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1.
Three recent International Court of Justice decisions –Oil Platforms, Avena and Wall in the Occupied Palestinian Territory– highlight the uncertain status of the margin of appreciationdoctrine in the Court’s jurisprudence. The purpose ofthis article is to evaluate, in the light of contemporary practiceof other courts, the current status under international lawof the margin of appreciation doctrine, which encourages internationalcourts to exercise restraint and flexibility when reviewingthe decisions of national authorities, and to offer preliminaryguidelines for future application. The article also discussesa variety of policy arguments concerning the legitimacy andeffectiveness of international courts, which can be raised insupport of the development of a general margin of appreciationdoctrine with relation to some categories of international lawnorms governing state conduct, and it examines potential criticism.Eventually, it argues that the same considerations which haveled to the creation of ‘margin of appreciation type’doctrines in the domestic law of many states and in the contextof specific international regimes (for instance, the EuropeanConvention on Human Rights) also support the introduction ofthe doctrine into general international law. The position ofthe ICJ towards the application of the doctrine therefore meritsreconsideration.  相似文献   

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The doctrine of the margin of appreciation that the EuropeanCourt of Human Rights has developed in its case law has givenrise to considerable criticism. In this article I draw a distinctionbetween two different ways in which the Court has used the doctrine.The first one is in cases where the Court has to decide whethera particular interference with a Convention freedom is justified.In answering that question, the Court often uses the label ‘marginof appreciation’ without drawing on a substantive theoryof rights that can justify the conclusion reached. The seconduse appears in cases where the Court refrains explicitly fromemploying a substantive test of human rights review on the basisthat there is no consensus among Contracting States on the legalissue before it. My aim is to highlight the principles thatcan be used to justify each use of the doctrine, by locatinghuman rights within broader issues in moral and political philosophy.Particular emphasis is placed on the distinction between reason-blockingand interest-based theories of rights as well as on the natureof the duties of the European Court, as a matter of internationalhuman rights law.  相似文献   

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欧洲人权制度中的"自由判断余地原则"述评   总被引:1,自引:0,他引:1  
本文介绍和评价了欧洲人权制度中极为重要的“自由判断余地原则”,认为该原则及其适用对解决国际人权法中的相关问题有一定的借鉴意义。“自由判断余地原则”是由欧洲人权监督机构(主要是欧洲人权法院)发展出来的,用以平衡公约机关与缔约国在某些领域中的权限的一种方式。本文借助具体案例和学者论述,介绍了该原则的产生过程,分析了其可能得到适用的领域以及在不同领域中的适用幅度,欧洲人权法院用以考虑国家在自由判断余地内的作为的因素。本文还对该原则的法律基础、适用标准及对实现“欧洲人权公约”的目的和宗旨的效果等问题进行了评价。  相似文献   

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Statism, Pluralism and Social Control   总被引:1,自引:0,他引:1  
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The doctrine of deference permeates human rights review. It plays a role in defining Convention rights, in determining the nature of the proportionality test applied when analysing non-absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justified for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and is modest enough to play a role in a range of different justifications and understandings of judicial review under the Human Rights Act. The article then provides a more detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to perform its constitutional function of protecting individual rights.  相似文献   

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Contrary to the modern English position, it may be appropriate for reviewing courts to accord deference to interpretations of law rendered by administrators. There is no basis for the current strong presumption against according such deference. It is possible that the legislature intended to delegate the resolution of many questions of law to administrators, rather than to courts. Moreover, relative to administrators, courts may lack institutional competence to resolve questions of law. Courts must always police the boundaries of interpretation, in order to keep administrators in check and safeguard the rule of law, but the general presumption that the resolution of questions of law is a matter for courts should be jettisoned.  相似文献   

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Judicial deference to the other branches of government has become a common judicial technique in cases arising under the Human Rights Act. The author outlines the current approach of British courts in deciding when to defer, arguing that it is flawed and unprincipled. The author goes on to argue that a principled approach to deference is necessary, and offers examples of when and how courts should defer to the other branches of government when considering constitutional claims.  相似文献   

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法律多元主义的产生与发展,对各国法治发展的影响不容忽视.当代中国自上而下推行法治,法律规范创制体系以国家制定法为中心,但现代社会中民间法的超强生命力、道德的法律化、法律原则的普遍适用等现象冲击了制定法的中心地位,法律规范的创制体系也由此趋于多元.这种多元主义法律观对当代中国的法治运行具有现实意义.  相似文献   

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What is the best way to reflect human diversity in the structure of the provocation defence, and similar excusatory defences in the criminal law? The House of Lords recently concluded that the right way is to allow the jury to personalise and thereby qualify the apparently uniform ‘reasonable person’ standard mentioned in section 3 of the Homicide Act 1957. In this paper we argue that this is not the right way at all. We argue that the reasonable person standard, unqualified, already accommodates the only variations between people that the law should want to accommodate in an excusatory defence. To defend this view we revive the common law's tripartite analysis of the ‘objective’ (or impersonal) issues in the provocation defence: first, was there an action capable of constituting a provocation? second, how provocative was it? and third, how much self‐control should have been exhibited in the face of it? We show that these questions each have a built‐in sensitivity to certain variations between different defendants' situations, but that this does not detract from their objectivity (or impersonality). We argue that no more sensitivity is needed in the name of human diversity, and what is more that no more sensitivity is desirable.  相似文献   

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王书成 《法学家》2012,(1):42-51,176
香港郑家纯等诉立法会案的判决涉及香港立法会的调查委员会是否有权传召当事人这一颇具争议的问题。针对当事人提出的立法会调查委员会越权的主张,在进入司法审查后,法院面对的是如何选择具体的方法来进行审查。虽然从文本来看,香港《基本法》并没有明确赋予立法会的调查委员会以传召当事人的权力,但法院采取合宪性推定方法,认为《基本法》没有禁止立法会通过调查委员会来行使证人传召权,并判决立法会的调查委员会不存在越权情形。这种对立法机关持谦抑姿态的方法论在一定程度上超越了形式文本,在本质上建基于《基本法》架构下国家不同权力间的关系维度,具有宪法上的正当性,并且对当下中国宪法方法的建构具有启示意义。当然,香港立法会调查权的行使必须以《基本法》为依据,以香港特殊的行政主导制为基础,这又从另一面体现了立法权对行政权的谦抑。  相似文献   

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One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This paper argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly endorsing monism. The integrity and coherence of European law is best preserved by considering that both the national legal order and the international or European legal orders adopt sophisticated views of their own limits.  相似文献   

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Abstract:  This article advances a pluralist model of a legal system. It claims that a legal system is pluralist when it contains inconsistent rules of recognition that cannot be legally resolved from within the system. The first part of the article sets out the model, demonstrating why it requires a departure from the classical accounts of law advanced by writers such as Hart and Kelsen. The second half applies this model to actual legal orders: first, to Rhodesia during the crisis of 1965, and then to the legal orders of the European Union. It is argued that there are interesting and important points of similarity between the two.  相似文献   

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The process of specialization is now well advanced within the legal profession, and the specialties have acquired clearly varying levels of prestige among the practicing bar. What are the characteristics of the specialties, or of the lawyers who practice in them, that might account for these variations in prestige? In describing the prestige differences and several of the variables that might be thought to account for them, the authors analyze the results of a survey of a large random sample of Chicago lawyers. Among the findings are a strong relationship between prestige within the legal profession and the type of clients that the specialty serves, a substantial correlation between prestige and the degree of intellectual challenge presented by the subject matter of the specialty, and the perhaps surprising result that prestige is not significantly associated with the income earned by lawyers practicing in the specialty. The authors conclude that legal specialties that regularly confront personal suffering lose social standing as a result, that prestige within the profession is directly proportional to the degree to which the specialty facilitates the conduct of corporate enterprise, and that the varying prestige of the specialties is likely to affect the political and professional power of the lawyers who practice in them and to influence the patterns of recruitment of lawyers into law practice.  相似文献   

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The author outlines a conception of toleration as recognition of differences which she argues to be more adequate than current liberal views in order to face issues arising from contemporary pluralism. The liberal conception of toleration as freedom from government's interference in certain areas is appropriate if pluralism is conceived of as a plurality of conflicting conceptions of the good. By contrast, if pluralism is understood as the plurality of groups and cultures, asymmetrically situated in democratic society, then the issues underlying toleration are seen as the contested claim of minorities for asserting their different identity in the public space. Public toleration of differences is thus viewed as a symbolic public gesture of inclusion of the different identities and their bearers into democratic citizenship on an equal footing as members of minority groups. The argument supporting public toleration is so founded on reason of justice.  相似文献   

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