‘Am I Free Now?’ Overseas Domestic Workers in Slavery

This article examines United Kingdom overseas domestic worker and diplomatic domestic worker visas in place since 2012. These visas tie workers to an employer by making it unlawful for them to change employer, even when seriously exploited or abused. The article presents the findings of a qualitative study of overseas domestic workers, exploring how this vulnerable and difficult (for researchers) to reach group experience these visas in practice. Workers reported instances of exploitation and abuse by the employers with whom they arrived in the United Kingdom. Having escaped, they have become undocumented, and are trapped in ongoing cycles of exploitation. The article assesses what light this empirical exploration sheds on the question of whether the visa is contrary to the prohibition of slavery, servitude, forced and compulsory labour in article 4 of the European Convention on Human Rights and the UK Modern Slavery Act 2015.     

Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?

Abstract: The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world's most successful experiment in the trans‐national judicial protection of human rights. The EU's much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU's interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much‐neglected question, simple to state but not so easy to answer: is the trans‐national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?     

‘Factual causation’ and ‘scope of liability’: What's the difference?

According to a dominant view, for the negligent defendant to be held liable for the plaintiff's harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and second, that the harm is within the ‘scope of liability’. On this view, factual causation is purely factual, while scope of liability is normative and non‐causal. This article accepts the basic two‐step approach, but argues that the distinction is overstated. A close analysis of the principles shows that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm.     

‘Hermann Heller and the European Crisis: Authoritarian Liberalism Redux?’

This essay tentatively buttresses Alexander Somek's view that Hermann Heller's 1933 essay, ‘Authoritarian Liberalism’, provides a useful starting point for thinking about the ongoing European crisis, in which European authorities are favouring rigid austerity and pro‐business policies while undermining basic liberal and democratic rights. Heller's unfortunate neglect, especially in Anglophone scholarship, is discussed. Nonetheless, Somek and other recent scholars who have turned to Heller to make sense of the European crisis downplay some of the tough questions raised by any attempt to apply Heller's analysis of the Weimar crisis to the contemporary setting. In particular, Heller's theory relied on a robust social democratic statism which has become increasingly unpopular even among theorists on the political left.     

The Spokesman Conundrum: “Is It Good for the Jews?”

Woest, Victoria Saker. 2012 . Henry Ford's War on the Jews and the Legal Battle Against Hate Speech . Battles concerning who legitimately speaks for minority groups pervade US history. The historically decentralized organization of American Jewry affords a prime example of this key leadership dilemma. Competing approaches to how to deal with Henry Ford's virulent anti‐Semitism and extensive hate speech in the 1920s underscore the familiar, yet seldom carefully analyzed, tension between confrontation and negotiation that is often faced by outside groups and their spokesmen who seek change, wish to defend themselves, and/or hope for increased inclusion.     

Reversing the ‘Tragedy’ of the Commons? Sustainable Management and the Commons Act 2006

The Commons Act 2006 is the first statute since the Commons Registration Act 1965 to address the problems associated with the management of common land in England and Wales. A key focus for the 2006 Act is the introduction of mechanisms for the sustainable management of common land, including self‐regulatory commons councils. This article examines the ‘sustainable’ management of common land in historical and contemporary perspective. It sets the 2006 Act, and the sustainable management of common land, in the wider context of the ongoing debate triggered by Hardin's ‘Tragedy of the Commons’ and subsequent institutional and post‐institutional scholarship on common pool resource management. It uses historical and qualitative research data drawn from three case studies to demonstrate the irrelevance of Hardin's thesis in an English context, and identifies the Commons Registration Act of 1965 as the true ‘tragedy’ of the English and Welsh commons. The case studies also illustrate the challenges posed by the introduction of legal mechanisms to promote the ecologically sustainable management of the modern commons, and inform the critique of the Commons Act 2006 developed in the article.     

What Is “Law,” if “the Law” Is not Something that “Is”? A Modest Contribution to a Major Question

After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law‐makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law‐makers. We need to remove the mystery that surrounds the law so as to provide for greater transparency. This transparency can be gained by requiring law‐makers to declare their inescapable biases where they influence their lawmaking.     

“Murder–Suicide” or “Murder–Accident”? Difficulties with the Analysis of Cases

Abstract: Homicide where a perpetrator is found dead adjacent to the victim usually represents murder–suicide. Two incidents are reported to demonstrate characteristic features in one, and alternative features in the other, that indicate differences in the manner of death. (i) A 37‐year‐old mother was found dead in a burnt out house with her two young sons in an adjacent bedroom. Deaths were due to incineration and inhalation of products of combustion. (ii) A 39‐year‐old woman was found stabbed to death in a burnt out house with her 39‐year‐old de facto partner deceased from the combined effects of incineration and inhalation of products of combustion. The first incident represented a typical murder–suicide, however, in the second incident, the perpetrator had tried to escape through a window and had then sought refuge in a bathroom under a running shower. Murder–accident rather than murder–suicide may therefore be a more accurate designation for such cases.     

‘Stop the ECJ’?: An Empirical Analysis of Activism at the Court

This article uses a disaggregated approach to study the role of the Advocate General in the European Court of Justice (CJ). It presents original empirical material based upon interviews with Advocates General (AsG) and referendaires at the CJ to assess the question of activism at the Court. Using answers to specific questions, I conclude that while the AsG are entrepreneurs, neither they nor the Court can be described as ‘activist’per se.     

Rectification of the Register – Prospective or Retrospective?

In Gold Harp v MacLeod the Court of Appeal considered paragraph 8 of Schedule 4 of the Land Registration Act 2002 and interpreted this provision to mean that the priority between mistakenly de‐registered interests and registered interests can be altered following rectification. The court can give the de‐registered interest the priority which it ‘would have had’ but for the mistake. In other words, it allows for retrospective rectification. This case note concludes that this is the correct interpretation of paragraph 8 and of the words ‘for the future’. However, it argues that the current range of options available to the court in terms of rectification are producing uncertainty, and that a better approach may be to rely on the priority provisions in sections 28 and 29.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

Dworkin and Phenomenology of the “Pre‐Legal”?

Ronald Dworkin states in his preface to “Law's Empire” (1986) that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary for law, and that is a Phenomenology of the Pre‐Legal.     

What Did the Lawyers Do During the ‘War’? Neutrality,Conflict and the Culture of Quietism

Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than ‘paid technicians’ in such circumstances. It focuses in particular upon a number of ‘critical junctures’ in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.     

‘You caught ’em!’…or not? Feedback affects investigators’ recollections of speech cues thought to signal honesty and deception

Purpose. When eyewitnesses to crime receive feedback about their choice of a suspect from a line‐up (or post‐identification feedback), such information can substantially alter their recollections of the witnessing experience. This study examined whether feedback exerts similar effects on investigators’ recollections of a suspect's behaviours. Methods. Participant‐investigators received training on speech cues that they were told, when present in a speaker's account, signal either honesty or deception. After hearing a suspect's account of a theft, participants decided whether the suspect was lying or telling the truth. One‐third of participants subsequently received immediate confirming feedback about their performance, while another third received disconfirming feedback. The remaining one‐third of participants did not receive feedback about their decision. Finally, participants rated the frequencies of speech cues that they had been instructed to detect in the suspect's account. Results. Disconfirming feedback significantly altered retrospective judgments about the characteristics of the suspect's account. Specifically, when told that the decision they made about the speaker's credibility was incorrect, participants judged the speaker as having exhibited fewer behaviours consistent with the credibility decision they had made, relative to those who either received no feedback or confirming feedback. Conclusions. Biases in recollections of a suspect may have consequences in real‐world interrogations wherein investigators assess credibility on the basis of numerous behavioural cues. Results are discussed in light of findings of post‐identification feedback studies on eyewitnesses.     

Universal Credit, ‘Positive Citizenship’, and the Working Poor: Squaring the Eternal Circle?

This article examines the potential effects of the Welfare Reform Act 2012 on the United Kingdom social security system, and on claimants. This legislation illustrates new modes of thought and ideology underlying the British welfare state. The introduction of the ‘Universal Credit’ has the potential to solve the ‘poverty trap’, where claimants are better off in receipt of welfare benefits rather than engaging with employment, and may assist low‐paid individuals into ‘positive’ citizenship. However, the practicalities of implementing Universal Credit might undermine legislators’ ambitions. It may be that the Act attempts too much reform to the social security system, trying to impose legislative uniformity on a highly complex set of socio‐economic circumstances which may be impervious to such rationalisation. This could result in the scheme requiring further reform, or even abolition. The ideological and historical underpinnings of Universal Credit are also examined to understand more clearly its nature and structure.     

The Reverse Majority Voting under the ‘Six Pack’: A Bad Turn for the Union?

The ‘six‐pack,’ a set of six Union legislative acts that was adopted in November 2011, was one of the main Union responses to the current sovereign debt crisis. Aware of the weak performance of the Stability and Growth Pact and of the underlying design faults of the Treaty provisions on the coordination of Member States' economic policies, in particular the multilateral surveillance procedure (Art 121 TFEU) and the excessive deficit procedure (Article 126 TFEU), the legislators were determined to strengthen the means of surveillance in this policy field. One step considered necessary to achieve this end was the introduction of reverse majority voting in the Council when the latter has to adopt, for example, sanctions in above procedures. This article will examine whether this voting method is compatible with the Treaties.     

European Human Rights Law and the Normalisation of the ‘Closed Material Procedure’: Limit or Source?

Once a legal abnormality that was criticised on human rights grounds, the closed material procedure (CMP) has now become the main mechanism for dealing with allegedly sensitive security information in the UK. This article considers the role of European human rights law in that process. It argues that the CMP can be conceptualised as the product of human rights law, which has developed so as to legalise and normalise its use, and that this process is symptomatic of a deeper inter‐relationship between human rights law and the preservation of states' security interests, which renders the former inherently unsuitable for dealing with security phenomena.