The law commission and judicial law reform*

This article explores ways in which mooting can provide high school students with insight into life as a law student. In gaining high school students’ insights on their early exposure to a legal research skills environment involving oral argumentation exercises, the authors argue that law schools can incorporate experiential learning pedagogies into student recruitment efforts to ensure that both law school and prospective student are better prepared for each other during the delivery and study of law at university level.     

Uganda: constitutional law

The implementation of international humanitarian law (IHL) is a continuous and evolving process. As such, the International Committee of the Red Cross (ICRC) co-operates closely with the Commonwealth Secretariat with the aim to advise and support Commonwealth states on developments in IHL and to assist them in meeting their IHL treaty obligations. The present update highlights some of the key issues and recent developments in IHL that are of interest to Commonwealth states.     

完善国际法国内效力的保障机制

国际法在国内适用程度是各主权国家依据其本国宪法确定的,由于法哲学及法系的不同,在各国司法实践中存在明显差异,对此各国均采取法律和行政措施进行调整.本文的研究重点是通过国际法在各国效力的比较,探讨建立加强国际法制及完善解决两法冲突的保障机制的必要性.     

India: constitutional challenge to anti-sodomy law

On 7 December 2001, the Naz Foundation India Trust filed a petition with the Delhi High Court alleging that the prohibitions on sodomy in Indian law are unconstitutional.     

South Africa: constitutional court rejects constitutional challenge to law criminalizing prostitution

On 9 October 2002, a majority of South Africa's Constitutional Court dismissed appeals from convictions for prostitution and keeping a brothel, rejecting arguments that the law was unconstitutional. However, the minority decision, endorsed by five of eleven judges, found that the provision that made the sex worker but not the client guilty of a criminal offence was discriminatory and should be struck down.     

Freedom and choice in constitutional law

The constitutional rights of children, the mentally ill, and other legally incompetent persons have been the subject of much litigation in the past twenty years. In this Article, Professor Garvey develops a general theory to explain the different ways in which persons of diminished capacity can be said to enjoy constitutional protections. He first notes that, of the various constitutional provisions, only one kind - freedom, which protect the right to make choices - pose serious difficulties when applied to persons of diminished capacity. He then proposes a hierarchy of ways in which we can attribute freedoms to such persons: the laissez-faire notion that all persons (including incompetents) are to be treated identically, the instrumental idea that granting freedoms to incompetents achieves extrinsic goals such as training, and the surrogate notion that persons who cannot make choices for themselves should be able to have those closest to them choose on their behalf. Professor Garvey concludes that, when these options fail and the state takes an incompetent person under its control, the state owes to the incompetent the full package of duties owed by other guardians to those under their control, including treatment in the case of the mentally ill or education in the case of children.     

Sameness and selfhood: The efficiency of constitutional identities in EU law

This article enquires into the formal dimension of constitutional identity by focusing not on what it consists of but on how it is expressed in the different discursive practices developed by constitutional courts. Contrasting constitutional identity as sameness and constitutional identity as selfhood shows that domestic courts can favour either a substantive determination of core constitutional features or a performative approach where the reflexive ability to define oneself prevails. Such a choice conditions the judicial strategies developed in the interactions with the Court of Justice, and their effectiveness. From this perspective, the accommodation in EU law, in light of the respect for Member States' national identity affirmed in Article 4(2) TEU, of these domestic identity claims rooted in the supremacy of the Constitution, depends less on what is asked for than on how it is asked for.