Hart Publishing Ltd
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Books by Hart Publishing Ltd

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Hart Publishing Ltd Books Reviewed in 2011

Liability for Wrongful Interferences with Chattels
Edition: 1st
Format: Hardback
Author: Simon Douglas
ISBN: 9781849461511
Publishers: Hart Publishing
Price: £55
Publication Date: Nov 2011
 

Publisher's Title Information

The book examines the protection of property rights in chattels through the law of torts, focusing on the four actions of conversion, detinue, trespass and negligence. Traditionally these actions have been governed by arcane divisions which have led to unnecessary complexity and arbitrariness. The principal argument made in the book is that significant developments in the modern law point towards abolition of these arcane divisions and permit the chattel torts to be understood by reference to a coherent and justifiable structure. It is argued that the only division which should be drawn in the modern chattel torts is between intentional interferences with chattels, where liability is strict, and unintentional interferences with chattels, where liability is fault based.
 
In order to demonstrate this structure it is first argued that the actions of conversion, detinue and trespass amount, in substance, to a single cause of action which imposes strict liability for the intentional interference with another's chattel. It is then argued that the tort of negligence recognises a fault-based cause of action for the unintentional interference with another's chattel. It is further argued that this basic structure, unlike the arcane divisions which have traditionally governed this area of law, can be justified.

The Author

Simon Douglas is a Fellow and Tutor in Law at Jesus College, Oxford.

Contents

Table of Contents
TABLE OF CASESxi
TABLE OF LEGISLATIONxix
1: INTRODUCTION 1
I. The Focus on the Law of Torts 1
II. The Proposed Structure 3
PART I: THE RIGHTS PROTECTED BY THE CHATTEL TORTS 7
2: PROPERTY RIGHTS RELATING TO CHATTELS 9
I. Property Rights 9
A . Rights in Rem and Rights in Personam 9
B . Personal Rights and the Chattel Torts 12
II. Chattels 14
III. Intangibles 16
3: TYPES OF PROPERTY RIGHTS 19
I. Ownership 20
A . Content of Ownership 21
B . Relativity of Ownership 24
C . Acquisition 27
II. Possessory Rights 30
III. Chattel Leases 33
IV. Security Interests 36
A . Possessory Security 37
B . Non-possessory Security 39
V. Equitable Title 39
A . The Position of Beneficiaries Suing in the Chattel Torts 40
B . Proprietary Status of an Equitable Interest 44
VI. Conclusion 48
PART II: LIABILITY FOR INTENTIONAL INTERFERENCES WITH
CHATTELS49
INTRODUCTION TO PART II49
viii Table of Contents
4: CONVERSION51
I. Historical Development of Conversion 51
A . Origin of Conversion 52
B . Expansion 55
II. Features of the Modern Action 61
A . Conversion's Status as a Tort 62
B . The Basis of Liability in Conversion 64
III. Conclusion 77
5: DETINUE 78
I. The Basis of Liability 78
A . Orthodox View: A Detention 79
B . Alternative Approach: Careless Loss 84
C . Tort or Vindicatio? 89
II. The Abolition of Detinue 90
III. Conclusion 94
6: TRESPASS96
I. Historical Development of Trespass 97
A . Origins of the 'Directness' Requirement 97
B . The Meaning of 'Directness' 99
C . The Relevance of the Defendant's Mental State 101
II. The Emergence of the Modern Tort of Trespass 104
A . From 'Direct' to 'Intentional' Interference 105
B . The Meaning of 'Intentional Interference' in Trespass 111
III. Conclusion 114
7: A SINGLE TORT115
I. Common Features of the Three Torts 116
A . The Basis of Liability 116
B . The Standard of Liability 120
II. Calls for the Formal Recognition of the Single Tort 123
A . T he 18th Report: Calls for a Single Tort 123
B . The Torts (Interference with Goods) Act 1977 125
III. Justifying the Structure of the Chattel Torts 126
A . Historical Explanations for Strict Liability 127
B . Modern Theories of Strict Liability 129
IV. Conclusion 137
Table of Contents ix
PART III: LIABILITY FOR UNINTENTIONAL INTERFERENCES WITH
CHATTELS139
INTRODUCTION TO PART III139
8: INTRODUCTION TO THE TORT OF NEGLIGENCE141
I. Historical Development of Negligence 141
A . Early History 142
B . Re-orientation of Case from 'Indirect' to 'Negligent' 143
II. The Basis of Liability: 'Interference' or 'Damage'? 145
A . The Meaning of 'Damage' 146
B . 'Interference' as the Basis of Liability 150
III. Conclusion 158
9: ESTABLISHING 'DUTY' AND 'FAULT' IN NEGLIGENCE 159
I. An Additional Requirement of Proving Duty? 160
A . The Three-Stage Test 161
B . The Role of Policy in Chattel Cases: The Nicholas H 163
II. The Need for Fault 168
A . The Meaning of 'Fault' 169
B . Justifying the Need for Fault 171
C . Establishing Fault in Chattel Cases 176
III. Conclusion 182
PART IV: APPLYING THE STRUCTURE TO REMEDIES 185
10: COMPENSATION187
I. Establishing a Loss 188
A . Assessment of Damages in the Intentional Chattel Torts 189
B . Assessment of Damages in the Tort of Negligence 195
II. Causation of Loss 198
A . Causation of Loss in the Intentional Chattel Torts 199
B . Causation of Loss in the Tort of Negligence 201
C . Justifying the Different Approaches to Causation of Loss 203
III. Conclusion 204
11: CONCLUSION206
BIBLIOGRAPHY209
INDEX 217

Part of the Introduction

The law regarding the chattel torts is in a bad state. There is no clear answer to the simple question of - how are property rights in chattels protected? The confusion surrounding this area of law results from the multiplicity of available actions: instead of a single tort that protects property rights in chattels, the common law has developed a number of overlapping actions. The four most important of these actions are conversion, detinue, trespass and negligence. The borders between these actions are, to a great extent, governed by historical and arcane divisions. For example, the actions of trespass and negligence are traditionally divided between 'direct' and 'indirect' interferences with chattels. Detinue is often seen as being more 'proprietary' than the other torts. In conversion only the most serious or 'exclusionary' interferences with chattels can be litigated in that tort, whereas more minor interferences are typically litigated in trespass. Trespass is also usually seen as a wrong against 'possession' of a chattel. This contrasts with the other torts which protect 'ownership'. The arcane divisions between the actions have not only made the chattel torts unnecessarily complex, but they have introduced arbitrariness into this area of law, and there can be no justification for their retention in a modern legal system. It is for this reason that the need for a structural analysis of the chattel torts is so pressing. The principal aim of this book is to reveal some intelligible order in the chattel torts. By analysing the case law in the context of modern theories of liability, this book aims to provide a coherent and justifiable structure of the chattel torts.

More Information on the Publisher's Website for "Liability for Wrongful Interference with Chattels 2011"


Children's Socio-Economic Rights, Democracy and the Courts
Human Rights Law in Perspective - no. 16
Edition: 1st
Format: Hardback
Author: Aoife Nolan
ISBN: 9781841137698
Publishers: Hart Publishing
Price: £55
Publication Date: September 2011

Publisher's title Information

Despite the significant growth in academic interest in both children's rights and socio-economic rights over the last two decades, children's socio-economic rights are a comparatively neglected area. This is particularly true with regard to the role of the courts in the enforcement of such rights. Aoife Nolan's book remedies this omission, focussing on the circumstances in which the courts can and should give effect to the socio-economic rights of children. The arguments put forward are located within the context of, and develop, long-standing debates in constitutional law, democratic theory and human rights. The claims made by the author are supported and illustrated by concrete examples of judicial enforcement of children's socio-economic rights from a variety of jurisdictions. The work is thus rooted in both theory and practice.
 
The author brings together and addresses a wide range of issues that have never previously been considered together in book form. These include children's socio-economic rights; children as citizens and their position in relation to democratic decision-making processes; the implications of children and their rights for democratic and constitutional theory; the role of the courts in ensuring the enforcement of children's rights; and the debates surrounding the litigation and adjudication of socio-economic rights. This book thus represents a major original contribution to the existing scholarship in a range of areas including human rights, legal and political theory and constitutional law.
 
'Children's rights were often thought to be synonymous with economic and social welfare prior to the adoption of the Convention on the Rights of the Child in 1989. Ironically, since that time, remarkably little scholarship has been devoted to the vitally important economic and social rights dimensions of children's rights. Nolan's book singlehandedly remedies that neglect and does so in a sophisticated, nuanced and balanced way. It provides a superb account of the pros and cons of judicial activism in promoting these rights.' Philip Alston, John Norton Pomeroy Professor, NYU Law School

'Thus far the burgeoning literature on the judicial enforcement of socio-economic rights has failed to engage in a sustained, systemic manner with this topic from the perspective of children and the complexity of their status as citizens within contemporary democracies. This book fills this gap and makes a major contribution to the literature in the three interrelated areas of the judicial review of socio-economic rights claims, children's rights, and democratic theory. Nolan navigates skilfully through the dense, but rich literature in these areas as well as relevant international and comparative law. In so doing she illuminates both the pitfalls and potential of resorting to courts in a partial response to the multifaceted and deeply entrenched global phenomenon of child poverty.' Professor Sandra Liebenberg, HF Oppenheimer Professor of Human Rights Law, University of Stellenbosch Law Faculty.

The Author

Aoife Nolan is a Senior Lecturer at Durham Law School.

More Information on the Publisher's Website for "Children's Socio-Economic Rights, Democracy and the Courts 2011"


Property and the Law of Finders
Edition: 1st
Format: Hardback
Author: Robin Hickey
ISBN: 9781841135755
Publishers: Hart Publishing
Price: £40
Publication Date: Jan 2010

Publisher's Title Information

Are finders keepers? This most simple of questions has long evaded a satisfactory legal answer. Generally it seems to have been accepted that a finder acquires a property right in the object of her find and can protect it from subsequent interference, but even this turns out to be the baldest statement of principle, resting on obscure and confused authority.
 
This first full-length treatment of finders sets them in their legal-historical context, and discovers a fascinating area of law lying at the crossroads of crime, obligations, and property. That on the same facts a finder might be thief, bailee, and/or property right holder has clouded our conceptual analysis, and prevented us from stating simply our rules about finding. Nonetheless, when the applicable doctrines and policies of our property law (particularly the central concept of possession) are explored and understood in the light of countervailing rules of crime and tort, we can argue confidently that, despite centuries of doubt and confusion, English law has succeeded in producing a body of law that is theoretically and practically coherent. Property and the Law of Finders makes this argument, and will appeal to anyone specifically interested in the law of personal property, and also to those with broader concerns about the evolution of common law concepts and their ability to yield workable, practical solutions.

CONTENTS

Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Table of Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. The Legal Context of Armory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Recovery of Lost Goods at Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Development of Forms of Action at Common Law . . . . . . . . . . . . . . . . 10
Detinue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Fiction of Finding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Trover and Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Finding as a Justificatory Excuse: 'The Law of Charity' . . . . . . . . . . . . . . . . 17
Larceny by Finding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Armory v Delamirie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2. The Possessor of Land Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
The Beginning: Right Follows Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
The Innovation: Right Follows Possession . . . . . . . . . . . . . . . . . . . . . . . . . . 34
South Staffordshire Water Co v Sharman . . . . . . . . . . . . . . . . . . . . . . . . . . 37
The Distraction: Evolution of the In/On Land Distinction . . . . . . . . . . . . 39
Parker v British Airways Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
The Mistake: Right Follows Circumstance of Find . . . . . . . . . . . . . . . . . . . 46
The Answer: Evidentiary Concessions to Proof of Possession . . . . . . . . . . 50
3. The Significance of the Facts of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
The Relevance of Loss and Mislaying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
US State Common Law: Categorisation Designates Right . . . . . . . . . . . 56
English Common Law: Classification Influences Liability . . . . . . . . . . . 63
The Relevance of Hiding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
The Relevance of Abandonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
The Significance of 'Finding' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
4. The Obligations of a Finder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Specifically Imposed Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Absence of Direct Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Loser of Goods is a Background Consideration . . . . . . . . . . . . . . . . . . . 77
Honesty of Litigants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Uncritical Reliance on Bailment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
The Finder as Bailee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Liability Under General Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Unjust Enrichment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Obligations and Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
5. Possession and the Rights of Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Possession as a Source of Property Rights at Common Law . . . . . . . . . . . 97
Possession as the Basis of Trover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Possession as the Basis of Ejectment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
From Remedy to Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
The Extent of the Finder's Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
The Estoppel Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Cases of Divested Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
The Effect of a Subsequent Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Finders as (Relative) Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
6. Qualifications on the Acquisition of Right . . . . . . . . . . . . . . . . . . . . . . . . 125
Dishonesty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Qualifying the Dishonest Finder's Rights . . . . . . . . . . . . . . . . . . . . . . . . . 126
Recognising a Better Right in a Third Party . . . . . . . . . . . . . . . . . . . . . . . 130
Trespass to Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Employment Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Public and Private Locations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
A Pervasive Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
7. Defending the Doctrines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Lost Property Regulation in Other Jurisdictions . . . . . . . . . . . . . . . . . . . . . 146
Understanding English Law: Property, Tort and Crime
and the Pursuit of Sensible Policy Aims . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Theft and Entailed Behaviour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Evaluating English Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Epilogue: The Terminology of Possession and Property . . . . . . . . . . . . . . . . 162
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Index

Reviews To date

This is a patient and level-headed examination of an area of the law sometimes thought to be a jurisprudential shambles. Lacking the ethical underpinnings and riddled with difficult facts and nonsensical distinctions, the law of finders has seemed an obvious candidate for reform. Not so, says Robin Hickey. The law of finders, rightly understood, makes perfect sense. Far from a shambles, the march of case-law has created 'a body of law which is remarkably coherent and achieves practically sensible results'. The argument is well make. Even readers who do not find the author's sanguine conclusion entirely convincing will profit from his careful reading of the case-law and his trenchant comments upon it.
 
The author's determination to look at his subject in the light of the law as a whole is one of several reasons the book succeeds.
 
Dr Hickey's book is a sober consideration of the law as a whole, pruning away what is unnecessary but affirming the value of what is left. It is thorough in its coverage. It is forceful in its argument. It is clear in its presentation.
 
... it will inform and interest its readers. It will also leave them with a renewed confidence in the worth of serious doctrinal scholarship. R. H. Helmholz Legal Studies Volume 31, Number 3
 
Throughout this useful and insightful analysis, the author explodes some of the myths and misunderstandings apparent in previous judicial and academic considerations of finding cases, and in particular there is a useful demonstration of the pervasive impact of Frederick Pollock (and to a lesser extent, Oliver Wendell Holmes) in the development of a doctrine of possession.
 
... the text reads well, and there is a high level of structural clarity in the exposition of the main thesis and the relevant sub-theses... Property and the Law of Finders is a clear elucidation and successful analysis of the complex and detailed history and content of the doctrine, and its accompanying policies. It also provides a good example of the dangers of ignoring the particular context of leading cases, as well as demonstrating that the common law can often meander towards coherence and happen across pragmatic social objectives without the catalyst of codification.
Dr Sean Thomas Conveyancer and Property Lawyer 2011
 
Aptly described as a “juridical minefield” (A. Tettenborn, “Gold Discovered at Heathrow Airport” (1982) 41 C.L.J. 242), it is much to Robin Hickey's credit that Property and the Laws of Finders provides such a clear guide to the complex and overlooked common law of finding.
 
Hickey's work carefully unpicks the confusing interplay between crime, tort and property rules underlying the well-known maxim of “finders keepers”.
 
... a stimulating and well-argued overview of the law of finders. Emma Waring The Cambridge Law Journal 2011
 
I do not recall ever reading a detailed study of law that does not come down in favour of reform in some form or other; but this is the case here, and the conclusions are as convincing as they are unusual. The author, when presented with what seems like a chaos of sources and concepts, has plucked a few simple threads that run through all of them. This is a lucid and engaging work and, in an area like this, such simplicity must have been very difficult.
Neil Maddox Irish Jurist Volume 45
 
Property and the Law of Finders is a book that should be on the shelf of anyone interested in land law or who wishes to find out more about this particular area. Unlike many legal books it is not one that intimidates the reader before even cracking the cover since it is less than 200 pages in length and presents a very approachable proposition. The table of contents is logical in its organization and provides the reader with the ability to jump to a particular area with ease rather than having to trawl through keywords in a bloated index. Alternatively, should one have the time and sufficient interest, reading from cover to cover is something that is very realistic within a relatively small timeframe…Wrapped up with a succinct conclusion the book is organised well and is easy to follow for those within or without the legal profession.
 
This is an achievement that should be well received by practitioners, students, and the public in general and should be read by anyone who wishes to more properly understand the law of finders and what rights a person may have, no matter what side of the argument they may lie upon. Matthew Carn Trust Law International Volume 24, Number 4, 2010



EU Law for UK Lawyers
Edition: 2nd
Format: Hardback
Author: Aidan O'Neill
ISBN: 9781841130460
Publishers: Hart Publishing
Price: £75
Publication Date: July 2011

Publisher's Title Information

This is the second edition of this wide-ranging survey of EU law. The new edition has been significantly enlarged. Unlike many other EU law books it takes full account not only of the Lisbon Treaty changes to the EU treaties, but also of the fact that the EU Charter of Fundamental Rights now has the same legal value as the EU Treaties. It therefore not only covers the relevant case law of the Court of Justice of the European Union, but also ties that case law into the decisions of the European Court of Human Rights, because it is clear that EU law can only now properly be understood and applied against this background of European fundamental rights jurisprudence.
 
The book sets out very clearly the broad shape of the European Union's legal systems, while also giving the reader a good feel for the policy motivations in the Court of Justice of the European Union and the scope of EU legislative activity. Written in a lively and accessible style, it is an ideal guide for practitioners, whether those coming to the subject for the first time or those already with a background in EU law.
 
Among the additions and changes in this expanded edition the book includes new chapters on the EU and fundamental rights, on commercial agency, on criminal law and on private international law in the EU. It also contains a full treatment of EU equality law.

The Author
Aidan O'Neill is a practising barrister and member of Matrix Chambers, London. He is also a QC in practice at the Scottish bar. He is Chairman of the Edinburgh Centre for Constitutional Law, and Honorary Fellow in the School of Law of the University of Edinburgh. From 2007 to 2008 Aidan O'Neill was a Visiting Professor in the Woodrow Wilson School of Public and International Affairs, and Senior Research Scholar and Fellow in the Program in Law and Public Affairs, Princeton University. He has published extensively in the fields of human rights, constitutional law and EU law.




Crimes, Harms, and Wrongs - On the Principles of Criminalisation
Edition: 1st
Format: Hardback
Authors: A P Simester and Andreas von Hirsch
ISBN: 9781841139401
Publishers: Hart Publishing
Price: £45
Publication Date: June 2011
 

Publisher's Title Information

When should we make use of the criminal law? Suppose that a responsible legislature seeks to enact a morally justifiable range of criminal prohibitions. What criteria should it apply when deciding whether to proscribe conduct?
 
Crimes, Harms, and Wrongs is a philosophical analysis of the nature, significance, and ethical limits of criminalisation. The authors explore the scope and moral boundaries of harm-based prohibitions, proscriptions of offensive behaviour, and 'paternalistic' prohibitions aimed at preventing self-harm. Their aim is to develop guiding principles for these various grounds of state prohibition, including an analysis of the constraints and mediating factors that weigh for and against criminalisation.
 
Both authors have written extensively in the field. In Crimes, Harms, and Wrongs they have reworked a number of well-known essays and added several important new essays to produce an integrated, accessible, philosophically-sophisticated account that will be of great interest to legal academics, philosophers, and advanced students alike.
 
Reviews to date
 

'An outstanding work, original in many respects and meticulous in its arguments. It represents the greatest advance on this subject since Feinberg's four volumes.... I would expect this book to attract a great deal of discussion among lawyers and philosophers. I would also expect that discussion to be positive ... an outstanding contribution to the re-invigorated criminalization debate.' Andrew Ashworth, All Souls College, Oxford
 
'Important, original, interesting, and often ingenious. Unlike some recent competitive books it has the virtue of making sound arguments. And like everything else the authors have written, it is a joy to read. ... This is an absolutely wonderful book. I look forward to seeing it in print.' Douglas Husak, Rutgers University
 
'Head and shoulders above anything else that I have read in criminalisation theory so far.' Antje du Bois Pedain, University of Cambridge

Review

We are told in the Preface how and why this book came to be written, the well known A T H Smith introduced the authors at Cambridge in 1993. A P SIMESTER had just arrived from Oxford to take up a Research Fellowship at Gonville and Caius College, while Andreas von Hirch had joined the academic staff of the Institute of Criminology after two decades' working at Rutgers University in the United States.

At that time, Andreas von Hirch was developing an interest in criminalisation issues, following on from his earlier research on sentencing theory, while A P SIMESTER was working primarily in substantive criminal-law theory.

Thereafter, they worked together from time to time, and in the beginning of 2009 resolved to try to synthesise their various ideas into a more coherent work.

They say the work leaves many questions to the future. It will attract a great deal of discussion. The main thrust is with the structure of criminalisation questions, with general principles rather than details.

The book is divided in parts and covers, inter alia, 'the nature of criminalization'; 'wrongfulness and reason'; 'harm'; and 'the Offence'. Rethinking the Offence Principle is an issue that this excellent book questions. Assuming that the state sometimes has a legitimate interest in using the criminal law to regulate conduct that brings about harm to others, the example is given of being seated in a bus when the amorous couple across the aisle carry their affections to the point of sexual intercourse, typically I am not harmed by their conduct, at least not in the sense of harm that is thought to invoke the Harm Principle. None the less, I may be entitled to take offence, and the state might be right to criminalise the conduct on the grounds that it is offensive.

The criminal law covers so many situations, the above example may be accepted by some, but what are we to make of what is just plain stealing under the guise of rioting purporting to do it because of a certain situation that occurred because police officers carried out their lawful duty? Where do I find the answer to that question? Is the answer in a book or in a culture? Yet again we are left wondering.

Rob Jerrard

8th August 2011



Murder, Medicine and Motherhood
Edition: 1st
Format: Hardback
Author: Emma Cunliffe
ISBN: 9781849461573
Publishers: Hart Publishing
Price: £35
Publication Date: May 2011
 

Publisher's Title Information

Since the early 1990s, unexplained infant death has been reformulated as a criminal justice problem within many western societies. This shift has produced wrongful convictions in more than one jurisdiction. This book uses a detailed case study of the murder trial and appeals of Kathleen Folbigg to examine the pragmatics of proof beyond a reasonable doubt. It explores how legal process, medical knowledge and expectations of motherhood work together when a mother is charged with killing infants who have died in mysterious circumstances. The author argues that Folbigg, who remains in prison, was wrongly convicted.

The book also employs Folbigg's trial and appeals to consider what lessons courts have learned from prior wrongful convictions, such as those of Sally Clark and Angela Cannings. The author's research demonstrates that the Folbigg court was misled about the state of medical knowledge regarding infant death, and that the case proceeded on the incorrect assumption that behavioural and scientific evidence provided independent proofs of guilt. Individual chapters critically assess the relationships between medical research and expert testimony; the operation of unexamined cultural assumptions about good mothering; and the manner in which contested cases are reported by the press as overwhelming.

Contents

Acknowledgements v
Table of Cases ix
Table of Legislation xi
List of Illustrations xiii
1. Introduction 1
I . The Immediate Legal Context of Folbigg 5
II . The Core Concerns of This Book 11
2. The Folbigg Case 14
I . The Case against Folbigg 14
II . Judicial Decision-Making in Folbigg 18
3. Unexplained Infant Death: A Shifting Theory of Maternal Culpability 25
I . The Folbigg Children's Deaths 26
II . Sudden Infant Death Syndrome (SIDS) 28
III . The Emergence of Murder 34
4. Distinguishing Homicide from SIDS 38
I . The 'True Incidence' of Child Homicide 39
II . The Difficulty with Smothering 44
III . Identifying Homicide 52
I V. Exploring the Correlation between Recurrence and Homicide 57
V. Conclusion 67
5. The Scientific Case against Folbigg 72
I . Collective and Individual Approaches to Infant Death 73
II . The American Academy of Pediatrics (AAP) Policy Statement 79
III . The Shifting Use of SIDS 88
6. A Mother Who Would Kill Her Children 96
I . Introduction 96
II . The Dominant Ideology of Motherhood 98
III . The Folbigg Family Unit 104
I V. 'Something I Carried in My Heart': Craig Folbigg's Evidence 117
V. Conclusion 131
viii
Table of Contents
7. Reading Guilt: Kathleen Folbigg's Diaries 134
I . Diaries and Subjectivity 134
II . 'A Machine to Look into Her Mind': The Diary Entries 139
III . Constructing a Murderous Mother 143
I V. The Quest for a Confession 145
V. Re-reading the Diaries: Looking for Interpretive Principles 150
VI. Conclusion: Interpretive Principles for Diary Narratives 154
8. Media Monster 157
I . News Reports of the Folbigg Case 158
II . Reporting the Science 171
III . Reporting Folbigg's Motherhood 181
I V. Conclusion 191
9. Conclusion 193
I . The Folbigg Case 193
II . Comparing Folbigg with its Companion Cases 195
III . Approaching Contentious Medical Evidence 196
I V. The Dominant Ideology of Motherhood 202
V. Newspaper Reporting 205
VI. Conclusion 206
Bibliography 209
Appendix: Chronology of Folbigg Children's Lives and Deaths 223
Index 225

Review

This book is based on the author's PhD dissertation, which was completed at the University of British Columbia Faculty of Law. Financial assistance from the UBC Hampton Fund allowed the author to complete the research.

Kathleen Folbigg was convicted in the New South Wales (NSW) Supreme Court of killing her four infants. Most observers characterised her as evil. The Sydney Daily Telegraph and the Sydney Morning Herald are quoted as saying, ' She is incapable of love, and both reported that Kathleen Folbigg's father had killed her mother when Folbigg was a little girl. For them this explained it all.

The Author documents the process of constructing Folbigg's guilt in order to understand how an overwhelming criminal case was established and maintained in a time of medical controversy and despite concerns about wrongful convictions in other, similar cases. She describes several cases in which mothers have been wrongly convicted and/or wrongly accused of murdering infants and identifies the legal principles emerging from these cases.

In this book, the author suggests that Folbigg has been wrongly convicted of killing her children. However, she cannot say how the Folbigg children died. The author admits that given the passage of time and uncertainties within the evidence, she does not venture that she has uncovered the truth.

Instead, she asks what constituted proof beyond a reasonable doubt in Folbigg's case and attempts to position that proof within the social and medical context from which it arose. Ultimately, she questions the sufficiency of that proof. She points out that Folbigg lived a complicated emotional life. The Defendant's guilt was ascertained through a web of medical and social knowledges about motherhood and infant death. This is not a case that accurately lends itself to easy answers. For that reason, the story of Folbigg's prosecution helps to illuminate some of the most difficult questions about the place and function of criminal responsibility in contemporary neoliberal society.

Wrongful convictions of mothers suggests that prosecutors and courts may, for a period of time, have been too ready to accept allegations of homicide." Throughout this book, the Author seeks to make sense of the dissonance between widely asserted difficulties of proving child homicide and these wrongful convictions.

The Author also looks at five other cases decided between 1998 and 2008, that is to say, Phillips, Matthey, Clark, Canning and Anthony. All were multiple unexplained infant deaths.

The author argues that Folbigg, who remains in prison, was wrongly convicted. However Folbigg was found guilty by the Court of the following crimes: three counts of murder, one count of manslaughter and one count of maliciously inflicting grievous bodily harm. On 24 October 2003, Folbigg was sentenced to 40 years' imprisonment with a non-parole period of 30 years. On Appeal On 17 February 2005, the court reduced her sentence to 30 years' imprisonment with a non-parole period of 25 years on appeal. Due to the nature of her crimes, Folbigg resides in protective custody to prevent possible violence by other inmates.

Rob Jerrard



Principles of European Constitutional Law
Edition: Revised 2nd
Format: Paperback
Author: Edited by Armin von Bogdandy and Jürgen Bast
ISBN: 9781849462112
Publishers: Hart Publishing &Verlag CB Beck
Price: £40
Publication Date: April 2011
 

Publisher's Title Information

For the time being, the political project of basing the European Union on a document entitled 'Constitution' has failed. The second, revised and enlarged edition of this volume retains its title nonetheless. Building on a scholarly rather than black-letter law account, it shows European constitutional law as it looks following the Treaty of Lisbon, with the EU's foundational treaties mandating the exercise of public authority, establishing a hierarchy of norms and legitimising legal acts, providing for citizenship, and granting fundamental rights. In this way the treaties shape the relations between legal orders, between public interest regulation and market economy, and between law and politics. The contributions demonstrate in detail how a constitutional approach furthers understanding of the core issues of EU law, how it offers theoretical and doctrinal insights, and how it adds critical perspective.
 
"already a standard work...a crucial body of writing in this area"
Common Market Law Review, From Reviews of the First Edition:
 
"...should be mandatory reading for anyone who wants to get a holistic perspective of the academic debate on Europe's constitutional foundations...It is impossible to present the richness of thought contained in the 833 pages of the book in a short review." Common Market Law Review
 
"...an enduring scholarly work, which gives an English-speaking audience important, and overdue, access to the long-standing and forever-vigorous traditions of (European) constitutional law... unhesitatingly recommend[ed]."
European Law Journal "...real scholarship in the profound sense of the word..." K Lenaerts, Professor of European Law, Leuven

The Editors

Armin von Bogdandy is director at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg.
Jürgen Bast is a senior research fellow at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg.

Contents

Preface v
List of Contributors xxix
Table of Cases xxxi
The Constitutional Approach to EU LawFrom Taming Intergovernmental
Relationships to Framing Political Processes 1
Armin von Bogdandy and Jürgen Bast
I. The Idea of the Volume 1
II. The Structure of the Volume 3
III. Reaction to Critique 5
Part I: Defining the Field of European Constitutional Law 9
1 Founding Principles 11
Armin von Bogdandy
I. Aims, Theses and Premises 11
II. Theoretical Issues Regarding the Union's Founding Principles 13
1. Founding Principles and Constitutional Scholarship 13
2. Three Functions of a Legal Doctrine of Principles 14
a) Doctrinal Constructivism 14
b) The Role of Legal Doctrine for Legal Practice 17
c) Maintenance and Development of a 'Legal Infrastructure' 17
3. Perspectives of Legal and Integration Policy 18
III. General Issues of a European Doctrine of Principles 20
1. The Subject Matter 20
a) Principles in European Law 20
b) The Union's Founding Principles and Their Constitutional Character 21
c) Principles of Public International Law 23
2. On the Role of Constitutional Principles of the Member States 24
3. Uniform Founding Principles in View of Heterogeneous Primary Law 26
IV. On the Relationship between the Union and its Member States 28
1. The Creation of Unity under the Rule of Law Principle 28
a) Rule of Law and Supranational Law 28
b) The Effectiveness Principle 29
c) The Principle of Comprehensive Legal Protection 32
2. Principles of the Political Process 33
a) The Rule of Law and the Legality Principle 33
b) Principles of the Order of Competences 35
c) The Principle of the Free Pursuit of Interests 37
3. Principles of the Composite (Verbund) of Union and Member States 38
a) The Composite (Verbund) as a New Perspective 38
ix
b) A Principle of Structural Compatibility or a Principle of Homogeneity? 40
c) The Principle of Loyalty and the Federal Balance 41
V. On the Relationship between the Individual and the Union 42
1. The Principle of Equal Liberty 43
2. The Principle of Protection of Fundamental Rights 45
3. The Rule of Law Principle 47
4. The Principle of Democracy 47
a) Development and Basic Features 47
b) The Principle of Democracy and the Institutional Structure 50
c) Transparency, Participation, Deliberation and Flexibility 51
d) Supranational Democracy: An Evaluation 52
5. The Solidarity Principle 53
VI. Concluding Remarks 54
2 Federalism and Democracy 55
Stefan Oeter
I. Introduction: 'Understanding the European Union as a Federal Polity' 55
II. The Different Federalism DiscoursesAn Outline 57
III. The European Union as a Mixed System of a Federative Character 59
IV. The Benefit of Federal AnalogiesOr the Central State as a 'Leitmotiv' of
Political Theory 62
1. The Question of Sovereignty 63
2. 'Divided Sovereignty' and the Principle of People's Sovereignty 64
3. People's Sovereignty and the 'Constitution' of the European Union 65
V. The Role of the Principle of Democracy in a Federal Commonwealth 68
VI. The Construction of Democratic ResponsibilityExperiences of Federal Systems 72
VII. Conclusions: The Federal 'Union' as a Promising Construction 78
3 National Constitutional Law Relating to the European Union 83
Christoph Grabenwarter
I. Introduction 83
II. The Relationship between Union Law and National Constitutional Law 84
1. Full Primacy of Community Law 85
2. Limited Primacy of Community Law over Constitutional Law 85
3. Primacy of the Constitution 90
4. The Situation in the Legal Systems of New Member States 91
5. Similarities and Differences in Justifications 93
6. The Legal Situation According to the Lisbon Treaty 95
III. Contents of National Constitutional Law Relating to the
European Union 95
1. Sovereignty and Transfer of Sovereign Rights 95
2. Structural Safeguard Clauses 100
3. Federal and Decentralised Entities 102
4. The Position of National Parliaments 108
5. Fundamental Rights 116
x
Contents
a) Expanding the Scope of National Guarantees of Fundamental Rights
Demanded by Community Law: The Example of the Right to Vote in
Municipal Elections 116
b) Increasing the Protection of Fundamental Rights within the Scope of
Community Law: The Example of Equal Treatment of Men and Women 118
c) Reinforcing and Changing the Effect of the European Convention on
Human Rights in the National Area 120
d) Community Law Indirectly Affecting the Scope of National
Guarantees of Fundamental Rights 120
e) Matching National Fundamental Rights with Increased Standards at
European Level 122
IV. Conclusions: The Relationship between National Constitutional Law and
Union Law 123
1. Bodies Acting under the Constitutional Order 123
2. Interdependencies between the Constitutional Orders of Member States 125
3. Typology According to Substantive Orientation: Adaptations that are
Receptive and Defensive towards Integration 126
4. Development towards a Reciprocal Linking of Constitutions 127
4 The Constitutional Role of International Law 131
Robert Uerpmann-Wittzack
I. A Constitutional Question: The Exposure of a Legal Order to International Law 131
II. Giving International Constitutional Law Direct Effect within EC Law 135
1. Automatic Implementation of International Custom 135
2. Accession to International Supplementary Constitutions 137
a) WTO 137
aa) Article 300(7) EC as a Starting Point 138
bb) The Theory of Direct Effect 139
cc) Delimiting Different Jurisdictions 141
dd) The Principle of Reciprocity 141
ee) The Scope for Negotiation 142
ff) Unilateral Council Action 144
gg) Internal Effect without Direct Effect 145
hh) The ECJ between Monism and Dualism 147
b) ECHR 147
3. Legal Succession by Virtue of Functional Succession and Other Forms of
Indirect Obligation 149
a) GATT 1947 149
b) ECHR 150
aa) Legal Succession in a Narrower Sense 150
bb) Direct Responsibility of EC Member States 151
cc) The Member States' Responsibility to Guarantee the Observance
of Human Rights by the European Community 152
III. Transforming International Constitutional Law into Union Law 153
1. Incorportion by Primary Law 153
a) Legal Succession under Union Law 154
Contents
xi
b) Explicit Incorporation in Primary LawParticularly Article 6(2) EU 155
c) General Principles of Law 156
2. Incorporation by Secondary LawThe Implementation of UN Sanctions 157
IV. Assessment and Perspectives 159
1. Reasons for Different Ways of Implementation 159
a) Ensuring Sovereignty 159
b) European Integration through Human Rights 161
aa) Increasing Reference to the ECHR and the Strasbourg Court 161
bb) Intensified Review of the Member States' Action 162
cc) Attempting an Explanation 163
c) A Special Problem: UN Sanctions 163
2. The Lisbon Treaty 165
5 Pouvoir ConstituantConstitutionConstitutionalisation 169
Christoph Möllers
I. Constitutional Rhetoric: Levels of Meaning 169
II. Theoretical Prerequisites: Two Types of Constitutions 170
1. Founding of a New Order: Constitution as Politicisation of Law 171
a) Foundation of a New Political Order 171
b) Normativity, Supremacy and Written Form of the Constitution 172
c) Result 173
2. Shaping of the Powers: Constitution as Juridification of Politics 173
a) Limiting Powers by Legalisation of Government 174
b) Restricted Normativity of the Constitution 175
c) In Particular: Constitutional Treaties 176
d) Result 176
3. The Traditions Correlated: Constitution as Coupling of Politics and Law 177
III. Basic Positions in the Constitutional DiscussionA Critical Inventory 178
1. Assignment of the Constitution to the Nation-State 178
2. Constitutional ElementsConstitutional Functions 180
3. Heteronomy, Autonomy or Fragmentation of EU Law 182
4. Limited Relevance of the Discussion Fronts 184
IV. Three Concepts of the Constitution in Europe 184
1. Pouvoir Constituantthe Criterion for Equal Freedom 185
2. Constitution: The European Treaties as a Formal Constitution for the Union 189
a) The Treaties in Written Form 190
b) Supremacy of the Treaties 192
aa) Constitution as a Legal Argumentthe ECJ and Hierarchies within
the Treaties 192
bb) Supremacy of Treaty Law 193
c) The Treaties as a Formal Constitution: Supranational Over-juridification
and Intergovernmental Politicisation 194
3. Constitutionalisation 195
a) Common European Constitutional LawEstablishing Principles 196
b) Charter of Fundamental Rights 197
c) Administrative Constitutionalisation and Governance 197
xii
Contents
d) The Legitimacy of Evolutionary Constitutionalisation 198
V. European Constitutional LawA Legal Field and its Academia 199
VI. Epilogue: From Constitution to Reform 201
1. Constitutional Deliberation: Convention and Intergovernmentalism 201
2. Constitutional Moments: The Political Remaining Outside 202
3. Constitutional Honesty: The Limits of Constitutional Nominalism 203
6 On Finality 205
Ulrich Haltern
I. Entangled Discourses on Finality 205
II. Post-politics and Law: The State of the Union 210
1. A Cultural Study of Law 210
2. The Union's Birth from Reason 211
3. Europe as Style, Expertise and Project 212
4. Europe as Imagined Community 213
5. Europe's Iconography 214
6. A Cultural-legal Study of the Union's Problem 216
III. The Middle Ground: Politics Gone Awry 217
1. Europe and Consumer Aesthetics 217
2. The EU Charter of Fundamental Rights as Consumer Aesthetics 218
3. The Problem with Consumer Aesthetics 221
IV. Post Post-politics: The Court Steps In 222
1. Cautious Beginnings: Konstantinidis 222
a) Advocate General Jacobs 223
b) The Court 225
c) Conclusion and Critique 227
2. The Way Forward?Evolving Union Citizenship 227
V. Politics and Post-politics 231
1. The Murmuring Nation 231
2. Europe's Legal Imagination of the Political 232
3. Finality: Eros? Civilisation? 233
Part II: Institutional Issues 235
7 The Political Institutions 237
Philipp Dann
I. Introduction and Purpose 237
II. Past Research and Recurrent Questions 238
1. Addressing Council and Commission through Principles and Procedures 239
2. European Parliament: The Pet Object 241
3. Changing Tides: Research on Institutions since the 1990s 242
III. Conceptual Framework: The Structure of Executive Federalism 243
IV. The Institutional Framework 245
1. Council 245
a) Form Follows Function: Members, Organisation and Competences 245
b) Mode of Decision-taking: Majority-voting and the Resilience of Consensus 247
Contents
xiii
2. European Parliament 250
a) Co-Elector: Appointment Power and Negative Competence 251
b) Oversight Function: Control via Organisation 254
c) Co-Legislator: Law-making by Co-operation and Consensus-building 255
3. European Commission 257
a) The Problem of Leadership 257
b) Organisational Structure: The Outlook of a Consensual Government 258
c) Functions: Agenda-setter, Mediator and Guardian 259
aa) Agenda Setting 259
bb) Mediating Interests 259
cc) Federal Guardian 260
d) Conclusion and an Unresolved Problem of Leadership 260
4. European Council 261
a) Composition and Form: The Ideal of the 'Fireside Chat' 261
b) Functions 263
aa) Steering Committee 263
bb) Final Arbiter and Co-ordinator 263
cc) Treaty Negotiator and Constitutional Motor 264
c) Conclusions 265
aa) An Institution from the Playbook of Executive Federalism 265
bb) European Council and European Commission as Twofold
Government 266
d) A Threefold Government? The Lisbon Treaty and the New High
Representative for Foreign Affairs and Security Policy 266
V. Legitimacy of the Institutional System 267
1. The Dilemma of the National Parliaments 267
2. The EP and its Representational Limits 269
3. Concluding Proposal: A Semi-parliamentary Democracy 271
VI. Summary and Prospects 272
8 The Federal Order of Competences 275
Armin von Bogdandy and Jürgen Bast
I. Introduction 275
II. The Current Order of Competences 278
1. Terminological and Theoretical Foundations 278
a) The Competence Requirement as an Evolutionary Achievement 278
b) On the Scope of the Principle of Attributed Powers 280
c) Empowering Provisions and Substantive Standards of Legality 283
d) Horizontal and Vertical Competences 284
e) Union and Member State Competences 285
f) Rules Regarding the Exercise of Powers 287
2. Types of Federal Competences 287
a) Exclusive Powers 289
b) Concurrent Powers 290
c) Parallel Powers 294
d) Non-regulatory Powers 295
xiv
Contents
III. The Lisbon Treaty's Constitutional Order of Competences 297
1. The Protection of Member States' Sovereignty 297
a) The Basis for Competence 298
b) A Critically Narrow Concept of Competence? 299
c) Preservation and Enlargement of Article 308 EC as 'Flexibility Clause' 300
d) Reinforced Protection of Essential State Functions and Fundamental
Structures 300
e) The ECJ as Guardian of the Order of Competences 301
2. Protection of Member States' Scope of Action against Irregular Exercise of
Union Competences 302
a) A Revised Principle of Subsidiarity and a Reconstructed Protocol 302
b) Involvement of National Parliaments 303
c) Revocability of Union Legal Acts 304
3. Transparency of the Order of Competences 305
a) The New Presentation of the Order of Competences 305
b) The Persistent Entanglement of Union and Member States 307
9 Foreign Affairs 309
Daniel Thym
I. Introduction 309
II. Constitutional Foundations 310
1. Particularity of Foreign Affairs 311
2. Transformation of the International Context 314
III. Supranational External Relations 316
1. Reach of Community Competences 317
a) Expansive Phase 317
b) Constitutional Consolidation 319
2. The Court of Justice and International Law 320
3. Supranational Decision-Making: Parliamentary Deficit? 323
4. Substantive Constraints of Foreign Affairs 326
a) Judicial Control 326
b) Political Questions? 328
c) Substantive Orientation 329
IV. Intergovernmental Foreign Policy 330
1. Intergovernmental Decision-Making 331
2. Executive Authority in Military Matters 334
3. Characteristics of Intergovernmental Union Law 336
V. Coherence and Complementarity 338
1. Vertical Co-operation: European Union & Member States 338
2. Horizontal Co-operation: European Union & European Community 339
3. Unity of External Representation: Reform Perspectives 341
VI. Conclusion 343
Contents
xv
10 Legal Instruments and Judicial Protection 345
Jürgen Bast
I. Exercise of Public Authority and its Judicial Control as Complementary
Constitutional Issues 345
II. Sketching the Discipline's Development: Interplaying Discourses on Legal
Instruments and Judicial Protection 348
1. The ECSC as an Administrative Union: Supranational Decisions and Direct
Actions of the Enterprises Concerned 348
2. The EEC as a Legislative Union: Regulations and Indirect Judicial Protection 350
a) The Regulation as the Standard Legal Instrument 350
b) Preliminary References as a Means of Legal Protection 352
3. Legislation and Administration in a Composite Polity: Directives and
Protection of Rights Derived from Community Law 355
a) Discovery of the Directive as an Instrument of Legislation 355
b) The Protection Mandate of National Courts 358
4. The EU of the Reform Decade: Proliferation of Instruments and Discovery
of Old and New Deficits in Protection 359
a) Framework Decisions and the Deficits in Legal Protection Connected to
the Pillar Structure 359
b) Simplification or Systematisation? Options for Reform of the Legal
Instruments 362
aa) The Calls for Hierarchy and Simplification 362
bb) The Contribution of Legal Scholarship to the Reform of Legal
Instruments 364
c) System Change or Fine-tuning the System? Options for the Reform of
Judicial Protection 366
III. Doctrinal Analysis I: The Long Road to Formal Neutrality of Legal Protection 368
1. The Concept of Reviewable Acts According to Article 230(1) EC: The General
Clause of Judicial Control 368
2. The Concept of Contestable Decisions According to Article 230(4) EC: The
General Clause of Direct Legal Protection 370
a) Challenging Decisions Addressed to Individuals 370
b) Challenging Decisions Taken 'In the Form of a Regulation' 371
IV. Doctrinal Analysis II: Structural Choices Regarding the Order of Legal Instruments 373
1. Structural Choice in Favour of an Open System of Legal Instruments 374
a) The Structure of Article 249 EC 374
b) No Exhaustive Enumeration of Legal Instruments 374
c) Limits of the System's Flexibility 376
2. The Structural Choice in Favour of a Non-hierarchical Unity of Secondary Law 377
a) Equality of Law-making Institutions 377
b) Equality of Law-making Procedures 378
c) Equality of Binding Instruments 379
d) Equality of Treaty-based and Delegated Acts 380
e) Is the Lack of Hierarchy an Anomaly of the System? 381
3. Structural Choice for a Differentiation of Legal Instruments According to
Legal Effects 382
xvi
Contents
a) The Regime of Validity: Form-specific Requirements Concerning
Legality and Effectuality 383
aa) Requirements for Taking Effect in Law 383
bb) Legality Requirements 384
b) Operating Mode as the Key to the System of Instruments 386
V. Legal Instruments and Judicial Protection after the Lisbon Treaty 388
1. Restructuring the Legal Instruments: Inventing the European 'Domain of Laws' 388
a) Simplification 388
b) Hierarchisation 389
aa) A Comparative Approach to the European Concept of Legislation 390
bb) Reinforcing Public Scrutiny as the Defining Feature of the Concept
of 'Legislation' 392
2. Innovations for the Legal Protection of Individuals 394
a) Extending the Constitutional Standard Case: The Dismantling of the
Third Pillar 394
b) Modifying the Constitutional Standard Case: The Modest Reform of the
Action for Annulment 395
11 Multilevel Constitutional Jurisdiction 399
Franz C Mayer
I. Taking Stock: The ECJ and the Highest National Courts
Conflict or Co-operation? 400
1. Adopting a Procedural Perspective: The Duty to Make Preliminary
References under Article 234(3) EC (Article 267(3) TFEU) 401
a) Supreme National Courts and the Duty to Make References from the
Perspective of European Law 402
b) The Preliminary Reference Practice of Supreme National Courts 403
c) The National Supreme Courts' Reference PracticesA Mixed Bag? 406
2. The Courts' Relationship from the Perspective of Substantive Law 407
a) The Perspective of the ECJ 407
b) The Perspective of the Highest National Courts 410
aa) The German BVerfG 410
(1) Fundamental Rights: The Solange I and Solange II
Decisions (1974/1986) 411
(2) Powers and Competences: The German Maastricht Decision
(1993) 412
(3) The Consistency of the BVerfG's Case law: Controlling the Bridge 415
bb) Other High Courts of the EU 15 415
cc) The Highest Courts of the Youngest Members of the EU 27 and
Prospective Member States 418
3. Interim Summary 420
II. Adopting an Analytical and a Theoretical Perspective 421
1. Dealing with the Question of Ultimate Jurisdiction 421
2. Adopting a Theoretical Perspective 425
a) Existing Approaches 425
b) Embedding the Problem into a Modern Concept of Constitutionalism 426
Contents
xvii
aa) Clarification: What Constitution? Constitutions, Verfassungsverbund
and Multilevel Constitutionalism 427
(1) Constitutions and the Concept of Verfassungsverbund 427
(2) Multilevel Systems 429
bb) The Role of Courts in a Multilevel System 430
c) Objections to Composite and Multilevel European Constitutional
Adjudication 431
aa) Asymmetry 431
bb) The Evaporation of ResponsibilitiesWho is to Define the
Common Good? 434
cc) Is There any Added Value in Theories of Composite Structures of
Adjudication? 434
3. Interim Summary 434
III. Recent Developments in the Relationship between European and National Courts 435
1. The Courts and the Core Topics of the Constitutional Reform Process 435
2. Open Questions 436
IV. Summary and Conclusion 438
Part III: The Legal Position of the Individual 441
12 Union Citizenship 443
Stefan Kadelbach
I. Introduction 443
II. The Notion of Union Citizenship 445
1. History 445
2. The Legal Concept of European Citizenship 449
a) Nationality 449
b) Citizenship 449
c) Union Citizenship 450
aa) Nationality as a Condition for Union Citizenship 450
bb) Union Citizenship as a Complement to State Citizenship 451
III. Elements of Union Citizenship in Positive Law 452
1. Individual Rights Based on EC Law 452
a) Fundamental Freedoms 452
b) Secondary Law: Union Citizens as Taxpayers, Welfare Recipients and
Consumers 453
2. Rights of Union Citizens 454
a) Freedom of Movement 454
b) Political Rights 455
aa) The Right to Vote and to be Elected at the Local Level 455
bb) Rights to Vote and to Stand for Elections to the European Parliament 456
c) Petition, Information, Access to Documents 457
d) Protection by Diplomatic and Consular Authorities 459
3. Rights of Union Citizens and Prohibition of Discrimination 461
a) The Link between Union Citizenship and the General Prohibition of
Discrimination 461
b) Derivative Social Rights 462
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Contents
c) Derivative Cultural Rights 463
4. The Relationship between Union Citizenship and Fundamental Rights 464
5. Duties of Union Citizens? 466
6. Interim Evaluation 467
IV. Union Citizenship in the Lisbon Treaty 468
V. The Future of Union Citizenship 469
1. Union Citizens in the European Multi-level System 469
a) Citizen Status and Identity 469
aa) The Multinational Tradition 470
bb) Universalist Visions 472
b) Identities of Citizenship in Multi-level Systems 473
c) The Complementary Relationship between Citizen Status and Political
Participation 475
2. Union Citizenship and Democracy in Europe 475
3. Union Citizenship and European Constitution-making 477
VI. Concluding Remarks 477
13 Fundamental Rights 479
Jürgen Kühling
I. Introduction 479
II. Phases of Development of Fundamental Rights Protection 482
1. The Development of Fundamental Rights Protection by the ECJ 483
2. The Fundamental Rights Debate in the Era of the Charter of Fundamental
Rights of the European Union 484
a) Time for a Radical Re-orientation of the Development of Fundamental
Rights? 484
b) Catalyst Effect, but not Legally Binding 486
c) Charter of Fundamental Rights and 'Exit Protocol'Cracks in the
Community of Values? 488
III. Core Elements of a Legal Doctrine of Fundamental Rights 489
1. Functions and Necessary Development of the Legal Doctrine of
Fundamental Rights 489
a) Functions of the Legal Doctrine of Fundamental Rights against the
Background of Diverging Fundamental Rights Cultures 489
b) The Necessity of Further Development of the Present Legal Doctrine of
Fundamental Rights of the ECJ 491
2. Functions and Classification of Fundamental Rights 492
a) Possible Classifications 492
b) Subjective (Negative) Rights and Positive Obligations 492
aa) The Difference between Subjective (Negative) Rights and Positive
Obligations 492
bb) Duty to Protect as Central Positive Obligation 493
cc) Derived Participatory Rights Corresponding with the Positive
Obligation to Give Access to Collective Benefits 494
dd) Original Rights to Performance Corresponding with Positive
Obligations to Provide Benefits 495
Contents
xix
3. Who is Bound by Fundamental Rights? The Reach of Fundamental Rights 496
a) The Binding Effect on the Institutions of the EC and the EU 496
b) The Binding Effect on the Member States as a Determinant of the
Vertical Scope of the Fundamental Rights of the Union 496
aa) The Position of the ECJFundamental Rights within the Scope of
Application of Community law 496
bb) The Future Consolidation of the ECJ's Point of View 498
cc) Increase of the Case Categories (Situations)? 499
4. Who May Assert Fundamental Rights? 501
5. The Structure of Examination of Fundamental Rights 501
a) Overview of the System of Examination 501
b) The Area Protected by Fundamental Rights and Interference Therein 502
c) Justification of an Interference with Fundamental Rights 503
aa) Interference Must be Founded on a Legal Basis 503
bb) Legitimate Objective 504
cc) The Principle of Proportionality 505
(1) Suitability 506
(2) Necessity 506
(3) Proportionality in the Narrow Sense 506
(4) Degree of Control and Margin of Appreciation 507
dd) The Guarantee of the Essence of Rights (Wesensgehaltsgarantie) 510
d) Particularities of the Examination of the Equality Principle and Positive
Obligations 511
IV. Outlook: An Institutional and Substantive Working Programme 512
14 Fundamental Freedoms 515
Thorsten Kingreen
I. The Fundamental Freedoms in the Jurisprudential Discourse 515
II. The Fundamental Freedoms in the Processes of Europeanisation and
Constitutionalisation 519
1. The Political Institutional Context I: The Horizontal Relationship between
the ECJ and the European Legislator 519
a) The Fundamental Freedoms during the EC Crisis 519
b) The Fundamental Freedoms after the Single European Act 522
c) The Fundamental Freedoms in the Era of Constitutionalisation 523
2. The Political Institutional Context II: The Vertical Relation between the ECJ
and the Legislators of the Member States 525
a) Fundamental Freedoms as Multi-level Norms 525
b) The Fundamental Freedoms in the Constitutional Federation of the
European Member States 527
3. Transnational Integration or Supranational Legitimation? 530
III. Methodological Implementation of the Context Analysis 532
1. The Theoretical Structure and Scope of the Fundamental Freedoms 532
a) The Fundamental Freedoms as Prohibition of Discrimination 532
aa) Review of an Understanding of the Fundamental Freedoms as
Rights of Freedom 532
xx
Contents
bb) A New Attack on the Keck Formula: The Opinion of AG Maduro
in Alfa Vita Vassilopoulos 534
b) Consequences on the Test of the Justification of the Interference 538
2. The Reservation of Statutory Powers 542
3. The Union as Addressee of the Fundamental Freedoms? 543
4. The Fundamental Rights as Part of the Test of Proportionality of Means and
Ends 543
IV. The Horizontal Effect of the Fundamental Freedoms 545
1. Direct Horizontal Effect? 545
2. The Alternative: The Right to Protection 547
V. Conclusion 549
15 The Area of Freedom, Security and Justice 551
Jörg Monar
I. Introduction 552
1. Relevance of the Subject 552
2. Scope of the Subject 553
3. Methodology 554
II. The Fundamental Treaty Objective and its Conceptual Dimension 554
1. The AFSJ as a Fundamental Treaty Objective 554
2. The Concept of Area 556
3. The Concept of Freedom 558
4. The Concept of Security 559
5. The Concept of Justice 560
III. The AFSJ in the Treaty Architecture 562
1. The Pillar Divide 562
2. Implications of the Pillar Divide 564
3. A Contested Divide 565
4. The Abolition of the Pillar Structure by the Treaty of Lisbon 567
IV. Differentiated Participation as a Constitutional Component of the AFSJ 569
1. Differentiation as a Constitutional Issue 569
2. The Opt-outs 569
3. The Opt-in Possibilities 570
4. The 'Enhanced Cooperation' Possibilities 571
5. The position of the Schengen 'Associates' 572
V. An Area of Cooperation rather than Integration 573
1. The Cooperative Orientation of the Current Treaty Framework 573
2. The Commission and the Court as (Limited) Factors of Integration 575
3. The Reaffirmation of the Cooperation Rationale by the Treaty of Lisbon 578
VI. The Place of the Individual in an Area of Cooperating Member States 578
1. The Individual as a Passive Beneficiary of the AFSJ 578
2. Two Missed Opportunities: The Charter of Fundamental Rights and
Union Citizenship 579
3. The Protection of the Rights of the Individual 580
VII. Conclusions 584
Contents
xxi
Part IV: The Constitution of the Social Order 587
16 The Economic Constitution within the Internal Market 589
Armin Hatje
I. Economic Constitution and European Integration 589
1. Relevance of the Subject 589
2. Terminology and Functions of the Economic Constitution 590
a) Approach 590
b) Definitions 591
c) Delimitations 592
3. The European Economic Constitution 592
a) Expansion of the Debate to a Superior Reference System 592
b) The Composite Character of the European Economic Constitution 593
c) Functional Characteristics of the European Economic Constitution 593
4. Scope for Economic Policy Formation 594
II. A Systemic Choice and its Legal Guarantees 594
1. The Choice in Favour of an Open Market Economy and Free Competition 594
a) Legal Quality 595
b) Contents 595
2. Guarantees of a Market Economy 596
a) Private Autonomy as Fundamental Requirement for a Market Economic
System 596
aa) The Economic Participant as Legal Person 596
bb) Individual and Entrepreneurial Freedom of Action 597
cc) Equal Rights for Market Participants 597
b) Co-ordination through Trade on the Open Markets 597
aa) Assured Availability of Products and Services 598
(1) Private Property 598
(2) Stable Currency 598
bb) Reduction of Market Barriers through Fundamental Freedoms 599
cc) Freedom of Communication 600
dd) Limited External Access 600
c) Competition as an Instrument of Co-ordination 601
aa) Legal Framework 601
bb) Areas Excluded from Competition 602
cc) Competition and Market Malfunction 603
3. Guarantees of the Market and Economic Policies 603
a) Goals of Community Activities 603
b) Instruments 603
c) Consequences for a Theory of a European Economic Constitution 604
III. Formative Scope of the Community in Economic Policy 604
1. Instruments of Economic Policies 604
2. Areas of Community Economic Policies 605
a) Regulatory Policy (Ordnungspolitik) 605
aa) Opening the Market by Approximation 605
bb) Liberalising Regulated Markets 606
b) Procedural Policy 606
xxii
Contents
aa) Financial Policy 606
bb) Structural Assistance Measures 607
cc) Employment Policy 607
dd) Environmental Policy 608
c) Distribution and Social Policies 609
aa) Distribution Policy Goals of the Community 609
bb) Supplementary Social Policy 610
(1) Co-ordination of the Systems Providing Social Services 610
(2) Supplementation of National Activities 610
cc) Starting Points for European Employment and Social Order 610
d) Freedom of Choice in the Framework of Comprehensive Clauses 611
3. Formative Boundaries 611
a) Increased Effectiveness of Market Integrative Instruments 611
aa) Levels of Autonomy 611
bb) Procedural Safeguards 612
b) Substantive Safeguards 612
aa) Principle of Subsidiarity 612
bb) Reservation Clauses 612
(1) Provisions Supporting the Establishment and Functioning of
the Internal Market 612
(2) Provisions Ensuring Undistorted Competition 613
cc) Effectiveness 613
c) Burden of Justification 614
aa) Subjective Rights and the Necessity of Justification 614
bb) Proportionality or a Minimum of Intervention Rule 614
4. The Monetary Union in the Economic Constitution 615
IV. The Discretionary Power of the Member States in the Field of Economic Policy 615
1. National Constitutional Law 615
a) Systemic Choices 615
b) Guarantees of a Market Economy 616
c) Interventionist Tendencies 616
2. Market Relevant Discretionary Powers 616
a) Regulatory Policy Regulations 617
aa) National Systems of Property Ownership 617
bb) Guarantees in Favour of Services of General Economic Interest 617
b) Scope for Procedural Policy Formulation 618
c) Scope for Distribution Policy 618
d) The Problem of System Competition 619
3. Limits of Discretionary Powers 619
a) Market Economic Orientation 619
b) Quantitative Limitation of Financial Intervention Potential 620
c) Proportionality as a Limit to Intervention 620
aa) Legitimisation Based upon European Standards 620
bb) Aptitude and Necessity as Precept of Minimum Intervention 620
V. Perspectives 622
Contents
xxiii
17 The Labour Constitution 623
Florian Rödl
I. Introduction 623
1. European Constitution and Social Order 623
2. The Concept of a Labour Constitution 625
II. The EEC Labour Constitution and the Social Compromise for Integration 627
1. The Basic Norms of the EEC Labour Constitution 628
2. The Foundation and Function of the EEC Labour Constitution 629
a) The Promise of Neoclassical Economics 629
b) The Social Compromise for Integration 630
3. The Form of the European Labour Constitution and Social Change 632
III. The Current State of the EU Labour Constitution 633
1. A Survey of the Relevant Norms 633
a) Rights 633
b) Guiding Norms 635
c) Competences 636
2. The Core Problem of Missing Congruence 637
IV. The Form of the European Labour Constitution 639
1. An Integrated European Labour Constitution 'in the Making'? 639
a) Milestones in the Development of the EU Labour Constitution 639
aa) The Introduction of Autonomous Labour-constitutional
Competences: The Single European Act (1987) and the Social
Agreement of Maastricht (1993) 639
bb) The Constitutionalisation of Rights: The Community Charter of the
Fundamental Social Rights of Workers (1989) and the EU Charter
of Fundamental Rights (2001) 641
cc) The Proliferation of Guiding Norms: The Social Agreement of
Maastricht (1993) and the Amsterdam Treaty (1999) 642
dd) Innovations in the Treaty of Lisbon 643
b) A Historically and Politico-economically Hardened Asymmetry 643
2. A Post-regulatory Labour Constitution for the EU? 645
3. The EU Labour Constitution in an Association of Labour Constitutions 647
a) Protection of Member State Labour Constitution Autonomy 647
aa) Horizontal Protection: Conflict of Labour Laws and Fundamental
Freedoms 647
bb) Vertical Protection: European Competition Law and Internal
Market Law 650
b) Competences for a Market-functional Substantive Labour Law 651
aa) Anti-discrimination Law 652
bb) The Harmonisation of Markets for Machinery, Production Material
and Facility Sites 652
cc) The Harmonisation of Other Technical and Social Occupational
Health and Safety Provisions 653
dd) The Labour Law Annex to European Company Law 654
c) Transnationalisation of Labour-constitutional Rights 654
aa) Transnational Freedom of Exercise of Profession 655
xxiv
Contents
bb) Transnational Participation Rights 655
cc) Transnational Collective Bargaining Rights 656
V. Conclusion 658
18 Competition Law as Part of the European Constitution 659
Josef Drexl
I. Introduction: Between the Lisbon Treaty and the
Economic Approach 659
II. The Effects of the Lisbon Treaty on Competition Law 661
1. Protecting Undistorted Competition in the Internal MarketStill an
Objective of Union Law? 662
a) Analysis of the Lisbon Treaty's New Provisions 662
b) The Guarantee of Undistorted Competition as a Limitation to the
Possibility to Outbalance the Competition Goal by Reference to
Conflicting Goals 664
c) Harming the 'Structure of Competition' as an Abuse of Market Dominance 665
2. Repositioning the Guarantee of the 'Open Market Economy with Free
Competition' in the Lisbon Treaty 667
III. The Economic Approach to Competition Law as a Response to an Application
Problem 669
1. Historic Development and Characterisation of the More Economic Approach 669
a) The Block Exemption Regulation on Vertical Agreements of 1999: The
New 'Effects-Based' Approach 669
b) Direct Application of Article 81(3) EC 671
c) Reform of Merger Control Law 672
d) Reform of the Application of Article 82 EC 673
e) Reforming Competition Law Enforcement and Strengthening Private
Enforcement 676
f) Conclusion 679
2. Lack of Legal Certainty 679
3. Making Predictions on Future Effects 681
4. The Excessive Claim of Knowledge 682
5. The Disregard of the Institutional Dimension 684
6. Plea for an 'Even More Economic Approach' 684
IV. The Objectives of Competition Law from an Economic Perspective 685
1. Consumer Welfare as an Objective of European competition law 685
a) The Recognition of Consumer Welfare as an Objective by Community
Institutions 685
b) The Objective of Consumer Welfare in European Competition Policy 685
c) Consumer Welfare as an Objective from the Perspective of the European
Constitutional Order 686
2. The Consumer Surplus Standard in European Competition Law 687
a) The Economic View 687
b) The Legal Situation under European competition law 688
c) The Consumer Surplus Approach and the Efficiency Defence from the
Perspective of the European Constitutional Order 689
Contents
xxv
3. Consumer Harm as a Requirement for a Restraint of Competition 690
a) The Economic View 690
b) Practice of European Competition Policy 691
c) The Consumer Harm Requirement from the Perspective of the
European Constitutional Order 692
4. Conclusion 693
V. The Economic Approach in the Light of Constitutional Objectives 694
1. The Freedom Paradigm 694
a) The Economic Freedom of Action of Individual Market Participants 694
b) Protecting the Freedom of Competition 695
2. Economic Integration 696
VI. Conclusion 697
Part V: Contending Visions of European Integration 699
19 The European Union as a Federal Association of States and Citizens 701
Ulrich Everling
I. Introduction 701
II. Foundations of the European Union 703
1. Goals of the Union 703
a) Establishment of the Union 703
b) Development of the Original Goals 704
2. The European Union as a Political Union 705
a) The Political Core of the Economic Integration 705
b) Connection to the Politics of the Member States 706
3. The European Union as an Economic Union 708
a) Opening of the National Markets 708
b) Competition Policy and Other Economic Policies 710
III. The Institutions in the System of the European Union 711
1. Peculiarities of the Institutional System 711
a) Pluralism of the Political Parties 711
b) Participation of the Administrations in the Decision-making Process 712
2. The Union's Decision-making Process 713
a) Majority Decisions 713
b) Delegation of Implementing Measures 715
3. Competences and Legitimation of Law-making in the Union 716
a) Distribution of Competences 716
b) Legitimacy of Law-making 718
IV. The Constitutional and Legal Order of the European Union 720
1. The Constitutional Structure of the Union 720
a) Discussion on the Constitution of the Union 720
b) Organisational Structure of the Union 721
2. The Union as a Community of Law 722
a) Principles of the Rule of Law 722
b) General Principles of Law 724
3. System of Judicial Protection 725
a) The European Judiciary 725
xxvi
Contents
b) Judicial Protection and Procedural Rules 727
V. The Legal Nature and Future of the European Union 729
1. The Position of the Member States in the Union 729
a) The Identity of the Member States 729
b) Restrictions Imposed on the Member States 730
2. Grouping the Views on the Union's Legal Nature 731
a) An Attempt at Interpretation 731
b) Summing up the Different Views in the Federal Principle 733
3. Conclusions and Outlook 734
20 The European Union of States 735
Paul Kirchhof
I. The Rejection of the Treaty Establishing a Constitution for Europe 735
1. The European Community of Law as a Community of Measurement 735
a) The Demand for More Democracy 736
b) No Constitution-Making 737
2. The Integration's Reality and Aspiration 738
3. Constitutiona Uniform Text or the Basic Structure of a State? 739
4. A Perpetualising Constitution and the Dynamic Order of Development 740
II. The Relationship between Constitutional Law and European Law 741
1. The Constitutional Requirements for the Application of European Law 741
2. The European Union as a Union of States 743
3. The Europeanisation of Constitutional Law 745
4. A Multi-level Model? 745
III. The State 746
1. Statehood and Openness to Europe 746
2. The People Encountered in Liberty 747
3. Sovereignty 748
4. New Challenges for the State 750
IV. The State in a Union 751
1. Development of a Common Constitutional Law in the Aftermath of the
Maastricht Treaty 751
2. Supranationality 754
3. The Vitality of the State Declared Dead 755
4. The Mandate of Co-operation 756
5. Modern Forms of Balance of Powers 757
a) The Legal Sources 758
b) The Liberty-ensuring Balance of Powers 758
c) Correctness of and Responsibility for Decisions 759
d) Organisations for the Future and the Present 760
aa) The Future-oriented European Power 760
bb) The Present-oriented Power of the Member States 760
e) Co-operation between Powers 761
6. A Europe of States as an Opportunity for Peace and Freedom 761
Contents
xxvii
21 The Advantages of the European Constitution 763
Manfred Zuleeg
I. The European ConstitutionA Fact 763
II. The Advantages in Detail 765
1. The Advantages of the European Institutions 765
a) The European Community as a Community Based on the Rule of Law 765
b) The Treaties as the Foundation of the European Constitution 766
c) The Organisational Structure 766
d) The Legislative Process of the European Union 768
e) Legal Acts 769
2. Tasks and Objectives 770
3. The Distribution of Powers 770
4. Constitutional Principles 772
a) Democracy 772
b) The Rule of Law 773
c) Federative Principles 774
d) Protection of Fundamental Rights 777
5. The European Legal Order's Structural Characteristics 777
6. The Constitution's Scope 779
III. Recent Developments 780
1. The Need for a Constitution 780
2. The Manageability of the European Constitution 781
3. The Lisbon Treaty and the Further Constitutionalisation of the Union 781
a) Adjustment to Future Challenges 781
b) Form and Content of the Treaties after Lisbon 782
c) The Institutional Structure of the Union post-Lisbon 782
d) The Strengthening of Democracy and the Rule of Law in the EU 783
e) Fundamental Rights 783
f) The Distribution of Competences between Member States and Union 783
4. Differentiated Co-operation Instead of Renunciating Integration 784
IV. Forecast 785
Index 787




Sentencing in International Criminal Law
Studies in International and Comparative Criminal Law - No. 6
The UN ad hoc Tribunals and Future Perspectives for the ICC
Edition: 1st
Format: Hardback
Author: Silvia D'Ascoli
ISBN: 9781849461160
Publishers: Hart Publishers
Price: £67.50
Publication Date: April 2011

Publisher's Title Information

This book deals with sentencing in international criminal law, focusing on the approach of the UN ad hoc Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). In contrast to sentencing in domestic jurisdictions, and in spite of its growing importance, sentencing law is a part of international criminal law that is still 'under construction' and is unregulated in many aspects.
 
International sentencing law and practice is not yet defined by exact norms and principles and as yet there is no body of international principles concerning the determination of sentence, notwithstanding the huge volume of sentencing research and the extensive modern debate about sentencing principles. Moreover international judges receive very little guidance in sentencing matters: this contributes to inconsistencies and may increase the risk that similar cases will be sentenced in different ways.
 
One purpose of this book is to investigate and evaluate the process of international sentencing, especially as interpreted by the ICTY and the ICTR, and to suggest a more comprehensive and coherent system of guiding principles, which will foster the development of a law of sentencing for international criminal justice.
 
The book discusses the law and jurisprudence of the ad hoc Tribunals, and also presents an empirical analysis of influential factors and other data from ICTY and ICTR sentencing practice, thus offering quantitative support for the doctrinal analysis.
 
This publication is one of the first to be entirely devoted to the process of sentencing in international criminal justice. The book will thus be of great interest to practitioners, academics and students of the subject.
 
The Author

Silvia D'Ascoli is an Associate Legal Officer in the Appeals Division of the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY).

Contents

Foreword by Pierre-Marie Dupuy v
Foreword by Judge Theodor Meron vii
Acknowledgements ix
List of Figures xix
Table of Cases xxi
Table of Legislation xxxix
Table of Conventions, Treaties, etc xlv
List of Abbreviations and Terminology li
Introduction 1
Part I The Law and Process of Sentencing: National and
International Dimensions 7
Chapter 1 Analysing the Sentencing Process in International Justice 9
I. International Sentencing: A General and Preliminary
Overview 9
A. The Current Status of Sentencing At the
International Level 11
B. The Principle of Legality 14
i. National and Supranational Dimensions:
Contents 14
ii. Which Standard for International Sentencing? 19
C. The Principle of Proportionality of Penalties 21
i. The Content of the Principle 22
ii. The Sources of the Principle 23
iii. Doctrinal and Judicial Interpretation of the
Principle of Proportionality 25
D. Other Human Rights Standards Relevant to
Sentencing 27
II. Determination of the Sentence: Relevant Issues for
International Justice 31
A. The Purposes of Punishment.Which Purposes for
International Sentencing? 32
B. The Non-Existent Hierarchy of International Crimes 39
C. The Role of Aggravating and Mitigating
Circumstances 42
D. The Role of the Judge in International Sentencing 43
xiii
E. Guilty Plea and Plea Bargaining In International
Criminal Justice 46
F. Standards of Punishment 48
III. Looking Ahead: The Development of a Coherent
System for International Sentencing 54
A. The Need for Sentencing Guidance 54
Chapter 2 Sentencing Approaches to International Crimes in National
Legal Systems 57
I. National and International Dimensions of Sentencing 60
A. The International Criminal Legal System versus
National Criminal Legal Systems 60
B. Traditional Theories of Punishment 62
i. Retribution 64
ii. Deterrence 67
iii. Rehabilitation 69
iv. Social Defence Theory and Incapacitation 69
v. Restoration and Reparation 70
C. Review of the Literature 70
D. Comparative Overview: Country Selection And
Method of Analysis 73
II. Six National Approaches to the Punishment of
International Crimes 75
A. Overview of the National Legal Systems Considered 75
i. General Criteria to Determine Sentences 77
ii. Modes of Criminal Liability 81
iii. Offences and Penalties: Quantum of Penalties 83
iv. The Discipline of Mitigating and Aggravating
Factors 88
v. Provisions concerning Confession, Guilty Plea
or Plea Bargaining 91
B. The Punishment of International Crimes in the
National Legal Systems Considered 96
i. France 98
ii. Italy 98
iii. Germany 100
iv. Spain 102
v. England and Wales 103
vi. United States of America 104
C. Common Trends in national Approaches to
Sentencing International Crimes 106
Detailed Contents
xiv
Part II Sentencing Law and Practice in International Criminal Law 109
Chapter 3 The Sentencing Jurisprudence of the International Criminal
Tribunals for the former Yugoslavia and Rwanda 111
I. Relevant provisions of the Statutes and Rules of
Procedure and Evidence 111
A. Applicable Penalties 111
B. Gravity of the Offence, Aggravating and Mitigating
Circumstances 112
C. General Practice regarding Prison Sentences in the
Former Yugoslavia and Rwanda 115
D. The Structure of the Sentencing Process 123
E. Modes of Liability and Multiplicity of Offences 126
II. Identification of Influential Factors on the
Decision-Making Process in Sentencing 130
A. General Influential Factors 131
B. Case-related Factors 133
C. Proceeding-related Factors 134
III. ICTY and ICTR: Overview of the Case Law 135
A. General Influential Factors 135
i. Purposes of Punishment 135
ii. Sentencing Practice in the Former Yugoslavia
and Rwanda 141
iii. Proportionality of Penalties 144
B. Case-related Factors 145
i. Gravity of the Offence 145
a. Perpetration 150
b. Victimisation 154
ii. Individual Circumstances of the Accused 156
a. Leadership Level and Abuse of Authority 156
b. Good Character 159
c. Lack of Prior Criminal Convictions 163
d. Personal and Family Situation 165
e. Expression of Remorse 166
f. Age 167
g. State of Health of the Accused 170
h. Other Individual Circumstances 172
C. Proceeding-related Factors 174
i. Voluntary Surrender 175
ii. Co-operation with the Office of the Prosecutor 176
iii. Guilty Plea and Plea Agreement 178
iv. Conduct of Parties during Trial Proceedings 183
IV. Preliminary Findings regarding the Sentencing Practice
of the ad hoc Tribunals 184
Detailed Contents
xv
A. Patterns and Inconsistencies 186
i. General Purposes of Punishment 186
ii. Aggravating and Mitigating Circumstances 188
iii. Guilty Pleas 194
iv. Length of Sentences 196
B. The Need for Uniformity and Proportionality in
Sentencing 198
Chapter 4 Quantitative Analysis of Sentencing Data in the Case Law of
the ad hoc Tribunals 203
I. Theoretical Framework and Research Questions 203
II. Operationalisation and Identification of Relevant
Variables 208
III. Methodology 213
IV. Analysis and Empirical Interpretation: Descriptive
Statistics 215
A. Length of Sentences 215
B. Type of Crime and Harshness of Penalties 220
C. Modes of Liability 226
D. Perpetrator: Characteristics 230
i. Type of Participation 230
ii. Leadership Level 233
iii. Age 240
E. Guilty Plea / Plea Agreements 243
F. Aggravating Circumstances 244
G. Mitigating Circumstances 250
V. Data Analysis on Judges 257
VI. Summary of Empirical Findings 259
Chapter 5 The Sentencing System of the International Criminal Court 263
I. Relevant Provisions of the Statute and Rules of
Procedure and Evidence 264
A. Applicable Penalties 264
B. Aggravating and Mitigating Circumstances 268
II. Substantive Issues 271
A. Purposes of Punishment in the ICC System 271
B. The principle of Legality of Penalties in the Rome
Statute 273
III. Procedural Issues 276
A. The Sentencing Hearing 276
B. Admission of Guilt 277
C. Appeal and Revision 280
IV. Sentencing Guidelines for the ICC? 282
Detailed Contents
xvi
Part III Towards the Construction of Guiding Principles for
International Sentencing 287
Chapter 6 Assessment of Some Important Legal Issues for International
Sentencing 289
I. The Principle of Legality of Penalties 289
II. The Principle of Proportionality of Penalties 292
III. Purposes of Punishment in International Justice 294
IV. Hierarchy of International Crimes 303
V. Influential Factors on Sentencing 309
A. Aggravating and Mitigating Circumstances 309
B. Guilty Plea 315
VI. A System of 'Guiding Principles' for International
Sentencing 318
Conclusion 321
Annex 325
Bibliography 379
Index 407
Detailed Contents

More Information can be found at the Hart Publishing Website at:-



Bewigged and Bewildered - A Guide to Becoming a Barrister in England and Wales
Edition: 2nd
Format: Paperback
Author: Adam Kramer
ISBN: 9781849461641
Publishers: Hart Publishing
Price: £15
Publication Date: April 2011
 
Publisher's Title Information

Misunderstandings and jargon prevent many from seriously considering a career as a barrister in the belief that such a career is not for them or that they are not for it. Others know that they might want to become barristers but not how to go about it, or just want to know more about this somewhat mysterious profession. This book (by a barrister who was formerly a university law lecturer) clearly but informally explains the traditions, terminology and institutions of the Bar, and what it is actually like to be a barrister. With this aim, several barristers practising in different fields describe in detail a typical week in their life. Advice is then given on how to be accepted into, fund and survive the various academic and other stages that precede qualification as a barrister, including work experience, Bar School, and pupillage (the barrister's apprenticeship). Space is also given to how to transfer to the Bar after another legal or non-legal career. This second edition is fully updated to take account of the changes to the Bar, training for it and the process of recruitment to it.
 
Adam Kramer regularly provides updates to this book, which can be seen at:

The Author
Adam Kramer is a Barrister at 3 Verulam Buildings, and a former lecturer at the Universities of Durham and Oxford.

CONTENTS
Foreword vii
Preface ix
Using this Book xv
1 Textbooks 1
1.1 General 1
1.2 Specific Contract Types 4
1.3 Tort and Restitution 8
1.4 Student Texts 10
1.5 For Civil Lawyers 10
2 Pre-Contractual Liability 12
2.1 Generally 12
2.2 Preliminary Agreements 12
2.3 Duties to Bargain in Good Faith 15
2.4 Torts 15
2.5 Restitution 17
2.6 Obligations to Contract: The Common Callings 19
3 Formation 20
3.1 Capacity 20
3.2 Authority 20
3.3 Agreement 21
3.4 The Objective Principle and Unilateral and Cross-purposes
Mistake 26
3.5 The Intention to Create Legal Relations 33
3.6 Consideration 34
3.7 Form 40
3.8 Certainty 41
3.9 Restitution and Void Contracts 42
4 The Terms of the Contract 43
4.1 Incorporation 43
4.2 Order of Performance 44
4.3 Standard Forms 46
xi
4.4 Interpretation and the Objective Principle 48
4.5 Implied Terms 58
4.6 Exclusion and Penalty Clauses and Unfair Terms 63
5 Common Mistake and Frustration 72
5.1 The Bases of the Two Doctrines 72
5.2 Common Mistake 73
5.3 Frustration 76
5.4 Force Majeure Clauses 82
6 Misrepresentation, Duress, Undue Influence and Unconscionability 83
6.1 Duress, Undue Influence and Unconscionability 83
6.2 Misrepresentation 90
6.3 Rescission for Undue Influence, Misrepresentation, etc 91
6.4 The (New Zealand) Contractual Remedies Act 1979 94
7 Illegality and Restraint of Trade 95
7.1 General Texts 95
7.2 Generally 95
7.3 Restraint of Trade and Restrictive Covenants 96
7.4 War 97
7.5 Champerty 97
7.6 The Effect of Illegality 97
8 Privity and Third Party Rights 99
8.1 Third Party Rights to Sue 99
8.2 Third Party Rights to Rely on Exclusion Clauses 101
8.3 Binding Third Parties to Exclusion Clauses 102
8.4 The (US) Restatement (Second) of Contracts 103
8.5 The (New Zealand) Contracts (Privity) Act 1982 103
8.6 The (English) Contracts (Rights of Third Parties) Act 1999 103
8.7 Contracts with Proprietary Effect 106
8.8 Assignment 106
9 Modification 107
9.1 Generally 107
9.2 Consideration for Contract Modifications 108
9.3 Waiver and Promissory Estoppel 109
9.4 Duress and Contract Modifications 110
9.5 Agreed Termination 111
xii Contents
10 Breach and Termination 112
10.1 Generally 112
10.2 Cure and Re-Tender 112
10.3 Anticipatory Breach and Renunciation 113
10.4 Repudiatory/Fundamental Breach 114
10.5 The Effects of Repudiatory Breach 115
10.6 Termination Pursuant to Express Contract Clauses 121
11 Remedies 123
11.1 General Texts 123
11.2 Generally 123
11.3 Theory 124
12 Specific Relief 127
12.1 Action for Debt/Action for an Agreed Sum 127
12.2 Specific Performance and Injunctions 127
13 Damages 131
13.1 General Texts 131
13.2 Compensatory/Expectation Damages 131
13.3 Non-Pecuniary Losses 137
13.4 Limiting Principles and Quantification 142
13.5 Non-Compensatory Damages 151
13.6 Theory 159
14 Concurrent Liability 166
14.1 Contract and Tort 166
14.2 Contract and Unjust Enrichment 168
14.3 Promissory Estoppel as a Cause of Action 170
15 Procedure, Litigation and Drafting 174
15.1 Limitation 174
15.2 Contribution 174
15.3 Drafting 175
16 Contract Theory 176
16.1 General Texts 176
16.2 About Theorising 176
16.3 Theories 177
16.4 Mandatory and Default Rules 195
Contents xiii
17 Codification and International Harmonisation 199
17.1 National 199
17.2 European 199
17.3 Global 201
18 Comparative Contract Law 202
18.1 General 202
18.2 European 202
19 Contract and Other Areas of Law 204
19.1 Contract and Agency 204
19.2 Contract and Bailment 204
19.3 Contract and Company Law 205
19.4 Contract and Crime 205
19.5 Contract and Employment 206
19.6 Contract and Family 206
19.7 Contract and Fiduciary Duties 206
19.8 Contract and the Law of Obligations 207
19.9 Contract and Property 208
19.10 Contract and Tort 208
19.11 Contract and Trusts 210
19.12 Contract and Unjust Enrichment/Restitution 210
20 Legal History 211
20.1 General and Miscellaneous 211
20.2 Fourteenth-Sixteenth Centuries 212
20.3 Seventeenth-Eighteenth Centuries 212
20.4 Nineteenth Century 213
20.5 Twentieth Century 213
21 Influences and Development 215
21.1 Particular Individuals 215
21.2 The Role of Commerce 215
21.3 The Role of Morality 216
21.4 The Role of Equity 216
21.5 The Role of Public Law 216
22 Miscellaneous 218
22.1 Novelty 218
22.2 Contract Law and Literature 218
22.3 Teaching Contract Law 219
Index 221
Index to Authors 225

Reviews of 1st Edition
 
This is an indispensable guide to anyone who might consider a career at the Bar…Kramer in his clever way weaves in facts, possibilities, alternatives, definitions and sub-definitions…The 10 little essays about the life of young practitioners are very polished. David Wurtzel
Counsel December 2007
 
Not only does it set out essential information about qualifications, joining an inn, dining, obtaining a pupillage, and so on, it also includes guidance on alternative careers, law libraries in London, time-tables for routes to the Bar, and setting up in practice. The Commonwealth Lawyer Vol 17, No 2, August 2008
 
…I endorse Adam Kramer's unique book for throwing open the doors of the Bar to current and future generations, and I hope that, by giving the confidence that can come only from being fully informed, it will bring readers to this most enjoyable, worthwhile, and rewarding of vocations. I only wish it had been available to me when I started in practice 35 years ago.
Stephen Hockman QC, Chairman of the Bar Council From the foreword 2006
 
...it gets the LawCareers.Net seal of approval...We particularly like Kramer's advice on how to respond to the age-old pupillage interview question: 'How can you defend a man who you know is guilty?' And his guidance on how to wear your wig and bands looks pretty useful too!
LC.N Weekly (Law Careers.Net) 15th May 2007
 
This is a very much needed book, with useful online updates, for anyone interested in becoming a barrister-at-law in England and Wales in 21st century...There has always been a certain amount of mystique about the Bar and what we actually do. Adam Kramer has been able to distill the work we do in a matter-of-fact way as though he were addressing a jury- and he puts the issues across very finely indeed with most questions answered. Phillip Taylor Richmond Chambers
 
Bewigged is a well-written and enjoyable resource and should be useful to law students, aspiring law students and aspiring barristers in particular...it is a useful referral point for students interested in joining the barrister profession. Reference sections of any university library and careers services would do well to stock the book. Those of us who do not themselves aspire to a career in advocacy will enjoy the insightful account of the structure of the legal world and the training system for joining one of the oldest and most powerful professions in contemporary Britain. Anna Zimdars, The Law Teacher 2009

More Information can be found at the Hart Publishing Website at:-




What About Law?
Edition: 2nd
Format: Paperback
Author: Catherine Barnard, Janet O'Sullivan and Graham Virgo
ISBN: 9781849460859
Publishers: Hart Publishing
Price: £10.99
Publication Date: March 2011
 

Publisher's Title Information

Most young people considering studying law, or pursuing a legal career, have very little idea of what learning law involves and how universities teach law to their students. The new edition of this book, which proved very popular when first published in 2007, provides a 'taster' for the study of law; a short, accessible presentation of law as an academic subject, designed to help 17- and 18-year old students and others decide whether law is the right choice for them as a university subject, or, if they have already made the choice, what to expect when they start their law degree. It helps answer the question 'what should I study at university?' and counters the perception that law is a dry, dull subject.
What About Law? shows how the study of law can be fun, intellectually stimulating, challenging and of direct relevance to students. Using a case study approach, the book introduces prospective law students to the legal system, as well as to legal reasoning, critical thinking and argument.
This is a book that should be in the library of every school with a sixth form, every college and every university, and it is one that any student about to embark on the study of law should read before they commence their legal studies.
All of the authors have long experience in teaching law at Cambridge and elsewhere and all have also been involved, at various times, in advising prospective law students at open days and admissions conferences.

The Authors

Catherine Barnard is Reader in European Union Law, Jean Monnet Chair in European Law, Fellow of Trinity College, Cambridge. Author of EC Employment Law (OUP, 2006, 3rd edn) and The Substantive Law of the EU: The Four Freedoms (OUP, 2007, 2nd edn).

Janet O'Sullivan is Senior Lecturer in Law, Fellow of Selwyn College, Cambridge, winner of Cambridge University Pilkington teaching prize for excellence in university teaching; associate editor, Tottel's Journal of Professional Negligence; solicitor. Co-author of O'Sullivan and Hilliard, The Law of Contract (OUP, 2006, 2nd edn).

Graham Virgo is Professor of English Law, Fellow of Downing College, Cambridge, winner of Cambridge University Pilkington teaching prize for excellence in university teaching; Law faculty access officer; barrister. Author of Principles of the Law of Restitution (OUP, 2006, 2nd edn).

More Information can be found at the Hart Publishing Website at:-



Setting the Watch: Privacy and the Ethics of CCTV Surveillance
Edition: 1st
Format: Hardback
Author: Beatrice von Silva-Tarouca Larsen
ISBN: 9781849460842
Publishers: Hart Publishing
Price: £45
Publication Date: Jan 2011
 

Publisher's Title information

Many liberals consider CCTV surveillance in public places - particularly when it is as extensive as it is in England - to be an infringement of important privacy-based rights. An influential report by the House of Lords in 2009 also took this view. However there has been little public, or academic, discussion of the underlying principles and ethical issues. What rights of privacy or anonymity do people have when abroad in public space? What is the rationale for these rights? In what respect does CCTV surveillance compromise them? To what extent does the state's interest in crime prevention warrant encroachment upon such privacy and anonymity rights? This book offers the first extended, systematic treatment of these issues. In it, the author develops a theory concerning the rationale for the entitlement to privacy and anonymity in public space, based on notions of liberty and dignity. She examines how CCTV surveillance may compromise these rights, drawing on everyday conventions of civil inattention among people in the public domain. She also considers whether and to what extent crime-control concerns could justify overriding these entitlements. The author's conclusion is that CCTV surveillance should be appropriate only in certain restrictively-defined situations. The book ends with a proposal for a scheme of CCTV surveillance that reflects this conclusion.

The Author

Dr Beatrice von Silva-Tarouca Larsen (Dr iur, University of Munich and PhD, Cambridge ) is Research Associate at the Centre for Penal Theory and Penal Ethics at the Institute of Criminology, Cambridge University.

Preface

The lyrics of pop songs often reflect the Zeitgeist and current pre-occupations.
Some years ago, 'Hard-Fi', hailed as the 'next major British band', released the album Stars of CCTV. Its eponymous title song had this somewhat frantic refrain:

Every move that I make
gets recorded to tape
so somebody up there
can keep me safe.
I'm going out tonight
I'll get my hair just right
I'm always looking good for
my spot light.
a winning smile up to the gallery,
gonna get my face on the six o'clock news.

Closed circuit television (CCTV) surveillance has found its way into British consciousness after all, in spite of the apparent indifference citizens display in the face of the CCTV phenomenon. While not directly an ethical discourse, the song has a message: the words not only capture today's obsession with getting noticed and famous, and how unquestioningly we have bought into the promise of security; they are also telling us that we should not be fooledbeing watched by millions of cameras as we go about in public does something to us and it makes us change how we behave. In spite (or because) of its upbeat mood, the song is cunningly subversive. We want to challenge the naive and gullible simpleton with the winning smile. Is it not rather grating to think that every move gets recorded on tape? I may not always want the spotlight when I go out. And anyway, who is that somebody up in the gallery, and can he really keep me safe? How is it that my face could end up on the six o'clock news? If I have not got my hair just right, that could be rather embarrassing.

In my discussion of the ethics of public CCTV surveillance, or open-street CCTV as it is often called, I shall pursue this theme and try to unpick the questions the song raises in the minds of those who listen. My focus will be on the moral reasons why we should be entitled to object to being watched by CCTV cameras and the people behind them, and how to resolve the tension between this entitlement and our interest in being kept safe from crime. This requires four layers of analysis that will be spread over four chapters. In chapter one, I shall explain why a claim to an exclusive private sphere can also be upheld in a public space. Chapter two will show how CCTV surveillance interferes with this claim to a private sphere in public. In chapter three, I shall examine the purported countervailing justification of this interference by crime prevention objectives. Based on the foregoing analysis, chapter four will set out policy principles for the regulation of public CCTV, with regard both to its implementation and execution, and provide an overview and critique of the existing regulatory framework in the UK.

Beatrice von Silva-Tarouca Larsen May 2010

Review

The Author Beatrice von Silva-Tarouca Larsen argues that CCTV surveillance is ethically permissible only in "certain restrictively defined situations", such as when a specific location has a "comprehensively documented and significant criminal threat" (page. 160). Her central thinking is that widespread CCTV surveillance violates citizens' rights to privacy and anonymity within the public sphere by jeopardizing both their liberty and dignity. She concludes that CCTV surveillance should therefore be reserved for specific circumstances in which there are clear and reasonably demonstrated benefits to its implementation and few ethical compromises.

To quote from page 160 on the Selection of locations she says, 'The implementation of public CCTV schemes should be conditional upon a comprehensively documented and significant criminal threat. The initiating agency should be under an obligation to undertake a risk assessment and site analysis for the locations to be put under surveillance. This should include not only identification of the targeted crimes and local crime data documenting the frequency of criminal occurrences over a given period, but also a survey of environmental, social and demographic factors, and how they may relate to the crime problem. Crime-mapping techniques should be used to establish spatial and temporal patterns, and an attempt should be made to assess long-term crime trends in the area. Moreover, a critical analysis should be provided as to why public CCTV may be expected to have a significant effect on crime in the particular context. There should be evidence that multi-agency cooperation has been organised and that surveillance is underpinned by a package of other crime-reduction measures, as these are essential conditions for a successful strategy.

If there are several high-crime locations in the vicinity of each other, CCTV ought to be reserved for the ones with the highest enforcement priority....'

This appears on the face of it to go against the first principles of policing which is still the "Prevention and Detection of Crime", however it is obvious that there must be some control. This is a well researched and comprehensive book on this important subject because we are all being watched; even it seems at the Tesco checkout!

Rob Jerrard

More Information can be found at the Hart Publishing Website at:-



The Impact of EU Law on Minority Rights
Modern studies in European law.
Edition: 1st
Format: Hardback
Author: Tawhida Ahmed
ISBN: 9781841138725
Publishers: Hart
Price: £45
Publication Date: Jan 2011
 
Publisher's Title Information

This book provides a critical evaluation of the ways in which EU law engages with minority rights protection: at its core is an analysis of EU law and minority rights. Unlike the UN or ECHR, the EU has no competence to set standards on minority protection and this has been a point of disappointment for minority rights advocates. Indeed, this book will demonstrate that, in EU law, binding standards really only exist in the sphere of non-discrimination and are at their strongest in the field of employment. As such, binding standards within EU law affect only a small proportion of the canon of minority rights. However, the EU does have competence to promote diversity and facilitate redistribution of power and resources across the EU. According to a broad understanding of minority rights protection, acts of promotion and facilitation -alongside those of standard-setting - constitute essential underpinnings for minority protection. The EU's existing competences do therefore play a key role in minority protection. In order to support these conclusions, the book undertakes a comprehensive examination of the impact of EU law on minority rights protection.
 
The book examines a broad range of the EU's legal provisions and principles which may affect minority protection, before undertaking in-depth analyses of the examples of minority cultural rights and minority linguistic rights. In addition, the final substantive chapter of the book contextualises the impact of EU law within the perspective of the overall needs of a specific group - the Roma minority. The concluding chapter draws together the EU's contribution to minority rights. In short, the EU can be seen as a promoter, but not a protector, of minority rights. Although not ideal, especially from the perspective of minorities, it is worth at least exploring such a view. Such an exploration would enable the EU most easily to build upon its existing competences and regulatory capacities.
 
This book will be of interest to lawyers and activists concerned with minority rights and Roma rights protection within the EU. It will also be of relevance to those interested in understanding the dynamics between the EU and the international law community in overlapping areas of rights protection, and exploring how this informs our perception of the capacity of the EU to be a central actor in the field of rights protection.


The Author
 
Tawhida Ahmed is a Lecturer in Law at the University of Sheffield.

Preface

This book is a product of my growing interest in the law of international organisations such as the European Union, and their contribution to the protection of human rights, particularly controversial rights, such as those relating to minorities. The study of minority rights raises a plethora of complex issue
rs and questions, the intricacies of which are heightened in the context of the EU, as its role in minority rights is not obvious in any sense. It hasinevitablybeen impossible to address many of these issues and questions within this book. Nonetheless, I hope that readers will find the particular exploration that I undertake worthwhile, if not as fascinating as I have found it to be. That we can even raise discussion of the place of minority rights within the EU is itself extraordinary.
I began to write this book whilst at the University of Nottingham, and completed it at the University of Sheffield. I am indebted to many colleagues at both _institutions and beyond for their support in helping me to shape my ideas and get the writing done. In particular I would like to thank Professors Duncan French, Tamara Hervey, Jeff Kenner, John Merrill' s, Derek Morgan and Michael O'Flaherty, and Mr Patrick Twomey, as well as Dr Gaetano Pentassuglia, Dr Annamaria La Chimia and Dr Konstantina Kalogeropoulou. Tammy deserves special thanks for her continuous guidance. I could not have completed this work without the inspiration and ongoing daily support from Dr Vicky Chico, Mr Richard Collins, Dr Chaim Kuppuswamy, Dr Dimitrios Kyritsis and Dr Anastasia Vakulenko, who have at various times, and at extremely short notice, sat down with me to either read or talk through various parts of the book. I am also grateful for the efficient and professional research assistance given by John Townsend and for the excellent editing assistance I received from Ayesha Ahmed.
An important word of thanks to my dear familyfor being there for me and understanding the pressures I have been under in completing this work. Thanks especially to Atiya, Tanya and Ayesha for preventing me from falling into the 'out of touch academic' trap! I look forward to spending more time with you.
The law in this book is correct up to September 2009. References are made to the new Treaty on European Union and the new Treaty on the Functioning of the European Union (binding as of December 2009) where they have a significant impact on the conclusions of this book. Although the entry into force of these Treaties is a monumental step in the story of the EU's evolution, they serve only to confirm, rather than obstruct, the main argument of this book the EU holds significant potential for developing minority rights protectionpotential which must be thoroughly understood in order to debate the future of the EU's role in the field.

Tawhida Ahmed, 2010



From House of Lords to Supreme Court
Judges, Jurists and the Process of Judging
Edition: 1st
Format: Hardback
Author: Edited by James Lee
ISBN: 9781849460811
Publishers: Hart Publishing
Price: £50
Publication Date: Jan 2011

Publisher's Title Information

2009 saw the centenary of the Society of Legal Scholars and the transition from the House of Lords to the new Supreme Court. The papers presented in this volume arise from a seminar organised jointly by the Society of Legal Scholars and the University of Birmingham to celebrate and consider these historic events. The papers examine judicial reasoning and the interaction between judges, academics and the professions in their shared task of interpretative development of the law. The volume gathers leading authorities on the House of Lords in its judicial capacity together with academics whose specialisms lie in particular fields of law, including tort, human rights, restitution, European law and private international law. The relationship between judge and jurist is, therefore, investigated from a variety of perspectives and with reference to different jurisdictions. The aim of the volume is to reflect upon the jurisprudence of the House of Lords and to consider the prospects for judging in the new Supreme Court.

The Editor
James Lee is a Lecturer in Law at the University of Birmingham. In 2010 he was elected to a 3-Year Academic Fellowship of the Honourable Society of the Inner Temple.

Contents

Acknowledgements v
List of Contributors ix
Table of Cases xi
Table of Legislation xxvii
1 Introduction 1
JAMES LEE
2. A Darwinian Reflection on Judicial Values and Appointments to
Final National Courts 9
M ICHAEL KIRBY
3. From Appellate Committee to UK Supreme Court: Independence,
Activism and Transparency 35
AILEEN KAVANAGH
4. Taking Women's Property Seriously: Mrs Boland, the House
of Lords, the Law Commission and the Role of Consensus 57
E LIZABETH COOKE
5. 'Inconsiderate Alterations in our Laws': Legislative Reversal
of Supreme Court Decisions 71
JAMES LEE
6. (Dis)owning the Convention in the Law of Tort 101
JENNY STEELE
7. Keeping Their Heads Above Water? European Law in
the House of Lords 129
ANTHONY ARNULL
8. The Development of Principle by a Final Court of Appeal
in Matters of Private International (Common) Law 149
ADRIAN BRIGGS
9. The Law of Unjust Enrichment in the House of Lords:
Judging the Judges 169
GRAHAM VIRGO
10. Use of Scholarship by the House of Lords in Tort cases 201
KEITH STANTON
viii Contents
11. Judges and Academics: Features of a Partnership 227
ALEXANDRA BRAUN
12. Does Advocacy Matter in the Lords? 255
ALAN PATERSON
13. Close Calls in the House of Lords 283
BRICE DICKSON
Index 303



EU Constitutional law - An Introduction
Edition: 1st
Format: Paperback
Author: Allan Rosas & Lorna Armati
ISBN: 9781841139173
Publishers: Hart Publishing
Price: £16.95
Publication Date: Nov 2010
 
Publisher's Title Information

This innovative book is based on the premise that the absence of a single constitutional document for the European Union does not imply the absence of a constitution. Rather, the EU constitution, composed of a myriad of legal texts, case law and practice, is a moving target subject to continuous change and comprises several layers of integration with varying geographical scope.
 
The book endeavours to make sense of this highly complex constitutional order by focusing on what the authors perceive to be the essential features of the system, taking into account the profound changes which have taken place over the past 20 years. The EU has become much more than an internal economic market and has recently been active even in areas such as immigration and third-country nationals, security and defence policy and penal law and procedure.
 
Rather than casting the reader adrift in a sea of institutional and procedural detail, the authors underline the essential values, principles and objectives of the integration regime as well as its basic normative structure and hierarchy. In this context, the decentralised nature of the EU is highlighted as an integral part of its constitutional make-up. Recurring themes running through the book include European citizenship as well as fundamental rights and the rule of law. And, while stressing the basic values, principles and objectives of the EU, the book also confronts head-on the problems and challenges facing the Union and the gap which is often perceived between lofty ideals and harsh realities.
 
The book will be particularly useful to students of EU law and European integration but will also appeal to a broader audience of researchers and practitioners, including political scientists.
 
The book reflects the reforms implemented by the Lisbon Treaty, which entered into force on 1 December 2009.

Contents

Preface v
List of Abbreviations xi
Table of Cases xiii
1 What Constitution? A Rose by Any Other Name 1
2 An Elephant That Cannot Be Defined? What the EU Is, and Is Not 6
A. Introduction 6
B. Historical Development 8
C. The Union Today 11
D. State-like Features 12
E. Non-state-like Features 15
F. Principles Governing Union Competences 17
3 Who Is the Boss? In Search of a Master of the Treaties 27
A. Introduction 27
B. Procedures for Amending the Treaties 28
C. Article 352 TFEU 35
D. Development of General Principles of Union Law 36
E. The Ties that Bind 39
4 Looking Past the Trees to See the Wood: Construing a Hierarchy
of Norms 41
A. Introduction 41
B. Foundations of the Union Legal Order 42
C. Primary Law 44
D. International Agreements 48
E. Secondary Law and other Acts of the Institutions 49
5 Into the Estuaries and up the Rivers: Union Law in the National Legal
Orders of the Member States 54
A. Introduction 54
B. Primacy 55
C. Conformity through Interpretation 59
D. Direct Applicability and Direct Effect 63
6 A Lot More than Brussels Bureaucrats: The Institutional Framework 73
A. Introduction 73
viii Contents
B. The Union's Institutions 75
C. Union Regulatory and Administrative Bodies 85
D. Institutions and Bodies of the Member States 91
7 A Suprematist Composition? Differentiation and Flexibility 97
A. Introduction 97
B. Differentiation in Primary Law 98
C. Enhanced Cooperation 108
8 What Defi cit? The EU System of Democracy 111
A. Introduction 111
B. General Considerations 112
C. The Political Institutions 115
D. Participatory, Deliberative and Substantive Democracy 123
9 Civis Europeus Sum: The Evolving Concept of Union Citizenship 128
A. General 128
B. Pie in the Sky? 131
C. Who is a Union Citizen? 133
D. The Right to Move and to Reside 135
E. From Movement to Citizenship and Beyond 140
10 Taking Rights More Seriously? The EU System of Fundamental Rights 143
A. General 143
B. Field of Application 147
C. Sources and Material Scope 151
D. Non-discrimination 156
E. Direct Effect 159
11 Broadening Horizons? The Area of Freedom, Security and Justice 163
A. General 163
B. Border Checks, Asylum and Immigration 167
C. Judicial Cooperation in Civil Matters 171
D. Judicial Cooperation in Criminal Matters 173
E. Police Cooperation 177
12 The Internal Market: Liberal, Social or Green? 179
A. Introduction 179
B. The Economic Free Movement Rights 181
C. The Social Dimension 187
D. Environment 192
Contents ix
13 An Elephant Trumpeting Loud and Clear or a Gaggle of Geese? EU
External Relations 197
A. General 197
B. Institutional Framework for External Action 199
C. Union Competences and their Use 204
D. Action by Member States 211
E. Security and Defence 214
14 Covenants of No Strength to Secure A Man At All? Issues of Enforcement
and Control 220
A. Introduction 220
B. Activities of Union Institutions and Bodies 221
C. Activities of the Member States 231
15 The Elephant in the Room? Concluding Remarks 240
Index 247

The Authors

Allan Rosas has been a judge at the European Court of Justice since January 2002, having formerly been Principal Legal Adviser and later Deputy Director-General of the Legal Service of the European Commission.
 
Lorna Armati has been a Member of the Legal Service of the European Commission since September 2010, having formerly been Legal Secretary to Judge Rosas and later Legal Officer at the EFTA Surveillance Authority.


LINKS