Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

Foundations--a new vehicle for Jersey

The recent adoption of the ‘Foundations (Jersey) Law 200’—buildsupon Jersey's ability to provide offshore financial services.Alongside existing vehicles, such as companies, trusts and limitedpartnerships, the new law will introduce the concept of foundations.Long a part of the civil law system, it is anticipated thatfoundations will particularly     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.     

Cyber-trespass and 'Unauthorized Access' as Legal Mechanisms of Access Control: Lessons from the US Experience

The common law doctrine of trespass to chattels has recentlybeen revived and applied by courts in the United States (US)to cover intrusions (in the form of electronic signals) to computersystems connected to the Internet. These cases represent judicialrecognition of the need to protect certain unwanted intrusionsin cyberspace, though the principles developed therewith areremarkably expansive. As such, they overlap with the conceptof ‘unauthorized access’ under computer misuse legislationin the US and elsewhere. This overlap has yet to be judiciallyacknowledged. Since the US, the United Kingdom and other commonlaw countries not only share a common law ancestry but also‘unauthorized access’ principles as the primarytrigger for computer misuse, this paper seeks to examine theconsequences of developing a broad cyber-trespass doctrine beyondthe US, and its corresponding implications for judicial interpretationsof ‘unauthorized access’ in the common law world.     

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between twomodels: (i) the model of the ‘criminal law of the enemy’inspired by the national criminal law and rendered topical againby the attacks of September 11; (ii) the model of the ‘criminallaw of inhumanity’ symbolized by the paradigm of crimesagainst humanity. The latter model is better suited to takeaccount of the qualitative dimension of massacres, i.e. thefact that they, besides being mass offences (quantitative criterion),also offend against humanity. To establish a ‘criminallaw of inhumanity’ as a model with a universal, or universalizable,dimension, three conditions are necessary, which concern (i)the definition of the crimes, (ii) the assignment of responsibilityand (iii) the nature of the punishment. As for the definitionof the crime, one could implicitly deduce from the list of actsconstituting crimes against humanity (Article 7 of the InternationalCriminal Court Statute) that humanity so protected has two inseparablecomponents: the individuality of each human being, not reducibleto membership in a group, and the equal membership of each inthe human community as a whole. With regard to the second condition,it is not sufficient to hold responsible the de jure or de factoleaders; intermediaries and perpetrators, at all levels of hierarchy,must also be held accountable. As for the third condition, itis not sufficient to content oneself with the watchword of thefight against impunity without bringing up the nature and functionsof the punishment; hence the necessity not only to rethink therole ‘criminal’ law can play in a policy of punishment,but also to focus on prevention, reparation and reconciliation.Finally, the author suggests that the proposed model of a ‘criminallaw of inhumanity’ must be built through the interplaybetween municipal law and international law. On the one hand,the wealth of national legal systems — also with regardto penalties and responsibility — should be better integratedinto international criminal justice; on the other, nationalcriminal systems should be better adapted to conditions of internationallaw, through the introduction into domestic law of the definitionsof the crimes and also the rules for assigning criminal responsibility.     

Reconstructing Embedded Liberalism: John Gerard Ruggie and Constructivist Approaches to the Study of the International Trade Regime

In 1982, John Gerard Ruggie published a study of the postwarinternational trade and monetary regimes in which he introducedthe concept of ‘embedded liberalism’. A large andgrowing number of international trade scholars are finding Ruggie’sconcept of embedded liberalism an appealing one, and it nowoccupies a significant place on our conceptual horizon. In thisarticle, the author returns to Ruggie’s original articleto excavate lessons which are peculiarly relevant for currenttrade law scholarship. He argues that Ruggie’s accountof embedded liberalism usefully serves to destabilize commonassumptions about the objectives and normative underpinningsof the trade regime and thereby to expand our conceptions ofwhat a liberal trade regime might plausibly look like. On theother hand, he explains why he does not share the enthusiasmof those who see in embedded liberalism an attractive normativevision to guide WTO reform. In addition, and most importantly,the author draws attention to the constructivist theoreticalframework of Ruggie’s piece. He suggests that Ruggie’sarticle provides a useful introduction to the central elementsof constructivist thinking about international institutionsand shows how attention to constructivist insights has the potentialto significantly enrich and expand our understanding of thetrade regime and of trade law.     

Is Terrorism a Crime or an Aggravating Factor in Sentencing?

Common law systems, in criminal cases, distinguish between theguilt/innocence proceedings and the sentencing stage. This isnot the case in civil law systems where criminal trial consistsof a single phase, combining the inquiry into guilt with sentencing.Under common law practice many facts relevant for sentencingare considered irrelevant at the stage of finding guilt forthe commission of the crime. Aggravating elements, therefore,address a fundamental distinction of substantive criminal lawbetween guilt and dangerousness: guilt is a determination ofresponsibility for a prior wrongdoing; dangerousness is a speculativefuture determination. The intensification of terrorist activityin the past few years has made terrorism one of today's mostpressing problems. But is terrorism a crime or an aggravatingfactor in sentencing? In this article, the author challengesconventional wisdom regarding the meaning of ‘terroristcrimes’, by providing a conceptual understanding of ‘terrorism’,as well as articulating a theory of guilt. Terrorists seldomexpress ‘guilt’. The word ‘terrorism’describes, instead, an overriding motivation, a way of acting,rather than the objective circumstances of acting. Terrorismis nothing but common crimes although committed with an overridingmotivation of imposing extreme fear on the nation as such. Theauthor presents the conceptual grounds of the phenomenon ofterrorism as it has evolved through history, before enquiringinto the meaning of ‘terrorist crimes’: the overridingmotivation associated with the concept of terrorism constitutesthe degree of cognate dangerousness of terrorist crimes.     

Diego Garcia: British-American Legal Black Hole in the Indian Ocean?

Environmental risks from US military construction on the atollof Diego Garcia (British Indian Ocean Territory) since 1971include damage caused by large-scale ‘coral mining’,the introduction of invasive alien plant species, continuoustransits of nuclear material and unreported major fuel spills;these risks are now compounded by those of sea-level rise andocean acidification due to global climate change. The US andUK governments have evaded accountability by way of a persistent‘black hole’ strategy, contending that some nationallaws and international treaties for the protection of humanrights and the environment do not apply to the island—aposition confirmed by a controversial appellate judgment ofthe House of Lords in October 2008, essentially relying on ‘prerogative’colonial law. This article draws attention to the fallacy ofthe black-hole syndrome, and to its potentially fatal consequencesfor the British claim to a 200-mile environment protection zonein the Chagos Archipelago.     

Whose 'Conduct Unbecoming'?: The Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator

The article focuses on the decision of the Israeli MilitaryAdvocate General (MAG) to charge an officer who ordered theshooting of a handcuffed, blindfolded Palestinian demonstrator,and the soldier who executed the order, for ‘conduct unbecoming’.It advances the following propositions: (i) from the perspectiveof the applicable international law, the facts of the case qualifythe shooting as a war crime; (ii) said decision of the IsraeliMAG is indicative of a policy of tolerance towards violenceagainst non-violent civilian protest against the constructionof the Separation Wall; (iii) the implication of such policyis twofold: first, it might transform ‘conduct unbecoming’— which as a matter of law is a war crime — intoa crime against humanity; second, it may well be construed asan invitation to the international community to intervene throughthe exercise of universal jurisdiction.     

The Proprietary Foundations of Corporate Law

Recent work in both the theory of the firm and of corporatelaw has called into question the appropriateness of analysingcorporate law as ‘merely’ a set of standard formcontracts. This article develops these ideas by focusing onproperty law's role in underpinning corporate enterprise. Rightsto control assets are a significant mechanism of governancein the firm. However, their use in this way predicates somearrangement for stipulating which parties will have controlunder which circumstances. It is argued that ‘propertyrules’—a category whose scope is determined functionally—protectthe entitlements of parties to such sharing arrangements againsteach other's opportunistic attempts to grant conflicting entitlementsto third parties. At the same time, the legal system uses arange of strategies to minimize the costs such protection imposeson third parties. The choice of strategy significantly affectsco-owners’ freedom to customize their control-sharingarrangements. This theory is applied to give an account of the‘proprietary foundations’ of corporate law, whichhas significant implications for the way in which the subject'sfunctions are understood and evaluated.     

Law's Legitimacy and 'Democracy-Plus'

Is it the case that the law, in order to be fully legitimate,must not only be adopted in a procedurally correct way but mustalso comply with certain substantive values? In the first partof the article I prepare the ground for the discussion of legitimacyof democratic laws by considering the relationship between law’slegitimacy, its justification and the obligation to obey thelaw. If legitimacy of law is seen as based on the law beingjustified (as in Raz’s ‘service conception’),our duty to obey it does not follow automatically: it must bebased on some additional arguments. Raz’s conception oflegitimate authority does not presuppose, as many critics claim,any unduly deferential attitude towards authorities. Disconnectionof the law’s legitimacy from the absolute duty to obeyit leads to the second part of the article which consists ina critical scrutiny of the claim that the democratically adoptedlaw is legitimate only insofar as it expresses the right moralvalues. This claim is shown to be, under one interpretation(‘motivational’), nearly meaningless or, under anotherinterpretation (‘constitutional’), too strong tosurvive the pressure from moral pluralism. While we cannot hopefor a design of ‘pure procedural democracy’ (byanalogy to Rawlsian ‘pure procedural justice’),democratic procedures express the values which animate the adoptionof a democratic system in the first place.     

From the Contract of Employment to the Personal Work Nexus

This article describes the author’s plans for and designof his research project upon the Personal Work Contracts inEuropean Comparative Law; it seeks consultation with the readershipabout those plans and that design; and it develops two linkedaspects of the theoretical infrastructure for that project,namely the analysis of the ‘family of personal work contracts’and the analysis of the ‘personal work nexus’. Theanalysis in terms of the ‘family of personal work contracts’asserts the validity and utility of the wide and inclusive notionof the ‘personal work contract’ as a central organisingcategory for individual employment law and of a multi-dimensionalway of viewing and understanding this category as a family ofcontracts within which the contract of employment is of courseimportant but is not an over-dominant paradigm. The analysisin terms of the ‘personal work nexus’ argues thatthe contracts within this ‘family of personal work contracts’may be better understood if they are placed in the explanatoryframework of the ‘personal work nexus’, which isa concept of a yet looser and more comprehensive set of legallinks or connections within which personal work relations maybe cast. Ways are suggested in which these analyses may contributeto the better meeting of the regulatory needs of personal workrelations and in which those analyses might be refined and testedby means of a European comparative methodology.     

The Impact of Information Technology Development on the Legal Concept A Particular Examination on the Legal concept of 'Signatures'

This paper intends to explore the impact of Information technology(IT) development on the legal concept of ‘signatures’.To what extent and in which way does it impact on the legalconcept of ‘signatures’? This paper attempts toexamine this issue from an international and comparative perspective.It was found that IT development has different levels of impacton the legal concept of ‘signatures’ in differentjurisdictions. In the Common Law system such as the UK and theUS, it does not change the legal concept of ‘signatures’.However, it does put the legal concept on such an importantposition. On the contrary, IT development changes the legalconcept of ‘signatures’ in the Civil Law systemsuch as Germany and China.     

The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of 'Murder in Violation of the Law of War'

This article examines the legal origins of ‘murder inviolation of the law of war’, an offence defined in theUS Military Commissions Act (MCA) and resorted to in the caseagainst Salim Ahmed Hamdan. Hamdan was acquitted of conspiringto commit this offence based in part on a questionable legalinstruction. The acquittal may have been proper under a correctview of the law. Nevertheless, the specific context in whichthis offence was alleged, combined with the judge's instruction,highlights key aspects of the US approach to the prosecutionof unprivileged fighters for a ‘law of war violation’.This approach, which is substantially represented by the USSupreme Court's judgment in ex parte Quirin, has been criticizedby International Humanitarian Law (IHL) scholars as an erroneousview of customary IHL. However, close analysis of the legaland historical context in which this approach developed revealsthat ‘murder in violation of the law of war’ isa municipal US offence that represents an English common lawimplementation of the law of nations. This article explainswhy reading this offence to incorporate IHL war crimes, as Hamdan'sjudge did, is inappropriate in the context of the MCA and Hamdan'scase. It then demonstrates that the authorities relied uponby the Quirin Court, the Lieber Code and a treatise by authoritativeUS military law commentator, William Winthrop, understood punishmentfor law of war violations to be permitted by the law of nationsbut imposed under municipal law. Thus, ‘murder in violationof the law of war’ is properly viewed as a municipal,common law offence punishing unprivileged fighters. In futurestudies the author will address the appropriateness of prescribingand enforcing this municipal offence in extraterritorial armedconflict.     

The Paradigm of the War on Crime: Legitimating Inhuman Treatment?

Since 11 September 2001, a new paradigm has developed in criminallaw. Parallel to the idea of the ‘war on terror’,a paradigm based around ‘war on crime’ has emerged.Inevitably, however, a paradigm of war leads to abandoning scientificapproaches based on a legal-moral vision (crime, guilt and punishment)in favour of a merely pragmatic vision, which associates nationalsecurity with social defence. Based on an unclear concept ofdangerousness, presumed by simple membership in a group labelled‘enemy’, the goal is to neutralize, or even eliminate,the criminal/deviant. When combined with a denial of internationalprotections, deconstructing national criminal law thus runsthe risk of pushing a black hole through the rule of law. Manyhave criticized such a paradigm; however, the author pointsout that the paradigm of the war on crime (and more generallythe war on terror), provided that it respects internationallaw, can be useful, because it shows the need to overcome thebinary opposition between war and peace, as well as betweenwar crimes and ordinary crimes. Nonetheless, it must be clearthat this paradigm can only be one of transition. To overcomethe war–peace dichotomy in a global community and to reconstructthe relationship between terrorism and torture, neither a ‘warcrimes’ nor a ‘war on crime’ paradigm is trulysufficient. Only through the amplification of a paradigm of‘crime against humanity’ (itself unstable and evolvingbut free from the war metaphor) can we reconstruct humanityas a value and make it the cornerstone of any legal system.     

All the best things come to those who wait

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review of ideas, articles,books, films and other media. It will include replies (and rejoinders)to articles, the evaluation of new ideas or proposals, and reviewsof books and articles both directly and indirectly related tointellectual property law. In 1966, Professor Benjamin Kaplan gave the Carpentier Lecturesat Columbia University. His subject was copyright law and eachof his three lectures examined a different aspect of that subject.The first looked at the ‘First Three Hundred and FiftyYears’, the second at ‘Plagiarism Reexamined’,and the final at ‘Proposals and Prospects’. Theselectures were     

Part One of the Employment Act 2008: 'Better' Dispute Resolution?

This article will analyse Part One of the Employment Act 2008on employment dispute resolution and in particular the repealof the statutory workplace dispute resolution procedures onlyfour years after Regulations implemented them. It will beginby considering the background of increasing tribunal caseloadthat led to their introduction in the first place. Later sectionswill examine the replacement of these statutory procedures withwhat Ministers described as the triple package of a new AdvisoryConciliation and Arbitration Service (‘ACAS’) helpline,increased ACAS conciliation and a revised ACAS Code. The languageof repeal and the Act's reintroduction of the Polkey line ofcases might suggest that dismissal law is merely reverting backto its pre October 2004 position. This article will, however,conclude that Part One does not just ‘simplify’dismissal law, or ‘return’ the law to September2004 or indeed to any other time frame. Instead, it weakenskey procedural protections for employees potentially by conflatingthe 2002 Act's different tests of ‘automatically’unfair and ‘ordinarily’ unfair dismissals, for example.Lowering standards of procedural justice is significant in itselfbut this takes added importance for dismissed employees as tribunalsrarely investigate the substantive fairness of dismissals.     

Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC

The author discusses the interaction between international andnational law in determining whether a case is admissible fromthe viewpoint of complementarity (Article 17 of the Statuteof the International Criminal Court) and with regard to theconcept of ‘interests of justice’ (Article 53 ofthe same Statute). Complementarity does not separate nationalfrom international criminal jurisdiction; nor does it put themin conflict with each other — rather, it favours the aforementionedinteraction. In addition, the concepts of ‘ability’and ‘willingness’ tend to ensure an indirect harmonizationof national criminal systems around common international criteria.As for reliance on the notion of ‘interests of justice’when determining whether to initiate proceedings, accordingto the author, Article 53 envisages a compromise between prosecutorialdiscretion and strict legality, thereby enshrining a hybridizationbetween various national traditions. The author notes that thedecision to open investigations should be objective and foreseeable;to this end, she suggests some general criteria, which are intendedto serve as guidelines for establishing whether, in a specificcase, the interests of justice warrant the initiation of proceedings.