Abolishing Some More Obsolete Crown Prerogatives

The Crown had many prerogatives (privileges) which other legal and natural persons did not have, due to the pre-eminent role of the sovereign. Some of these the Crown delegated to its subjects. That is, it franchised them, in return for money. In modern times??with the sovereign only having a formal role??it needs to be considered whether these Crown prerogatives should pass to the control of Parliament. Also, where they are obsolete, their abolition. A previous article has argued for the abolition of many obsolete prerogatives relating to the military. This article argues that the prerogatives of the Crown to levy pontage (a toll for the building, and repair, of bridges) and murage (a toll for the building, and repair, of town and city walls for defensive purposes) should be abolished. So too, the right of the Crown to waifs (stolen goods cast away by a thief in flight) and estrays (animals wandering in any manor or lordship whose owner is unknown). Also, that the prerogative of the Crown to unmarked mute swans in open water be restricted to the Thames??where it is only presently exercised. Finally, this article argues for the abolition of the palatinates of Lancaster, Chester and Durham??since the prerogatives once given to them by the Crown have now reverted to the same??and for the abolition of various long obsolete prerogatives given to the Cinque Ports.     

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'.     

Winning and Losing in Investor–State Dispute Settlement

As tensions between investors’ rights and sovereign power escalate, investor–state dispute settlement (ISDS) has become a focal point of backlash and controversy. As a result, ISDS now embodies two opposing currents in international law: (1) the erosion of sovereignty that accompanied economic globalization, trade frameworks, and investment treaties following the Second World War and (2) more recently, reassertions of sovereignty prompted by recent backlashes against the global economic order. This article measures and evaluates outcomes of the ISDS system for sovereign participants. Using the best available data, this article contributes more detailed assessments of sovereign winners (home states of claimants) and sovereign losers (respondent states) in the ISDS system. This article also considers the distribution and the proportional impact of outcomes for sovereign participants, both of which are fundamental in the legitimacy debates surrounding the ISDS system.     

论附负担赠与合同的含义及效力——以我国首起助学合同纠纷案为例

我国首起助学合同纠纷案引起了媒体的广泛关注。法院对该案的判决存在诸多不能自圆其说甚至自相矛盾的地方,其主要原因是对我国《合同法》规定的附负担赠与合同的含义和效力没有真正把握。因此有必要详尽探讨附负担赠与合同的含义和效力,分析助学合同案的法律适用问题。     

From Nomos to Hegung: Sovereignty and the Laws of War in Schmitt's International Order

Carl Schmitt's notion of nomos is commonly regarded as the international equivalent to the national sovereign's decision on the exception. But can concrete spatial order alone turn a constellation of forces into an international order? This article looks at Schmitt's work The Nomos of the Earth and proposes that it is the process of bracketing war called Hegung which takes the place of the sovereign in the international order Schmitt describes. Beginning from an analysis of nomos, the ordering function of the presocratic concept moira is explored. It is argued that the process of Hegung, like moira, does not just achieve the containment of war, but constitutes the condition of possibility for plural order.     

“Living” Law: Performative, Not Discursive

This article questions some assumptions in legal, moral and political theory regarding the law??s ways of functioning. As the constant revival of the topos ??living law?? shows, underlying common models of law, and of the legitimacy of law, is, though often implicitly, the view that law is or should be particular, near to the facts, flexible, susceptible to realities, and as a consequence accessible to modernisations. However, this article proposes an immanent critique of similar hopes or fears, and it argues that modern positive law can not be responsive to any other ??order?? or context because it constitutes an order of its own. The article seeks to give an explanation of the specific character and forms of the juridical operating and to explain more specifically how decisions are produced. The article in this regard also investigates the importance and role of imagination, fiction and performativity. Underlining the fact that the juridical exceeds legal propositions by asserting itself as a distinct form of social communication, it calls for a shift from the representational to the performative analysis in the study of law.     

Freedom and Sovereignty a Fatal Relationship Outlined with Jean-Luc Nancy and Marquis De Sade

Sovereignty and freedom are interlinked in a manner of both ambivalence and interdependence. Neither can sovereignty confirm itself without presupposing for itself a pure state of freedom; nor can freedom conceive and realise itself without interweaving with sovereignty. Both concepts collide with each other as sovereignty usually signifies a certain social or cultural power or order; and freedom regularly is related to a sovereign subjectivity. Therefore, the question is: how far might sovereignty serve as a source of freedom that, at the same time, has to be limited by this freedom itself. When the sovereign (subject) defines where the limits of freedom are, he will mostly define the limits of experiencing such freedom for all those who have to follow his decision on the limit. Further, if the free (sovereign) subject itself defines its own limits, it will supposedly end up rejecting its interweaving with any other subjectivity beyond its own. The problem remains: both sovereignty and freedom cannot be realised if they are already limited.     

Trustees versus fiscal agents and default risk in international sovereign bonds

Over the last 10?years, organisations such as the IMF have launched several initiatives to change market practice with respect to sovereign bond contract drafting to ease restructuring after defaults. The first of these, the universal adoption of collective action clauses, was embraced by the market after some hesitation. Another proposal??the more widespread appointment of trustees to represent bondholders in times of crisis, to centralise enforcement action against the debtor and thus to facilitate debt relief??has so far failed to have the desired impact. Amongst other potential reasons for this failure, the argument has been made that to vest enforcement rights in the trustee, as opposed to individual bondholder rights, would be to reduce the deterrence against opportunistic defaults and thus to exacerbate moral hazard. Using a sample of secondary market bond spreads and information on default status, this paper assesses empirically whether sovereign bonds issued under a trust structure indeed carry a higher default risk. It finds no systematic evidence of either a spread premium or higher actual default rates for bonds with collective enforcement rights.     

Does Kelsen’s Notion of Legal Normativity Rest on a Mistake?

Kelsen advanced a sophisticated naturalist conception of intention and adumbrated a methodological strategy that would enable the transformation of the sophisticated naturalist conception of ??intention?? into a cognizable object of legal science while simultaneously providing an explanation of the legal ??ought??. The methodological strategy is the ??inversion thesis?? which establishes that legal norms enable us to objectively identify and determine the ??will?? or the intention of legal authority. Contrary to nineteenth century psychologism, Kelsen argues that it is not the case that the will or the intention of the sovereign determines what the norm is, rather it is the legal ought that ??objectifies?? the will. However, it is argued that in spite of the fact that Kelsen advanced a sophisticated account of intentional action, he fails to understand the complexities of the notion of the ??will??, intentional action and practical reason. What does he miss in his understanding of the notion of the practical? I will advance the view that the notion of the practical or deliberative involves, both in Kant and Aristotle, the transparency condition which establishes that the agent or deliberator intentionally acts for reasons that are self-evident or transparent to him or her. It is a recalcitrant feature of the deliberative standpoint that cannot be theorised. For Aristotle, Aquinas and Anscombe the deliberative standpoint can be known through the end or goal of the intentional action as this provides the form of the action. The end is presented as a good-making characteristic. As problematic as that might be, this means that the end needs to be presented as a good-making characteristic and therefore it involves evaluation. For Kelsen, the soundness of this conception is an insurmountable obstacle to theorise the ??ought?? and therefore the ??will??. Yet, surprisingly and contrary to Kelsen??s own notions, I will show that Kelsen??s ??inversion thesis?? is parasitic on Aristotle?CAnscombe??s ??ought??.     

The Sovereign Event in a Nation's Law

This article interrogates the relationship between the sovereign event and a legal decision that purports to place sovereignty beyond law. It argues that sovereignty cannot be regarded as unitary, and elaborates the process of iterability by which the sovereign event is split from the outset. This dynamic is examined through an interrogation of the non-justiciability of sovereignty in Mabo v. Queensland (No. 2)(1992). Along with the unitary conception of sovereignty, Mabo (No. 2) deployed an absolute measure for community in the form of the ‘skeletal principle’ of the doctrine of tenure. The paper argues that a conception of the political that affirms the One sovereign source of community and law instead of the original dis-position of law, nation and community repeats the original violence, and will, at best, run aground on the righteous (mis)recognition of the ‘appropriate savage’. It concludes with an indicative rethinking of community through the thought of Jean-Luc Nancy. This revised version was published online in July 2006 with corrections to the Cover Date.     

Intoxication and the Act/Control/Agency Requirement

Doug Husak has argued, persuasively I think, that there is no literal ??act requirement?? in Anglo-American law. I begin by reviewing Husak??s reasons for rejecting the act requirement, and provide additional reasons to think he is right to do so. But Husak??s alternative, the ??control condition??, I argue, is inadequate. The control requirement is falsified by the widespread practice of holding extremely intoxicated offenders liable for criminal conduct they engage in even if they lack control over their conduct at the time of the offense, and even if they are acting involuntarily. I provide examples from Canadian, US and German law to flesh out our legal practices with respect to intoxicated offenders. I then argue that, at least with respect to one class of intoxicated offenders?Cthose known as ??grand schemers??, who plan their criminal offending prior to rendering themselves incapable of voluntary control over their conduct?Cwe are morally justified in imposing liability. I then propose an alternative to both the act and control requirements: what I call the ??agency requirement??. I argue that our law does and should impose liability for conduct that is expressive of or constitutive of the defendant??s practically rational agency. Adopting an agency view allows us to expand our focus from just the moment of the offense to temporally extended instances of agency, such as is involved in planned offending by grand schemers.     

Predestination and Hierarchy: Vallabh��c��rya��s Discourse on the Distinctions Between Blessed, Rule-Bound, Worldly, and Wayward Souls (the Pu??iprav��hamary��d��bheda)

The Pu??iprav??hamary??d??bheda (PPM) by Vallabh??c??rya (1479?C1531?) is a brief work (25 verses) written in Sanskrit in about the year 1500, which is accompanied by four Sanskrit commentaries and one Hindi (Brajbh????) commentary. The most important and authoritative commentary is by Puru?ottama, written about two centuries after the original text. The article contains a translation of the PPM with long extracts from the commentaries, particularly the one composed by Puru?ottama. After an introduction placing the PPM??s doctrine of the hierarchy of embodied souls (j??vas) and their eligibility to obtain states of devotion (bhakti) in a wider context of Vai??ava sectarian and philosophical schools, the text is presented along with the translation and notes to the text (including extracts from the commentaries). The article concludes with reflections on the PPM??s doctrine of predestination, comparing it with those of other Indian religious sects and within the wider context of predestination in Western religions, where these discussions have been ongoing for more than 1500 years. An extensive bibliography is included at the end.     

Criminalizing Behaviour to Protect Human Dignity

The purpose of this article is to discuss the criminalization of conduct based on human dignity arguments. It proposes a modest version of integrating human dignity into discussions about criminalization. After a critical examination of both the notion of ??human dignity as an objective value?? and the assumption that the meaning of human dignity can be explained by referring to Kant??s moral philosophy, human dignity violations are characterized as severe humiliations.     

Self-Reported Intentions to Offend: All Talk and No Action?

To study criminal decision making, researchers commonly present hypothetical offending scenarios to participants and record their self-reported intentions to offend (SRIO). These SRIO scores are treated as an indicator of participants?? predisposition to commit the act described in the scenario. Drawing from the field of clinical measurement, the current study examines the diagnostic accuracy of SRIO scores by comparing participants?? intentions to acquire illegal music files from a designated distributor to their actual attempts to acquire such files. Approximately 7% of participants who read about a (bogus) music piracy opportunity reported strong??and at times definitive??intentions to seek out the illegal files. However, in actuality, no one in the study engaged in this behavior. Clinimetric indicators suggest that SRIO scores are better at predicting abstention from crime than actual criminal participation.     

The War on Terrorism: When the Exception Becomes the Rule

This article argues that the semiotics of the war on terrorism points at a significant shift in United States' discourses on security. This shift can best be described as a move from defence to prevention or from danger to risk. Whereas the notion of defence is closely connected to the state of war, this article claims that the war on terrorism instead institutionalises a permanent state of exception. Building upon Agamben's notion that the state of exception is the non-localisable foundation of a political order, this article makes two claims. First, it argues that semiotic shifts in United States' security politics point at a general trend that, to some extent, structures international American interventions. In a sense, the semiotic shifts in American security discourse declare the United States as the sovereign of the global order: they allow the United States to exempt itself from the (international) framework of law, while demanding compliance by others. Second, it claims that this production of American sovereignty is paralleled by reducing the life of (some) individuals to the bare life of homo sacer(life that can be killed without punishment). In the war on terrorism, the production of bare life is mainly brought about by bureaucratic techniques of risk management and surveillance, which reduce human life to biographic risk profiles.     

Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law

Today it is widely recognized in both academic literature and the mainstream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality.
By drawing on Carl Schmitt and Giorgio Agamben, we seek to recast prosecutorial decision making as something that allows prosecutors to grant exemptions from the reach of valid law. The sovereign power of prosecutors is most vividly on display when they decline to bring charges where there is a legally sufficient basis for doing so. By exercising what is, in most jurisdictions, an all but unreviewable power, they can and do exempt individuals from the reach of valid law.     

Looking for the Nature of Law: On Shapiro’s Challenge

This article critically focuses on the methodological aspects of Scott Shapiro??s book Legality. Indeed Shapiro??s book sets out several original theses about not only the nature of law and the main problems of jurisprudence, but also about how the nature of law can be discovered by jurisprudence. In this sense, the method of inquiry adopted by Shapiro can be considered as one of the most challenging outcomes of his research. The article is divided into two parts. In the first two sections I shall analyze Shapiro??s jurisprudential approach by focusing on its resort to metaphysical vocabulary, conceptual analysis, constructive reasoning, and institutional explanation of law. In the following sections I will consider some of the problems that this approach gives rise to, and outline an alternative view on the nature of law stimulated by the discussion of Shapiro??s work.     

The Impact of Transformations in National Cultural Identity upon Competing Constitutional Narratives in the United States of America

Shifts in the national cultural identity of the US have been reflected in shifts in the US?? dominant constitutional narratives. For the United States, ??inter-legality?? has been less a matter of dealing with alternative non-state legal narratives than of contending with constantly arising and competing narratives about the ??correct?? nature of the ??official?? legal order of the state. The US Supreme Court has claimed to have the ??last word?? in resolving these arguments but because that Court is so often sharply divided and because the Court membership and the nature of its ??last words?? changes so often, where a significant element of the society seeks to advance its ideas and interests, it will often do so in legal and constitutional terms. As the national culture undergoes changes, a competing constitutional narrative may gain ground and even ultimately prevail, at least for a time, and achieve Supreme Court ??endorsement?? for its claims.     

Combining value for money with increased aid to fragile states: welcome partnership or clash of agendas?

This article examines the origins and main strands of recent debates within the international development community regarding the tensions between increasing aid allocation to so-called ??fragile states?? and growing domestic and international pressure for donors to demonstrate measurable results and returns on their investments. With particular reference to the UK context, the paper examines how the confluence of these two agendas is being viewed, at least publicly, and some of the main arguments that have been put forward about why they may be difficult to pursue simultaneously. It asks whether or not it is feasible that donors will explicitly seek to address and resolve the apparent trade-offs between these two agendas, and concludes that in both international and domestic political arenas, ??good enough?? aid effectiveness, or a more nuanced, ??developmentised?? understanding of value for money, are unlikely to become palatable or politically viable any time soon.     

Doing Justice to Existence: Jean-Luc Nancy and ��The Size of Humanity��

Jean-Luc Nancy has not written a single work dedicated entirely to the problem of justice or related themes, but nevertheless, topics such as right, justice, judgement or law appear in various places in Nancy??s work. Besides ??Lapsus judicii?? and ??Dies irae??, the theme of justice particularly comes up and in two small texts: ??Cosmos Basileus?? and ??Human Excess??. These texts are crucial to understand Nancy??s point of view in juridical matters but are largely left aside in secondary literature, probably because of their enigmatic character. In this article we explore the cluster of juridical questions in ??Cosmos Basileus?? and ??Human Excess?? and argue why today, for Nancy, an ontological perspective is needed to cope with juridical questions. For him, justice is in the first place bound up with the fact of our co-existence, with what is unique about every existence in its co-existence with other creations. He claims, first, that freedom is responsibility and the act of doing justice to existence and, second, that sharing the world is the law of the world. We will discuss these two claims and conclude with Nancy??s plead for ontological reflection within juridical topics.