodoxy. As a work of doctrinal law, the text is rigorous; however, its theoretical contribution is somewhat unclear. Vidmar’s central theoretical claim—that the status of individual states is established by discrete norms of customary international law—adds very little to his doctrinal argument. By examining his position, this review article examines what it might mean to provide helpful ‘theories of statehood’. It begins by framing the theoretical challenge posed by such work before setting out some desiderata for theoretical success in this area. Finally, it sketches out a general approach, grounded in Hannah Arendt’s conception of power, which offers a promising means for moving beyond doctrinal description within ‘reconstructive’ international legal theory.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"199 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141945075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Business, Human Rights and Climate Change: The Gradual Expansion of the Duty of Care. 企业、人权与气候变化：注意义务的逐步扩展。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-07-18 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae023
Dalia Palombo
{"title":"Business, Human Rights and Climate Change: The Gradual Expansion of the Duty of Care.","authors":"Dalia Palombo","doi":"10.1093/ojls/gqae023","DOIUrl":"https://doi.org/10.1093/ojls/gqae023","url":null,"abstract":"<p><p>This article investigates how human rights considerations are increasingly shaping tort law by focusing on the gradual expansion of the duty of care in business and human rights cases. For decades, victims have attempted to hold parent companies to account for extraterritorial human rights abuses committed by their foreign subsidiaries. Recently, the Supreme Court ruled that UK courts have jurisdiction over such business and human rights cases. These cases are not only jurisdictional. They also contributed to developing the duty of care case law on parental liability. But how much can human rights considerations stretch the boundaries of tort law? The article analyses the case of climate change litigation to assess whether a further development in tort law jurisprudence would be necessary to hold corporations accountable for their contribution to climate change.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 4","pages":"889-919"},"PeriodicalIF":1.4,"publicationDate":"2024-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11604277/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142773575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Collective Knowledge and the Limits of the Expanded Identification Doctrine. 集体知识与扩展认同原则的局限性。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-07-12 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae025
Alexander Sarch
{"title":"Collective Knowledge and the Limits of the Expanded Identification Doctrine.","authors":"Alexander Sarch","doi":"10.1093/ojls/gqae025","DOIUrl":"https://doi.org/10.1093/ojls/gqae025","url":null,"abstract":"<p><p>The Economic Crime and Corporate Transparency Act 2023 expanded the identification doctrine in welcome ways, but, I argue, does not go far enough. Specifically, I contend that the Act's reforms do not sufficiently respond to the threat of senior managers who culpably interfere in the proper flow of information within the company to orchestrate harmful or risky practices by others, all while seeking to avoid liability by preventing any individual from forming the full <i>mens rea</i> of any economic crime. How should the criminal law respond to this gap? I argue it would be problematic to respond by extending individual liability even further-say, by expanding the already 'disturbingly wide' inchoate offences in the Serious Crime Act 2007. Instead, the collective knowledge doctrine provides a tailor-made solution to these scenarios. This doctrine would permit courts (in narrow circumstances) to aggregate individuals' mental states within the company to construct a distinct corporate <i>mens rea</i>. I argue that section 196 of the 2023 Act, which expands the identification doctrine, could be read to incorporate a narrow version of the collective knowledge doctrine-at least if courts are willing to adopt a purposivist orientation aimed at giving effect to the wider aims of Parliament. A restricted version of the collective knowledge doctrine would have normative benefits and so, I suggest, is worth putting to the courts through test litigation.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 4","pages":"920-948"},"PeriodicalIF":1.4,"publicationDate":"2024-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11604272/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142773532","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Rights That. 权利。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-07-04 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae021
Eleanor Eldridge
{"title":"Rights That.","authors":"Eleanor Eldridge","doi":"10.1093/ojls/gqae021","DOIUrl":"https://doi.org/10.1093/ojls/gqae021","url":null,"abstract":"<p><p>Hohfeld was acutely aware of the 'potent tendency [of words] to control thought'. He was perhaps less aware of the power of syntax to do the same. Hohfeld's tendency to express the content of duties and liberties in the syntactically restrictive <i>to ϕ</i> form has allowed a corrupted version of his analytical scheme to take root. That version takes as axiomatic that the content of any duty or liberty is the action or inaction of the duty bearer or liberty holder. Yet duties and liberties can (and do) pertain to matters other than the action or inaction of the duty bearer or liberty holder. This insight has a range of doctrinal implications.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 4","pages":"808-831"},"PeriodicalIF":1.4,"publicationDate":"2024-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11604279/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142773544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Forum Marketing in International Commercial Courts? 国际商事法院的论坛营销？
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-07-04 DOI: 10.1093/ojls/gqae022
Georgia Antonopoulou
{"title":"Forum Marketing in International Commercial Courts?","authors":"Georgia Antonopoulou","doi":"10.1093/ojls/gqae022","DOIUrl":"https://doi.org/10.1093/ojls/gqae022","url":null,"abstract":"Forum selling is a legal term used to describe the practices of courts and judges, geared towards attracting cases, such as increasing the predictability of judgments or speeding up trials. However, do courts also go beyond forum selling to attract cases? Taking international commercial courts as its focus, this article explores how these courts market themselves to attract cases and coins the term ‘forum marketing’. It demonstrates that the courts’ recent establishment, coupled with their voluntary jurisdiction, creates a compelling context, which encourages them to engage in forum marketing. The article argues that forum marketing is not merely a byproduct of the competition in commercial dispute resolution, but a powerful mechanism with deeply persuasive, normative and, effectively, structuring properties. Forum marketing is central to disseminating and reinforcing a pro-business approach in civil justice, consequently setting the stage for procedural inequality and a one per cent procedure.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"27 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141552650","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Insanity, Disability and Responsibility: Rethinking Autonomy to Challenge Structural Inequality. 精神错乱、残疾和责任：重新思考自主性挑战结构性不平等。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-06-19 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae020
Jane Richards
{"title":"Insanity, Disability and Responsibility: Rethinking Autonomy to Challenge Structural Inequality.","authors":"Jane Richards","doi":"10.1093/ojls/gqae020","DOIUrl":"https://doi.org/10.1093/ojls/gqae020","url":null,"abstract":"<p><p>The Convention on the Rights of Persons with Disabilities (CRPD) operates as a lens of analysis to show that the insanity doctrine and its dispositions discriminate against the category of people with mental disabilities to whom the defence applies. However, while identifying the discrimination perpetuated by the insanity doctrine, this article argues that the CRPD Committee has failed to uncover the ultimate source of disadvantage of which the doctrine is merely symptomatic. Instead, it is argued that the criminal justice system entrenches a notion of 'capacity-responsibility' which situates the mentally disabled defendant as the 'other'. In an attempt to challenge this embedded structural injustice, the article thus calls on the CRPD Committee for a more holistic application of the CRPD, to provide the tools to challenge that will move towards greater equality for people with mental disabilities.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 4","pages":"832-859"},"PeriodicalIF":1.4,"publicationDate":"2024-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11604275/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142773536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Corporate Purpose Swings as a Social, Atheoretical Process: Will the Pendulum Break? 企业宗旨的摇摆是一个社会的、理论的过程：钟摆会打破吗？
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-06-01 DOI: 10.1093/ojls/gqae019
Michael Galanis
{"title":"Corporate Purpose Swings as a Social, Atheoretical Process: Will the Pendulum Break?","authors":"Michael Galanis","doi":"10.1093/ojls/gqae019","DOIUrl":"https://doi.org/10.1093/ojls/gqae019","url":null,"abstract":"This article argues that conceptualising corporate purpose as a normative question which can be examined in isolation from its socio-historical context is inappropriate and ultimately futile. Corporate purpose is examined here as historically determined, a social fact, independently from whichever theoretical position might prevail in scholarly debates. Interestingly, corporate law doctrine pertinent to corporate purpose has remained mostly static but fairly open-ended. This has allowed purpose itself to oscillate between shareholder primacy and the balancing of stakeholder interests rather seamlessly as a socio-historical phenomenon. However, the article finds that, where it is used by private business organisation, corporate law has a limited capacity to accommodate purpose oscillations. Those are limited to merely one-dimensional movements representing corporate income distribution choices considered as socially legitimate each time. Using concepts such as Polanyi’s ‘double-movement’ and Gramsci’s ‘passive revolution’, the article argues that, for as long as social dynamics focused on wealth distribution, private corporate purpose had little difficulty in absorbing social critique and in finding a legitimacy basis for the private business corporation. However, more recently, critique has been shifting away from merely distributional trepidations and towards other non-economic concerns caused by economic growth per se. These concerns add new dimensions for corporate purpose oscillations, which cannot be accommodated irrespective of how open-ended corporate law doctrine on purpose might be. The article concludes with an analysis of what this might entail for corporate law as a socially legitimate structure for private business.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"29 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141193935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Applying Laws Across Time: Disentangling the ‘Always Speaking’ Principles 跨越时间应用法律：解读 "永远说话 "原则
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-05-10 DOI: 10.1093/ojls/gqae014
Martin David Kelly
{"title":"Applying Laws Across Time: Disentangling the ‘Always Speaking’ Principles","authors":"Martin David Kelly","doi":"10.1093/ojls/gqae014","DOIUrl":"https://doi.org/10.1093/ojls/gqae014","url":null,"abstract":"Common-law judges frequently claim to apply the ‘always speaking’ principle. But they recognise that they are not clear on what it means, with Lord Leggatt recently calling the metaphor ‘enigmatic’. In this article, I seek to clarify this by showing that the ‘always speaking’ metaphor is associated with at least four different types of principle, each of which responds to a distinct issue (although there is a common theme: change over time). I explore the origins of the ‘always speaking’ metaphor, distinguish the four issues and explain how they relate. I argue that it is important to disentangle the four types of ‘always speaking’ principle, with a focus on distinguishing principles of dynamic (versus originalist) interpretation from principles that empower judges to strain or ‘recast’ legislation to deal with new developments sensibly. In doing so, I analyse and critique the judgments in the recent UK Supreme Court case of News Corp.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"188 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140932488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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