Pragmatic Maxims and Presumptions in Legal Interpretation

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation.     

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.     

Reasoned ‘Balance’ in Europe's Area of Freedom,Security and Justice

This article considers how we might understand a constitutional ‘balancing’ of goods. In doing so, the article considers the EU's ‘Area of Freedom, Security and Justice’ (AFSJ) which poses the challenge as to how we balance our desire to feel secure with commitments to freedom and justice. The approach taken will be to argue that a ‘balance’ is a reasoned judgment, which must be understood in both a symbolic sense but, at the same time, also rooted in the practice of our constitutional decision making. This enables a political community to make sense of its value commitments so as to achieve a reflective balance between them. The article concludes that if the EU is to achieve an area of freedom, security and justice then it must be capable of developing a balance that can be a reasoned understanding of this constitutional commitment.     

Countries start to explain how their climate contributions are fair: more rigour needed

In the lead-up to the Paris Agreement, every country was invited to submit an intended nationally determined contribution (INDC), and indicate how it is fair. We analyse how countries have explained the equity of mitigation and adaptation in 163 INDCs, providing a bottom-up analysis of equity to complement a literature that has focused on top-down allocations. While no single indicator of equity was used by all INDCs, a menu of quantified indicators or tiered approaches could provide bounded flexibility across different national circumstances. The most common equity indicator used in mitigation INDCs is the country’s ‘small share’ of global emissions, followed by per capita emissions. The emissions of individual ‘small share’ INDCs add up to 24% of annual global emissions when using a consistent data set. Per capita emissions are used across a range of countries with low (0.5) to high (25 t CO₂–eq per capita) values for that indicator. Adaptation is included in 89% of INDCs, of which more than half quantify impacts in some manner, and two-thirds use vulnerability as an equity argument. Broadly, we find that most claims to equity are either unsubstantiated or drawn from analysis by in-country experts. Only two INDCs refer to independent evidence, and none consider the consequences of their approach when applied to all countries. Given that the aggregate effect of INDCs will not be sufficient to keep global temperature increase well below 2 °C, and even less to keep temperature below a 1.5 °C rise, the INDCs have distributional implications. More rigorous information is needed to assess relative fair shares, which could be provided officially in future nationally determined contributions (NDCs). Absent improved information, it is likely that researchers and civil society will continue to assess informally what could be considered fair. A hybrid approach to equity—combining bottom-up assessment and top-down allocation—would be consistent with the hybrid architecture of the Paris Agreement, which comprises bottom-up elements such as NDCs and top-down elements such as global goals. Improved information on equity in NDCs will be an important input to the global stocktake ‘in the light of equity’.     

Equity before ‘Equity’

The notion of ‘equity’ is undergoing conceptual repositioning in international law today, embracing individuals as well as states and gaining an association with human rights and the politics of protest. In the context of these developments, the present paper enquires into the premodern roots of this ancient and rich term through three historical vignettes: first, the emergence of aequitas in Roman law – as a source of law anchored in analogy and empathy – and in particular its relevance to the ambiguous status of slaves; second, the importance of ‘natural equity’ to the consolidation of ‘natural rights’ during the Franciscan poverty debate in 14th century Europe, and finally, ‘common equity’ in the rights-based constitutional order proposed by the Levellers in 1640s England. In its root sense, I conclude, what we might call ‘radical equity’ has historically lent itself to trenchant critique of the law, centred on the individual as subject of right.     

Norms,Institutions, and Institutional Facts

Norms explained as grounds of practical judgment, using example of queue. Some norms informal, inexact, depend on common understanding (‘conventions’); some articulated in context of two-tier normative order: ‘rules’, explicit or implicit. Logical structure of rules displayed. Informal and formal normative order explained, ‘institutional facts’ depend on acts and events interpreted in the light of normative order. Practical force of rules differentiated; either ‘absolute application’ or ‘strict application’ or ‘discretionary application’, depending on second-tier empowerment. Discretion can be guided by values, principles standards. Pervasiveness of institutions and institutional facts, especially but not only in relation to institutions of state-law, including constitution and state-institutions. Searle's and Ruiter's theories of institution, institutional fact, considered: ‘constitutive rule’ rejected in favour of ‘underlying principle’, structure of ‘institutive, consequential and terminative’ rules explained and defended. Ruiter's conception of ‘institutional’régime' considered and adopted, validity of norms and normative 'régimes' considered and differentiated from truth of statements of institutional fact.     

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.     

论农民进城落户后集体土地“三权”退出

支持引导进城落户农民自愿有偿退出土地承包(经营)权、宅基地使用权和集体土地股权的政策表达与法律规定,尚存农民进城落户后应否以及何时丧失集体成员资格规则不明、丧失集体成员资格前支持引导退出规则不足、丧失集体成员资格后不自愿退出的应对之策缺失、大量农民进城落户且丧失集体成员资格后集体土地所有权归属之惑等问题。在承包地"三权分置"、宅基地"三权分置"与集体产权制度改革中,宜通过健全集体成员资格丧失标准和程序、完善集体土地"三权"之(最先)优先受让权与土地承包经营权和宅基地使用权之股权化方案、借助土地经营权和使用权乃至非本集体成员继承股权之类别股设计、大量农民进城落户且丧失集体成员资格后集体土地适时国有化等方法,化解上述问题。     

Analysing and exemplifying forensic conclusion criteria in terms of Bayesian decision theory

There is ongoing discussion in forensic science and the law about the nature of the conclusions reached based on scientific evidence, and on how such conclusions – and conclusion criteria – may be justified by rational argument. Examples, among others, are encountered in fields such as fingermarks (e.g., ‘this fingermark comes from Mr. A's left thumb’), handwriting examinations (e.g., ‘the questioned signature is that of Mr. A’), kinship analyses (e.g., ‘Mr. A is the father of child C’) or anthropology (e.g., ‘these are human remains'). Considerable developments using formal methods of reasoning based on, for example (Bayesian) decision theory, are available in literature, but currently such reference principles are not explicitly used in operational forensic reporting and ensuing decision-making. Moreover, applied examples, illustrating the principles, are scarce. A potential consequence of this in practical proceedings, and hence a cause of concern, is that underlying ingredients of decision criteria (such as losses quantifying the undesirability of adverse decision consequences), are not properly dealt with. There is merit, thus, in pursuing the study and discussion of practical examples, demonstrating that formal decision-theoretic principles are not merely conceptual considerations. Actually, these principles can be shown to underpin practical decision-making procedures and existing legal decision criteria, though often not explicitly apparent as such. In this paper, we will present such examples and discuss their properties from a Bayesian decision-theoretic perspective. We will argue that these are essential concepts for an informed discourse on decision-making across forensic disciplines and the development of a coherent view on this topic. We will also emphasize that these principles are of normative nature in the sense that they provide standards against which actual judgment and decision-making may be compared. Most importantly, these standards are justified independently of peoples' observable decision behaviour, and of whether or not one endorses these formal methods of reasoning.     

Equity in English Contract Law: the Impact of the Judicature Acts (1873–75)

Just before the Judicature Acts came into force, the equity bar objected that the new court would be dominated by common law judges, whose ignorance of equity would ‘endanger the very existence of Equity jurisprudence’. This objection, though ridiculed at the time, can be seen in retrospect to have had some substance. In respect of several important aspects of contract law, notably unfairness, mistake, and privity, former equitable approaches were, after 1875, effectively marginalized both by the courts and by the writers of treatises on English contract law.     

Will Listing Rule Reform Deliver Strong Public Markets for the UK?

There is a general consensus that the UK needs strong public equity markets. To help to ensure Britain is well-positioned on this front, the Financial Conduct Authority reformed the London Stock Exchange's listing regime in 2021 to foster initial public offerings (IPOs). This article outlines and evaluates these IPO-related reforms, assessing their potential to resuscitate the UK's public equity markets. The article puts the IPO-related reforms into context by considering whether the fostering of strong equity markets is a sensible policy goal and by assessing what laws governing publicly traded companies can contribute to this endeavour. The article acknowledges that the specific IPO reforms may increase IPO activity but concludes that concerns about strong public markets will continue to exist. This is because the reforms do not address stock market exits or the ‘over’-regulation of public companies which discourages reliance on equity markets.     

Privacy and Search Engines: Forgetting or Contextualizing?

This article considers the much‐criticized ‘right to be forgotten’ in the context of the European Court of Justice's judgment in the Google Spain case. It defends the ‘right to be forgotten’ as a metaphor that can provide us with a better understanding of the particular privacy concerns of the search‐engine age and their interaction with the freedom to access information, and draws on Goffman's idea of ‘information games’ and Nissenbaum's theory of ‘contextual integrity’. While supporting the principles that underpin the judgment, the article rejects the Court's binary approach of ‘forgetting’ versus ‘remembering’ personal information. Instead, it argues that the EU legislator should introduce more nuanced means of addressing modern privacy concerns. By establishing two remedies – ‘delisting’ or ‘reordering’, depending on the nature of the information – online information flows can be adjusted to preserve both the right to privacy and the freedom to access information in more contextually appropriate ways.     

Political Liberalism, Ethos Justice, and Gender Equality

Susan Okin criticizes John Rawls’s ‘political liberalism’ because it does not apply principles of justice directly to gender relations within households. We explain how one can be a ‘political liberal feminist’ by distinguishing between two kinds of justice: the first we call ‘legitimacy justice’, conceptions of which apply to the ‘legally coercive structure’ of society; the second we call ‘ethos justice’, conceptions of which apply to citizens’ ‘non-coercive’ relations. We agree with Okin that a society in which most persons act in accordance with ‘gender equal’ ethos justice is morally superior to one in which most persons do not. A shared commitment to a particular conception of ethos justice, however, cannot be required by a conception of legitimacy justice. A political liberal feminist is committed to promoting gender equality with respect to both legitimacy justice and ethos justice, but recognizes that different means are necessary to do so.     

‘No-one in the world would ever wanna speak to me again’: an interpretative phenomenological analysis into convicted sexual offenders' accounts and experiences of maintaining and leaving denial

This paper is concerned with illuminating the experiences and perspectives of sexual offenders who had categorically denied their offences and, through their narratives, gain an insight into the processes behind and underlying both maintaining and coming out of, denial. The study is made up of interviews with 11 convicted sexual offenders who had each denied their offences but who are now admitting their guilt. The interviews were analysed qualitatively using interpretative phenomenological analysis. The analysis revealed three superordinate themes: ‘maintaining viable identities’; ‘being’ in denial’; and ‘wanting to change’. These themes are unpacked and their relevance to maintaining and leaving denial are discussed. Implications for treatment, including barriers to treatment for convicted sexual offenders who deny their offences are discussed.     

The Promise and Perils of Crowdfunding: Between Corporate Finance and Consumer Contracts

‘Crowdfunding’ is a burgeoning phenomenon. Its still‐evolving status is reflected in diversity of contracting practices: for example, ‘equity’ crowdfunders invest in shares, whereas ‘reward’ crowdfunders get advance units of product. These practices occupy a hinterland between existing regimes of securities law and consumer contract law. Consumer protection law in the UK (but not the US) imposes mandatory terms that impede risk‐sharing in reward crowdfunding, whereas US (but not UK) securities law mandates expensive disclosures that hinder equity crowdfunding. This article suggests that while crowdfunding poses real risks for funders, the classical regulatory techniques of securities and consumer law provide an ineffective response. Yet, a review of rapidly‐developing market mechanisms suggests they may provide meaningful protection for funders. An initially permissive regulatory approach, open to learning from market developments yet with a credible threat of intervention should markets fail to protect consumers, is justified.     

The European Judicial Organisation in a New Paradigm: The Influence of Principles of ‘New Public Management’ on the Organisation of the European Courts

Recent reforms regarding the European Courts raise the question in which way do ‘new public management’ principles influence the European judicial organisation and how is a balance struck between these principles and classic ‘rule of law’ principles? The article first presents a classification of these types of principles in the framework for discussion regarding the European judicial organisation. Starting out from two paradigms, an inquiry is made into the status of the two sets of principles in the present‐day European ‘constitutional’ framework. Second, the interaction of principles is investigated with regard to a number of current dilemmas, including the demarcation of the judicial domain, the management of the Courts and the distribution of judicial competences.     

Granting the Right to Vote for the European Parliament to Resident Third‐Country Nationals: Civic Citizenship Revisited

The EU grants rights to third‐country nationals (TCNs) and strives to approximate their rights to those of Union citizens. Up to now, the approximation has extended to social and economic matters. This article investigates whether political rights, notably voting rights for the European Parliament (EP), should also be approximated. To this end, the analysis applies Dahl's democratic principles of ‘coercion’ and ‘all affected interests’ as well as Bauböck's principle of ‘stakeholding’ to the position of TCNs in the EU. Against that background, it explores the relevance of arguments for and against granting TCNs the right to vote in European elections and submits that voting rights should be granted to long‐term resident TCNs. The author then proposes including TCN voting rights in the legal framework for EP elections and concludes by suggesting the use of the concept of civic citizenship to express political approximation of TCNs to EU citizens.     

Interdiction and Indoctrination: The Counter‐Terrorism and Security Act 2015

Lying behind the recent Counter‐Terrorism and Security Act 2015 is the phenomenon of foreign terrorist fighters which has sparked international and national attention. The 2015 Act deals with many facets of counter terrorism legislation, but its two principal measures are singled out for analysis and critique in this paper. Thus, Part I of the Act seeks to interdict foreign terrorist fighters by preventing suspects from travelling and dealing decisively with those already in the UK who pose a risk. Part V of the Act implements the second, broader aspect, of legislative policy, reflecting the UN emphasis on ‘Countering Violent Extremism’, through the statutory elaboration and enforcement of the ‘Prevent’ element of the long‐established Countering International Terrorism strategy, which aims to stop people becoming terrorists or supporting violent extremism. These measures are explained in their policy contexts and set against criteria of effectiveness, personal freedom, and accountability.     

'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.     

Services of General Interest in EC Law: Matching Values to Regulatory Technique in the Public and Privatised Sectors

All the European Union Member States have long traditions of state activity in providing key services (such as the utilities, health and education) to their citizens and underpinning both such direct provision and provision of services by non‐state actors with certain administrative or legal guarantees. In European Community doctrines they are referred to as ‘services of general interest’ within which is a narrower class of ‘services of general economic interest’. The diverse national public service traditions have been challenged both by the requirements of the single market and by other pressures such as fiscal crisis and broader public sector reform. This article examines the means by which services to which special principles should be applied can be identified and focuses on the range of sometimes contradictory values denoted by the term ‘services of general interest’, examining the range of regime types (based on hierarchical, competition‐based and community forms) by which those values might be pursued. The concluding section suggests that the matching of values to techniques should not be made according to the importance of the values to be pursued, but rather by reference to which techniques are likely to be effective given the configuration of interests and capacities and existing culture within the target domain.