8th Annual Conference on European Tort Law (ACET) – Ankündigung

Ohne Zusammenfassung     

Legal Responses and Sentencing in Murder Cases – A Comparison of Law and Judicial Reactions in India and Germany

While there are huge cultural, social and socio-legal differences between India and Germany, the sentencing laws of the two countries show a couple of similarities. In India and Germany alike, the substantive law makes only little specifications for the sentencing process. There are no sub-statutory sentencing guidelines, within the range provided by the penal codes the courts have a wide discretion in the sentencing process. It is, however, interesting to see that the courts exercise their discretion in similar ways which can specifically be observed in murder cases. The article describes the legal framework which is applicable in murder cases in India and Germany and compares the judicial decisions in selected cases: hold-up murder, sexually motivated murder, domestic violence killings and honor killings. The comparison gives evidence of the communicative function of punishment. After a serious crime like murder the public – typically well informed by the media, agitated and highly troubled – will in both countries only be settled by a judgment considered as fair, just and proportionate. Peace under the law and internal security, however, do not seem to be dependent on specific forms of punishment. Capital punishment and life imprisonment appear as penalties which may be necessary reactions to murder in a given cultural context, but which are not indispensable to a criminal justice system.     

Law Like Poetry – Burnt Norton

Poetry and law are usually cast in opposition but there is a little regarded dimension of responsiveness in law which would incline them towards similarity. The opposition and the similarity are amplified in various instances. Then similarity is affirmed in an involvement in the first of T.S. Eliot'sFour Quartets, ``Burnt Norton'. This revised version was published online in August 2006 with corrections to the Cover Date.     

Philosophies of Polar Law,Edited by Dawid Bunikowski and Alan D. Hemmings (Routledge Research in Polar Law) 2021 – Book Review by Joseph DiMento

International Environmental Agreements: Politics, Law and Economics -     

Philosophy in Law? A Legal‐Philosophical Inquiry

Going beyond the debate between positivists and proponents of natural law, there is a controversy over whether there can or ought to be “philosophy in law” (i.e., whether anything within the subject‐matter of philosophy can also become part of the subject‐matter of law). According to Luhmann's autopoietic theory, law is a normatively closed system and accordingly remains completely independent from philosophy. Dworkin, on the other hand, asserts that constitutional law depends for its coherence and integrity on being encompassed within a particular political philosophy. This essay approaches “philosophy in law” from a functional rather than a legitimating perspective, and concludes against both Luhmann and Dworkin that the integration of philosophy in law is interstitial and limited. The consequence of this for law's validity and legitimacy is a likely increase in contestation and contestability. The essay concludes that by embracing pluralism as a philosophy, one can reduce and better manage contestability without ever becoming able to eliminate it.     

Holding Back the Tide— a Review of Recent Developments in Copyright Law in the United Kingdom

This article surveys recent developments in UK copyright law. It sets these developments in the context of broader trends in copyright law and policy. Significant decisions concerning subsistence of copyright, authorship, infringement, defences, remedies and collective licensing are analysed. The author notes that copyright, and other intellectual property rights, have been given extra force as a result of recent legislative developments. He argues that, against this background, it is possible to discern increasing judicial concern to ensure that such an expansion in monopoly power does not operate against the public interest.     

The Outer Limits of Copyright Law – Where Law Meets Philosophy and Culture

This article engages in a cultural critique of copyright law. The point is to explain how and why this body of law is culturally exclusive, notwithstanding the claims made by judges and others that the law is culturally open and inclusive. This involves a discussion of the relationship between philosophy and law, and of how this nexus has been misrepresented by the courts and in recent writings on the subject. Analysis centres on a discussion of Australian case law involving indigenous claims of communal ownership of copyright and the treatment of technology when it comes to attributing authorship.     

Review of Findlay Stark,Culpable Carelessness: Recklessness and Negligence in the Criminal Law

This book review sketches the main arguments of Findlay Stark’s book, and then goes on to develop an objection to Stark’s account of one of the core notions in the book—namely, awareness of risk.     

The Crisis of International Criminal Law in Africa: A Regional Regime in Response?

Netherlands International Law Review - This article considers the African Union’s (AU) proposal for a regional court for international crimes under the Malabo Protocol 2014 (Protocol). It...     

Law reform in small states†

Law reform can be a complex and challenging process in any jurisdiction. Small states face additional challenges, and some advantages, associated with a small population and land area. This article looks at how law reform agencies in small states adapt the law reform process, and the particular significance of comparative research in that context. It goes on to outline how, despite the challenges, small state and jurisdiction law reform agencies have made very considerable contributions to the law. Finally, the article assesses the particular utility of co-operation between law reform agencies, including through regional associations.     

A Manifesto on Enforcing Law in the Age of ‘Artificial Intelligence’

Building upon A Manifesto In Defense of Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, we, the Transatlantic Reflection Group on Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, have reconvened to draft a second consensus manifesto that calls for the effective and legitimate enforcement of laws concerning AI systems. In doing so, we recognise the important and complementary role of standards and compliance practices. Whereas the first manifesto focused on the relationship between democratic law-making and technology, this second manifesto shifts focus from the design of law in the age of AI to the enforcement of law. Concretely, we offer 10 recommendations for addressing the key enforcement challenges shared across transatlantic stakeholders. We call on those who support these recommendations to sign this manifesto. The Fifth Edition of The Athens Roundtable on AI and the Rule of Law will take place on November 30th and December 1st, 2023. It will delve into pressing governance challenges posed by foundation models and generative AI across jurisdictions.     

Confession of Law? A Critical Perspective on Production of Child Subject in Hong Kong Law Controlling Child Sexual Abuse

Child protection has been one of the main concerns of Hong Kong Law in twenty-first Century. However, the definition of child and the related presumptions have never been meticulously investigated critically challenged. In the article, I employ the Deleuzean perspective in questioning the structure underlying the formation and production of the concept ‘child’ in law. I will then propose a reform strategy that can avoid certain problems created by the concept while providing more effective protection to the powerless. I will also examine the feasibility of the strategy in Hong Kong.     

A Cosmopolitan Philosophy of International Law? A Realist Approach

Analyzing different works and in particular Habermas' reflection on Kant, the author reconstructs, first, his approach to international law and his political and legal cosmopolitanism. Second, he presents some critical observations on Habermas' cosmopolitanism in the context of his more general discursive theory of law and state. In this perspective, he discusses the problems of peace and of the role of the United Nations, the strategy of protection of human rights, and the question of world citizenship. He argues that Habermas' cosmopolitanism is a radicalization of Kantian tradition based on a centralization of international power and a cosmopolitan law. Finally, he develops realist arguments in favour of a non-globalistic conception of international law. 1 Abstract by Giorgio Bongiovanni.
     

The Changing Face of Corporate Liability – New Hard Law and the Increasing Influence of Soft Law

The first frameworks defining standards of human rights protection specifically for business enterprises were non-binding “soft law” like the UN Guiding Principles on Business and Human Rights. In recent times, a “hardening” of corporate human rights law has taken place. Several acts of “hard law” have been implemented at a national and EU level. This article provides an overview of the most important ones. The “hard law” provisions differ in their scope: some obligate companies to report on human rights, others stipulate concrete obligations to conduct human rights due diligence. Another way of tackling the issue of human rights compliance has been demonstrated by the prosecution of companies in the United States. While procedural guidelines abstractly stipulate an effective compliance system to be a mitigating factor, the US Department of Justice regularly defines concrete compliance obligations in deferred or non-prosecution agreements. This development could lead to comprehensive liability for negligence due to organisational and monitoring deficiencies. But who defines the standards? This article examines how the changing practice of human rights compliance may have “feedback effects” on hard law, particularly by changing the scale of negligence. Regarding the lack of effectiveness of some due diligence measures, especially in the “certification industry”, it is then asked how legislation may proactively exert influence by defining effective CSR instruments necessary to prevent civil and criminal liability. Using the example of German law, a proposal is made to implement an obligation of human rights due diligence in “hard law” and, simultaneously, set up an independent expert commission that drafts guidelines specifying the necessary measures for different kinds of companies.