bluuebunny/crossref_metadata_2025 huggingface dataset:
The American Doctrine of Procedural Due Process
Authors: Galligan D. J.
Published: April 2012

This chapter discusses the American doctrine of procedural process of law. It begins with a brief outline of the general doctrine of due process. It then examines the threshold requirement that procedural due process applies only when life, liberty, or property is affected. Finally, it presents a short account of how the doctrine is applied in administrative contexts.
Forms of Process I
Authors: Galligan D. J.
Published: April 2012

This chapter examines forms of process based on the application of authoritative standards. The main issue is to develop a notion of administrative adjudication within which certain principles of fair treatment are applied and respected. In the course of doing so, a distinction is drawn between an adjudicative mode where fair treatment of the individual party is the foremost concern, and a bureaucratic mode which stresses expedition and regularity. In this chapter, the link between adjudication and fair treatment is examined at length. The limitations of adjudication as a means of ensuring fair treatment are identified and suggestions are made as to how failure may be achieved through alternative procedures.
The Sources of Procedures
Authors: Galligan D. J.
Published: April 2012

This chapter gives an account of the sources of procedures in administrative contexts. Amongst the various sources available, Parliament has the final say and it is now generally expected that, in creating administrative bodies, Parliament will make provision for the procedures to be followed. Just how procedural approaches emerge within statutory schemes and the influences which shape them are important matters which await empirical study.
Recourse: Appeals, Reviews, and Other Forms
Authors: Galligan D. J.
Published: April 2012

This chapter examines how recourse relates to procedural fairness. The right to have a decision reviewed, or to appeal from it to a court is important. Extensive resources are expended in providing recourse in one form or another, yet it is not always obvious why a society should do so, or why we should think a right to recourse touches on something fundamental. The answer is simple: recourse from a decision or action by one authority to another is an element of procedural fairness and in turn of fair treatment. In general, the opportunity to have a decision or action re-examined by some form of appeal or review is a central part of procedural fairness.
Principles and Doctrines: Standards, Reasons, and Bias
Authors: Galligan D. J.
Published: April 2012

This chapter examines several aspects of procedural fairness that are of particular interest, and which are the basis for a number of legal principles and doctrines. It considers the setting of standards, the giving of reasons, and the idea of impartiality on the part of the officials. The one common factor is that all involve standards of fair treatment and raise issues of procedural fairness.
Introduction
Authors: Galligan D. J.
Published: April 2012

This book focuses on the concepts of justice and fairness in relation to procedures. It provides a general framework for the understanding of procedures and procedural fairness, a framework within which different types of legal processes can be identified and where notions such as procedural rights, process values, the worth of participation, and the problems of costs can be discussed.
Law, Politics, and Local Democracy
Authors: Leigh Ian
Published: April 2012

More than any other area of the British constitution, local government has undergone constant change over the past two decades. The Conservative legislation introducing compulsory competitive tendering, replacing rates with first the community charge and then the council tax, the structural reorganization of local councils (with the creation of unitary authorities), and the increasing emphasis on rights for users of local services have left an enduring legacy. The actions of some local authorities on the municipal left and the New Right have tested the legal limits of local democracy to the full. The new Labour government has initiated further changes with the ‘best value’ regime, the reform of executive structures, and by introducing elected mayors and cabinets in local authorities, and new powers for councils to become ‘community leaders’, working in partnership with other public, private, and voluntary bodies within their areas. Moreover, other aspects of the constitutional reform programme, especially devolution, have substantial implications for local government. This book assesses these and other developments in terms of the underlying questions they raise about the nature of local democracy and its legal recognition. The book considers the competing and legally interlocking claims of local representative democracy, financial accountability, and consumerism, and their implications for the governing structures of local authorities and for local electors, councillors, taxpayers, the users of local services, and council employees. Finally, it asks whether the legal shape and powers of local government fit it for the changing role it is now asked to play.
Local Democracy in Its Constitutional Setting
Authors: Leigh Ian
Published: April 2012

This chapter attempts to identify the main sense in which councils are local democratic institutions and to assess their place in the broader constitutional order, especially in relation to regional and devolved authorities. It begins by showing how the reasons which have been offered as justifications for local democracy constrain the form chosen, how it is arranged, and the functions granted to local authorities. It then discusses the case for constitutional recognition of local government. It notes that the key virtue of constitutional protection for local government would be the enshrinement of pluralism within the state.
The Powers of Local Government
Authors: Leigh Ian
Published: April 2012

This chapter discusses the position of councils with regards to the courts. It explores the significance of the distinctive legal form which local authorities take and the implications of the ultra vires rule, together with proposals for its reform. It argues that corporations are inappropriate vehicles for representing democratic interests. Research published by the Department of the Environment, Transport, and the Regions (DETR) found that the proposed new duty was seen by councils as a positive power which expressed the confidence of the central government in them and signified a change of mood in central–local relations. The White Paper's proposal of an ‘overarching duty’ suggested a provision of quasi-constitutional significance, defining the mission of local government.
Information, Public Participation, and Accountability
Authors: Leigh Ian
Published: April 2012

This chapter deals with the matter which is necessarily underlying local representative democracy: the provision of information to the electorate. Freedom of information is an important aspect but it is only a part. The discussion considers public rights of information in local government business and the legal regime for consultation and participation of the public in decision-making, including the use of novel devices such as local referendums, citizens' juries, and focus groups. It also notes that communication is a two-way process, if only because local politicians hope to be re-elected. It also discusses broader controls on freedom of expression, especially those which prohibit the use of council resources in political advertising. It notes that in an environment where councils attempt to establish credibility and democratic legitimacy by being open and responsive to the public, the significance of legal controls can flourish.
Financial Accountability
Authors: Leigh Ian
Published: April 2012

This chapter deals with financial accountability. It includes a look at the treatment of the local contribution to local government finance; rates, community charge, and council tax; the interaction of financial and democratic accountability; the common law trustee concept; and statutory accountability processes. It first considers the accountability issues raised by local taxation and central government grant funding of local government. It then deals with the place of audit as an accountability mechanism, the role of the Audit Commission, and with the judicially created fiduciary duty owed by a council to its taxpayers. The discussion of fiduciary duty underlines a persistent theme of this chapter: the tension between considerations of financial accountability and representative democracy.
Party Groups, Councillors, and the Law
Authors: Leigh Ian
Published: April 2012

This chapter considers the position of the party group, with regards to the council as a whole; individual councillors, focusing on the issue of group discipline; and relationships between groups, especially in ‘hung’ councils. It looks at the legal position of the party political group and its place within the ‘internal’ politics of local government. The Widdicombe Committee recognized the reality that politics can never be fully open to public view and partisan scrutiny, and that politicians at whatever level will inevitably try to formulate policies in less public places.
Officers and Politics
Authors: Leigh Ian
Published: April 2012

This chapter discusses the non-political role of officers. After an examination of the legal position regarding officer neutrality, it pays attention to the question of how officers may act as a safeguard against political and other abuse through ‘whistle-blowing’. From the view of officers as neutral, professional servants of the council, the discussion turns to the points which have caused tension due to the increasing politicization of the government: relations with councillors, the appointment of officers, political restrictions on officers' activities, and the use of political advisers. The chapter lastly looks at questions of reform.
Conclusion: The New Local Government
Authors: Leigh Ian
Published: April 2012

This chapter reviews three strands of the government's democratic renewal programme: the ‘best value’ regime to replace compulsory competitive tendering; the reform of executive structures, including the introduction of cabinets and directly elected mayors; and new powers for councils to become community leaders, working in partnership with other public, private, and voluntary bodies, both under a new power to promote community well-being and under the ‘Beacon’ council scheme. It examines the tensions between these initiatives and the extent to which they amount to a coherent vision for local democracy within the changing UK constitution.
Studies in International Space Law
Authors: Cheng Bin
Published: April 2012

This book consists of a collection of studies in international space law. Those that have been previously published are revised and updated. Publication coincides with the thirtieth anniversary of the first ever multilateral treaty on outer space, which established an agreed international legal framework for the exploration and use of outer space. The book’s twenty-six chapters examine the major developments and issues of the law governing human activities in space — those of states as well as those of private entities — ranging from television broadcasts, the regulation of space junk, and the governance of State activities on the moon to the legal status of astronauts, the nationality of spacecraft, and arms control. Chapters also examine the effect and influence of UN Treaties in this area. In this examination of this branch of the law, the book has drawn lessons for the future development of international law in general.
The 1968 Astronauts Agreement
Authors: Cheng Bin
Published: April 2012

This chapter details the events leading up to the ratification of the 1968 Astronauts Agreement. The Agreement may be said to provide a classic object lesson in how not to make a treaty. First, the haste in which the final text was prepared and rushed through the United Nations resulted in a very poorly conceived and drafted instrument, achieving virtually nothing and yet creating at the same time a host of unresolved problems and difficulties. Secondly, in an agreement the effectiveness of which depends on its wide acceptance, the benefits are so one-sidedly in favour of the space powers (be they major, near-, or co-operative) that it is difficult to see why the non-space powers, which at least for the present represent the majority of States, even though they may be perfectly willing, on humanitarian grounds, to discharge the duties laid down in the Agreement, should legally divest themselves of all discretion as to how they are to be performed. Finally, the major space powers, by pushing this Agreement through ahead of the liability agreement in which all States are interested, and the non-space powers in particular, have only succeeded in convincing the latter that the surest way of ensuring that there will be a liability agreement and that its terms will be satisfactory, is not to ratify or accede to the Astronauts Agreement.
The Moon Treaty: Agreement Governing the Activities of States on the Moon and other Celestial Bodies within the Solar System other than the Earth
Authors: Cheng Bin
Published: April 2012

This chapter details the events leading up to the ratification of the 1979 Moon Treaty. The Agreement is perhaps one of the most poorly drafted among the five treaties that have emanated from the United Nations Outer Space Committee, outdoing even the 1968 Astronauts Agreement. First, the extraordinary extension which the treaty has given to the word moon is likely to give rise to a great deal of confusion. Secondly, the various provisions appear to have been assembled together in no particular order. In 1974, the United States did suggest a rearrangement of the articles in order to bring about greater ‘clarity and coherence’, but the proposal fell on deaf ears. However, the Moon Treaty has the high distinction of being the first instrument officially to declare a part of the world to be in law the common heritage of mankind, thus beating at the post by a nose the 1982 UN Convention on the Law of the Sea, which accords the same status to the deep ocean bed and subsoil.
The Legal Status of Astronauts*1
Authors: Cheng Bin
Published: April 2012

This chapter discusses the legal status of astronauts. Astronauts of whatever nationality are subject to the full jurisdiction (jurisfaction as well as jurisaction) of the territorial State, while they are within its territory, including its airspace, whether or not actually on board their spacecraft. In addition, they are subject to the quasi-territorial jurisdiction to prescribe (jurisfaction) of the State of registry (or launching State) of the space vehicle they are in, as well as the personal jurisfaction of their respective national States. As soon as a space vehicle leaves the airspace of the territorial State and reaches outer space, the astronauts on board come under the full jurisdiction of the State of registry, while remaining under the personal jurisfaction of their national States.
Choice of Law
Authors: ALDRICH GEORGE H.
Published: April 2012

Article 5 of the Claims Settlement Declaration provided the Iran–United States Claims Tribunal with broad discretion in its choices of applicable law. Consequently, it is impossible to define any coherent set of choice of law rules followed by the Tribunal, but there are a few general conclusions that appear to flow from the Tribunal’s practice. Firstly, it is clear that the Tribunal relished the freedom given it by Article 5. Secondly, many of the largest claims before the Tribunal were claims for compensation for properties expropriated by Iran. Thirdly, the references in Article 5 of the Claims Settlement Declaration were used frequently by the Tribunal to justify resort to ‘general principles of law’. Fourthly, whenever the Tribunal could find relevant rules of public international law, it tended to turn to them. Finally, the Tribunal consistently refused to consider itself bound by any national rules of evidence.
Unjust Enrichment
Authors: ALDRICH GEORGE H.
Published: April 2012

The first Award that decided a claim of unjust enrichment was Benjamin R. Isaiah v. Bank Mellat. In that case, the claimant established that he was the beneficial owner of funds used to purchase a bank check drawn in January 1979 by the respondent bank’s predecessor, which check was subsequently dishonored for insufficient funds. As the check was payable to one of the claimant’s associates, who was an Israeli, the Iran–United States Claims Tribunal had no jurisdiction over a claim based on the check, as such a claim would not satisfy the requirement of the Claims Settlement Declaration that a claim must be owned continuously by nationals of the same State from the date it arose until the date the Declaration entered into force. The concept of unjust enrichment had its origins in Roman law, where it emerged as an equitable device ‘to cover those cases in which a general action for damages was not available’.
The Rules of Conduct
Authors: Robinson Paul H.
Published: April 2012

This chapter demonstrates the usefulness of a functional analysis. It starts by presenting the obscuring rules of conduct with an overlay of liability and grading rules. Instead of clarifying and reinforcing the rules of acceptable conduct in people's minds, the current verdict system often undercuts and confuses an understanding of the rules. The rules of conduct are obscured not only by the overlay of liability and grading doctrines, but also by mixing functions in the formulation of a single doctrinal provision. The claim presented here is not that the Model Penal Code drafters are insensitive to factors that are significant to the definition of criminal risk-creation or to the definition of culpable risk-taking. That is, there seems nothing better that one can do in giving guidance on these issues than to give general formulae. The claim here is that, by failing to see that the issues of risk-creation and risk-taking are distinct, the general formula that the Code gives is less likely to be effective in performing either task.
The Doctrines of Liability
Authors: Robinson Paul H.
Published: April 2012

This chapter discusses the doctrines of liability that contribute to the liability function. It also reports an example of each of the functional analysis that suggests some less obvious failures, failures both in setting culpability requirements and in formulating excuse defences. The Model Penal Code replaces the common law ‘offence analysis’ notion that each offence has a single culpability requirement with ‘element analysis’. It is noted that, where an actor seeks excuse on a claim that he lacked adequate ability to control his conduct, the jury should inquire into the actual extent of the impairment to determine whether it is enough to render him blameless for his violation.
The Doctrines of Grading
Authors: Robinson Paul H.
Published: April 2012

This chapter demonstrates some of current doctrine's failures properly to grade violations, failures that a functional analysis reveals. One kind of failure comes through the misformulation of a doctrine through a failure to see its grading function. The incomplete and unsystematic use of central grading factors is reported as well. It is also noted that the issue of grading according to degree of assistance to a perpetrator goes beyond the grading issue in causation in an important way. Causation is a grading issue from start to finish. Moreover, the arguments against judicial sentencing as a substitute for grading are shown. Under-utilization of grading factors is more evident where the doctrine fails to take account in grading of significant differences in such things as the extent of resulting harm and differences in culpability level.
Drafting a Code of Adjudication
Authors: Robinson Paul H.
Published: April 2012

This chapter describes drafting a code of adjudication. How can one best draft a code that clearly articulates the subtle distinctions in the complex adjudication decision concerning how much liability ought to be imposed, if any? Five drafting principles are explained. A code of adjudication is most helpful if it includes all rules relevant to the liability decision, and as many rules relevant to the grading decision as feasible. In addition, it explores the drafting advantages of using general principles when possible, rather than introducing a distinct rule for each factual context. An example is the use of a general principle of adjustment for culpability level rather than the practice of modern codes of defining special culpability requirements for each offence. One final proposal covers the problem of ambiguous jury acquittals and their destructive effect on criminal justice.
French Constitutional Law
Authors: Bell John
Published: April 2012

This book provides a presentation of judicial review of legislation in contemporary France. Created by the Constitution of the Fifth Republic in 1958, the Conseil constitutionnel has had an increasingly important place in French legal and political life, especially since 1981. Part One of the book is an introduction to the Conseil and to the principles it has developed on the allocation of law-making powers between Parliament and the Government, parliamentary procedure, fundamental freedoms, and equality. Part Two is a collection of key materials translated into English, including constitutional texts and leading decisions of the Conseil constitutionnel.
Constitutional Review within the Fifth Republic
Authors: Bell John
Published: April 2012

This chapter provides an outline of the history and basic features of the 1958 Constitution, in particular the place of constitutional review. It specifically attempts to emphasize the place of the Conseil constitutionnel in the arrangements of the Fifth Republic's Constitution and in the State tradition of France. The principal novel features of the Fifth Republic Constitution are institutional in nature: presidentialism, rationalized parliamentarianism, and the Conseil constitutionnel. The scope and procedure of the constitutional review now operated by the Conseil constitutionnel is very much like that of a constitutional court, but with substantial differences from the kinds of court that exist in the United States and Germany. Within the balance of political institutions, the development of constitutional review places obvious limits on the sovereignty of Parliament, already reduced by the ‘rationalized parliamentarianism’ of the Fifth Republic.
Fundamental Freedoms
Authors: Bell John
Published: April 2012

This chapter addresses the extent to which fundamental freedoms are now protected through the Conseil constitutionnel. Following classical expositions of French civil liberties, the decisions of the Conseil are grouped under the headings of (1) freedom of the person, (2) freedom of association, (3) freedom of education, (4) freedom in employment, (5) freedom of communication and information, (6) freedom of property, and (7) freedom of enterprise and commerce. This covers the main issues that have been considered by the Conseil constitutionnel. In particular, this chapter discusses these decisions of the Conseil.
The Principle of Equality
Authors: Bell John
Published: April 2012

This chapter describes the doctrine of equality, and how far it is a general principle of the Constitution. It specifically argues that the Conseil constitutionnel's notion of equality is quite limited. Rather than a value of general application, equality is mainly concerned with non-discrimination in relation to specific constitutional values. The concern of the Conseil in this chapter appears predominantly to be to ensure a rational relationship between the provisions of a loi and the constitutional or legislative objectives that they are intended to achieve. The meaning of equality will be assessed by dealing first with the specific areas designated by the constitutional texts on which the Conseil has been required to pronounce, and then by considering the wider application of equality before the law. The equality in French constitutional law is explained as well. The study of equality demonstrates the way in which the Conseil constitutionnel has been elaborating the Constitution. It has taken specific values from the constitutional texts, and required the legislator to respect them.
Conclusion
Authors: Bell John
Published: April 2012

The Conseil constitutionnel has preceded a new dimension to both law and politics in France. It has a significant role in setting the framework for what both law and politics can achieve, and its operation appears to attract widespread public support. Three criticisms are typically made of constitutional review: (1) that it results in government by judges; (2) that it politicizes the judiciary; and (3) that it leads to legalistic politics. In addition, it may be asked whether the Conseil has operated beneficially in (1) defining the roles of Government and Parliament; and (2) in definding fundamental rights. Finally, it might be asked whether there has really been much of a revolution, and whether there are lessons from the French experience for other jurisdictions. The constitutional review in France enforces constitutional rules of parliamentary procedure. The Conseil also has a crucial function in protecting fundamental rights.
Constitutional Materials and Decisions of the Conseil Constitutionnel
Authors: Bell John
Published: April 2012

This chapter reports the constitutional materials and decisions of the Conseil constitutionnel. It describes the sources of the Constitution, namely law and convention, fundamental principles recognized by the laws of the republic, the hierarchy between the declaration of the rights of man and of the citizen of 1789, and the preamble to the 1946 Constitution, as well as the Republican tradition and decisions of the Conseil constitutionnel. In addition, the division between loi and règlement prior to the Fifth Republic, and interpretations given to the 1958 Constitution are explained, and a discussion on Parliamentary procedure and decisions on fundamental freedoms and equality is provided.
Theodosius I: Flavianus and the Later Years (388–395)
Authors: Honoré Tony
Published: April 2012

This chapter discusses the legislation of Theodosius I. There were three quaestors during the later part of his reign, the first of whom is considered to be the most striking of the three holders. There are thirty-eight laws that survive between October 388 and June 390, allowing a glimpse of the forceful personality of a reactionary statesman whom even his enemies admired.
Arcadius (394–408) and Eutropius’ Quaestor
Authors: Honoré Tony
Published: April 2012

This chapter discusses the quaestors during the reign of Arcadius, the son of Theodosius I. From the style of the laws that were enacted during his reign, it can be distinguished that six quaestors existed, although none of them are known by name. The laws that were composed in 396–9 mark both a revival of legal culture and a public acknowledgement of its importance.
Theodosius II: Towards the Code (408–437)
Authors: Honoré Tony
Published: April 2012

This chapter discusses Theodosius II's legislation up to March 16, 437, the date of the last law included in the Theodosian Code, and the quaestors who were responsible for drafting it. Theodosius II was the son of Arcadius, and he was only seven years old when the executive power was thrust on him. In this chapter, only ten of the 14 quaestors during the reign of Theodosius II are discussed, as well as the respective laws that they had drafted.
Understanding the Theodosian Code
Authors: Honoré Tony
Published: April 2012

This chapter discusses the Theodosian Code. Along with this discussion, the chapter also presents certain aspects of the Code that bear on how it should be understood and interpreted. These include the aims and designs of the Code, the laws the commissioners collected and from which sources these laws were gathered, the initiative for law-making and the inputs into these laws, and how these were edited by the compilers of the Code.
Theodosius II: Beyond the Code (438–450)
Authors: Honoré Tony
Published: April 2012

This chapter discusses several laws that were enacted after the Theodosian Code was formed. The first part of the chapter is devoted to a description of some general features of these post-Code laws and the assignment of these laws to their respective quaestors. Four quaestors can be discerned from this period: Martyrius, Epigenes, Procopius, and an unnamed fourth quaestor. The laws of this post-Code period were influenced by the ideology of the Code, a labour of which its authors were justly proud of.
Valentinian II and Maximus (383–392)
Authors: Honoré Tony
Published: April 2012

This chapter discusses the laws that were enacted by Valentinian II in the West between 383–7 and 389–92. These laws are considered to be from the Theodosian age in this chapter. The discussion begins with an account of the laws that were enacted in the period of the Theodosian dynasty in the West from 383. Only eight or nine of the laws that were enacted by Valentinian II survive to this day.
A View from Rome: Law in theHistoria Augusta
Authors: Honoré Tony
Published: April 2012

This chapter discusses law in the West and views this through the eyes of an author writing on the eve of the Gothic invasions without any consciousness of imminent disaster. This author is the anonymous author of Historia Augusta, the imperial biographies that were composed during the late fourth century. An explanation is included in the chapter of how this work reflects, or even fails to reflect, contemporary legislation, and how the author embellished the careers of classical Roman lawyers.
Honorius: The Milan Period (395–402)
Authors: Honoré Tony
Published: April 2012

This chapter discusses an analysis of the 151 laws that were enacted during the Milan Period (395–401). Fragments of these laws survive and allow identification of their respective quaestors: Hadrianus, Felix, Decius Albinus, Florentinus, and Alethius. The Western laws show less marked changes of style than the Eastern laws, so that to fix periods of quaestorial office is more difficult in the West than it is in the East.
Valentinian III: The Later Years (438–455)
Authors: Honoré Tony
Published: April 2012

This chapter discusses the laws made during the later part of the reign of Valentinian III, which made him appear as opinionated and volatile. Out of all the laws that were enacted during this period, only forty-seven of these survive today. The laws were enacted during the last few years of his reign and when the governing class in the West knew that the destabilizing effects of Alaric's incursions fifty years before had not been overcome. However, they did not suspect that the Western empire was on the point of collapse.
Law and Nature
Authors: Mielke Jeff
Published: April 2012

This chapter presents the Pure Theory of Law's discussion of natural material fact (act) and meaning, self-interpretation of social data (subjective and objective meaning), the norm as scheme of interpretation, the norm as act and as meaning, validity and sphere of validity of the norm, and cognition of legal norms vs. legal sociology.
Law and Morality
Authors: Mielke Jeff
Published: April 2012

This chapter presents the Pure Theory of Law's discussion of law and justice, and its anti-ideological stance. The Pure Theory aims to depict the law as it is, without legitimizing it as just or disqualifying it as unjust; the Pure Theory enquires into actual and possible law, not into ‘right’ law. In this sense, it is a radically realistic legal theory.
The Concept of Law and the Doctrine of the Reconstructed Legal Norm
Authors: Mielke Jeff
Published: April 2012

This chapter presents the Pure Theory of Law's discussion of natural law theory and legal positivism, ‘ought’ as designating a category of the law; the law as coercive norm, the concept of the unlawful act, the law as social technique, the normative meaning of the law, and the ‘ought’ and ‘is’ of the law.
Overcoming the Dualism of Legal Theory
Authors: Mielke Jeff
Published: April 2012

This chapter presents the Pure Theory of Law's discussion of the natural law origins of the dualism of objective law and subjective right, the concept of subjective right, the concept of legal subject or person, the ideological significance of the concepts ‘subjective right’ and ‘legal subject’, the concept of legal relation, the concept of legal obligation, reducing law in the subjective sense to objective law, analysing the concept of person, and the universalistic character of the Pure Theory of Law.
The Legal System and its Hierarchical Structure
Authors: Mielke Jeff
Published: April 2012

This chapter presents the Pure Theory of Law's discussion of system as system of norms, the legal system as chain of creation, the significance of the basic norm, the basic norm of the state legal system, and the hierarchical structure of the legal system.
The Methods of Creating Law
Authors: Mielke Jeff
Published: April 2012

This chapter presents the Pure Theory of Law's discussion of the form of law and form of state, private and public law, and the ideological significance of the dualism of private and public law.
Law and State
Authors: Mielke Jeff
Published: April 2012

This chapter presents the Pure Theory of Law's discussion of the traditional dualism of law and state, the ideological function of the dualism of law and state, and the identity of law and state.
The State and International Law
Authors: Mielke Jeff
Published: April 2012

This chapter presents the Pure Theory of Law's discussion of the nature of international law and the unity of international law and state law.
Wealth Maximization and Tort Law: A Philosophical Inquiry
Authors: POSNER RICHARD A.
Published: April 2012

This chapter examines the philosophical version of the argument that wealth maximisation is the best positive and normative guide to tort law. ‘Wealth maximisation’ means the policy of trying to maximise the aggregate value of all goods and services, whether they are traded in formal markets (the usual ‘economic’ goods and services) or (in the case of ‘non-economic’ goods or services, such as life, leisure, family, and freedom from pain and suffering) not traded in such markets. ‘Value’ is determined by what the owner of the good or service would demand to part with it or what a non-owner would be willing to pay to obtain it – whichever is greater. ‘Wealth’ is the total value of all ‘economic’ and ‘non-economic’ goods and services, and it is maximised when all goods and services are, so far as is feasible, allocated to their most valuable uses. The concept of wealth is dependent on the assignment of property rights because property rights are a source of wealth, and on the distribution of wealth across persons.
Tort Law in the Aristotelian Tradition
Authors: GORDLEY JAMES
Published: April 2012

In medieval and early modern Europe, Aristotle’s brief account of corrective justice in the Nicomachean Ethics was the starting point for those seeking a philosophical explanation of the law of torts. In the thirteenth century, Thomas Aquinas interpreted Aristotle to accommodate ideas taken from Roman and canon law. His interpretation was elaborated by leaders of a Thomist revival such as Tomasso de Vio, better known as Cajetan, Domingo de Soto, Luis de Molina, and Leonard Lessius. They believed that distributive and corrective justice both serve the higher purpose of advancing human welfare and yet are distinct from each other. This chapter is concerned only with their success in the second of these tasks. It argues that they offered a better account of tort law than contemporary tort theorists have managed. The greatest defect of their explanation was a failure to explain strict liability.
Philosophical Foundations of Fault in Tort Law
Authors: OWEN DAVID G.
Published: April 2012

In this chapter, the inquiry into the nature of fault in tort law involves an examination of the philosophical foundations of choice, action, and harmful conduct. First to be explored are the broad ideals that give moral character to a person’s actions: freedom, equality, and community or common good. Freedom (or autonomy), equality (in a ‘weak’ form), and community (in the ‘hard’ form of utility) are seen collectively to shape significantly the moral quality of human behavior. After these fundamental values are examined generally, their relative priority is next considered, followed by a discussion of the nature and ordering of the basic interests at stake in tort law. Finally, the chapter focuses briefly on the more specific questions of how the underlying values help define the wrongfulness, first, of intentionally harmful conduct; and second, of conduct that accidentally causes harm.
The Seriousness of Harm Thesis for Abnormally Dangerous Activities
Authors: KRESS KEN
Published: April 2012

This chapter concerns the reasons given for finding activities abnormally dangerous and therefore subject to strict liability. Once again, risk predominates. As Justice Linde states: ‘Whether the danger is so great as to give rise to strict liability depends both on the probability and on the magnitude of the threatened harm’. According to the received view, either small probabilities of large harms or large probabilities of small harms suffice for strict liability. On this common view, whether an activity is subject to abnormally dangerous strict liability depends upon the magnitude of the expected disvalue – a function of both the probability of harm and the magnitude of the harm – that it imposes. The chapter argues that the magnitude of the loss is the major factor determining abnormally dangerous activities.
Aggregate Autonomy, the Difference Principle, and the Calabresian Approach to Products Liability
Authors: ATTANASIO JOHN B.
Published: April 2012

To illuminate and develop further the principle of aggregate autonomy, this chapter compares that principle’s defense of Calabresian theory with one that might be offered by Rawlsian analysis including the difference principle. It reviews the salient points of the Calabresian approach to products liability. The chapter then explores potential Rawlsian justifications for the Calabresian approach both under A Theory of Justice and John Rawls’s recent work, Political Liberalism. The chapter describes the principle of aggregate autonomy and reviews its defense of Calabresian theory. It also compares these two defenses in order to contrast the difference principle and the principle of aggregate autonomy. The chapter tries to locate aggregate autonomy within the landscapes of tort law and moral philosophy. It finally reflects on the advantages of theories of the good, such as aggregate autonomy, over theories of the right, such as the difference principle.
Risk, Harm, and Responsibility
Authors: Perry Stephen R.
Published: April 2012

Since risk is one of the central concepts in modern tort law, any theory of torts rooted in notions of interpersonal justice and individual responsibility must get to grips with the questions presented in this chapter. With a view to contributing to a responsibility-based theory of tort law, this theory advances and defends those questions. It offers a general analysis of risk that draws on work in the philosophy of probability and suggests that there are two main conceptions of risk. The chapter also considers the thesis that subjecting another person to risk is a form of harm distinct from any physical harm the person might suffer. This thesis is most plausible if it is understood as presupposing the objective conception of risk. Even understood in that way, however, the thesis cannot be accepted; risk does not, it argues, constitute harm in itself. The chapter then considers moral responsibility for physical damage.
Necessary and Sufficient Conditions in Tort Law
Authors: HONORÉ TONY
Published: April 2012

Argument about causation inside and outside the law is often concerned with the following question: Must a cause be a necessary condition of a result, a sufficient condition of the result, or a necessary element in a set of conditions jointly sufficient to produce the result? This chapter supports the third view, both outside the law and inside it, whenever a sequence of physical events is in issue. A different but related idea can be used to explain reasons for human action, ‘causing’ or inducing people to act rather than causing things to happen. When causal connection must be proved, the law also settles what must be shown to have caused what. Tort law generally imposes fault liability on people who by their wrongful conduct cause harm to others; but sometimes it imposes strict liability on people whose specially dangerous activities, though not wrongful, cause others harm.
The Basis for Excluding Liability for Economic Loss in Tort Law
Authors: BENSON PETER
Published: April 2012

This chapter focuses on the so-called exclusionary rule and the basis for excluding liability for economic loss in tort law. It examines five different situations into which economic loss cases can be divided. The first ‘exclusionary’ situation is typified by circumstances where the defendant damages something in which the plaintiff may have a contractual interest (or something else that is less than a possessory or proprietary right) and this impairs the plaintiff’s interest, causing him financial loss. The two other ‘non-exclusionary’ situations are where the plaintiff’s financial loss arises through a special relationship of justified detrimental reliance by the plaintiff on the defendant, and where it results from the defendant’s intentional interference with the plaintiff’s contract with a third party.
Afterword What Has Philosophy to Learn from Tort Law?
Authors: WILLIAMS BERNARD
Published: April 2012

Philosophy might learn from tort law the difference between practical reality and philosophical frivolity. J. L. Austin was disposed to give that answer. Austin said that it was common sense or, perhaps, ordinary language, and one reason he sometimes gave for this judgement was a quasi-evolutionary one. This chapter presents what it calls a quasi-evolutionary account of the strength of some legal concepts and distinctions, the Picture. The Picture is without doubt highly idealised. There are perhaps two main directions from which this suggestion may come. One objection is that the Picture overestimates the effects of legal argument. The idea here is that cases are decided on the basis of external values or principles – such as wealth maximisation, utility, or equal freedom – and that the legal arguments and the concepts invoked in them (fault, negligence, intention, proximity of causation, or whatever) are, at the limit, merely rhetorical decorations.
A History of Private Law in Scotland
Authors: Zimmermann Reinhard , Reid Kenneth
Published: April 2012

Law in Scotland has a long history, uninterrupted either by revolution or by codification. This work is a detailed and systematic study in the field of Scottish private law. It takes key topics from the law of obligations and the law of property and traces their development from the earliest times to the present day.
The Development of Legal Doctrine in a Mixed System
Authors: Reid Kenneth , Zimmermann Reinhard
Published: April 2012

Private law scholarship in Europe has been, for about 150 years, predominantly national in substance, outlook, and approach. In continental Europe, the law has tended to accept the lex positiva as an immovable boundary of its intellectual endeavours and to solve all legal problems on the basis, and within the conceptual confines, of a national codification. This state of affairs has repeatedly been criticized. The directives enacted by the Council of the European Union, the case law emanating from the European Court of Justice, the legal problems arising from the application of the United Nations Convention on Contracts for the International Sale of Goods, they all increasingly affect the legal condition in most Western European countries. Private law in Europe is in the process of reacquiring a transnational character.
Historical Introduction
Authors: Cairns John W.
Published: April 2012

This chapter attempts to trace the changing nature of Scots law, focusing on its main institutions and taking into account the history of politics, social and economic life, and philosophy. The story is told from the emergence of the Scottish kingdom in 1832. By this date, the basic architecture and much of the sculptural detail of Scots law was in place. An epilogue to this chapter reviews some subsequent developments. The picture that emerges is not one of ‘false starts’. Nor is it one of simple continuity. In fact, the historical reality is too complex to reduce to simple descriptions or metaphors.
Transfer of Ownership
Authors: Carey Miller D. L.
Published: April 2012

For a large part of the development of Scots law there has been a tendency to think in terms of a distinction between moveable and immoveable property as a matter of doctrine rather than a mere distinction between the two major categories of property within a unitary law of property. A possible explanation for this at a general level is the scope for ambivalence in a system in which the very roots are to some extent mixed. Although the civilian distinction between real and personal rights came to be dominant it did so in a context which included legal concepts which were not civilian. The transfer of ownership in moveable property has been analysed in a number of recent works. This chapter accordingly concentrates entirely on immoveable property.
Servitudes
Authors: Waal M. J. De
Published: April 2012

This chapter focuses on servitudes. In many civilian systems, servitudes include both praedial and personal servitudes. In Scotland the position is different. Although older authorities maintain the distinction, Bell had already stated that ‘the only servitudes in Scotland are praedial’. It admits of no doubt that this is also the modern view, and the traditional personal servitude of liferent are not considered in this chapter. The word ‘servitude’ can be traced back to the Latin term servitus. Servitus is derived from the verb servire, which means ‘to be of service’. This, very literally, was the meaning attached to the legal concept of a servitude in the Roman law of antiquity. The lawyers of this early age did not feel the need, nor indeed did they possess the ability, to define the concept in formal jurisprudential terms.
Rights in Security over Moveables
Authors: Steven Andrew J. M.
Published: April 2012

In Scotland the law of rights in security over moveables remains underdeveloped. One of the greatest problems, and the one alluded to by the writers, is the rigid rule that in general there can be no real right in security unless the creditor has possession of the property. One of the aims of this chapter is to investigate how Scots law developed in order to reach this position. It attempts to examine the development of the three main types of real security over corporeal moveables: pledge, hypothec, and lien. Their history is explored to see to what extent they are based on Roman concepts and to what extent they have been influenced by other sources, in particular English law.
Water Law Regimes
Authors: Whitty Niall
Published: April 2012

The development of the Scots law of water rights broadly follows the familiar three-stage pattern found in areas throughout Scots law: a first medieval reception of English (Glanvillian) law, followed by a reception of Roman law as developed in the Europeanjus commune, followed by a second reception of English law beginning in the late eighteenth century. In the domain of water rights, doctrinal history can explain the taxonomic and semantic difficulties of the modern Scots law, a factor adding spice to the more truly historical task of understanding the universal and local factors which have influenced its development.