The applicability of riparian rights doctrine in Botswana: the judicial refusal to depart from the common law principles?

At independence, a semi-dessert Botswana did not have developed water law besides the common law. The newly independent state of Botswana passed the first post-colonial water legislation a year after gaining independence. This article argues that even though the Water Act grants ownership of water sources to the State, the common law riparian rights remain intact. This article argues that the courts of Botswana are reluctant to depart from the common principles of land and water law derived from South Africa notwithstanding a change of water law in that jurisdiction.     

The importance of ethics in the law curriculum: essential or incidental?

Recently, the debate as to whether ethics should be a compulsory requirement of a law degree was refuelled when the English and Welsh Legal Education Training Review (LETR) recommended that professional ethics should be primarily addressed in vocational Legal Services and Education Training programmes and that learning outcomes in the academic curriculum should include reference to morality and the law, the values supporting the legal system and their connection to the role of lawyers. This debate is also occurring in other jurisdictions. In Australia the debate is focused on the proposal that ethics be removed as a compulsory subject in the law degree. This proposal has raised a concern that law students will be denied the opportunity to develop as ethically competent lawyers. This paper argues for the continuation of ethics as a core component of a law degree and evidences the model used for the teaching of ethics in the law degree at the University of Technology Sydney in support of our argument. The background to the model is examined to highlight the significance of student feedback and ongoing curriculum review, including the alignment of parallel pedagogical factors. This model serves as an example of not only why ethics should be core to a law degree but, in order to provide graduates who are ethical and reflective practitioners, why ethics should be pervasively taught throughout the degree and supported by an introductory and capstone presence.     

A law for need or a law for greed?: Restoring the lost law in the international law of foreign investment

The 1990s brought about a change in the international law of foreign investment due to the primacy achieved by the tenets of neo-liberalism. They drove concerns about the environment and poverty away from the concerns of the law and gave priority to the interests of multinational corporations by enhancing their ability for movement of assets and the absolute protection of these assets through treaty rules. The regime created by this law was operated through secure systems of dispute settlement through arbitration which also enabled the stabilization of these rules. In the process, private power of a section within the hegemonic state was able to subvert international law through the use of low order sources of the law and secure a system of investment promotion and protection. The restoration of the more universal themes of environmental protection and poverty alleviation is necessary. This paper outlines the developments that accentuated the sectional interests of multinational capital and explores the means by which a change that reflects the global interests could be effected.

The right not to know and coronary angiography: is the common law of Australia consistent with patients' wishes?

In "The Right Not to Know: Patient Autonomy or Medical Paternalism?" (2000) 7 JLM 286 Judy Gutman qualitatively examined the direction of the law relating to the duty of medical practitioners to disclose information to their patients about risks associated with medical treatment. Prompted by theoretical issues raised in that article, a quantitative study was performed. The study focused on the wishes of patients referred for coronary angiography regarding information about the risks inherent in that procedure. The results of the study contribute to the ongoing academic discussion about risk disclosure and consent to medical treatment and demonstrate a need for further empirical research in the area. The study also highlights the desirability of clinical medical practice conforming to the tenets of the common law and vice versa.     

A century of the law profession in Palestine: quo vadis?

The main challenge encountered by the law profession in Palestine throughout its 100-year history is the division over political lines. The split started with the establishment of the Palestinian Jewish and Arab Bar Associations under British rule before 1948. The division took another form of separation between Palestinian lawyers in the West Bank, Gaza, and Israel between 1948 and 1967. Under Israeli occupation (1967–1994), lawyers were partitioned into three factions: striking lawyers who affiliated with the Jordanian Bar Association, practicing lawyers who formed the Arab Lawyers Union, and the Gaza lawyers who founded the Lawyers Society. Together these three bodies formed the transitional council of a Palestinian Bar in 1997. Since the 2003 Bar election, lawyers have been unified under the Palestinian Bar Association, which has become a well-established body, notwithstanding all the challenges facing not only the law profession but also the country as a whole.     

Modeling the politics of punishment: A conceptual and empirical analysis of ‘law in action’ in criminal sentencing

The empirical sentencing literature has focused intensively on racial equity concerns, but this research added to the literature by analyzing political-contextual sources of punishment. This study developed a functional model of court decision making and used ordinal logit to assess court punishment decisions in 387 counties across seven states. The findings supported established assumptions about individual level punishment determinants, but showed that political environment indicators also predicted sentence severity. Interactions were present as well. In law and order environments Black defendants received enhanced sentences, but in jurisdictions with the largest Black populations, Black defendants faced reduced punishments. With individual and state level effects held constant, the findings from this research reinforced claims that punishment is intensely political.     

Is there a “common law” of responsibility?

Contrary to common expectations and a good deal of legal folk wisdom, several surveys have failed to find group differences in the way people attribute responsibility and assign punishments. These nonfinding, suggest that there is a considerable degree of consensus about how to judge wrongdoing. The nature of this consensus is examined using survey data collected in two Japanese and one American cities. We examine the extent of group differences in the evaluation of inputs (here a set of hypothetical vignettes), decision rules, and punishments. The paper concludes with a discussion of the conceptual, theoretical, and methodological issues raised by these and similar findings of small group differences. Collectively, these three issues define, an agenda for future research on the nature and extent of a common law of responsibility.This is a revised version of a paper presented at the 1986 meeting of the Law and Society Association. The research was supported by seed funds from the Social Science Research Council and from the University of Michigan and by N.S.F. grant No. SOC 77-242918. Japanese data were gathered and analyzed with support from the Nihon Gakujutsu Shinkokai and Mombusho to the Japanese investigators: Yoko Hosoi, Zensuke Ishimura, Nozomu Matsubara, Haruo Nishimura, Nobuho Tomita, and Kazuhiko Tokoro. They have recently published a book on the project. (Ishimura et al., 1986).     

“A part to play”: the value of role-play simulation in undergraduate legal education

This article explores the argument for increased student participation in experiential learning approaches within the UK undergraduate law curriculum. It is supported by the findings of a very small-scale research study undertaken by the writer into law students’ perceptions of the efficacy of role-play simulation as a means of studying mediation, in an optional credit-based module within the final year of a UK undergraduate qualifying law degree. In order to provide situational context, the first part of this article will briefly address the experiential learning possibilities for undergraduate law students, a discussion of the study involving qualitative research methodology, which was used to demonstrate that role-play simulation as a method of experiential learning has a place within the UK undergraduate law curriculum. The final part of this article will consider the findings of the study which demonstrated that, inter alia, role-play simulation can be motivational, helps to build student confidence, enables deeper learning, assists graduate skills acquisition and arguably enhances employability. Based on the findings of this study and other empirical evidence, the article suggests that greater emphasis could be placed on experiential approaches such as role-play simulation for credit-based law courses, including those “core” foundational courses which form part of the undergraduate qualifying law degree in the UK, but achievement of this aspiration is not without its challenges.     

The role of soft law in advancing the rights of persons with disabilities in the EU: A ‘hybridity’ approach to EU disability law

This article discusses the role of soft law in advancing the rights of persons with disabilities in the European Union (EU). In doing so, it revisits the emergence of the standalone, yet cross-cutting, field of ‘EU disability law’ through the lens of the ‘hybridity theory’ advanced inter alia by Trubek and Trubek. Being speculative in nature, this article construes EU disability law as a fruitful area for an enquiry into the dynamic relationship between hard and soft law. Until the entry into force of the Treaty of Amsterdam, soft law was crucial to attract disability within the sphere of action of the EU and to embed the social model of disability, displaying a value-setting role. In the post-Amsterdam period, soft law and hard law coexisted, being complementary to one another. Both contributed to a common objective, namely that of advancing equality of opportunities for persons with disabilities. After the conclusion of the UN Convention on the Rights of Persons with Disabilities, the dynamic relationship between hard and soft law has become more complex and akin to what Trubek and Trubek define as ‘transformation’.     

The perspective of “justice” of international law in the global context

After the Cold War and the quick development of globalization, non-state acts by international organizations, transnational corporations and nongovernmental organizations (NGOs), etc., are becoming more active. Global issues with regard to, inter alia, environment, human rights, terrorism are constantly emerging, which bring great challenge to the Westphalia System that is based on state sovereignty and centered on the national state. At the same time, the values, which include “individualism” and “global justice,” are constantly casting impact on international legal system. Doubtlessly, in the current context of international relations, “justice among states” is still the reasonable positioning of the value of modern international law. However, making “individualism” and “global justice” compatible and modifying “justice among states” is an inevitable trend. At the same time, the rule brought about by the modification on the value of justice must be handled properly.