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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
Discrimination as a Public Wrong 歧视是一种公害
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-04-15 DOI: 10.1093/ojls/gqae011
Adi Goldiner
{"title":"Discrimination as a Public Wrong","authors":"Adi Goldiner","doi":"10.1093/ojls/gqae011","DOIUrl":"https://doi.org/10.1093/ojls/gqae011","url":null,"abstract":"The enforcement mechanisms of anti-discrimination law manifest a puzzle: while the dominant view is that discrimination is a wrongdoing against individuals, which suggests that discriminatees should have the power to vindicate their rights, legal provisions sometimes authorise public officials to file claims against alleged discriminators, regardless of discriminatees’ preferences. Seeking to make sense of this puzzle, this article draws on theories of state enforcement under criminal law to explore the justification of public enforcement under anti-discrimination law and reflect on the nature of discrimination more broadly. It claims that an instrumental justification of public enforcement of anti-discrimination law is left wanting. Instead, it argues that public enforcement in this domain is warranted because discrimination is not only a private wrong against individuals, but is also a public wrong, namely a wrong against the community as a whole.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"34 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140580281","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
Convicting Peaceful Protesters: Proportionality’s Proper Place at Criminal Trial 给和平抗议者定罪：相称性在刑事审判中的适当位置
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-04-03 DOI: 10.1093/ojls/gqae009
Richard Martin
{"title":"Convicting Peaceful Protesters: Proportionality’s Proper Place at Criminal Trial","authors":"Richard Martin","doi":"10.1093/ojls/gqae009","DOIUrl":"https://doi.org/10.1093/ojls/gqae009","url":null,"abstract":"Suppose that a defendant’s conviction would amount to an interference with their right to peaceful protest, protected by articles 10 and 11 of the European Convention on Human Rights. Is a court then obliged to make a conviction turn on a fact-sensitive proportionality assessment justifying the interference? Drawing on the jurisprudence of the domestic and Strasbourg courts, this article argues that the case law has crystallised into two paradigms that provide distinct answers: the ‘justificatory paradigm’ in European human rights law and the ‘offence-centric’ paradigm in domestic law. The article exposes how and why this divergence has developed, what is at stake at the level of constitutional values and how this conflict might be resolved. It is argued that compliance with Strasbourg now depends on the integration of the justificatory paradigm into domestic law. The article imagines how this might be done in a manner sensitive to domestic constitutional values, using the mechanics on offer in the Human Rights Act 1998.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"7 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140580274","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 Resurgence of Standing in Judicial Review. 司法审查中诉讼资格的复兴。
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-03-14 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae005
Joanna Bell
{"title":"The Resurgence of Standing in Judicial Review.","authors":"Joanna Bell","doi":"10.1093/ojls/gqae005","DOIUrl":"https://doi.org/10.1093/ojls/gqae005","url":null,"abstract":"<p><p>It is now commonplace for courts to remark that standing to seek judicial review is 'context-sensitive'. The questions of how the courts adapt standing to context, and whether they do so appropriately, have, however, received remarkably little scholarly and judicial attention. This is perhaps because, until recently, there has been relatively little in the case law to spark scholarly interest. Standing, however, is in the midst of a resurgence. This article makes use of a distinction between three types of judicial review case-challenges to (i) favourable targeted, (ii) unfavourable targeted and (iii) non-targeted decisions-as a mode through which to explore the growing body of standing case law. In doing so, it both seeks to further understanding of how courts determine what constitutes a 'sufficient interest' and to highlight areas of the law in need of clarification or reconsideration.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 2","pages":"313-341"},"PeriodicalIF":1.2,"publicationDate":"2024-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11157286/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141296925","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
Tangled Webs of Trust: A Study of Public Trust in Risk Regulation 错综复杂的信任之网：风险监管中的公众信任研究
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-03-11 DOI: 10.1093/ojls/gqae006
Joanne Hawkins
{"title":"Tangled Webs of Trust: A Study of Public Trust in Risk Regulation","authors":"Joanne Hawkins","doi":"10.1093/ojls/gqae006","DOIUrl":"https://doi.org/10.1093/ojls/gqae006","url":null,"abstract":"This article provides an empirically grounded understanding of public trust in the context of risk regulation, specifically through a case study of shale gas exploration and fracking. It offers insight into the factors underpinning public trust and explores the empirical reality of the socially embedded and relational nature of trust. The article engages with the often-neglected dynamics of trust and how relationships between different levels of trust (eg institutional, interpersonal, wider system) operate. It shows how trust, far from complying with many existing linear conceptualisations, is complex and messy, involving a web of ongoing and interactive relationships within and between these levels. By mapping empirical data against our theoretical understandings, this article offers an alternative insight into the trust relationship, better positioning us to understand trust as an ongoing process, rather than an end product.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"22 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140107464","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 Dignity of Legal Subjects 法律主体的尊严
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-03-07 DOI: 10.1093/ojls/gqae004
Aziz Z Huq
{"title":"The Dignity of Legal Subjects","authors":"Aziz Z Huq","doi":"10.1093/ojls/gqae004","DOIUrl":"https://doi.org/10.1093/ojls/gqae004","url":null,"abstract":"The dignitary account of the rule of law proposes that values of human dignity and agency are appropriately recognised through legal rules and institutions that create opportunities for legal subjects to engage in deliberation and the exercise of practical reason. In a collection of essays published over a period of almost two decades, Thoughtfulness and the Rule of Law, Jeremy Waldron offers a comprehensive account of the grounds and institutional implications of taking dignity so understood as a core rule-of-law desideratum. The ensuing account is novel, stimulating and distinct. There is, however, a chasm between the platforms identified by Waldron and his ambition of advancing dignity. Further, a dignity norm cannot supply a plausible evaluative benchmark under all (or most) plausible circumstances. Its domain might in consequence be more circumscribed than Waldron intimates.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"107 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140073620","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
A Critical Inquiry into ‘Abuse’ in EU Competition Law 欧盟竞争法中的 "滥用 "批判性探究
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-03-07 DOI: 10.1093/ojls/gqae008
Pınar Akman
{"title":"A Critical Inquiry into ‘Abuse’ in EU Competition Law","authors":"Pınar Akman","doi":"10.1093/ojls/gqae008","DOIUrl":"https://doi.org/10.1093/ojls/gqae008","url":null,"abstract":"Disagreement abounds on what exactly constitutes an ‘abuse’ within article 102 TFEU, EU competition law’s prohibition of an abuse of a dominant position. This situation is highly undesirable, given the important role this prohibition is expected to play in alleviating concerns about substantial market power and its use in important sectors, typified by actions against ‘Big Tech’. This article responds to this problem by analysing and synthesising the jurisprudence of the Court of Justice of the European Union and its evolution to establish the constituent elements of an exclusionary ‘abuse’. The article corrects crucial legal misconceptions, including the putative dichotomy between violations ‘by object’ and ‘by effect’; the assumed disparate legal tests for pricing and non-pricing conduct; and the lost distinction between the ‘as efficient competitor test’ and the ‘as efficient competitor standard’. This critical inquiry allows one to draw concrete predictions on the future development of this challenging, yet vital, area of law.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"23 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140073553","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
Partisan Legal Traditions in the Age of Camden and Mansfield 卡姆登和曼斯菲尔德时代的党派法律传统
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-03-05 DOI: 10.1093/ojls/gqae007
T T Arvind, Christian R Burset
{"title":"Partisan Legal Traditions in the Age of Camden and Mansfield","authors":"T T Arvind, Christian R Burset","doi":"10.1093/ojls/gqae007","DOIUrl":"https://doi.org/10.1093/ojls/gqae007","url":null,"abstract":"The 18th century is often treated by scholars as a period of juristic consensus. This article argues, in contrast, that the late 18th century saw the emergence of rival ‘Patriot’ and ‘Tory’ legal traditions. Through a detailed study of the jurisprudence of Lords Camden and Mansfield—who were both pillars of the law, as well as political and juristic rivals—we show that they differed systematically in their understanding of the common law, and that those differences had a partisan cast: although they were not crude attempts to instrumentalise law to political ends, their political and jurisprudential commitments influenced each other and emerged from the same intellectual roots. We place these differences in the context of the fragmentation of 18th-century Whig politics, and argue that they have important implications for how we understand and make use of the common law tradition in present-day scholarship.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"71 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140055442","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
Three Reconstructions of 'Effectiveness': Some Implications for State Continuity and Sea-level Rise. 有效性 "的三种重构：对国家连续性和海平面上升的一些影响》。
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-02-21 eCollection Date: 2024-01-01 DOI: 10.1093/ojls/gqae003
Alex Green
{"title":"Three Reconstructions of 'Effectiveness': Some Implications for State Continuity and Sea-level Rise.","authors":"Alex Green","doi":"10.1093/ojls/gqae003","DOIUrl":"https://doi.org/10.1093/ojls/gqae003","url":null,"abstract":"<p><p>Small Island Developing States (SIDS) are uniquely threatened by rising sea levels. Not only does the retreat of their coastlines place them in danger of losing maritime territory; the concurrent possibility of their landmasses becoming either uninhabitable or completely submerged also threatens their very existence. According to one understanding of the law that governs the continuity and extinction of states, political communities that permanently lose 'effectiveness'-typically understood as sufficient governmental control of a relatively determinate territory with a permanent population-must lose their statehood as well. In this article, I provide three reconstructions of effectiveness, each of which rests upon a different normative rationale. My contention is that, regardless of which reconstruction one adopts, the continuity of submerged SIDS is eminently supportable, notwithstanding the arguments frequently made in favour of their formal extinction.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"44 2","pages":"201-230"},"PeriodicalIF":1.2,"publicationDate":"2024-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11157290/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141296926","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
Contract Law When the Poor Pay More 穷人付出更多的合同法
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-02-19 DOI: 10.1093/ojls/gqae002
Joseph Spooner
{"title":"Contract Law When the Poor Pay More","authors":"Joseph Spooner","doi":"10.1093/ojls/gqae002","DOIUrl":"https://doi.org/10.1093/ojls/gqae002","url":null,"abstract":"Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society’s wealth distribution curve. It then highlights the contestable legality of certain pricing practices, such as ‘contingent charges’, and the challenge they pose to fundamental principles of contract law. An in-depth view of the 2015 case of Beavis v ParkingEye argues that the UK Supreme Court has validated contingent pricing models in a manner unsupported by traditional contractual reasoning and unjustified by contemporary market failure analysis. The article asks contract law to confront the reality that it shapes market distributions in economically and politically significant ways, and appeals for greater scrutiny of the contribution of contract law adjudication to inequality.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"16 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139920109","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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