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Four Matters of Interpretation: The Constitutional Phenomenon in Comparative Studies. 解释的四个问题：比较研究中的宪法现象。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2025-02-17 eCollection Date: 2025-01-01 DOI: 10.1093/ojls/gqaf002
Ming-Sung Kuo
{"title":"Four Matters of Interpretation: The Constitutional Phenomenon in Comparative Studies.","authors":"Ming-Sung Kuo","doi":"10.1093/ojls/gqaf002","DOIUrl":"https://doi.org/10.1093/ojls/gqaf002","url":null,"abstract":"<p><p>This article takes a close look at the state of comparative constitutional studies as constitutional scholarship is taking a comparative turn. It first surveys the field and identifies four varieties - doctrinal, law-and-society, documentary, and cultural - of constitutional comparison and then critically investigates the state of comparative constitutional studies. Through this two-stage engagement, this article aims to make two main analytical points. First, at the core of each of the four varieties of comparative constitutional studies lies an interpretive exercise oriented by its distinctive purpose. Second, the social sciences' growing influence on constitutional comparison has entailed a myth of scientism in the field, which may inadvertently impoverish comparative constitutional studies as a whole. It concludes with a cautionary note on the comparative turn in studying constitutional ordering. With its prevalent focus on formal institutions and norms in constitutional orders, the comparative turn may unwittingly limit studies of the multifaceted constitutional phenomenon.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"45 2","pages":"301-328"},"PeriodicalIF":1.4,"publicationDate":"2025-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC12163111/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144303286","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
Who Reads the Trade Marks Register? 谁阅读商标注册册？
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2025-02-04 eCollection Date: 2025-01-01 DOI: 10.1093/ojls/gqaf001
Robert Burrell, Michael Handler
{"title":"Who Reads the Trade Marks Register?","authors":"Robert Burrell, Michael Handler","doi":"10.1093/ojls/gqaf001","DOIUrl":"https://doi.org/10.1093/ojls/gqaf001","url":null,"abstract":"<p><p>This article starts with a question that looks like it has been taken from an introductory legal reasoning class, namely, is coffee a non-alcoholic beverage? It will be seen that from a trade mark perspective there is reason to conclude that coffee is definitely a non-alcoholic beverage in Australia, is definitely not a non-alcoholic beverage under the European trade mark regime and may or may not be such a beverage in the UK. This divergence is itself worthy of attention, given efforts to facilitate cross-border registration using common terminology. More importantly, however, this article argues that the reason why trade mark law struggles with questions of this type is because it has never taken a clear view of the person at whom the trade marks register is aimed-in particular, it has never been clear as to the level of expertise and knowledge of the internal workings of the trade mark system that is to be attributed to the notional reader of the register. This oversight has important implications for matters that someone new to the field might imagine would have been resolved long ago.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"45 2","pages":"272-300"},"PeriodicalIF":1.4,"publicationDate":"2025-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC12163110/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144303290","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
Roman Law on the Just Price in Nicolaus Bernoulli's Mathematics. 罗马法论伯努利《数学》中的公正价格。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-12-05 eCollection Date: 2025-01-01 DOI: 10.1093/ojls/gqae040
Ciara Kennefick
{"title":"Roman Law on the Just Price in Nicolaus Bernoulli's Mathematics.","authors":"Ciara Kennefick","doi":"10.1093/ojls/gqae040","DOIUrl":"https://doi.org/10.1093/ojls/gqae040","url":null,"abstract":"<p><p>It must be rare that discoveries which transform mathematics also undermine legal rules. Yet this is precisely what happened when probability was first developed in the second half of the 17th century and the first decades of the following one. The focus of this article is a doctoral thesis in law written in 1709 by Nicolaus Bernoulli, an important mathematician of the age. He highlighted the dramatic implications of the new mathematics of probability for a rule which was fundamental to contemporary contract law in continental Europe. This article reconstructs a remarkable story about the place of mathematics in the history of contractual justice and the place of contractual justice in the history of mathematics.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"45 1","pages":"193-216"},"PeriodicalIF":1.4,"publicationDate":"2024-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11928225/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143693998","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
Global Comparative Law? 全球比较法？
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-11-16 eCollection Date: 2025-01-01 DOI: 10.1093/ojls/gqae038
Fernanda Pirie
{"title":"Global Comparative Law?","authors":"Fernanda Pirie","doi":"10.1093/ojls/gqae038","DOIUrl":"https://doi.org/10.1093/ojls/gqae038","url":null,"abstract":"<p><p><i>The Cambridge Handbook of Comparative Law</i>, edited by Matthias Siems and Po Jen Yap, continues recent calls to expand the field of comparative law. By including authors drawn from all parts of the world, it presents 'new perspectives' on the field. This wide geographic remit proves successful as a way of moving beyond traditional 'families' and doctrinal topics. The contributors raise new themes for comparison, many related to public law and processes of change. But this, in turn, raises questions about the purposes of expanding the field. The volume largely concerns the laws and legal issues of modern states, and the authors do not venture far into history. Nor do they consider the alternatives offered by religious and traditional legal systems or forms of non-state ordering. I suggest that these subjects could productively expand the field even further, raising more theoretical questions about what law is and does.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"45 2","pages":"506-524"},"PeriodicalIF":1.4,"publicationDate":"2024-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC12163115/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144303287","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 Riddle of the Good Faith Purchaser. 诚信买家之谜。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-11-14 eCollection Date: 2025-01-01 DOI: 10.1093/ojls/gqae037
Michael J R Crawford
{"title":"The Riddle of the Good Faith Purchaser.","authors":"Michael J R Crawford","doi":"10.1093/ojls/gqae037","DOIUrl":"https://doi.org/10.1093/ojls/gqae037","url":null,"abstract":"<p><p>A purchaser unwittingly buys stolen goods. The owner from whom they were stolen demands their return. The purchaser refuses. How should the law resolve their dispute? This article argues that the law's primary objective in resolving disputes between owners and good faith purchasers should not be to achieve 'justice' between the parties but to disincentivise theft. With some categories of goods, it is difficult to see how the legal attribution of liability can achieve this end. However, where goods are amenable to registration, the rules of good faith purchase can discourage theft by conditioning an owner's success over a good faith purchaser on the fact of prior registration. In the absence of a register, there seems little to choose between the parties. However, because the favoured party will frequently be a monopolist, the danger of holdouts warrants employing innovations from auction theory, the effect of which is to force the parties to reveal otherwise private information about their subjective valuations of the disputed goods.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"45 1","pages":"167-192"},"PeriodicalIF":1.4,"publicationDate":"2024-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11928221/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143693999","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
Legal Regulation, Technological Management and the Future of Human Agency. 法律规制、技术管理与人类代理的未来。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-10-25 eCollection Date: 2025-01-01 DOI: 10.1093/ojls/gqae035
William Lucy
{"title":"Legal Regulation, Technological Management and the Future of Human Agency.","authors":"William Lucy","doi":"10.1093/ojls/gqae035","DOIUrl":"https://doi.org/10.1093/ojls/gqae035","url":null,"abstract":"<p><p>This article examines the role of human agency within two competing regulatory paradigms: law and technological management. It sketches both paradigms and suggests that the direction of regulatory travel in familiar jurisdictions is from the former towards the latter. It then examines the possible effect of this transition upon human agency. It defends a general account of agency, distinguishing that notion from autonomy, and shows that that account informs the legal regulatory paradigm. It then considers whether agency, so conceived, can persist and flourish within a technological management regulatory context. It does so by reference to a thought-experiment. That experiment, and two of three responses to it, assumes that agency can be quantified, and the article shows how this can be done. It concludes that a transition from legal regulation to technological management will reduce the amount of human agency in the world and imperil other important values.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"45 1","pages":"55-80"},"PeriodicalIF":1.4,"publicationDate":"2024-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11928222/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143693994","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
Denouncing the 'One Voice' Doctrine. 谴责“一个声音”主义。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-09-20 eCollection Date: 2025-01-01 DOI: 10.1093/ojls/gqae032
Marcus Teo
{"title":"Denouncing the 'One Voice' Doctrine.","authors":"Marcus Teo","doi":"10.1093/ojls/gqae032","DOIUrl":"https://doi.org/10.1093/ojls/gqae032","url":null,"abstract":"<p><p>The 'one voice' doctrine holds that the executive's recognition of foreign states and governments is conclusive evidence of their status as such in English proceedings. However, the doctrine-properly understood as an irrebuttable presumption of status-is beset with theoretical and practical problems. Here, I argue that courts should abandon it, for three reasons: first, the doctrine is motivated by overbroad accounts of the executive's foreign affairs prerogative; second, it suffers from inconsistencies on matters of scope, which its underlying justifications cannot resolve; and third, the doctrine creates conceptual incoherence, undermining the purpose of other doctrines which operate contingently upon it. In its place, courts should adopt an alternative rule, triggering a rebuttable presumption of status and attributing evidential weight to executive certificates, which avoids these problems while still serving the 'one voice' doctrine's only legitimate purpose: helping courts reliably answer questions of status.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"45 1","pages":"26-54"},"PeriodicalIF":1.4,"publicationDate":"2024-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11928223/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143693993","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
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
Clarifying Mutual Consent's Role in Agency Law. 澄清相互同意在代理法中的作用。
IF 1.4 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2024-09-02 eCollection Date: 2025-01-01 DOI: 10.1093/ojls/gqae031
Rachel Leow
{"title":"Clarifying Mutual Consent's Role in Agency Law.","authors":"Rachel Leow","doi":"10.1093/ojls/gqae031","DOIUrl":"https://doi.org/10.1093/ojls/gqae031","url":null,"abstract":"<p><p>Important cases and academic commentators have suggested that the mutual consent of principal and agent is necessary for actual authority to be conferred on the agent. The chief purpose of this article is to show that this view of mutual consent's role in agency law is inaccurate and misleading. Its central claim is that the agent's consent is not a necessary pre-condition for the conferral of authority. Instead, a principal can confer authority on an agent unilaterally. However, when authority is conferred unilaterally on an agent, the external aspect of agency is fully present, but the internal principal-agent relationship possesses two unique features, one relating to the agent's duties and the other relating to the agent's ability to disclaim. The account presented here thus clarifies the proper scope of 'mutual consent' justifications in agency. Mutual consent may justify some incidents of agency, but it does not justify them all.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"45 1","pages":"1-25"},"PeriodicalIF":1.4,"publicationDate":"2024-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11928224/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143693992","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
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