bluuebunny/crossref_metadata_2025 huggingface dataset:
Egalitarianism and the Evolution of Narrative
Authors: Berman Joshua A.
Published: January 2009

Scholars of the rise of the novel in 18th century England have noted that the evolution of the genre of the novel in place of the drama or the epic poem, reflects Enlightenment thinking about nature, about the individual, and about class differences. The novel emerges as a vehicle in which new literary techniques are developed that both reflected and in turn further spurred these humanist impulses. This development serves as a heuristic prism for the final chapter, which demonstrates how biblical narrative adapted and advanced modes of storytelling in the ancient Near East to better convey its egalitarian agenda. This occurs on the level of content: the Pentateuch's stories place the entire nation at center stage—as opposed to some divinely elected monarch—in a way not evinced anywhere else in the ancient Near East. But biblical narrative also advances the egalitarian agenda in a more subtle way—through the rhetorical tools it employs, the mechanics of storytelling. Even as covenant addresses the entire nation, it essentially challenges each member of the polity to strive for moral and spiritual excellence. The Pentateuch's stories—much like its sermons and law codes—essentially address each member of the polity. The poetics employed by biblical narrative place a premium on complex characterization and on highlighting the dilemmas and trials faced by its protagonists. From the story of the Garden of Eden through the challenges of leadership faced by Moses, biblical narrative emerges as an educational tool well‐suited to instructing the members of the polity, as each of them faces the challenges of jealousy, of temptation, of rising above self‐interest, of heeding God's word. To demonstrate how biblical narrative technique reflects and serves a covenant theology, this chapter compares the biblical account of the rescue of baby Moses (Exod 2:1–10) by Pharaoh's Daughter and the legend of the rescue of Sargon of Akkad as an infant. The two accounts are strikingly similar, and yet it is precisely on the score of characterization and highlighting the moral choices faced that the Bible's refinement of rhetorical tools emerges.
Explaining International Norm Change
Authors: Sandholtz Wayne
Published: January 2009

This chapter offers three main arguments. The first is a claim that existing perspectives on international norms are limited by their focus on norms as outcomes. The second main argument develops a general model of normative change. At the heart of the model is a cycle linking actions to disputes, disputes to arguments, and arguments to norm change. The final section of the chapter argues that the dynamic of international norm change over the past century exhibits an overarching pattern.
Refugees and Asylum
Authors: Chiu William
Published: January 2009

This chapter explores how, through various steps and missteps, international norms governing refugees and asylum-seekers have evolved in response to events and crises of the 20th century. The two great wars of the 20th century triggered crucial rounds of normative development. The debates over what to do with refugees created by World War I and the Russian Revolution led to ad hoc measures and an emerging norm of care for refugees. The Holocaust triggered a new cycle of norm change, out of which emerged international organizations (UNHCR) and treaties (the 1951 Convention and its 1967 Protocol) designed to ensure basic rights for refugees and asylum-seekers. In subsequent refugee crises, states have sought to limit their international responsibilities toward refugees.
The early cantatas
Authors: Jones Richard D. P.
Published: January 2009

This chapter focuses on Bach's early cantatas. The musical style Bach employs in his early cantatas is rooted in Lutheran tradition, though he takes full advantage of the immense range of formal and technical procedures available to Lutheran composers around 1700 and shows himself to be alive to ‘modern’ trends imported from Italy. There is no doubt that he must have learnt much from the sacred works of his predecessors and older contemporaries, such as Hammerschmidt, Rosenmüller, Buxtehude,Pachelbel, Schelle, and Kuhnau, as well as from prominent members of his own family, such as Johann Michael and Johann Christoph Bach.
The concerto and other genres
Authors: Jones Richard D. P.
Published: January 2009

This chapter argues that the various stylistic and formal elements that Bach assimilated from the Italian concerto were to become key factors in the development of his mature style, distinguishing it quite clearly from much of his earlier music. His various concerto transcriptions, toccatas, sonatas, and suites are discussed.
The Weimar cantatas
Authors: Jones Richard D. P.
Published: January 2009

This chapter explores Bach's cantatas for the Easter season, Christmas season, Lent-Easter, Trinity season, and Advent. Bach was exposed to much new Italian music at the Weimar court, guiding his own creativity in new directions. And his encounter with the new operatic style of libretto for the sacred cantata was clearly a decisive factor. Whereas the old type of cantata text, still used in Bach's early cantatas, consisted largely of biblical words and chorales, the new type was at first made up exclusively of madrigalian verse, designed to be set in an alternation of recitative and arias. Not long afterwards, however, the new type of libretto was modified by reintroducing biblical words and chorales alongside the madrigalian verse, thereby creating an element of continuity with past traditions. This mixed type is most relevant to Bach's Weimar period, for it was employed by Salomo Franck, resident poet at the Weimar court, during the years (1713-16) in which he collaborated closely with the composer.
Institutions of Law
Authors: MacCormick Neil
Published: January 2009

This book offers an original account of the nature of law and legal systems in the contemporary world. It provides the definitive statement of Sir Neil MacCormick's well-known ‘institutional theory of law’, defining law as ‘institutional normative order’ and explaining each of these three terms in depth. It attempts to fulfill the need for a 21st century introduction to legal theory marking a fresh start such as was achieved in the last century by H. L. A. Hart's The Concept of Law. Institutions of Law is written with a view to elucidating law, legal concepts, and legal institutions in a manner that takes account of current scholarly controversies but does not get bogged down in them. It shows how law relates to the state and civil society, establishing the conditions of social peace and a functioning economy. In so doing, it takes account of recent developments in the sociology of law, particularly ‘system theory’. It also seeks to clarify the nature of claims to ‘knowledge of law’ and thus indicate the possibility of legal studies having a genuinely ‘scientific’ character. It shows that there is an essential value-orientation of all work of this kind, so that valid analytical jurisprudence not merely need not, but cannot, be ‘positivist’ as that term has come to be understood. Nevertheless, it is explained why law and morality are genuinely distinct by virtue of the positive character of law contrasted with the autonomy that is foundational for morality.
On Persons
Authors: MacCormick Neil
Published: January 2009

This chapter analyzes the most basic normative attribute known to law, that of being a person. Specifically, it addresses the question: What is a person? The chapter then considers the various capacities of persons — both passive ones and active ones — and concludes with a discussion of status.
Wrongs and Duties
Authors: MacCormick Neil
Published: January 2009

Law is sometimes said to rest on a fundamental binary distinction, that between right and wrong. This chapter explores this distinction of right and wrong. It then attempts to tease out some particular juridical usages of the ideas of ‘duty’ and ‘obligation’, to show that we might not wish to treat these as fundamental in the same way, but as having somewhat specialized functions in denoting particular kinds of normative position or relation.
Powers and Public Law: Law and Politics
Authors: MacCormick Neil
Published: January 2009

This chapter discusses powers in public law, and the distinctive character of public as against private power, leading into a discussion of the interface between public law and politics. It argues that law and politics are certainly not and cannot possibly be opaque to each other. Mutual respect for the difference of roles in a constitutional regime of separated but mutually interactive powers is not only (in a trivial sense) essential to the security of such a regime; it is essential to a well-secured rule of law. The conceptual difference must be fully acknowledged between law as a normative order of right and wrong versus politics as a domain of statecraft guided by considerations of prudence.
Constraints on Power: Fundamental Rights
Authors: MacCormick Neil
Published: January 2009

This chapter begins with a discussion of the background to and evolution of the idea that there must be recognition of fundamental rights that no government can legitimately overthrow or undermine. It then considers the level of institutionalization such rights have achieved in the contemporary world. Finally, it returns to the question — Where is the line to fall between judicial and executive responsibilities? — and the doubt expressed about the desirability of institutionalizing fundamental rights in certain ways.
Criminal Law and Civil Society: Law and Morality
Authors: MacCormick Neil
Published: January 2009

This chapter reviews the most essential functions of law, including criminal law, within a contemporary constitutional state. It suggests that the most basic demand citizens ought to make of criminal law is that it contributes to securing the conditions of civility and social peace, thus sustaining civil society. This, however, cannot be a function of the criminal law alone, for without social justice the conditions of solidarity and civility are not capable of being achieved. Criminal law and public law have to work in tandem, and cannot work at all to these ends without background social conditions that the law does not establish, but which it can damage.
Private Law and Civil Society: Law and Economy
Authors: MacCormick Neil
Published: January 2009

This chapter argues that just as law interacts especially closely with politics when public law is in focus, so it interacts especially closely with economics when private law is in focus. The legal system, the political system, and the economic system together sustain, or perhaps constitute, the state and civil society. The chapter has five main sub-themes. The first concerns private law in its narrower sense, as the law of private life and private relationships. These relationships themselves belong within a broader set of concerns, those relating to the ‘private sector’ of the economy. The chapter considers private law in this broader sense, and how law and economy interact. Some general reflections on the institutions of private law are provided, with particular reference to the law of torts or delict and the forms of corrective justice involved in that. Finally, law, economy, and information are discussed, focusing particularly on the topic of intellectual property.
Positive Law and Moral Autonomy
Authors: MacCormick Neil
Published: January 2009

Morality is differentiated from law above all in being normative but not institutional. According to one approach, morality has the important character of enshrining and depending upon the autonomy of moral agents. This then indicates a fundamental distinction between morality and law, even though both focus often on essentially similar questions. This chapter presents an argument to this effect.
Laws and Values: Reflections on Method
Authors: MacCormick Neil
Published: January 2009

This chapter considers and seeks to rebut possible objections that might be raised to the methods adopted in this book in relation to the study of law and legal concepts, and to the line it takes concerning the possibility of ascribing any kind of scientific status to legal scholarship. A case is developed that supports the methodology of interpretative analytical inquiry intrinsic to the present version of the institutional theory of law.
Nonfinancial Disclosure between ‘Shareholder Value’ and ‘Socially Responsible Investing’
Authors: Denozza Francesco
Published: January 2009

Under European law, issuers of financial instruments must disclose as soon as possible information which would be likely to have a significant effect on the prices of those financial instruments. When a sufficient number of investors decide whether or not to carry out stock investments in a specific company after having taken into account nonfinancial information, information of this kind can have a significant effect on the prices. It follows that the disclosure of socially relevant data may be mandatory even when those data are financially immaterial and their disclosure may harm the company and its actual shareholders. Thus, we become aware of the existence of a conflict between investors interested in nonfinancial information and other investors. The European law's choice of imposing the disclosure of nonfinancial information, even when it could harm the company and its shareholders, puts the interest of investors concerned only with the maximization of the value of their shares after the interests of other investors.
Introduction
Authors: Reisberg Arad
Published: January 2009

This monograph is concerned with one of company law's most thorny aspects: the derivative action. The derivative action is the route by which shareholders — usually minority shareholders — are able to enforce the company's rights where directors have breached their duties. Derivative actions are an important aspect of the continuing debate about corporate governance in the UK, the US, and many other jurisdictions worldwide. The theoretical inquiry advanced in this book is predicated on five interrelated suppositions. The book conceptualizes these underlying themes in an effort to move and extend the discussion on derivative actions beyond its current scope, and in particular, to these areas which are traditionally overlooked. It provides a fundamental reassessment of the nature and objectives of the derivative action, and conceptualizes a new model of the derivative action mechanism.
Methods Used by International Courts and Tribunals to Engage in Cross-Fertilization
Authors: Brown Chester
Published: January 2009

This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.
Remedies in International Adjudication
Authors: Brown Chester
Published: January 2009

This chapter considers whether international courts have common approaches to the granting of remedies. It first examines the source of the power to award remedies. It then explains the obligation in international law to make ‘full reparation’, and briefly details the three different forms of reparation (restitution, compensation, and satisfaction). It notes that there is some disagreement on whether each of these is appropriate as a judicial remedy in all cases. The next section cites examples where the various forms of reparation have been awarded in particular disputes, and includes a discussion of the existence of mandatory or consequential orders as a possible remedy. Finally, the chapter examines the availability of remedies in WTO dispute settlement, and notes that although this is largely a lex specialis, there is evidence that the law of reparation has some relevance.
A Common Law of International Adjudication: Reasons and Limitations
Authors: Brown Chester
Published: January 2009

This chapter suggests reasons for the emergence of the common law of international adjudication. The factors that are relevant include the similar drafting of the constitutive instruments of international courts, the ability of international courts to reach similar interpretations of their constitutive instruments, and the operation of the doctrine of precedent. Further reasons include the existence of inherent powers, the similar functions of international courts, and also the fact that there is a relatively small group of international lawyers that appear before and sit on international courts. There are, however, limitations to the development of a common law of international adjudication, such as the particular drafting of constitutive instruments, the specific functions of different international courts, the different relationship between each international court and the parties before it, and also that it may not be desirable from a normative viewpoint for international courts to adopt common approaches in all cases, for specific procedures may be desirable in certain circumstances.
The Scope of Application of Competition Laws
Authors: Noonan Chris
Published: January 2009

This chapter examines the scope of application of the competition laws in the US, the EU, and Japan. A number of legal rules determine the effective scope of application of competition laws. The analysis suggests a trend towards acceptance of the exercise of jurisdiction based on anticompetitive effects.
The Proper Scope of Transnational Competition Law
Authors: Noonan Chris
Published: January 2009

This chapter addresses the issue of whether an additional, broader international antitrust defence should be recognized and the form that such a defence should take. Section 10.2 argues that a qualified effects doctrine is a justifiable and superior rule to territorial jurisdiction for determining the scope of application of competition law. Section 10.3 examines various ways to reduce the extent of concurrent jurisdiction. Section 10.4 examines ways to improve the management of concurrent jurisdiction. Section 10.5 summarizes the conclusions of Part II of the book.
Dispute Settlement and Enforcement
Authors: Noonan Chris
Published: January 2009

This chapter examines the position of private parties and states in disputes under an international competition law agreement. It focuses on the WTO Dispute Settlement Understanding (DSU) because it already has dealt with, and will deal with further, international competition law disputes. It argues that a dispute settlement process for international competition law may be more effective if it was part of the WTO. However, the nature of DSU procedures limits the types of disputes that can be effectively dealt with by the DSU and should limit the ambitions of any WTO agreement on competition law.
The Emerging Principles of International Competition Law
Authors: Noonan Chris
Published: January 2009

This chapter briefly summarizes the conclusions of this study and presents a set of emerging principles of international competition law. The emerging principles seek to align the components of the international competition law system that builds a consensus among states that the long-term interests of all states would be advanced if international competition law had the overall objective of maximizing global consumer welfare. The emerging principles include (1) subsidiarity; (2) no common competition law; (3) a multifaceted international institutional agreement; (4) non-discrimination and consistency; (5) procedural fairness; (6) transparency; (7) ensuring effective enforcement; (8) competitive effects jurisdiction; (9) international enforcement cooperation and judicial assistance; (10) from technical assistance to enforcement cooperation; and (11) dispute settlement.
Introduction
Authors: Shany Yuval
Published: January 2009

This introductory chapter situates incidents of interplay between national and international courts over similar disputes within a broader legal and historical context: the penetration of international law into domestic law and the expansion of domestic law across national borders. These developments have resulted in increased interaction between national and international judicial proceedings and have contributed to the blurring of the distinction between national and international law, and between national and international law-applying institutions. The chapter also briefly discusses the main conceptual obstacles to regulating the jurisdictional relations between national and international courts: dualism, hierarchy and disintegrationism, and explains why failure to regulate the aforementioned jurisdictional relations entails certain costs for the parties, the courts involved and international law in general. Finally, the chapter sets out the research question, the structure of the work, and the methodological limits encountered.
Flexible Jurisdiction-regulating Rules
Authors: Shany Yuval
Published: January 2009

This chapter discusses the application of two general principles that may regulate the jurisdictional relations of national and international courts: comity and abuse of right (abus de droit). It explains the policy rationales underlying both principles, the legal basis for applying them, and the promise of overcoming conceptual hurdles which their inherent flexibility provides. It then explores a series of procedural contexts in which they may be applied — stay of proceedings designed to facilitate cross-fertilization between one set of proceedings and more advanced or suitable parallel proceedings, considering the effects of past decisions on similar or related matters, deferential review of previous decisions, providing other courts involved in the litigation process with discretion in implementing judicial decisionsm, and addressing different forms of misconduct by the parties.
Conclusions
Authors: Shany Yuval
Published: January 2009

This concluding chapter presents the main thesis expounded in the book, i.e., that the increased interaction between national and international laws and institutions warrants the rethinking of traditional notions concerning the jurisdictional relations between national and international courts. Specifically, it argues that judges in national and international courts are faced with a number of policy choices relating to jurisdiction-regulation: e.g., how to conceptualize the jurisdictional relations between national and international courts, how to ascertain similarity in the proceedings, and whether to aspire for an integrative or disintegrative approach in dispute settlements. Unlike specific jurisdiction-regulating norms, whose application to national and international proceedings is mired up in doctrinal uncertainty and may be too rigid in nature, broad principles, such as judicial comity and abuse of right, appear to offer a suitable legal framework within which the aforementioned policy considerations can be applied.
2 Receiving Gifts in Ecumenical Dialogue
Authors: O'Gara Margaret
Published: January 2009

Ecumenical dialogue allows the churches to receive the gifts they need, but it also demands a readiness for such reception. This chapter considers receiving gifts in ecumenical dialogue in four steps: ecumenical gift exchange as reception; different ways of exchanging gifts; gifts offered but not received; and ecumenical partners and reception.
4 Becoming Catholic Persons and Learning to Be a Catholic People
Authors: Sheldrake Philip
Published: January 2009

This chapter argues that Catholic Learning and Receptive Ecumenism are more than purely ecclesiological concepts. Catholicity does not concern merely a certain style, distinct from other competing Christian forms. Catholic Learning does not simply refer to what (Roman) Catholicism might learn with integrity from other traditions. It suggests that ‘ being Catholic’ is something learned progressively and that we are to resist the siren voices both of premature certainty and of purification by processes of exclusion. It also suggests that there is a distinctively Catholic way of learning that is, by definition, integrated and that counteracts the separation of the intellectual from the practical and theology from spirituality — the conduct of a Christian life.
10 A Methodist Perspective on Catholic Learning
Authors: Chapman David M.
Published: January 2009

This chapter affirms Pope John Paul II's description of ecumenical dialogue as involving ‘an exchange of gifts’ in order to identify a number of characteristic ecclesial endowments present in Methodism which Catholics might fruitfully receive in the process of Receptive Ecumenism. Methodism claims no special gifts, beyond those ordinarily bestowed on the church by the Holy Spirit for the sake of its mission, but has been raised up by God to spread scriptural holiness. Arising out of its historic mission and fruitfulness, Methodism has various ecclesial endowments to offer Catholics in any mutual exchange of gifts. These are considered here under six headings: Corporate Christianity (the nature of Christian community); Watching Over One Another in Love (discipline); Connexionalism and Christian Conference; The Contribution of Laypeople; The Call to Holiness; and The Means of Grace.
17 Receptive Ecumenical Learning and Episcopal Accountability Within Contemporary Roman Catholicism—Canonical Considerations
Authors: Connolly Patrick
Published: January 2009

This chapter examines the extent and limitations of the resources that exist within the 1983 Code of Canon Law of the Latin Catholic Church for addressing one particular perceived area of weakness in the internal governance of the Roman Catholic Church, namely: episcopal accountability, as this has come under scrutiny in the light of the sexual abuse scandals in the English-speaking world. The ensuing crisis has given these matters a new and compelling relevance as it becomes obvious that such weaknesses have practical implications and significant consequences for the church's credible preaching of the Good News in a sceptical world. The concern here is to explore how in this specific regard the gap that can open up between the high rhetoric of Roman Catholic self-understanding and the actual reality of practice and structure might be narrowed.
20 Jerusalem, Athens, and Zurich—Psychoanalytic Perspectives on Factors Inhibiting Receptive Ecumenism
Authors: Smyth, OP Geraldine
Published: January 2009

This chapter examines the relationship between the challenge of Receptive Ecumenism and psychoanalytic dynamics relating to the loss and reconfiguration of identity. The chapter begins with two brief opening sections respectively indicating the relevance of psychoanalytic factors to matters of faith and introducing some methodological considerations. It then focuses on issues relating to the loss of meaning and the loss of identity before considering the character of ecclesial identity. These last three sections are organized in relation to the cardinal virtues of faith, hope, and love, respectively.
32 Receiving the Experience of Eucharistic Celebration
Authors: Phillips Peter
Published: January 2009

This chapter argues that ecumenism is facing a critical moment and that it is important to seek out ways in which to appropriately move forward. It discusses the concepts of Eucharistic sharing, Eucharistic hospitality, Eucharistic receptivity, the authority of experience, and the two-way process of learning.
Substance Causation, Persons, and Free Will
Authors: Lowe E. J.
Published: January 2009

This chapter more fully explains why all causation is fundamentally substance causation — that is, causation by ‘individual substances’, or persisting, concrete objects — rather than causation by events. It is then explained how the versions of substance dualism in the philosophy of mind and libertarianism in the philosophy of action that are defended in the book can be very naturally accommodated within a view of the physical world which takes seriously the fundamental status of substance causation.
Rational Selves and Freedom of Action
Authors: Lowe E. J.
Published: January 2009

This chapter develops an externalist account of reasons for action in more detail against familiar objections raised against such accounts by internalists and advocates of event-causal theories of intentional action. A libertarian substance-causal approach to the problem of free will is defended in depth against the charges that it reduces free actions to mere chance events and provides no intelligible account of agential control. Finally, it is argued that we are rationally committed to the truth of a libertarian account of rational free action.
Towards Integration of United Nations Human Rights Treaty Body Recommendations: The Rights-Based Approach Model
Authors: O'Flaherty Michael
Published: January 2009

The seven principal United Nations-sponsored human rights treaties stipulate that states parties submit periodic reports to the respective treaty monitoring bodies on their implementation of the treaty obligations. Following a report review, the treaty body in question issues a set of ‘Concluding Observations’ containing its collective assessment of the state's record and recommendations for enhanced implementation of the rights in question. This chapter analyzes the weaknesses of the current system of uncoordinated recommendations between the seven UN treaty bodies, and highlights the need for integration of the recommendations. Failure to do so could give rise to ‘clashes of approach’ and cases of ‘inconsistent or contradictory recommendations’. Integration of the approaches of the treaty bodies based on a human rights-based approach can enhance the structure and fulfilment of the obligations under the main human rights treaties, including the ICESCR, as well as the work of the respective Committees, including the ESCR Committee.
The African Commission on Human and Peoples' Rights and the Implementation of Economic, Social, and Cultural Rights in Africa
Authors: Baderin Mashood A.
Published: January 2009

This chapter examines the implementation of economic, social, and cultural rights (ESC rights) under the African human rights system through a critical evaluation of the activities of the African Commission on Human and Peoples' Rights (the Commission). It highlights possible ways of enhancing the realization of the economic, social, and cultural rights guaranteed under the African Charter on Human and Peoples' Rights (ACHPR). It argues that the jurisprudence of the African Commission on ESC rights ‘boldly establishes the justiciability of ESC rights and thereby challenges the outdated notion of the non-justiciability of ESC rights’. However, there can be further improvement to ensure the full and practical realization of the ESC rights under the African regional human rights system.
A Human Rights-Based Approach to Health Indicators
Authors: Hunt Paul , MacNaughton Gillian
Published: January 2009

In 1993, the World Conference on Human Rights urged the examination of ‘a system of indicators to measure progress in the realization [of ESC rights]’ because the use of specific human rights indicators gives clarity to the level of compliance by states and so could prevent ‘recalcitrant States’ using the International Covenant on Economic, Social and Cultural Rights (ICESCR) obligation of progressive realization as an ‘escape hatch’. This chapter examines this important issue with reference to the right to health. It shows that indicators play an important role in measuring and monitoring the progressive realization of the right to health. The application of the human rights-based approach to health indicators to the Reproductive Health Strategy endorsed by the World Health Assembly in May 2004 is discussed.
Culture, Cultures, and Cultural Rights
Authors: McGoldrick Dominic
Published: January 2009

This chapter considers the challenges of dealing with culture and cultures, as well as the ideas and substance of cultural rights, especially article 15 of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) — the core binding provision on cultural rights in the international human rights system. It examines the two new recent international texts relevant to cultural rights: General Comment 17 of the International Committee on Economic, Social and Cultural Rights (the Committee on ESC Rights), adopted in 2005; and the United Nations Economic, Social and Cultural Organization (UNESCO) Convention on the Protection and Promotion of the Diversity of Cultural Expressions, also adopted in 2005. Finally, it offers some concluding reflections and suggests that there may be signs of a renaissance for culture and cultural rights.
Locus Standi of Individuals under Article 230(4): The Return of Euridice?
Authors: Tridimas Takis , Poli Sara
Published: January 2009

Sir Francis Jacobs has been one of the most influential Advocates General in the history of the Court of Justice. He became a member of the Court in October 1988 and served until October 2005, thus being the second longest-serving Advocate General and one of the longest-serving members of the Court. This chapter examines his contribution on locus standi of individuals under Article 230(4). The contribution of Jacobs AG in this area of law can be traced primarily by reference to his opinions in Extramet, UPA, and, more recently, ARE. The chapter focuses on his opinion in UPA and the resulting trialogue among Jacobs AG, the CFI and the ECJ as it unravelled in UPA and subsequent case law.
The Strasbourg Perspective and its Effect on the Court of Justice: Is Mutual Respect Enough?
Authors: White Robin CA
Published: January 2009

This chapter focuses on the relationship between the Strasbourg Court and the European Court of Justice. Specifically, it addresses the question of whether mutual respect between the two Courts is enough to secure guarantees for the protection of human rights in the European Union. It is argued that it is sufficient in the current state of development of the protection of human rights by international organizations, but nevertheless leaves a human rights deficit. This refers to areas where there is no judicial supervision of compliance with human rights obligations.
Administrative Justice and Standards of Substantive Judicial Review
Authors: Jowell Jeffrey
Published: January 2009

This chapter addresses the question of whether there is or should be a single test for judicial review of the substance of a public authority's decision. It argues for the democratic necessity of substantive administrative justice. The standards of substantive review are discussed.
Recurring Cycles in the Internal Market: Some Reflections on the Free Movement of Services
Authors: Biondi Andrea
Published: January 2009

This chapter focuses on the possible boundaries of Article 49 EC Treaty, and attempts to delineate what is ‘outside’ more than on what is ‘inside’. Particular attention will be devoted to the ‘self-restraint’ and ‘legislative’ generations, where the parallels with the law on free movement of goods seem to provide for some contradictory results.
Dual-use Goods: (Mis)Understanding Werner and Leifer
Authors: Dashwood Alan
Published: January 2009

This chapter argues that the current dual-use regime, based entirely on a Community regulation, is technically defective. It has limited practical importance since, apart from the addition of New Zealand, the only changes to the list of ‘good guys’ in Annex II relate to countries that have now joined the EU. However, the ramifications of the misunderstanding of the cases of Werner, Leifer, and Centro-Com in litigation and in the academic literature, extend far more widely.
The Effect of EU Law on the Italian Courts
Authors: Tesauro Giuseppe
Published: January 2009

This chapter examines the impact of EU law on the Italian legal system. Topics discussed include the relationship between Community law and domestic law, and substantive and procedural law. It is argued that dialogue with the ordinary judge, who usually interprets and applies Community law, is enriched by the preliminary ruling mechanism, which builds on the synergy between the Community judge and the national judge to create the very richness of the Community legal system and the fundamental reason for its success.
On the Law of Peace
Authors: Bell Christine
Published: January 2009

This book provides a comprehensive analysis of the use of peace agreements from a legal perspective. It describes and evaluates the development of contemporary peace processes and the peace agreements that emerge. At its heart, the book grapples with the role of law in ending violent conflict and the broader questions this raises for the relationship of law to social change. Law potentially plays two key roles with respect to peace agreements. First, to the extent that peace agreements themselves form legal documents, law plays a role in the ‘enforcement’ or implementation of the peace agreement; second, international law has a relationship to peace agreement negotiation and content, in its regulatory guise. International law regulates self-determination, transitional justice, and the role of third parties. The book documents and analyses these two roles of law, revealing a complex and dynamic relationship between them. The practice of negotiating peace agreements is argued to be producing a new law of the peacemaker — or lex pacificatoria that connects developments in international law with new forms of domestic constitutional law in a set of hybrid relationships. This lex pacificatoria potentially forms part of a broader ‘law of peace’ that moves beyond the traditional concept of the law of peace as merely ‘the rest of international law’ once the laws of war are subtracted. The new lex pacificatoria stands as an account of the way in which international law shapes and is shaped by peace agreements. The book proposes an ambivalent response to this ‘new law’ which connects to contemporary debates about the force of international law and its appropriate relationship with domestic constitutionalism.
The Contemporary Peace Agreement
Authors: Bell Christine
Published: January 2009

This chapter sets out a common substance to contemporary framework peace agreements. The centre-piece of peace agreements is the provision they make for the holding and exercising of political power. Peace agreements across conflicts evidence strikingly similar arrangements and devices for accommodating the competing demands of the conflict's protagonists. An analytical conceptualization of the common peace agreement framework with respect to how power is to be held and exercised, is provided. In general terms, peace agreements attempt conflict resolution by (i) redefining the state; (ii) disaggregating power; and (iii) dislocating power. The chapter illustrates the analytical framework with reference to a varied range of conflict types rather boldly suggesting that virtually all peace agreements reaching the framework stage — and many more proposals for resolution — exhibit this common framework, completely or in substantial part.
The Difficulties of Legal Classification
Authors: Bell Christine
Published: January 2009

This chapter deals further with the technical difficulties of legal classification, and begins to demonstrate how a simple choice between a law and a nonlaw form of agreement does not exist in the peace agreement context. Rather, opting for legal form for peace agreements in intrastate conflict involves sacrificing a correlation between the parties to the written agreement and the parties to the underlying ‘agreement’. The chapter analyses whether the difficulty of finding a legal form for peace agreements matters to their implementation, or is a purely academic matter.
Constitutionalizing Conflict
Authors: Bell Christine
Published: January 2009

This chapter demonstrates how peace agreement solutions cannot be understood as a common set of conflict resolution techniques, but must be understood as a distinctive form of constitutionalism. Peace agreements are classically constitutions, with similarities to other forms of constitution and exhibiting their classic dilemmas. However, peace agreements are also distinctive in exhibiting and resolving constitutional law's classic dilemmas in peculiar ways. The distinctiveness of peace agreement constitutionalism is argued to lie in their conceptual hybridity as between international and domestic law, process and substance, and representative and participative democracy.
The New Law of Transitional Justice
Authors: Bell Christine
Published: January 2009

This chapter examines the second area in which the lex pacificatoria has re-shaped international law: transitional justice. This new law is argued to derive from the attempt to negotiate pragmatic solutions to the question of accountability for conflict atrocities which will enable the ‘constitutional fix’ to hold, and the need to be able to articulate these pragmatic solutions as complying with international legal standards for accountability. In particular, the new law has derived from an attempt to apply the normative constraints of human rights and humanitarian law to peace agreement amnesties. The interface between local peace agreement practice and international law can again be argued to have given substantive content to the lex pacificatoria or law of the peacemaker, producing a ‘new law’ of transitional justice.
Persons and Minds
Authors: Farkas Katalin
Published: January 2009

Our list of mental features is the same as the Cartesian list, and rather different from, say, the Aristotelian list of psychological powers. The present proposal is not committed to dualism about mind and body, but it does imply a certain duality about our nature: there is something in our nature that we share with the rest of the created world, and there is something that is distinctively human. The latter aspect is described here by saying that we are persons. The suggestion is that a person is a creature who has the kind of mind we have. Here lies the significance of the Cartesian conception of the mind: it offers us a list of mental phenomena which is put together on a principled basis; and it is the possession of these attributes that provides the criteria for personhood.
Reputation and the History of Defamation
Authors: McNamara Lawrence
Published: January 2009

Histories of defamation regularly observe that the common law is riddled with anomalies and its development exhibits little doctrinal coherence. To escape the strictures of this traditional doctrinal analysis and with a view to garnering richer insights, the history of defamation law is analysed through the prism of reputation. This chapter explains the extent to which reputation was protected — and not protected — in jurisdictions where defamation laws predated the common law action. Section I explains the methodology used to cast light on the relationships between law and reputation. Section II examines those relationships in the local courts, the ecclesiastical courts, and under the scandalum magnatum statutes. This and the following chapters show that the conceptual and doctrinal dimensions of the common law cannot be fully understood without a grasp of the relationships between defamation and reputation in the jurisdictions that preceded it.
The Development of the Common Law Actions
Authors: McNamara Lawrence
Published: January 2009

This chapter explains how and why the common law approached the actionability of words as it did. At first, only certain forms of words were actionable and these were neither connected nor underpinned by any clear conceptual or doctrinal rationale. Later, influenced by the Star Chamber's criminal libel laws, the action for written defamation became more broadly based and was founded upon a generalized principle that made damage to reputation actionable. This shift marked the birth of modern defamation law because it sat within the intellectual framework of Enlightenment philosophy and science. In the 19th century treatises, there is a new claim that the common law protected reputation and there are attempts to derive general statements of legal principle from the disparate body of cases. These developments were to have a profound influence on the shape of the modern common law and its relationship to the protection of reputation.
Ethical Recognition, Moral Diversity, and ‘The Right-thinking Person’
Authors: McNamara Lawrence
Published: January 2009

The meaning of ‘the right-thinking person’ has in recent years become less clear and highly contested. This chapter examines how, if at all, ‘the right-thinking person’ should form a part of the current law of defamation. Cases concerning imputations that a white person is African-American illustrate how ethical recognition has functioned in the context of moral diversity and reveal a shift in the content of ‘the right-thinking person’. Cases about imputations of homosexuality help explain that shift, showing changes in the approaches to ethical recognition and the refusal of ethical recognition. Liberal and communitarian scholarship is revisited to propose a modest shift in the presumptions associated with the views of ‘the right-thinking person’ in order to build a more coherent, transparent, and principled approach to the determination of actionability and the legal protection of reputation. The theoretical and practical dimensions of this are combined through a series of sample judgments to show how the proposal can be operationalised by the courts.
Bills of Rights and Decolonization
Authors: Charles Parkinson
Published: January 2009

This book analyzes the British Government's radical change in policy during the late 1950s on the use of bills of rights in colonial territories nearing independence. More broadly it explores the political dimensions of securing the protection of human rights at independence and the peaceful transfer of power through constitutional means. This book fills a major gap in the literature on British and Commonwealth law, history, and politics by documenting how bills of rights became commonplace in Britain' s former overseas territories. It provides a detailed empirical account of the origins of the bills of rights in Britain's former colonial territories in Africa, the West Indies, and South East Asia as well as in the Atlantic and Pacific Oceans. It sheds light on the development of legal systems at the point of gaining independence and raises questions about the colonial influence on the British legal establishment's change in attitude towards bills of rights in the late 20th century. It presents an alternative perspective on the end of Empire by focusing upon one aspect of constitutional decolonization and the importance of the local legal culture in determining each dependency's constitutional settlement and provides a series of empirical case studies on the incorporation of human rights instruments into domestic constitutions when negotiated between a state and its dependencies. More generally, this book highlights Britain's human rights legacy to its former Empire, and traces the genesis of the bills of rights of over thirty nations from the Commonwealth.