The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Merger—the name of the FE game

In the Australian legal environment today the overwhelming importance of laws made by Parliament is obvious, yet many first year law programmes pay insufficient attention to the coordinated teaching of statutory interpretation (SI). This project formed part of a collaborative initiative between an educational developer and the coordinator of legal research methods (LRM) to introduce statutory interpretation into a first year unit of study. Our study used a qualitative research framework – a questionnaire was administered to students at two intervals throughout the first semester. In Week 3, 160 students participated in the questionnaire and at Week 4, a keystone module on statutory interpretation using a building block approach was introduced in LRM. Since the nature of assessment in LRM is largely reflection, this unit lent itself well to investigating the language and literacy challenges of statutory interpretation, in particular, to students monitoring their own progress in this regard. The overall aim of the project was to establish a framework for students to build on their knowledge and understanding of statutory interpretation throughout their undergraduate studies, and in the interests of improved learning and teaching outcomes, for staff to be able to document the changes in student thinking. This paper focuses on the preliminary stage of our investigation into the language and literacy challenges involved in introducing statutory interpretation into a first year unit of study.

I know of only one authority which might justify the suggested method of construction. “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

(Alice Through the Looking Glass, c. vi.)

After all this long discussion, the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.

(Lord Atkin in Liversidge v Anderson [1942] AC 206)     

Lawyers’ wellbeing and professional legal education

Abstract

THIS PAPER examines the wellbeing and satisfaction levels of lawyers in the workplace. It argues that research suggesting a crisis in the legal profession in the United States is comparable with research on wellbeing and levels of satisfaction for lawyers in Australasia. Some reports in both jurisdictions are critical of conventional legal education and practical legal training programs, which do not encourage students to develop personal and interpersonal skills that can improve self‐awareness, communication skills and the capacity to manage stress and anxiety. Consequently, law students are allowed to assume that these “soft skills” are less important for lawyers compared with cognitive skills such as “knowing the law” and “thinking like a lawyer”.

The paper describes the preliminary results of research conducted with graduates of the School of Law at the University of Newcastle Australia. The results confirm existing research to show that clinical legal education programs that expose law students under supervision to clients with real cases may promote the development of interpersonal skills, which in turn may help them cope with stressors in legal practice, especially in the first few years post‐admission.     

Thinking like a lawyer/acting like a professional: communities of practice as a means of challenging orthodox legal education

Increasingly, there is pressure upon law schools, in Australia and elsewhere, to impress upon students the significance of the ethical and professional obligations of legal practice. The recent Carnegie Report explicitly looked to law schools “to initiate novice practitioners to think, to perform, and to conduct themselves (that is, to act morally and ethically) like professionals”. Many law students, however, have little appreciation of legal ethics and any concept they may have of professionalism tends to be envisaged as applying only after graduation. In this paper, we explore the idea of a “community of practice”. Lave and Wenger, who coined the phrase, contend that “learning is conceived as a trajectory in which learners move from legitimate peripheral participant to core participant of the community of practice”. We will argue that law students should appreciate that they are entering the legal profession's community of practice and that all aspects of their conduct relevant to professionalism – not only academic integrity, but matters such as time management, teamwork, relationships with peers and staff – relate to this transition into a legal professional community. Such an approach may not only serve to impress upon students the significance of “professionalism” and ethics, but inculcate in them a sense of belonging to a professional community.     

Lawyers for God and Neighbor: The Emergence of “Law as a Calling” as a Mobilizing Frame for Christian Lawyers

Drawing on movement framing, collective identity, and mobilization scholarship, this article examines the emergence and potential effects of framing “law as a calling” for the Christian Lawyering community. The article finds that the term should have strong resonance and salience in the broader Christian community. It also finds that because of its interpretive malleability, “law as a calling” has been discussed and actualized in three related, but distinct, ways. That is, “law as a calling” has been conceptualized as requiring Christian Lawyers to turn inward, turn outward by pursuing social justice, and turn outward as a culture warrior. The article argues that while the different interpretations of “law as a calling” address a range of needs required to mobilize potential and existing Christian L/lawyers, the different ideological factions of self‐identifying Christian Lawyers emphasize different understandings of “law as a calling.”     

Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?

Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of “good faith” as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period.

     

What Is “Law,” if “the Law” Is not Something that “Is”? A Modest Contribution to a Major Question

After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law‐makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law‐makers. We need to remove the mystery that surrounds the law so as to provide for greater transparency. This transparency can be gained by requiring law‐makers to declare their inescapable biases where they influence their lawmaking.     

INTERPREIING OFFICIAL RECORDS AS INDICATORS OF RECIDIVISM IN EVALUATING DELINQUENCY PREVENTION PROGRAMS

Evaluations of crime reduction and prevention programs often use information from official law enforcement or judicial records as ostensibly “objective” indicators of criminal or delinquent activity. However. we of data from official police and court records in assessing the effectiveness of a delinquency prevention program in King County. Washington, yielded divergent conclusions regarding program “success,” depending upon choices in interpretation of records used and the data presentation format adopted. these choices also determined which socio demographic and service-related variables appeared to be related to delinquency. The article calls into question the reliability and validity of official record data as indicators of recidivism, calls for rethinking the selection and use of indicators of program effect in evaluation studies, and calls for further research to explore the possible existence of consistent relationships among available delinquency measures.     

Frustration: The mold of judicial philosophy

Abstract

The Framers understood the Constitution to be the fundamental expression of the rule of law over against the arbitrary, intemperate, and unjust “rule of men” that all too frequently existed in the political world, unfortunately both democratic as well as monarchical. Accordingly, the rule of law requires a well functioning political and legal system that includes legislative checks and balances, the separation of power between the President and Congress, an independent judiciary, federalism, etc. What happens when this “Madisonian” constitutional system, designed to express “the deliberate sense of the community,” runs into a Judicial branch that, in effect, claims we live under a Constitution, but the Constitution is what we say it is. Must the Judiciary itself be subject to the rule of law, and the decisions of a constitutional majority, or does their “independence” extend to being independent of the constraints of the rule of law and, thus, decent majority rule? How did the original John Marshall Court answer these questions, and what light do the leading cases and controversies shed on the relationship between the Marshall Court and the Madisonian System? Are we facing a situation of Marshall v. Madison?     

Families in Circle Process: Restorative Justice in Family Law

This article explores the use of “circle process”—a form of restorative justice—in family law and places this effort within a larger movement within the law toward law as a healing profession, or the “comprehensive law movement.” It explores the features and underpinnings of circle process and its relationship to original forms of dispute resolution such as those used in African‐style mediation and indigenous people's dispute resolution in North America. Values expressed by these forms of dispute resolution are argued to be particularly relevant in family law. Finally, it focuses on an innovative and exciting court‐sponsored program begun in Chicago in 2008, using circle process with families in conflict, in the Cook County Parentage and Child Support Court. This program's results suggest potential benefits and cautions of using circle process in family law.

Key Points for the Family Court Community:
• Restorative justice, in particular, circle process, can be used to resolve family law cases.
• Circle process widens the group of participants in alternative dispute resolution of family law matters.
• Circle process brings more voices to the table, namely, extended family, friends, and supporters, thus enhancing the group's decisionmaking.
• Judges will want to be sure the families in question are appropriate for circle process before referring them to this method of resolving disputes.
• Circle processes can result in improved communication and relations among families in conflict.
• Circle process reflects the values of “original dispute resolution,” which often in turn reflects ubuntu, the idea that all humankind is interconnected.
• Circle process is part of a greater movement towards law as a healing profession/the comprehensive law movement, which includes therapeutic jurisprudence.

     

On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

相似文献   

Intention in Criminal Law: The Challenge from Non‐Observational Knowledge

Intention is at the heart of criminal law. If it is not the mens rea requirement found most often in offences, it is still the standard against which other grades of fault tend relatively to be judged. It has generated much controversy, as the crucial question, “Did the defendant intend X?” is resistant to clear answers. This paper argues that intention‐questions are difficult because intention is not the thing law takes it to be: Importantly, contrary to law's assumptions, it is neither a state of mind nor is it connected in an exclusive manner to the reasons for which we act.     

Turning the Tables on Legal History: Parker's Common Law,History, and Democracy in America

Parker's Common Law, History, and Democracy in America joins an ongoing effort to turn the tables on “law and …” by replacing the familiar question “What can history, sociology, and cultural studies tell us about law?” with a new line of inquiry asking “What can law teach us about the reach and limits of disciplinary thinking?” In his study of the reception of common law into nineteenth‐century American jurisprudence, Parker unearths a notion of time based on stability and repetition that challenges the dominant modernist and historicist approach to the writing of law and history. Parker, however, shies away from drawing the full implications of this move and it remains unclear whether, in the final analysis, he escapes the spell of legal historicism.     

War and International Order in Kant's Legal Thought“*

Abstract. Kant's writings on international law and especially his Toward Perpetual Peace have been interpreted both in a “statist” and a “cosmopolitan” manner. In this article it is argued that these interpretations stem from an ambiguity in those writings. In the course of proposing a resolution of this ambiguity, the first question to be examined is the extent to which war forms a part of human history and of human nature. Secondly, Kant's arguments against the realistic position and the conditions for a lasting peace are presented. An interpretation is then offered both of the proposed league of nations and of the situation that exists when such a league is still absent. According to the interpretation offered here, Kant's writings fit partly within the tradition of the “just war.”¹     

Participative leadership and hierarchical structures in multiple perpetrator rape: replicating and extending a scale of influence among offenders

ABSTRACT

This paper replicates and extends Porter and Alison’s (2001. A partially ordered scale of influence in violent group behavior: An example from gang rape. Small Group Research, 32(4), 475–497) method of leader identification in Multiple Perpetrator Rape (MPR). The study examined 216 MPR offences (totalling 712 different offenders), collected from archival sources (predominantly law reports). Porter and Alison’s original coding scheme was refined and Multidimensional Scaling identified a partially ordered scale of influence based upon the decisions, actions and orders made by the offenders at each chronological offence stage. The updated scale identified leaders in 97% of the sample groups. The hierarchical structures of the groups were also examined through the distribution of influence among co-offenders. While the majority (68%) of cases exhibited a dichotomous leader/follower structure, some “followers” also exhibited influence tactics to varying degrees with the presence of “lieutenants” and linear hierarchies. The findings are discussed in relation to group dynamics as well as the reliability and validity of the influence scale.     

Bucking the Party Line: Calavita's Invitation to Law & Society (In Which the Author Is Invited to a Party Where He Encounters Many Old and Familiar Faces,Becomes Argumentative,Stays Up Too Late,and Finally Departs in Search of New Adventures)

Intended as a short survey text, Kitty Calavita's Invitation to Law & Society expertly summarizes many of the central themes of law and society scholarship as they have developed over the past fifty years. It also clearly identifies the field's object of attention: “real” law. I use this commentary on the book as an opportunity to assess the field as it enters its sixth decade. How has the field changed? What are its defining characteristics? What is “real” law? Does law and society research have a future?