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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
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
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
‘Hard AI Crime’: The Deterrence Turn 硬人工智能犯罪威慑转向
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-05-07 DOI: 10.1093/ojls/gqae018
Elina Nerantzi, Giovanni Sartor
{"title":"‘Hard AI Crime’: The Deterrence Turn","authors":"Elina Nerantzi, Giovanni Sartor","doi":"10.1093/ojls/gqae018","DOIUrl":"https://doi.org/10.1093/ojls/gqae018","url":null,"abstract":"Machines powered by artificial intelligence (AI) are increasingly taking over tasks previously performed by humans alone. In accomplishing such tasks, they may intentionally commit ‘AI crimes’, ie engage in behaviour which would be considered a crime if it were accomplished by humans. For instance, an advanced AI trading agent may—despite its designer’s best efforts—autonomously manipulate markets while lacking the properties for being held criminally responsible. In such cases (hard AI crimes) a criminal responsibility gap emerges since no agent (human or artificial) can be legitimately punished for this outcome. We aim to shift the ‘hard AI crime’ discussion from blame to deterrence and design an ‘AI deterrence paradigm’, separate from criminal law and inspired by the economic theory of crime. The homo economicus has come to life as a machina economica, which, even if cannot be meaningfully blamed, can nevertheless be effectively deterred since it internalises criminal sanctions as costs.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"17 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140932486","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
The Data Crowd as a Legal Stakeholder 作为法律利益相关者的数据人群
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-05-06 DOI: 10.1093/ojls/gqae017
Shelly Kreiczer-Levy
{"title":"The Data Crowd as a Legal Stakeholder","authors":"Shelly Kreiczer-Levy","doi":"10.1093/ojls/gqae017","DOIUrl":"https://doi.org/10.1093/ojls/gqae017","url":null,"abstract":"This article identifies a new legal stakeholder in the data economy: the data crowd. A data crowd is a collective that: (i) is unorganised, non-deliberate and unable to form an agenda; (ii) relies on productive aggregation that creates an interdependency among participants; and (iii) is subjected to an external authority. Notable examples of crowds include users of a social network, users of a search engine and users of artificial intelligence-based applications. The law currently only protects users in the data economy as individuals, and in certain cases may address broad public concerns. However, it does not recognise the collective interests of the crowd of users and its unique vulnerability to platform power. The article presents and defends the crowd’s legal interests in a stable infrastructure for participation. It therefore reveals the need for a new approach to consumers’ rights in the data economy.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"23 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140887772","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
'Everything is Obstetric Violence Now': Identifying the Violence in 'Obstetric Violence' to Strengthen Socio-legal Reform Efforts. 现在一切都是产科暴力"：识别 "产科暴力 "中的暴力，加强社会法律改革努力。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-05-04 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae016
Camilla Pickles
{"title":"'Everything is Obstetric Violence Now': Identifying the Violence in 'Obstetric Violence' to Strengthen Socio-legal Reform Efforts.","authors":"Camilla Pickles","doi":"10.1093/ojls/gqae016","DOIUrl":"https://doi.org/10.1093/ojls/gqae016","url":null,"abstract":"<p><p>Since its global uptake, 'obstetric violence' is increasingly used to capture any/all violations during reproductive healthcare, with few conceptual limits. Consequently, it runs the risk of becoming an overgeneralised concept, making it difficult to operationalise in socio-legal reform efforts. This article draws on the Latin American origins of the concept and aims to provide a theoretical framework to support a focused and coherent socio-legal reform agenda. It offers a universal definition of violence, being the violation of physical or psychological integrity, and localises this definition using the 'view from everywhere'. The article proposes that violence will qualify as 'obstetric violence' if the violation of integrity occurs in the context of antenatal, intrapartum and postnatal care. Further, the subject of the violence is the birthing woman, trans or non-binary person. Thinking in terms of a 'continuum of violence' in reproductive healthcare ensures that different forms of obstetric violence are recognised and helps envisage overlaps with other violences.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 3","pages":"616-644"},"PeriodicalIF":1.4,"publicationDate":"2024-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11368831/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142134175","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
The Case Against Human Rights Penality 反对人权刑罚
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-04-30 DOI: 10.1093/ojls/gqae013
Natasa Mavronicola
{"title":"The Case Against Human Rights Penality","authors":"Natasa Mavronicola","doi":"10.1093/ojls/gqae013","DOIUrl":"https://doi.org/10.1093/ojls/gqae013","url":null,"abstract":"This article seeks to make the human rights case against human rights penality—that is, against the reliance upon and foregrounding of penal mechanisms in the protection of (certain) human rights. The rationale for the alliance between human rights and state penality has at least three central dimensions: effectiveness, accountability and equal protection. In particular, the mobilisation of criminal law (enforcement) and punishment is often treated as the most effective means of preventing and/or redressing human rights violations. Moreover, the criminal process and sanction are often understood as the pinnacle of accountability for serious human rights violations. Finally, the egalitarian rationale for human rights penality views it as redistributing protection to under-protected persons. While remaining committed to human rights, I unpack (some of) the ways in which human rights penality ultimately fails to uphold and even undermines the principles that it has been promoted as fulfilling within the human rights frame.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"160 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140827812","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
Administrative Justice in the Modern Mixed Administrative State: Moving Beyond Taxonomies 现代混合行政国家中的行政司法：超越分类法
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-04-21 DOI: 10.1093/ojls/gqae015
Janina Boughey
{"title":"Administrative Justice in the Modern Mixed Administrative State: Moving Beyond Taxonomies","authors":"Janina Boughey","doi":"10.1093/ojls/gqae015","DOIUrl":"https://doi.org/10.1093/ojls/gqae015","url":null,"abstract":"The challenges that government outsourcing presents for administrative law were the topic of considerable scholarly discussion in the 1990s and early 2000s, with broad agreement amongst public lawyers that outsourcing should not result in a loss of the particular kind of accountability with which administrative justice is concerned. Yet, over the past two decades, while government outsourcing has continued and evolved, very little has been done to address these challenges. This article explores the question of when non-court-based administrative justice accountability mechanisms ought to extend to outsourced government functions. I argue that much of the focus of administrative lawyers to date has been on the approaches that courts should take, which has led governments and legislatures to adopt tests and taxonomies largely developed in or for the courts, which distinguish between ‘public’ and ‘private’ functions. I show that these taxonomies are not well adapted to administrative justice mechanisms outside of the courts, are not fit for purpose in many modern government outsourcing arrangements and have resulted in significant accountability gaps. I propose a different starting point for thinking about administrative justice in the modern mixed administrative state, based on normative principles as opposed to categories.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"6 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140629347","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
The Pluralities of Property 财产的多元性
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-04-16 DOI: 10.1093/ojls/gqae012
Luke Rostill
{"title":"The Pluralities of Property","authors":"Luke Rostill","doi":"10.1093/ojls/gqae012","DOIUrl":"https://doi.org/10.1093/ojls/gqae012","url":null,"abstract":"In Property Rights: A Re-Examination, James Penner returns to and develops a project that he has been engaged in for nearly three decades: to replace the influential ‘bundle of rights’ picture of property, which he regards as irredeemably flawed, with an alternative account—one that regards property as a unified entitlement. In this review article, I expound and analyse the central features of Penner’s theory. I defend the view that, in its original iteration, Penner’s account was trebly monistic: it regarded property as a single entitlement justified by a single human interest and protected by a single duty of non-interference. I go on to critically examine one of Penner’s central ideas—that to understand property it is necessary to understand its justification. Along the way, I trace how Penner’s account has evolved and explain how certain alterations have put some problems to bed while generating others.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"78 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140629228","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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