An Instance of Reasonable Universality: The Scilingo Case

The Audiencia Nacional's (AN) decision in Scilingo is not wellargued in all its implications and, on some points, the Courtengages in legal acrobatics; the decision therefore lends itselfto criticism. Nevertheless, the AN was right in exercising itsjurisdiction over Scilingo's extraterritorial crimes, both fromthe viewpoint of international law (on the basis of so-calledconditional universality) and of domestic law (on the strengthof Spanish rules of procedural and substantive criminal law).Furthermore, although crimes against humanity were providedfor in the Spanish criminal code only in 2003, Scilingo's trialand conviction for crimes against humanity is not at odds withthe principle of legality (nullum crimen sine lege). Indeed,at the time of commission of his alleged crimes, rules of customaryinternational law prohibiting such crimes already existed ininternational law and the corresponding domestic provisionswere in force in the Spanish legal order. These rules and provisionsbecame directly applicable as soon as Spanish law provided fora penalty attaching to such crimes.     

Trusts in American law and some of their substitutes in Spanish law: Part II

The first part of this article examined, from a US point ofview, the principal uses of trusts and now this second partdescribes aspects of Spanish law which provide similar facilitiesfor investors, before concluding that none of the tools availablein Spanish law fulfil all the functions of trusts and that theintroduction of a trust law into Spanish law would not be simple.     

John Vincent’s Reading at Gray’s Inn, 1668/9, on the Merchants’ Assurances Act 1601

In Lent Term 1668/9, John Vincent, a bencher of Gray’s Inn, gave a reading on the Merchants’ Assurances Act 1601 (43 Eliz. I, c.12). The notes of the law reporter, Joseph Keble, record this observance of the centuries-old tradition of readings, which was destined to expire within the next two decades. This paper situates Vincent’s reading within the changing tradition of readings in the seventeenth century. It highlights the role readings continued to play in disseminating sophisticated legal learning, particularly in relation to newer areas of practice such as marine insurance, which were largely uninformed by statute, common law precedent or reference works, and would have been difficult to master through book-study alone. It examines a selection of issues discussed during the reading, focussing on legal outcomes grounded in the ‘customs’, usages, practices and understandings of merchants, and illustrating how these were perceived as exceptional by comparison to the ordinary rules of the common law. The nature and jurisdiction of London’s court of assurances, reconstituted and empowered by the 1601 Act, are also discussed. More generally, this paper demonstrates the value of post-Restoration readings for historians of English law in the late seventeenth century.     

《菲律宾民法典》的保守与创新

1949年《菲律宾民法典》是对1889年《西班牙民法典》的翻新,其编排结构并没有逃脱后者的束缚,内容也具有很强的罗马法色彩;该法典还因菲律宾曾受到美国的长期殖民统治,受到了英美法的强大影响,结果,它在很多具体制度的设计上实现了大陆法系与英美法系的巧妙融合.因此,该法典不但为我们以《西班牙民法典》为标杆研究民法典结构的变迁提供了范本,还为我们了解混合法系的优劣提供了可能.     

The trust in Spanish and Italian private international law Part II

This is the concluding part of the Article of which the firstpart appeared in the (September QUERY FOR OXFORD) issue of Trusts& Trustees and which dealt with the position of trusts underItalian conflict of law. This second part examines the positionunder Spanish conflict of law rules and the impact that theHague Convention might have on it.     

Interdisciplinarity and the Authority Paradigm: Should Law Be Taken Seriously by Scientists and Social Scientists?

This article questions whether those outside law should take law seriously as an intellectual discipline capable of contributing to the development of epistemological thinking in the natural and social sciences. The discipline is approached from a diachronic and synchronic position with emphasis on the civil law tradition. It will be shown that the governing paradigm in legal studies has always been the 'authority paradigm', which results in law being closer to theology than to the social sciences. Its principal actors (judges) make assertions free from the normal constraints of scientific method; accordingly, the idea of a 'legal science' (imported into the common law tradition after 1846) must be treated with great caution. It is not a science dedicated to enquiring about the nature of the physical world, society or social relations. Its epistemological development remains trapped in the seventeenth and eighteenth centuries: thus, as a discipline, law has little to offer other social sciences.     

Framing the Local and the Global in the Anti-nuclear Movement: Law and the Politics of Place

This article examines the politics of place in relation to legal mobilization by the anti-nuclear movement. It examines two case examples – citizens' weapons inspections and civil disobedience strategies – which have involved the movement drawing upon the law in particular spatial contexts. The article begins by examining a number of factors which have been employed in recent social movement literature to explain strategy choice, including ideology, resources, political and legal opportunity, and framing. It then proceeds to argue that the issues of scale, space, and place play an important role in relation to framing by the movement in the two case examples. Both can be seen to involve scalar reframing, with the movement attempting to resist localizing tendencies and to replace them with a global frame. Both also involve an attempt to reframe the issue of nuclear weapons away from the contested frame of the past (unilateral disarmament) towards the more universal and widely accepted frame of international law.     

Trusts in American law and some of their substitutes in Spanish law: Introduction and Part I

This article describes how trusts are used in American law andhow Spanish law provides similar facilities for investors. Thearticle is in two parts. The first part examines, from a USpoint of view, the principal uses of trusts and the second partwill describe aspects of Spanish law that provide similar facilitiesfor investors before concluding that none of the tools availablein Spanish law fulfil all the functions of trusts and that theintroduction of a trust law into Spanish law would not be simple.     

The Origins of Trade Secrecy Law in England, 1600–1851

This paper examines the origins of trade secrecy law from the beginning of the seventeenth century until Morison v Moat (1851), described by the Oxford History of the Laws of England as ‘foundational’. The paper reveals something of a conundrum. The first part shows that although the prevalence of guild ordinances would have familiarized many with the concept of ‘lawful secrets’, these provisions could no longer be enforced in the guild courts by the late seventeenth century, or within the wider jurisdiction of the courts of the City of London. Instead, as the second half of the paper shows, it was the law courts proper that came to provide succour to those working trade secrets, allowing them to both restrain employees from using secrets for their own benefit and/or to sell secrets to other parties. This was a halting process, but one that had certainly begun prior to Morison.     

‘More Equitable than the Judgment of the Justices of the Peace’: The King's Bench and the Poor Law 1630–1800

Orders issued by justices operating the poor law in seventeenth and eighteenth century England – orders for removing paupers, orders for the maintenance of bastard children, orders adjudicating poor rate appeals – generated vast quantities of litigation. Most of that litigation was by way of appeal to Quarter Sessions; but a small number of cases went further, to the King's Bench, by way of certiorari. This account examines this litigation phenomenon from several vantage points: from the perspective of the King's Bench (which innovated procedures to regulate certiorari, and which expanded its means of reviewing legal error through the development of the special case); from the perspective of Parliament (which was required to respond to demands by justices that the process be abolished); and from the perspective of contemporary commentators (who were critical of the money wasted by parishes litigating in the King's Bench).     

Predicting Lawyer Effectiveness: Broadening the Basis for Law School Admission Decisions

Law school admission decisions are heavily influenced by a student's undergraduate grade point average (UGPA) and Law School Admission Test (LSAT) score. These measures, although predictive of first‐year law school grades, make no effort to predict professional competence and, for the most part, they do not. These measures also create adverse impact on applicants from underrepresented racial/ethnic groups. This article describes the rationale for and process by which we explored new tests to predict lawyer effectiveness rather than law school grades and reports results of a multiyear empirical study involving over 3,000 graduates from Berkeley Law School and Hastings College of the Law. Tests measuring personality constructs, interests, values, and judgment predicted lawyering competency but had little or no adverse impact on underrepresented minority applicants. Combined with the LSAT and UGPA, these broader tests could assess law applicants on the basis both of projected professional effectiveness and academic indicators.     

The Missing Child in Child Protection: The Constitutional Context of Child Maltreatment From Meyer to DeShaney

This paper employs DeShaney v Winnebago County (1989) as an illustration of how the law has lost sight of the interests of children in cases of child maltreatment. The historical constitutional context of child maltreatment – balancing state's interests and parental rights – is discussed. The opinions in DeShaney and two of the major criticisms of the majority's opinion – the action versus inaction dichotomy and the restrictive interpretation of the special relationship doctrine – are then considered. Legislatively created entitlements to protection are suggested as an avenue of relief for injured children which also necessitates a focus on the rights and interests of children.     

Common Wealth

After reviewing developments in human rights law and international law – in particular the domestication of international human rights law and the rise of the democratic norm in international law – the importance of these developments for the Commonwealth and for its member states is highlighted and linked to many of the programmes and policies that the Commonwealth Secretariat has recently launched. This paper discusses these developments and others in order to stress the wealth of potential advantages for Commonwealth member states and their citizens that flow from a common commitment under the rule of law to human rights and democracy. The authors endeavour to show that such wealth is more than mere economic benefit – as important as that undoubtedly is – and that citizens stand to reap a moral system of government, one which expands the opportunities for popular participation in political processes and puts an end to social practices that marginalise some citizens and empower others.     

When (Some) Prostitution is Legal: The Impact of Law Reform on Sex Work in Australia

In Australia, prostitution regulation has taken a very different path from many other countries. Law reform has led to the opening of some significant new spaces for legal sex work, including the (very different) regulatory regimes established in two Australian states – Queensland (brothels legal if their owners are licensed) and New South Wales (most commercial sex businesses and some street prostitution decriminalized; no licensing regime). The main research question is: how has regulation impacted on the positive rights of sex workers? I argue that law reform has engaged a mix of neo-liberal and other approaches – not to increase personal or corporate freedom but as part of a practical strategy designed to control a range of social problems, such as police corruption and organized crime. Neo-liberal regulation of prostitution in Australia has always been deployed in tandem with other modes of regulation – including new criminal law and policing strategies, planning law, health regulations, and (of course) moral regulation.     

重建共犯本质理论逻辑基点——关于德日共犯本质理论逻辑基点的否定

刑事古典学派所追求的最高价值--个人权利和刑事近代学派所追求的最高价值--整体社会利益--防卫社会,是两种对立的价值观.若以此作为共犯本质理论的逻辑基点,不可能达到共犯本质理论的公正性与合理性,因为新旧两派的思想基础并非是整个人类社会都认同的刑法理论的基础价值.由于法官中立价值能够达成全社会的"共识",具有达到共犯本质理论公正性与合理性的可能性,因而,应该以"法官中立价值"作为共犯本质理论的逻辑基点.     

The Normality of the Exception in Democracy's Empire

The motif is one of inversion. In its received mode, the exception – the exceptional decision suspending the normal legal order – generates both the sovereign and the law. Here, on the contrary, the exception is found to be of the 'normal' law and, thus endowed, law goes to constitute the sovereign. This normality of the exception is then matched with the sovereign claim of democracy's empire. That empire is thence shown to have an oxymoronic quality, democracy and its constituent law being conducive to empire yet ultimately opposed to it. The empire of the United States of America provides a 'case'.     

Experimentation with extra embryos in Spain: comment on the 45/2003 Law that modifies the 35/1988 Law on assisted reproduction techniques]

The 45/2003 Spanish Act tries to solve the problem of the cryoconserved human embryos produced in in vitro fertilization (IVF) programmes. The new law, which modifies the 35/1988 Act on Artificial Reproduction Techniques, is analyzed from the scientific, ethical and legal points of view.     

Multiple Wrongdoing and Offence Structure: A Plea for Consistency and Fair Labelling

Crimes come in all shapes and sizes, but relatively little work has been done on offence structure – Robinson's recent functional analysis is perhaps the one obvious exception. This article concentrates on incidents of multiple wrongdoing and suggests that the current substantive law is both inconsistent and confusing. Burglary, for example, is unnecessarily narrowly defined and should be expanded to include broadly similar scenarios. The law is confusing because it conflates qualitatively very different incidents under the same umbrella – serial killers, for example, commit the same crimes as those who kill multiple victims by one act. Not only does the law fly in the face of common sense but it conflicts with the principle of fair labelling – that crimes be defined to reflect their wrongfulness and severity – which seeks to fulfil some important functions in the criminal justice system.