Regulatory Threats to the Law Degree: The Solicitors Qualifying Examination and the Purpose of Law Schools

Two major regulatory changes are affecting the provision of undergraduate legal education in England and Wales. On the one hand, the Qualifying Law Degree is being deregulated, meaning law schools are free to make significant changes to how and what they teach. On the other hand, higher education in England has seen a significant overhaul through the creation of the Office for Students, which treats students as consumers. Now more than ever, law schools need to ask themselves existential questions which will not only test their continued relevance or indeed viability within the ‘market’ for higher education, but also the status of the discipline of law as a whole. The regulatory landscape may indeed present a significant threat, but it is also an opportunity to reflect on what law schools are for, and consequently what changes could result from the academic freedom that comes with deregulation. Whilst different law schools will interpret their mission differently, they should caution against either generalised inertia or succumbing to an outcomes-oriented provision that simply prepares students for the new Solicitors Qualifying Examination. Instead, law schools will find their proper purpose in critical reflection and academic self-grounding, providing undergraduate students with a ‘question everything’ mentality, and showing them that law is something to be experienced and not merely learnt.

     

Walking the Tightrope: Harmful Acts and the Construction of Crime in the Norwegian Securities Markets

The main topic of this article is the regulation and the construction of insider trading as crime. Trading on inside information is not something new, but the dramatization and the attempt to regulate these acts by penal law are of quite recent date. This article tries to examine the simple question of why there has been such activity in this field the last 20–30 years and the goals of this regulation. The article points out the need for building trust in the financial markets, even if it might be illusory, especially when these markets have been opened for the money of ‘ordinary citizens’. It also stresses the importance of creating a ‘moral map’ in order to establish clearer lines between right and wrong in the rather blurry world of financial markets.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Derrida and the Philosophy of Law and Justice

Readings of Derrida’s work on law and justice have tended to stress the distinction between them. This stress is complicated by Derrida’s own claim that it is not ‘a true distinction’. In this essay I argue that ordinary experiences of the inadequacy of existing laws do indeed imply a claim about what would be more just, but that this claim only makes sense insofar as one can appeal to another more adequate law (whether the projection of a new law or an existing ‘higher’ law). Exploring how Derrida negotiates a subtle path between classical Platonism and classical conventionalism about justice, the attempt is made to take seriously Derrida’s aim to affirm the idea of a ‘mystical’ foundation of the authority of laws by taking ‘the use of the word “mystical” in what I venture to call a rather Wittgensteinian direction’.     

Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.     

The right of the child to be heard in education litigation: an analysis of the ‘intelligent design’ Pennsylvania case on the separation of Church and State in the public schools

This paper examines a seminal case in US education law regarding the separation of Church and State in the public schools. The issue decided was whether it is constitutional under American law for a school district to mandate reference to ‘intelligent design’ (ID) as an alternative to the theory of evolution whilst instructing students only in the latter. ID theory postulates an unspecified ‘master intelligence’ as being responsible for the origins of life. A Pennsylvania court found that ID was a religious theory and held the school district had officially endorsed ID contrary to constitutional requirements. The issue of children's participation rights was not raised by the parties or the Court and student views were not solicited. The reasons for this failure to allow students to be heard in the judicial proceedings are explored as are the implications for how the notion of children's rights is understood in North America.     

法律与道德：正义的法哲学及其发展——以瑞特纳帕拉法学思想研究为核心

正义的概念和范畴,在持不同理论立场的思想家眼中呈现出不同的样态,引发了人们对正义是否是一个值得法理学研究的对象这一问题的深刻思考。瑞特纳帕拉(Suri Ratnapala)通过对法律是什么、为何以及如何遵守法律的法哲学演进的梳理和追问,独创性地区分"依法的正义"和"法律的正义"两种概念,对于法律与道德以及正义的法哲学内核做出了当代诠释和发展。所谓"依法的正义",是指法律是实现正义的手段和工具;"法律的正义",则指特定法律的正义性或道德正当性。但是,只有个体间认知的耦合,才会导致关于正义行为的道德规则的汇聚和产生,因而正义的实现其实就是对以人类经验积累的方式得以建立的基本行为规范的遵守。不同正义理论的建构,旨在使我们共同走向一个美好的理想——运用法律手段建构一种适于人类生活和自由全面发展的社会秩序。     

Towards a ‘cultural theory’ of parliamentary party groups

This paper is primarily intended to be theoretically and methodologically suggestive. Its primary aim is to offer up ‘Grid‐Group’ or ‘Cultural Theory’ as a potential tool in legislative studies, and to give an indication of how it might be operationalised in order to study parliamentary party groups. Although the emphasis is on exposition rather than empirical demonstration, it also uses the theory to suggest why the British Parliamentary Labour Party (PLP) has traditionally been more ‘factionalised’ than its Conservative counterpart ‐ something which has often been observed, but rarely well explained.     

Jeremy Bentham and Equity: The Court of Chancery,Lord Eldon,and the Dispatch Court Plan

In 1929 Sir William Holdsworth argued that Jeremy Bentham wrote ‘the best criticism’ of Lord Mansfield’s attempts to ‘fuse’ law and equity that has ever been made. As the present article will show, Bentham was in fact in favour of a form of ‘fusion’ that consisted of the abolition of the procedural distinction between law and equity, the incorporation of the subject-matters ordinarily handled by equity courts into his Civil Code, and the inclusion of formal mechanisms to provide relief and to amend the law in his ideal constitution. In the immediate term, Bentham devised a series of ‘equity dispatch courts’ that would employ a summary method of procedure in order to clear the large backlog of Lord Eldon’s court of chancery. While he claimed that this project would be experimental and temporary, he often portrayed it as an avenue through which to instigate radical reform, and to eliminate entirely the need for separate systems of law and equity. However, it will be concluded that, with the exception of Henry Bickersteth, Bentham’s writings on equity gained little influence in the decades preceding the Supreme Court of Judicature Acts (1873–75), and achieved only a small circulation.     

Secondary education as a universal human right

Despite any international declarations to the contrary, basic education comes in practice to be conveniently regarded by governments as being synonymous with the level of schooling that the State stipulates is free and compulsory. Thus the operational definition of basic education is quite variable internationally and often does not include secondary schooling. Exacerbating the situation is the fact that international human rights instruments do not mandate that education be free and compulsory until the end of secondary school. However, these instruments do stipulate that the child's right to education involves the right to develop to their ‘full potential’. That is unlikely to occur for most children with less than secondary school completion as a ‘basic education’. It is argued here then that States have an obligation under international law to ensure access to inclusive school systems that facilitate secondary school completion by extending free, compulsory education to the end of secondary.     

The Current Status and Prospects of the 'Strategic Partnership' between the EU and China: Towards the Conclusion of a Partnership and Cooperation Agreement

Abstract: This article aims to evaluate legal aspects of the content and implementation of the ‘strategic partnership’ between the EU and the People's Republic of China. In the absence of a category of ‘emerging countries’ in international economic law, the Union must adapt its foreign policy with regard to this major economic and commercial power. Relations between the European Community and China are currently governed by a second‐generation agreement from 1985. However, a new dynamic has been set in motion since 2003, by the drawing up of preparatory documents by both parties and joint declarations at annual summits bearing on the ‘strategic partnership’. Seen in a long‐term perspective, this partnership helps provide a measure of predictability in relations between the two partners, through combining elements of ‘soft law’ and ‘hard law’. If the insertion of political dialogue into the strategic partnership seems to alter the coherence of the Union, notably with regard to the difficulties of implementing the dialogue on human rights, the added value of the partnership lies essentially in its economic and commercial aspects, through not only the putting into place of non‐binding ‘economic dialogues’ which cover a large spectrum of the relationship, but also by the multiplication of sector‐based accords in numerous areas (maritime transport, customs cooperation, etc.). This constant development has thus allowed parties, at the last annual summit, to envisage the conclusion of a new framework agreement: this is the origin of the mandate given to the Commission in December 2005 to conclude a partnership and cooperation agreement. This article will sketch out a forecast of the legal framework, measured against the yardsticks of Asiatic regional reconfigurations and the law of the World Trade Organisation (WTO). The commercial risks of the relationship could imply the integration of the domains known as ‘WTO plus’ into the future agreement, notably in the field of investments and intellectual property rights, which would introduce a greater variety into the agreement. That being the case, the negotiations risk being equally fragile at the political level, in particular concerning the insertion of a clause of democratic conditionality in the future agreement. Also, any clash between the values and the interests of the EU would be uncomfortably highlighted during negotiations.     

The Exclusion of (Failed) Asylum Seekers from Housing and Home: Towards an Oppositional Discourse

‘Housing’– the practical provision of a roof over one's head – is experienced by users as ‘home’– broadly described as housing plus the experiential elements of dwelling. Conversely, being without housing, commonly described as ‘homelessness’, is experienced not only as an absence of shelter but in the philosophical sense of ‘ontological homelessness’ and alienation from the conditions for well‐being. For asylum seekers, these experiences are deliberately and explicitly excluded from official law and policy discourses. This article demonstrates how law and policy is propelled by an ‘official discourse’ based on the denial of housing and the avoidance of ‘home’ attachments, which effectively keeps the asylum seeker in a state of ontological homelessness and alienation. We reflect on this exclusion and consider how a new ‘oppositional discourse’ of housing and home – taking these considerations into account – might impact on the balancing exercise inherent to laws and policies concerning asylum seekers.     

Criminal Law beyond the State: The European Model

This article will analyse two models of criminal law beyond the State, which are here termed ‘eunomic’ and ‘dialogic’. It will then focus on one case study, European criminal law, which was inherently ‘dialogic’ until the last decade of the past century but has now quite unique features. In accordance with classic liberal views, criminal law has always been conceptualised as one of the most salient attributes of the sovereign State. The monopoly on the use of violence was to be legitimised by the State's concern for the sphere of autonomy of the individual. It is submitted in this article that it is precisely this condition that is lacking in the current European model, which promotes security‐oriented paradigms of self‐fulfilment and effectiveness. However, criminal law, if properly conceived, could in theory function as a powerful vehicle of integration.     

Delegation and Authority: Authoritarian Liberalism Today

In light of the reforms undertaken for the sake of the Euro, the article revisits the concept authoritarian liberalism that was introduced in 1933 by the German public law scholar Hermann Heller. This notion seeks to capture the liaison between the ‘strong state’ and economic liberalism. The article suggests that this notion can be fruitfully used to designate the new governance of economic and monetary union. It argues, particularly, that it makes sense to speak of an authoritarian style of governance even if the latter does not wear vestiges of outright repression. Two different faces of authoritarian liberalism can be distinguished: one that looks more towards authoritarianism and another one that views authoritarian rule as a managerial strategy that is good for the economy. The article then speculates whether the EU has been, indeed, successful because it shifts between the two. Disturbingly, there may be something deeply as well as more accidentally authoritarian about European integration.     

Social justice jurisprudence of clinical education programme: A paradigm shift from legal education to justice education

The legal profession has remained relevant in bringing about positive transformation in society — with leaders, policymakers, and change makers around the world mostly possessing a background in the law. That said, the trust, and positive image, enjoyed by legal professionals continues on a declining path. Considered more glamorous, the legal profession has gone astray from the path of social justice. In this article, I argue that the negative perception of legal professionals is, in large part, because of the way legal professionals are taught and trained in law schools. I argue that legal teaching pedagogy in South Asia, and generally in developing countries, is a product of colonial structure. Even after the so-called decolonisation movement, law schools and universities, for example in South Asia, institutionalised a legal pedagogy unsuited to the epistemic actualities of their societies. A law student in South Asia was and continues to be taught the Western conception of what the law is and its relationship to justice. In a legal culture carrying the transplanted laws of the colonisers, the students of developing countries are meticulously trained in the technical skills of reasoning and interpretation by applying Eurocentric guidelines of positivist construction. In light of this, I propose a shift in legal education: to transform the existing legal education and pedagogy into ‘justice education’. I focus on the ancient principles — located in the Eastern legal philosophy — of empirical reasoning and the importance of the human nature of sociability in arriving at social justice. To combat the tendency of insulating law students from societal problems, I propose a social justice-driven legal pedagogy. I have also reflected on some practices that ‘are’ and highlighted other practices that ‘ought to be’. My thesis connotes that the legal profession has an innate role in building the capability of individuals who are deprived and excluded. In line with it, I present examples of scalable clinical legal education being practised specially by the Kathmandu School of Law that can create multidimensional legal professionalism.

     

Meeting the challenges of globalisation in legal education

The focus of this paper is a critical review of the impact of globalisation on international higher education at my own institution, the University of East London (UEL), where I am Programme Leader for LLB (Hons) Law, an undergraduate qualifying law degree. Globalisation, along with internationalisation, has been one of the forces that have most changed the educational landscape in this country over the last two decades. Although closely related to each other, globalisation and internationalisation are usually regarded as distinct forces – the former being defined as the economic, political, and societal forces pushing twenty-first-century higher education towards greater international involvement, while the latter describes the policies and practices of higher education developed to deal with this. Whilst these phenomena have wide implications for higher education as a whole, they present opportunities and challenges that are very specific both to an institution like UEL, which has a high proportion of students from international backgrounds, and to my own discipline, law, which has an increasingly global profile in terms of both legal education and professional practice.     

Diffusion of the Budapest Convention on cybercrime and the development of cybercrime legislation in Pacific Island countries: ‘Law on the books’ vs ‘law in action’

The Council of Europe Convention on Cybercrime,¹ referred to as the Budapest Convention on Cybercrime, has been diffused globally, and is serving as a benchmark or a ‘model law’ for drafting national cybercrime legislation in many countries worldwide. This paper argues that, through the mechanism of ‘state socialization’ combined with incentives, e.g. assistance in building law enforcement capacity, the diffusion of the Budapest Convention has had a profound influence on the development of cybercrime legislation in a number of Pacific Island Countries (PICs).² Some PICs have expressed their great interest in acceding to the Convention and ‘imported’ several provisions from the Convention. This article, nevertheless, contends that these PICs do not seem to consider carefully whether the ‘imported’ law is applicable to their existing law enforcement capacity. It is evident that various domestic factors, such as lack of resources, have deterred the enforcement of cybercrime laws in these countries. As the result, although those PICs would have adequate cybercrime laws ‘on the books’, ‘law in action’ is still feeble.     

The balance between equity and efficiency; reflections on the goals of the new Nigerian competition law

In January 2019, the Nigerian Government finally enacted its first competition law after several attempts to do so previously failed. Since all competition regimes advance one or more goals, the paper provides a critical evaluation of what the goals of the Nigerian Competition Law ‘is’ or ‘are’ and/or what they should be. This paper posits that discussion on goals must relate fundamentally to the true reason(s) the nation ‘needs’ an antitrust legislation and the relationship between these reasons (as reflected in the preamble of the legislation) and the prohibitory aspects of the law.Although the goal of competition is generally thought to be relating to promoting economic efficiency, however, for developing countries (including Nigeria), competition must compose of an important equity dimension. Ironically, the work uses the ‘developed’ experience of the EU in later stages to show that the goals of an antitrust policy are never static but dynamic and may not necessarily always admit of ‘efficiency’ considerations. This paper’s argument is that Nigeria needs a welfarist approach to competition which means efficiency should sit as a top objective and that any compromise on economic efficiency as the goal must be accommodated only to the extent that basic principles of a market driven competition is not harmed. Consequently, the work reflects on how the new Nigerian law has provided a balance between market efficiency and other goals of competition and how the new Nigerian competition body can operationalise this balance in the development of the nation’s antitrust policy. In this regard, the EU also provides some important enforcement lessons.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

The art of law (and the law of art) is perpetual crisis

In this performance-based work, which essentially concerns the fable of ‘Khi + Ordo’, we obliquely—through visual-textual storytelling—focus on what we call ‘the agency of the artist-scholar’, deconstructing, inter alia, many of the rules and regulations associated with the art-academic industrial complex—i.e., the institutional dictates to produce commodifiable works, the enforced metrics associated with authorised forms of research and publication, and the often-inelegant and mostly unnecessary dance that the artist-scholar performs with ‘all of that’. The photo-essay is developed from the archive of the Out of India Collective (OOI), but in association with the Metropolitan Transmedia Authority (MTA), its successor collective. It draws upon documents associated with OOI experiments in transmedia undertaken across multiple submissions for residencies, exhibitions, and publications in both academia and the art world in the years 2017–2019, even as it focuses upon the fable of ‘Khi + Ordo’. ‘Ordo’ is a synonym (or metaphor) for totalitarian states and regimes—‘regimes’ being, in this case, those that rule art + law. ‘Law’ here infers, through its negation, the appearance of a higher law, one that is entered upon when one resists assimilation to the rules and regulations associated with police states—incipient or otherwise. We call that other law ‘works-based agency’, and the artist-scholar is beholden to it once s/he departs company with all such quotidian systems of abject hegemony. One crisis leads to another, so to speak, on multiple levels and all at once.