Using the Wrong Policy Tools: Education,Charity, and Public Benefit

A recent decision on the application of public benefit under the Charities Act 2006 sidestepped the political debate surrounding the charitable status of independent fee‐charging schools. The broader political context nevertheless underscores the legislative reforms, and this article questions whether the new statutory public benefit requirement has utility as a welfare policy tool in the field of education. It examines the public benefit requirement in charity law against the backdrop of government policy towards education and the broader political agenda for a mixed economy of welfare provision, and argues that the difficulties Labour faced in developing its education policies were replicated in the application of the post‐Act public benefit requirement to fee‐charging schools. As a result, achieving broader policy goals for widening educational opportunity through public benefit was almost impossible given the regulatory framework and the principles upon which charity law is founded.     

再论我国慈善组织公信力的法律重塑

公信力是慈善组织生存之基,公益性是慈善组织公信力之源。影响慈善组织公信力的因素既包括法治因素,也包括文化因素、体制因素等。我国慈善法律体系已经形成,内容较为全面完善,关于慈善组织的法律定位也较为明确,法律实施不到位以及官民二重性是制约我国慈善组织公信力提升的主要原因。官民二重性有悖于慈善组织的民间本性,导致慈善组织的独立性、公益性、运作效率降低,导致对慈善组织监管不力,并进而阻碍慈善事业的健康发展。要以理顺政府和慈善组织的关系为核心,进一步加强慈善法治建设,推动我国慈善的现代转型。在慈善法治建设中,信息公开是前提,创新管理是保障,强化监督是抓手,责任落实是关键。     

我国慈善事业发展的法治困境及路径选择

我国慈善事业的快速发展凸显了对法治规范的迫切需求。以法治理念观之,我国慈善领域存在立法层次低、专门性法律缺乏、现行制度对慈善事业限制过多以及政府与社会的权界尚未理清等问题,造成慈善事业公信力普遍弱化、法律激励慈善捐赠的功能没有充分实现等困境。在法治理念的指引下进行慈善法律制度的重构是走出慈善事业发展困境的路径选择。     

我国慈善基金治理模式立法研究

近年来,我国慈善事业发展迅速,但是立法却相对滞后。从慈善资金治理模式分析框架的四个要素：财产权结构、绩效观察度、公共关联度和资源依赖性来分析,我国现行慈善基金治理模式存在诸如单中心主义行政监管模式目标错位、自治管理规范欠缺、法律救济制度缺乏可操作性和诱致性规范缺失等弊端,因此,必须完善我国的慈善基金治理模式,具体构想如下：一是构建多中心主义的慈善基金法律治理机制,二是实现私法规范与公法规范的有机融合,三是分阶段建立具有公私法交融属性的中国慈善基金治理法律体系。     

Lay Participation in Danish Crime Trials: On the Interaction between Lay and Professional Judges during Deliberation

While there is abundant research on common law jury systems, we know less about lay participation in civil law crime trials, often called ‘mixed courts’ or alternately ‘mixed tribunals'. Here, a professional judge and a number of lay judges deliberate together on the issues of guilt and sentencing. This joint deliberation has naturally led both public opinion and research to focus on power relations such as lay judges’ dependence on the professional judges. Based on an ethnographic study of deliberation processes, the present article offers a different perspective on lay judges’ contribution and argues that their decision making rests on a hybrid construction of knowledge in the continuous interaction between the professional judge and lay participants during deliberation. The analysis of this decision‐making process contributes to our understanding of how ordinary people selected for this civic duty create knowledge about justice.     

Trusts for Religious Purposes and the Question of Public Benefit

It is a well‐established principle that no trust may be regarded as charitable in law unless carrying out its purposes will benefit the public. Trusts for religious purposes have traditionally been presumed by courts to be for the public benefit. However, the presumption of public benefit will be removed from the law in early 2008 when section 3(2) of the Charities Act 2006 comes into force. At that time, two questions are likely to attract interest. First, to what extent, and in what ways, has the application of a presumption of public benefit assisted courts up to now? Secondly, without the assistance of the presumption, how might courts go about ascertaining whether the public will benefit in future cases? The article takes up these two questions with respect to trusts for religious purposes.     

Regulating Volunteering: Lessons from the Bingo Halls

This article uses charitable bingo to explore the sociolegal regulation of volunteers. Using case studies of two provincial bingo revitalization initiatives in Canada, I explore how charities and government officials manage the tension between regulating and incentivizing volunteers. I show that bingo revitalization plans in Alberta and Ontario increased surveillance of nonregularized workers and failed to protect charity service users from unpaid labor requirements. Moreover, revitalization initiatives reframe the volunteer role to focus on customer service and explaining how charities benefit the community. The potential for bingo volunteering to promote spaces of mutual aid with players will thus likely decline. I suggest that the allied power of charity and state over unpaid workers is increasing, giving charities better‐protected interests in volunteer labor and changing the tasks that volunteers do. The need for more research exploring the interests of volunteers as regulatory stakeholders in their own right is thus pressing.     

论公私法的划分对冲突法的影响——外国公法作为准据法的可行性分析

公私法的划分对冲突法的影响主要表现为:外国公法是否可以作为准据法?对于这一问题在国际私法学界是有争论的。本文在分析了公私法的划分在实体法和冲突法上的不同表现后,重点论述了外国公法作为准据法的可行性,和实现外国公法成为准据法的条件。     

Can Tax Authorities Scrutinise the Ideas of Foreign Charities? The ECJ's Persche Judgment and Lessons from US Tax Law

The European Court of Justice's (ECJ's) recent Persche judgment poses important questions about the relationship between taxation of gifts and charitable purposes in the light of EC law requirements. This article argues that by applying its established case‐law to the matter of donors to foreign recipient bodies, the ECJ takes a position on the social role of both charities and tax deduction. Moreover, the position of the ECJ clearly paves the way for tax authorities to check the objectives and the values pursued by recipient bodies seeking tax‐preferred status, a situation that recalls a similar power recognised under specific circumstances of the US Internal Revenue Services. Arguably, the ECJ case‐law has more profound consequences on charitable action, since it seems that the power accorded to tax authorities of the Member States to check the purposes of charitable organisations leads to a cosmopolitan apprehension of charitable action while it pushes charities to enhance transparency in their activities.     

我国慈善组织法治监管创新机制研究——基于香港地区的经验

目前我国內地慈善组织监管错位、监管缺位、监管模式扭曲、监管法治化程度较低等弊端暴露明显,严重挫伤了公民的慈善热情和慈善信心。香港地区的慈善组织法治监管机制在保持慈善界独立自主的同时,确保其受到高效、公平、适度的监管。內地慈善监管问题的解决,可尝试借鉴香港经验,降低监管门槛,设立权威的专门监管机构,明确监管重点,建立科学的监管模式,强化行业自律,完善立法,提高监管的法治化程度,重塑慈善组织的公信力。     

The Freedom of Information Act 2011: an unwieldy piece of legislation for the Nigerian courts?

Nigeria joined the trend present in other democratic nations by enacting the Freedom of Information Act (FOIA) in 2011. Now just five years old, the law intends to promote openness and transparency by making public records and information freely available to the people as part of a good governance regime. As the law provides for judicial review, torrents of applications are now before the courts. The paper analyses the FOIA against the backdrop of these decisions. In addition, this article argues that some sections of the law are clumsy and may prevent its effective use. The paper proposes law reforms to clear the ambiguity in the court cases and an amendment of the unwieldy sections. It recommends change in the internal culture of government to openness, acceptance by public institutions and willingness on the part of the judges to implement it as critical factors for FIOA success.     

Independent schools: charitable status,public benefit and UDI

In England and Wales ‘independent schools’ (‘private schools’ or, confusingly, ‘public schools’) almost always have ‘charitable status’. Hence, they are now subject to the new ‘public benefit’ test imposed in the Charities Act 2006. There is much discussion as to whether this test will be a significant hurdle as set by the Charity Commission in interpreting the legislation. Or will the test be in practice one easily met? This article assumes that the public benefit test will be serious, involving a significant cost of compliance for independent schools, and asks at what point for a typical independent school that cost might exceed the value of the tax advantages of charitable status so that the school may prefer to sacrifice charitable status and instead operate in the same way as any other commercial business.     

The social and legislative history of the Islamic trust (waqf) in Mauritius

In Islamic law, a trust for charitable purposes is a waqf (awqāf is the Arabic plural). The waqf pre-dates but shares essential features with the English trust. This article is the first published work on waqf in Mauritius. Based on two months of interview, observation and textual collection in Mauritius (July–August 2014), this article explores the social, political and legislative history of the Islamic charitable trust in a jurisdiction where the waqf has been upon statutory footing since 1941 and under which considerable assets continue to be secured and directed towards the benefit of Muslim and non-Muslim individuals, groups and families.     

Legal System and Practical Reason. On the Structure of a Normative Theory of Law*

Abstract
It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin and Alexy, which are not fully adequate for a normative conception of law.     

Serving the State: Constitutionalism and Social Spending, 1860s-1920s

In the 19th century, courts supervised states' social spending by limiting taxation to public purposes. The focus of this article is the courts' approach to pensions. Under a 19th-century doctrine, states could pay money to those who had served the state or, under the rubric of charity, to those who were the indigent helpless. States first paid pensions to people for military service and for serving as firemen; later in the century, the doctrine from these cases provided a framework for expanding civil service pensions as states expanded their civil service. Courts characterized the earlier pensions as earned because the service had been dangerous, requiring bravery from men and possibly leaving helpless women and children without protection. This characterization later shaped evaluations of civil service pensions. The doctrine persisted as states enacted pensions for widowed mothers; when these pensions were challenged in state courts, the courts approved of them as payments to helpless people, not as rewards to those who had served. This characterization counters recent scholarship that argues that mothers' pensions rewarded service as military pensions did.     

Judicial authority through the experiences of crisis

This article is concerned with law’s experiences and making sense of crisis. When we talk about law’s response to crisis, we refer to law not as an abstract set of rules but as an embodied and animated assemblage of relations and practices. This way, law needs to make sense of any crisis to respond to it. The article draws on cultural legal studies to explore the constitution of judicial authority in the context of a democracy in flux. The article relies on fieldwork data collected in the interviews conducted by the author with Lithuanian judges in 2019. Highest in more than two decades, public trust in the judiciary in 2018 indicated a remarkable achievement for Lithuania, a country whose judicial system had been in a state of flux since the end of the Soviet era. However, after an unprecedented and highly mediated judicial corruption scandal in 2019, the rates of public trust plummeted, uncovering complex dynamics between the image of courts, mass media, and the public. Against this backdrop, the article explores how judges make sense of crisis that develops on the intersections of provocative reality judging and formal judicial institutions. It shows how judicial authority is constituted in the conditions of crisis on the tension between law and culture. Emerging from a crisis of authority is the changing face of judging. A post-colonial vantage point and theatrical jurisprudence are used to respond to a development of a desire of power under a mask of rationality, objectivity, and universality. The article concludes by contemplating how this authority shapes our lifeworlds.

     

Social Roles and Legal Rights: Three Women in Early Nineteenth-Century India

In the early decades of the nineteenth century the small European societies in Madras (now Chennai) and Bombay (now Mumbai) were divided by disputes of such intensity that the authorities in London feared for the future of British power in India. The divisions were legal and social. In law, the Governors and the Supreme Courts of both cities contested the scope of their respective roles with the arguments focusing on the rights of Indians. Again and again, government took alarm at the ‘pro-Indian’ views of reforming judges. The debates were reflected in European social divisions, thereby making them all the more intransigent; legal allegiance became linked to social allegiance. It was this mixture of the legal and the social which gave the wives and other female relatives of the judges a role in the process of reform. Normally confined to multiple pregnancies and restrained social functions, the divisions in European life gave these women an opportunity to influence legal change. Without making official public statements they took part in the development of ideas about Indian rights.     

From Programmatic Reform to Social Science Research: The National Tax Association and the Promise and Perils of Disciplinary Encounters

This article uses the history of the National Tax Association (NTA), the leading twentieth‐century organization of tax professionals, to strengthen our empirical understanding of the disciplinary encounter between law and the social sciences. Building on existing sociolegal scholarship, this article explores how the NTA embodied tax law's ambivalent historical interaction with public economics. Since its founding in 1907, the NTA has changed dramatically from an eclectic and catholic organization of tax professionals with a high public profile to an insular, scholarly association of mainly academic public finance economists. Using a mix of quantitative and qualitative historical evidence, we contend that the transformation in the NTA's mission and output can be explained by the increasing professionalization and specialization of tax knowledge, and by the dominant role that public economics has played in shaping that knowledge. This increasing specialization allowed the NTA to secure its position as a bastion of scholarly tax research. But that achievement came at a cost to the organization's broader civic mission. This article is thus a historical account of how two competing professional disciplines—tax law and public economics—have interacted within a particular organizational field, namely the research and analysis of tax law and policy.     

Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York State

Pierson v. Post (1805) has long puzzled legal teachers and scholars. This article argues that the appellate report was the product of the intellectual interests (and schooling) of the lawyers and judges involved in the case. They converted a minor dispute about a fox into a major argument in order to argue from Roman and other civil law sources on how to establish possession in wild animals, effectively crafting an opportunity to create new law for New York State. This article explores the possibility that the mastermind behind this case was the chief justice of the court at the time, James Kent. The question of Kent's involvement in 1805 remains elusive. However, the article uses annotations he made on his copy of the case and discussion of Pierson v. Post in his famous Commentaries to demonstrate the nature of his later interest and to explore the project of building a learned law for New York State.