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How (Not) to Break Up: Constituent Power and Alternative Pathways to Scottish Independence 如何(不)分裂:宪法权力和苏格兰独立的替代途径
2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-10-31 DOI: 10.1093/ojls/gqad022
Raffael N Fasel, Shona Wilson Stark
{"title":"How (Not) to Break Up: Constituent Power and Alternative Pathways to Scottish Independence","authors":"Raffael N Fasel, Shona Wilson Stark","doi":"10.1093/ojls/gqad022","DOIUrl":"https://doi.org/10.1093/ojls/gqad022","url":null,"abstract":"Abstract— In October 2022, the UK Supreme Court unanimously held that the Scottish Parliament lacks the power to legislate for a second referendum on Scottish independence (Indyref 2) absent an enabling Order by the UK government under section 30 of the Scotland Act 1998. With no such Order forthcoming, alternative pathways to Indyref 2 are being investigated. In this article, we examine two such potential pathways—a plebiscitary election and an unauthorised referendum—through the lens of constituent power. We argue that both pathways are theoretically available if one accepts (as we argue) that the Scottish people is the bearer of constituent power. However, we conclude that there are significant obstacles dotting both potential pathways, and as such the only feasible route to internationally recognised statehood for Scotland is via political negotiation.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135977427","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 Origin of Asymmetric Information: Revisiting the Rationale for Regulation 信息不对称的起源:重新审视监管的基本原理
2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-10-23 DOI: 10.1093/ojls/gqad023
Gareth Downing
{"title":"The Origin of Asymmetric Information: Revisiting the Rationale for Regulation","authors":"Gareth Downing","doi":"10.1093/ojls/gqad023","DOIUrl":"https://doi.org/10.1093/ojls/gqad023","url":null,"abstract":"Abstract Akerlof’s seminal model on asymmetric information forms the basis for a broad range of regulatory interventions aimed at addressing the adverse effects of unequal information between transacting parties. While a groundbreaking model of the effects of information asymmetries in markets, Akerlof’s model does not examine why information asymmetries emerge. This article argues that an examination of the underlying drivers and origins of information asymmetries revitalises the policy rationale for regulatory intervention.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135366732","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
̀Comparative Law and Christianity—A Plank in the Eye? 比较法与基督教——碍眼的木板?
2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-10-05 DOI: 10.1093/ojls/gqad021
Jaakko Husa
{"title":"̀Comparative Law and Christianity—A Plank in the Eye?","authors":"Jaakko Husa","doi":"10.1093/ojls/gqad021","DOIUrl":"https://doi.org/10.1093/ojls/gqad021","url":null,"abstract":"Abstract This article examines the epistemic bias of comparative law scholarship. Comparatists are unable or unwilling to recognise the religious dimensions in Western law as they see religion only in the context of non-Western law. This problem is typical of modern macro-comparative law, which fails to recount the influence of Christianity on Western law and legal culture. The article invites legal scholars to reach beyond the notions of ‘religious law’ and ‘secular law’ in terms of classifying the world’s legal systems. Firstly, the article explains how comparative law has a problematic relationship with religion; secondly, it shows that, despite Christianity having been deemed a thing of the past, its influence can and should also be charted in modern law. I argue for a need to rethink the manner in which Western law is depicted as a thoroughly secular law as opposed to the religious law of exoticised others.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134973933","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
Roles and the Moral Practice of Precedent 先例的作用与道德实践
2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-09-27 DOI: 10.1093/ojls/gqad020
Nathan Van Wees
{"title":"Roles and the Moral Practice of Precedent","authors":"Nathan Van Wees","doi":"10.1093/ojls/gqad020","DOIUrl":"https://doi.org/10.1093/ojls/gqad020","url":null,"abstract":"Abstract Some recent work in legal theory argues that legal questions boil down to moral questions. On this view, lawyers and judges are ultimately interested in the moral effect of things done by legal institutions. This view has been called the ‘new legal anti-positivism’. So far, it has not given a convincing account of precedent. That is, it has not explained how moral reasons can account for what judges do in practice when they follow past decisions. Any successful account must explain the central features of this practice: why lower courts follow higher courts, and not the other way around; the difference between ratio and obiter; and the situations in which judges distinguish or overrule past decisions. This article gives a non-positivist account that meets this challenge, by giving a prominent place to the moral importance of roles. The account avoids some problems faced by existing non-positivist accounts of precedent.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135477834","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
Rousseau’s Republican Judges 卢梭的共和党法官
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-08-20 DOI: 10.1093/ojls/gqad017
S. Winter
{"title":"Rousseau’s Republican Judges","authors":"S. Winter","doi":"10.1093/ojls/gqad017","DOIUrl":"https://doi.org/10.1093/ojls/gqad017","url":null,"abstract":"\u0000 Judges occupy important roles in Rousseau’s constitutional theory. Placing the Social Contract alongside Rousseau’s lesser-known Letters Written from the Mountain and The Government of Poland, this article examines how Rousseau constructs judicial institutions and explores a problem he confronts. Although necessary for the republic to enjoy the rule of law, Rousseau worries that adjudicative bodies threaten the citizens’ freedom. This article describes Rousseau’s constitutional solution, which combines a conservative-yet-progressive legislative ethos, with pluralist institutionalism and judicial non-professionalism.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44140742","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 Necessity of Institutional Pluralism 制度多元化的必要性
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-08-19 DOI: 10.1093/ojls/gqad018
Avihay Dorfman, Alon Harel
{"title":"The Necessity of Institutional Pluralism","authors":"Avihay Dorfman, Alon Harel","doi":"10.1093/ojls/gqad018","DOIUrl":"https://doi.org/10.1093/ojls/gqad018","url":null,"abstract":"\u0000 This article defends the claim that the institutional source of a legal norm—be it the constitution, legislation or whatever—affects its nature and value. We argue that institutions are not merely vessels through which norms get public recognition. When different institutions use identically worded norms, say, ‘everyone is equally entitled to X’, they may nevertheless produce different norms and provide different goods. For instance, a constitutional protection of a basic right differs from a statutory right to the same right not (only) because the former is less likely to be changed, but (also) because a constitutional decision marks the right in question as one that makes no essential reference to the actual choice of the majority of the political community. We extend this argument to other institutional settings, especially the common law tradition of judge-made law.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44275205","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
Law and Stock Market Development in the UK over Time: An Uneasy Match 英国长期以来的法律和股票市场发展:一种不稳定的匹配
2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-08-11 DOI: 10.1093/ojls/gqad019
Brian R Cheffins, Bobby V Reddy
{"title":"Law and Stock Market Development in the UK over Time: An Uneasy Match","authors":"Brian R Cheffins, Bobby V Reddy","doi":"10.1093/ojls/gqad019","DOIUrl":"https://doi.org/10.1093/ojls/gqad019","url":null,"abstract":"Abstract Britain has a reputation for having a stock market-oriented corporate economy and there is an extensive literature maintaining that laws affording substantial protection to outside investors are needed for a thriving stock market. Historically, however, UK equity markets have not always flourished and, when they have, law’s contribution has been open to question. This article considers the uneasy match between law and Britain’s stock market development from when shares first began to trade publicly through to the present day, offering in so doing insights into the relationship between law and equity markets and current reforms intended to revive a flagging UK stock exchange.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135396814","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
Against the Spirit of the Age: The Rationale of Relational Contracts 违背时代精神:关系契约的基本原理
IF 1.2 2区 社会学
Oxford Journal of Legal Studies Pub Date : 2023-07-15 DOI: 10.1093/ojls/gqad016
P. Goodrich
{"title":"Against the Spirit of the Age: The Rationale of Relational Contracts","authors":"P. Goodrich","doi":"10.1093/ojls/gqad016","DOIUrl":"https://doi.org/10.1093/ojls/gqad016","url":null,"abstract":"\u0000 In his long-awaited treatise on the relational theory of contracting, David Campbell provides a rigorous, systematic and consistently lucid account of mutual recognition as the basis of all volitional obligations. Fiercely negotiated economic transactions find their social expression in legally enforceable agreements that are to be followed scrupulously to the letter both by the parties and by the courts. This is because, in his view, mutual recognition, the co-operative economic enterprise, is memorialised in the legal instrument. Using the example of the emergent doctrine of good faith, this article argues that while such literalism proffers an admirably bright line for enforcement of agreements, it reduces the import and value of the relational theory of contract as an ethical and political accounting of market transactions. Literalism here is problematic not simply because of the inherent historicity and social diversity of language, but because in concepts such as good faith or reasonable interpretation, the purpose of the inscribed transaction has to be evaluated not only in terms of the plurality of the contract’s clauses, but also with a view to the overall shared intent of the exchange. For the relational theory of contract to have the impact that it merits, it needs to strengthen its account of how mutual recognition and the ethical and political dimensions of relationship best gain expression in the good-faith interpretation of the proximities manifest in agreement.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45150069","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 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
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