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The Enigma of Interpersonal Justice in Private Law Theory 私法理论中的人际正义之谜
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-07-08 DOI: 10.1093/ojls/gqad015
Z. Tan
{"title":"The Enigma of Interpersonal Justice in Private Law Theory","authors":"Z. Tan","doi":"10.1093/ojls/gqad015","DOIUrl":"https://doi.org/10.1093/ojls/gqad015","url":null,"abstract":"\u0000 The purpose of this article is to establish that contemporary private law theory has located no foolproof conception of interpersonal justice. I examine four accounts and find them wanting: the instrumentalist deterrence and loss-spreading approaches of economists; Kantian right and corrective justice; critical and social justice accounts; and the human flourishing approach. If my critiques are justified, this leaves us with the enigma of ‘interpersonal justice’. I consider three options going forward, rejecting the suggestion that we should abandon the search for a theoretical concept or be content with a modus vivendi. I sketch a third option, ‘emancipating interpersonal justice’, drawing from the resources of contractualist philosophy, to suggest that interpersonal justice is not a unitary concept or single regulative idea but a framework for determining what we owe each other in different spheres of interaction, and propose how this might illume certain questions of private law theory.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"1 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42399350","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
Expressive Procedure 表达程序
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-07-03 DOI: 10.1093/ojls/gqad013
Rabeea Assy
{"title":"Expressive Procedure","authors":"Rabeea Assy","doi":"10.1093/ojls/gqad013","DOIUrl":"https://doi.org/10.1093/ojls/gqad013","url":null,"abstract":"\u0000 This article explores the expressive dimension of procedural law, arguing that some procedural rules can be usefully understood as instruments of expression: they can express, or be employed to express, values, preferences and attitudes—independently of the economic incentives such rules create and regardless of the specific substantive law that governs the dispute. This is illustrated through two case studies that demonstrate how expressive considerations can underlie procedural rules, court decisions in relation to procedural matters and procedural choices that litigants make. The first is the requirement that litigants conduct civil proceedings in a diligent, honest and otherwise appropriate manner, which operates in part as an expressive norm, allowing courts to impose procedural sanctions as a way to condemn litigants’ behaviour. The second case study is the right to self-representation, which has been used by litigants in certain contexts as an act of protest against the legitimacy of the proceedings.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42839406","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
Catalytic Climate Litigation: Rights and Statutes 催化气候诉讼:权利和法规
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-06-22 DOI: 10.1093/ojls/gqad011
Sam Bookman
{"title":"Catalytic Climate Litigation: Rights and Statutes","authors":"Sam Bookman","doi":"10.1093/ojls/gqad011","DOIUrl":"https://doi.org/10.1093/ojls/gqad011","url":null,"abstract":"\u0000 Rights-based climate litigation has captured the global legal imagination in part because of its aspiration to achieve a certain function: catalysing political and policy processes into more ambitious climate action across the entire government apparatus. But many jurisdictions lack the legal opportunity structure that allows rights to perform this function. Instead, litigants might look to framework statutes as a way to trigger climate catalysis through litigation. Legal and mobilisation strategies drawing on both rights and framework statutes could prove an effective approach in future litigation.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45262524","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: 1
Unbundling Property in Welfare 分拆福利财产
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-06-10 DOI: 10.1093/ojls/gqad012
Yael Cohen-Rimer, Shai Stern
{"title":"Unbundling Property in Welfare","authors":"Yael Cohen-Rimer, Shai Stern","doi":"10.1093/ojls/gqad012","DOIUrl":"https://doi.org/10.1093/ojls/gqad012","url":null,"abstract":"\u0000 In most Western jurisdictions, welfare law utilises means testing to determine whether individuals are eligible for welfare allowances, often using property ownership as one of the eligibility criteria. Crucially, the prevailing conception of property ownership is premised on the notion that property rights are applied equally to all owners in matters relating to the control and management of that property. When this assumption proves not to reflect reality, it can have devastating consequences for those most in need of the support ostensibly provided by welfare law. The present qualitative empirical study examines two cases in which such adverse consequences are felt: in the two largest minority communities in Israel—the Palestinians and the Ultraorthodox Jews (Charedi). The findings show that property ownership in these communities is realised hierarchically, along patriarchal lines, and that family members occupy and manage property in accordance with community customs and traditional norms, often far removed from state laws. Beyond theoretical debates or ethnographic observations, the discrepancies between the state’s ideas of ownership and those recognised by members of the Palestinian and Charedi communities in Israel often result in the denial of financial aid to those who need it most. This article will identify such differences in conception and will describe how they provide an additional explanation for the high levels of poverty in minority communities. Finally, it will examine two private law doctrines that can be used as inspiration to better interpret welfare law and make it more nuanced and culturally sensitive, especially when it encounters people in poverty and marginalised groups.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45904525","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 Logic and Value of the Presumption of Doli Incapax (Failing That, an Incapacity Defence). Doli Incapax推定的逻辑和价值（如果失败，则为无行为能力辩护）。
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-06-10 eCollection Date: 2023-01-01 DOI: 10.1093/ojls/gqad010
David Hamer, Thomas Crofts
{"title":"The Logic and Value of the Presumption of <i>Doli Incapax</i> (Failing That, an Incapacity Defence).","authors":"David Hamer,&nbsp;Thomas Crofts","doi":"10.1093/ojls/gqad010","DOIUrl":"https://doi.org/10.1093/ojls/gqad010","url":null,"abstract":"<p><p>Children who do not understand the serious wrongness of their actions lack criminal capacity and cannot be convicted. At common law, children under seven are deemed to lack criminal capacity, children over 14 possess full capacity and children between seven and 14 are rebuttably presumed to lack capacity; the prosecution must prove capacity beyond reasonable doubt. Australia has increased the minimum age of criminal responsibility (MACR) to 10 and is considering a further increase. England & Wales and Northern Ireland have raised the MACR to 10 but have abolished the rebuttable presumption: at age 10, all children are assigned full criminal capacity. This article agrees with international calls for the MACR to be raised but argues that it is more important that the rebuttable presumption should be retained and extended. Children's brains and decision-making capacities continue to develop throughout their teenage years at different rates. The rebuttable presumption provides individualised justice for children facing developmental difficulties. To wrongfully convict a child who lacks capacity will unjustly damage their life chances. Where a child does have capacity, a variety of evidence may be available to the prosecution to prove it. If the prosecution fails to discharge the burden, the child should be acquitted. The acquittal may be mistaken, but this error is far less harmful than a wrongful conviction.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"43 3","pages":"546-573"},"PeriodicalIF":1.2,"publicationDate":"2023-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10550278/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41162913","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
Law by Algorithm 算法定律
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-05-31 DOI: 10.1093/ojls/gqad009
Ernest Lim
{"title":"Law by Algorithm","authors":"Ernest Lim","doi":"10.1093/ojls/gqad009","DOIUrl":"https://doi.org/10.1093/ojls/gqad009","url":null,"abstract":"\u0000 This review article offers a critical analysis of Horst Eidenmüller and Gerhard Wagner’s Law by Algorithm by focusing on four major sets of issues that are covered in this important work: (i) separate legal personality for artificial intelligence (AI) systems; (ii) the exploitation and protection of consumers; (iii) liability; and (iv) online dispute resolution. On separate legal personality, it is shown that neither unbundled products nor difficulties in proving that the systems resulted in damage or losses necessarily justify giving legal personality to AI systems. On consumer protection, it is argued that exploitation of consumers can be regulated by consumer protection legislation provided that reforms are made to remove enforcement hurdles. On liability, the issues arising from product liability legislation and problems associated with proving causation are critically examined. On online dispute resolution, smart contracts and self-driving contracts are distinguished, and a distinction is drawn between AI-assisted and AI-substitutionary adjudication.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44126511","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
Choice of Law Meets Private Law Theory 法律选择与私法理论
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-05-18 DOI: 10.1093/ojls/gqad008
Hanoch Dagan, Sagi Peari
{"title":"Choice of Law Meets Private Law Theory","authors":"Hanoch Dagan, Sagi Peari","doi":"10.1093/ojls/gqad008","DOIUrl":"https://doi.org/10.1093/ojls/gqad008","url":null,"abstract":"\u0000 Choice of law can, and often should, be an important feature of an autonomy-enhancing law as it expands the possible frameworks within which people can govern their affairs. The theory of choice of law we develop in this article builds on three core notions that dominate existing doctrine: states, party autonomy and what we loosely refer to as ‘limitations’; but it releases choice of law from its subordination to private international law (or its interstate equivalent in federal contexts). As a free-standing concept, choice of law belongs to private law’s empowering sections and thus participates in the obligation of liberal states to proactively promote people’s self-determination. This foundation of the field refines its three fundamental notions in a way that facilitates their peaceable cohabitation. It also recalibrates the boundaries of choice-of-law doctrine, clarifies its prescriptions and offers grounds for its reform.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43947053","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
Towards Non-essentialism – Tracking Rival Views of Legitimacy as a Right to Rule 走向非本质主义——追踪竞争对手将合法性视为统治权的观点
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-04-29 DOI: 10.1093/ojls/gqad006
Matthias Brinkmann, Johan Vorland Wibye
{"title":"Towards Non-essentialism – Tracking Rival Views of Legitimacy as a Right to Rule","authors":"Matthias Brinkmann, Johan Vorland Wibye","doi":"10.1093/ojls/gqad006","DOIUrl":"https://doi.org/10.1093/ojls/gqad006","url":null,"abstract":"\u0000 It is common in the literature to claim that legitimacy is the right to rule and that, accordingly, Hohfeldian rights analysis can be used to understand the concept. However, we argue that authors in the legitimacy literature have not generally realised the full potential of Hohfeldian analysis. We discuss extant approaches in the literature that conceptually identify legitimacy with one particular Hohfeldian incident, or, more rarely, a determinate set of incidents. Against these views, and building on parallel debates in property theory, we suggest that Hohfeldian analysis pushes one towards the claim that legitimacy possesses no determinate essence. We provide a rationale for this novel view and disarm a series of objections.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49529385","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
Theorising Evidence Law. 正在兴起的证据法。
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-04-24 eCollection Date: 2023-01-01 DOI: 10.1093/ojls/gqad007
Paul Roberts
{"title":"Theorising Evidence Law.","authors":"Paul Roberts","doi":"10.1093/ojls/gqad007","DOIUrl":"10.1093/ojls/gqad007","url":null,"abstract":"<p><p>What does it mean for a specialist department of legal studies, such as the Law of Evidence, to have, or to acquire, 'philosophical foundations'? In what sense are the theoretical foundations of procedural scholarship and teaching distinctively or uniquely <i>philosophical</i>? The publication of <i>Philosophical Foundations of Evidence Law</i> (OUP, 2021), edited by Christian Dahlman, Alex Stein and Giovanni Tuzet, presents a valuable opportunity to reflect on these existential questions of disciplinary constitution, methodology and design. This review article critically examines the volume's idiosyncratic selection of topics, structural taxonomy, epistemological priorities, and enigmatic thesis that modern evidence law is turning from rules to reasons as its organising intellectual framework. Whilst the volume is impressively interdisciplinary and cosmopolitan in authorship and outlook, some doubts are expressed about its implicit US orientation, limited engagement with institutional or doctrinal details, and marginalisation of normative criminal jurisprudence.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"43 3","pages":"629-649"},"PeriodicalIF":1.2,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://ftp.ncbi.nlm.nih.gov/pub/pmc/oa_pdf/76/4b/gqad007.PMC10550279.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41147735","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
Abusive Unconstitutional Constitutional Amendments: Indonesia, the Pancasila and the Spectre of Authoritarianism 滥用违宪宪法修正案：印度尼西亚、Pancasila和威权主义幽灵
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-02-09 DOI: 10.1093/ojls/gqad002
Ignatius Yordan Nugraha
{"title":"Abusive Unconstitutional Constitutional Amendments: Indonesia, the Pancasila and the Spectre of Authoritarianism","authors":"Ignatius Yordan Nugraha","doi":"10.1093/ojls/gqad002","DOIUrl":"https://doi.org/10.1093/ojls/gqad002","url":null,"abstract":"\u0000 This article explores how an unconstitutional constitutional amendments doctrine could be abused to advance an illiberal or even authoritarian agenda, with Indonesia as a case study. In Indonesia, there is a pervasive belief that the five fundamental principles of the state (the Pancasila) are the ‘basic norm’ of the Indonesian legal order. Based on this understanding, it has been argued that all positive laws, including constitutional amendments, must be consistent with the Pancasila. At the same time, there is a danger lurking behind this idea. The four amendments to the 1945 Constitution, which have ushered in a new era of democracy, have been claimed to be repugnant to the Pancasila. Consequently, a future authoritarian president could invoke this doctrine to revert to the original 1945 Constitution, which has enabled two authoritarian regimes in the past. Nevertheless, this threat could be minimised by applying the concepts of constituent and constituted powers.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42829361","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: 1
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