Year:

  1.  4
    Coercive Law.Thomas Adams - 2022 - Oxford Journal of Legal Studies 42 (2):661-679.
    In this review article I consider Kenneth Einar Himma’s argument that law is necessarily coercive. While casting doubt on Himma’s framing of the issues as well as on his specific claims in support of that conclusion, I suggest some alternate avenues for arguing that law is a coercive institution.
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  2.  6
    What’s Constitutional About Revolutions?Erika Arban & Dinesha Samararatne - 2022 - Oxford Journal of Legal Studies 42 (2):680-701.
    Theorists have flirted with the idea of revolution for quite some time, mainly exploring the political, social and constitutional implications of this idea. Revolutions are easily associated with images of violent upsurges, social unrest and overturning of ruling leaders. However, there is a close link between revolutions and constitutionalism more generally: in fact, a revolution is often followed by a new constitutional moment, and the idea of ‘revolution’ has even been used in the context of judicial decision making. In theoretical (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  3.  3
    Dworkin Versus Hart Revisited: The Challenge of Non-Lexical Determination.Mitchell N. Berman - 2022 - Oxford Journal of Legal Studies 42 (2):548-577.
    A fundamental task for legal philosophy is to explain what makes it the case that the law has the content that it does. Anti-positivists say that moral norms play an ineliminable role in the determination of legal content, while positivists say that they play no role, or only a contingent one. Increasingly, scholars report finding the debate stale. This article hopes to freshen it by, ironically, revisiting what might be thought its opening round: Dworkin’s challenge to Hartian positivism levelled in (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  4.  4
    Beyond the Present-Fault Paradigm: Expanding Mens Rea Definitions in the General Part.J. J. Child & Adrian Hunt - 2022 - Oxford Journal of Legal Studies 42 (2):438-467.
    This article explores the use of mens rea terms in the criminal general part. We contend the current law fails properly to conceptualise mens rea for a large category of offences, namely bespoke/substantive inchoate offences, attempt, conspiracy, assisting and encouraging, and the general offence of complicity. These offences involve two conduct events: one in the present and one in future. However, current mens rea terms are defined as if applied to the more conventional category of criminal offence which only involves (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  5. Mistaken Payments, Quasi-Contracts, and the ‘Justice’ of Unjust Enrichment.Alexander Georgiou - 2022 - Oxford Journal of Legal Studies 42 (2):606-633.
    The law of unjust enrichment has often been described as the law of events materially identical to a mistaken payment. By this, lawyers often mean that the cause of action in unjust enrichment is somehow shaped and grounded by the reason why the recipient of mistaken payments morally ought to refund the payor. The difficulty, however, is that the normativity of mistaken payments remains a challenge to explain. This article aims to reinvigorate the view that the moral duty to return (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  6.  1
    Ad Hominem Criminalisation and the Rule of Law: The Egalitarian Case Against Knife Crime Prevention Orders.Alex Green & Jennifer Hendry - 2022 - Oxford Journal of Legal Studies 42 (2):634-660.
    This article advances a novel account of ad hominem criminalisation that draws upon a distinct theory of the Rule of Law and its egalitarian foundations. Employing the recent and controversial example of Knife Crime Prevention Orders, as established by the Offensive Weapons Act 2019, it argues that the concept of civic equality is central to understanding the vice of ad hominem criminalisation as an aberrant form of government by law. This vice consists in the manner that such criminalisation individualises, differentiates (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  7.  1
    Taking Identity Seriously: On the Politics of the Individuation of Legal Systems.Cormac Mac Amhlaigh - 2022 - Oxford Journal of Legal Studies 42 (2):521-547.
    This article examines the question of the identity of legal systems of non-monistic accounts of law. It critically analyses approaches to individuation based on validity, the nature of individual norms and the purposes for which they are applied, arguing that the latter approach, as endorsed particularly by Raz, offers the most convincing approach to the question of individuation. The article argues that Raz’s own criterion, however, is under-inclusive and misses important reasons why a norm should be individuated in a particular (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  8.  10
    Presupposing Legal Authority.Robert Mullins - 2022 - Oxford Journal of Legal Studies 42 (2):411-437.
    The thesis that law necessarily claims authority is popular amongst legal philosophers. Some distinguished legal philosophers, including the late John Gardner, Joseph Raz and Scott Shapiro, have suggested that support for this thesis is found in legal officials’ use of deontic language. This article begins by considering the merits of this suggestion. I discuss two unpromising arguments for the claim thesis based on the use of deontic language in law. I then suggest that a more plausible basis for the claim (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  9.  4
    Two Types of Formalism of the Rule of Law.Konatsu Nishigai - 2022 - Oxford Journal of Legal Studies 42 (2):495-520.
    The aims of this article are twofold: to propose an explanatory framework, focusing on law-making acts, for accounting for whether the formal requirements of the rule of law are fulfilled; and to propose two further models within this framework. One model, which I call ‘rulebook formalism’, pertains to Parliament’s law-making acts; another model, which I call ‘rights formalism’, concerns the courts’ law-making acts. This distinction results from the different modality of law, ie the different natures of law-making acts. Drawing on (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  10.  1
    Political Purposes, Anti-Entrenchment and Judicial Protection of the Democratic Process.Jacob Rowbottom - 2022 - Oxford Journal of Legal Studies 42 (2):383-410.
    The legality of decisions made for political purposes is a recurring issue in administrative law. In this article, it will be argued that generalisations should not be made about ‘political’ decisions as a single category. Instead, there are different types of political consideration, which raise different issues when assessing the legality of a decision. This article singles out a particular type of political decision for condemnation: decisions made to gain a political advantage by deliberately changing the systems of democratic accountability. (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  11.  1
    Inciting Military Disaffection in Interwar Britain and Fascist Italy: Security, Crime and Authoritarian Law.Stephen Skinner - 2022 - Oxford Journal of Legal Studies 42 (2):578-605.
    During the interwar period, two apparently different states, liberal democratic Britain and Fascist Italy, passed similar legislation establishing inchoate offences against military loyalty and obedience. These laws, the Incitement to Disaffection Act 1934 and article 266 of the 1930 Italian Penal Code, were intended to protect state security and the monopoly of force against political threats. This article compares these laws’ scope, rationales and purposes, and traces their longer-term origins in the consolidation of the modern state. It argues that this (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  12. Rethinking Administrative Law for Algorithmic Decision Making.Rebecca Williams - 2022 - Oxford Journal of Legal Studies 42 (2):468-494.
    The increasing prevalence of algorithmic decision making by public authorities raises a number of challenges for administrative law in the form of technical decisions about the necessary metrics for evaluating such systems, their opacity, the scalability of errors, their use of correlation as opposed to causation and so on. If administrative law is to provide the necessary guidance to enable optimal use of such systems, there are a number of ways in which it will need to become more nuanced and (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  13.  3
    Financial Intermediation in the Age of FinTech: P2P Lending and the Reinvention of Banking.Vincenzo Bavoso - 2022 - Oxford Journal of Legal Studies 42 (1):48-75.
    This article focuses on the rise of FinTech over the past 10 years, particularly with respect to the role of technology-based platforms in the provision of credit. In this specific context, peer-to-peer lending has acquired an increasing importance, with a larger share of loans having been originated through P2P platforms instead of traditional banking channels. This trend has been welcomed by policy makers as a move towards alternative market-based finance, which should contribute to better risk diversification by moving risks away (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  14.  1
    Interpreting and Reframing the Appropriate Adult Safeguard.Roxanna Dehaghani - 2022 - Oxford Journal of Legal Studies 42 (1):187-206.
    The appropriate adult safeguard is an important procedural safeguard that can be implemented to protect vulnerable suspects at the police investigative stage of the criminal process. The safeguard is available for young suspects and adult suspects who are defined as vulnerable, and can be performed by a vast array of individuals. It is intended to protect evidence, enable effective participation and avoid miscarriages of justice. However, the safeguard lacks an underpinning conceptual framework; it is, and can, be interpreted in multiple (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  15.  4
    Professional Responsibility: Conceptual Rescue and Plea for Reform.Sylvie Delacroix - 2022 - Oxford Journal of Legal Studies 42 (1):1-26.
    For as long as knowledge asymmetry continues to be deemed the defining characteristic of the lay-professional relationship, the courts’ delineation of obligations meant to address lay vulnerability will too frequently end up compounding the layperson’s non-epistemic, ‘sense of self’ vulnerability. The proposed re-conceptualisation of professional responsibility calls for reform on several fronts: among these, an expanded ‘duty to consult’ is uniquely placed as a justiciable criterion capable of addressing such a situational, ‘sense of self’ vulnerability.
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  16.  1
    Between Constituent Power and Constituent Authority.George Duke & Elisa Arcioni - 2022 - Oxford Journal of Legal Studies 42 (1):345-365.
    This review article offers a critical appraisal of Joel Colón-Ríos’s Constituent Power and the Law. It argues that while Colón-Ríos’s book is undoubtedly a major advance in scholarship on constituent power, it leaves the reader wanting more illumination in its treatment of the relationship between the descriptive and the normative dimensions of the concept.
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  17.  2
    What Price Are We Willing to Pay for the Dream of Equal Justice?†.Andrew Higgins - 2022 - Oxford Journal of Legal Studies 42 (1):325-344.
    The injustices wrought by unequal access to the legal system pose a direct threat to the rule of law, yet such injustices are widespread in England and elsewhere. Lawyers regularly criticise governments for a lack of funding for the legal system, but the private market for delivering legal services receives much less scrutiny. A private market for legal resources is antithetical to equal justice because it makes the outcome of cases turn on arbitrary factors such as wealth. The solution, according (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  18.  1
    AV Dicey and the Making of Common Law Constitutionalism†.Martin Loughlin - 2022 - Oxford Journal of Legal Studies 42 (1):366-382.
    The work of the mid-Victorian jurist, AV Dicey, has had a remarkable influence on British constitutional thought, not least in establishing the orthodox framework within which modern constitutional lawyers continue to work. That legal positivist framework has, however, recently been challenged by jurists advocating what is generally called common law constitutionalism. Accepting the core of sense in Dicey’s account, their objective has been to revise some of the jurisprudential underpinnings of his framework for the purpose of showing that the dominant (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  19. Property, Analogy and Variety.Ben McFarlane & Simon Douglas - 2022 - Oxford Journal of Legal Studies 42 (1):161-186.
    How should a court respond if a party argues that, because her right to an intangible asset is a property right, the defendant is under a strict duty not to interfere with that intangible asset? Our view is that such a conclusion does not follow from the premise, and the argument is really one that the party’s right deserves protection as it is sufficiently analogous to a right to a tangible asset.
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  20.  2
    On the Moral Impact Theory of Law.Ezequiel H. Monti - 2022 - Oxford Journal of Legal Studies 42 (1):298-324.
    Mark Greenberg argues that legal obligations are those moral obligations created by the actions of legal institutions in the legally proper way. Here I defend three main claims. First, I argue that, although very often misunderstood, Joseph Raz is also a defender of MITL. Secondly, I argue that while both Greenberg and Raz are committed to MITL, they disagree about the conditions under which a moral obligation can be said to be created in the legally proper way. Finally, I argue (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  21.  12
    Linkage Arguments For and Against Rights.James Nickel - 2022 - Oxford Journal of Legal Studies 42 (1):27-47.
    This article is about relations of support and conflict within systems of fundamental legal rights—and the arguments for and against rights that those relations make possible. Justificatory linkage arguments defend controversial rights by claiming that they provide very useful support to the realisation of well-accepted rights. This article analyses such arguments in detail and discusses their structures, uses and pitfalls. It then shows that linkage arguments can be used not just to defend rights, but also to attack them. When rights (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  22.  1
    Constitutional Transformation and Gender Equality: The Case of the Post-Arab Uprisings North African Constitutions.Antonio-Martín Porras-Gómez - 2022 - Oxford Journal of Legal Studies 42 (1):235-265.
    The recognition of gender equality has become one of the most important trends in contemporary constitutional law. Nonetheless, a crucial question lingers: is it leading to material constitutional transformation? In order to better understand it, this article presents a case study on the constitutional reconfigurations undergone in Morocco, Tunisia and Egypt after the Arab uprisings. The main vectors of constitutional change are identified from a descriptive-analytical perspective. Even if they kept idiosyncratic elements of persistent discrimination, the new charters were inserted (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  23.  1
    Crimmigration and the ‘Paradox of Exclusion’.Rottem Rosenberg Rubins - 2022 - Oxford Journal of Legal Studies 42 (1):266-297.
    Much scholarship underscores the exclusionary nature of crimmigration, viewing it as a system of social marginalisation designed to prevent integration. This article, conversely, demonstrates crimmigration’s potential to contribute to the partial and symbolic acceptance of migrants. The article argues that crimmigration is characterised by a ‘paradox of exclusion’—a contradictory attempt to exclude undesirable migrants via the field of criminal law, which is designed primarily for citizens. Consequently, crimmigration regimes extend to migrants certain rights associated with membership and provide irregular migrants (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  24.  1
    Tax Justice Beyond National Borders—International or Interpersonal?Johanna Stark - 2022 - Oxford Journal of Legal Studies 42 (1):133-160.
    Recent times have seen growing calls for considerations of justice to be given a greater role in international taxation. The main driver of these calls are distributive concerns, although agreement is still missing as to what this means both in principle and in practice. This article asks whether it is the task of international tax law at all to implement principles of distributive justice beyond the national context and gives an overview of how the ‘global justice debate’ in contemporary political (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  25. Ombudsmen as Courts.Stephen Thomson - 2022 - Oxford Journal of Legal Studies 42 (1):76-103.
    The non-judicial character of ombudsmen is viewed as their greatest asset, offering a more accessible, informal and flexible channel than courts for expressing grievances. Yet the Pensions Ombudsman has objected vigorously to its characterisation in the Chancery Division as ‘not a court’, pointing to a range of judicial qualities with which it has been statutorily invested. This raises the broader question of whether ombudsmen can be courts; a rarely considered characterisation. It is argued in this article that, although some ombudsmen (...)
    Direct download (3 more)  
     
    Export citation  
     
    Bookmark  
  26.  2
    A New Philosophy for the Margin of Appreciation and European Consensus.Bosko Tripkovic - 2022 - Oxford Journal of Legal Studies 42 (1):207-234.
    The article advances an anti-foundationalist account of the key doctrines of the European Court of Human Rights : the margin of appreciation and European consensus. The first part of the article argues that anti-foundationalism, which understands the existence of human rights as ultimately dependent on social practices and their justification as based on a plurality of values, is a credible conception of human rights grounds. The second part contends that anti-foundationalism offers the best explanation of the MoA and EuC, without (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
  27.  3
    ‘Conversion Therapy’ As Degrading Treatment.Ilias Trispiotis & Craig Purshouse - 2022 - Oxford Journal of Legal Studies 42 (1):104-132.
    — This article responds to the widespread uncertainty in UK and international human rights law over the legality of ‘conversion therapy’, a set of practices that aim to eradicate LGBTIQ+ sexualities and gender identities. The article pursues two main arguments. First, it is argued that all forms of ‘conversion therapy’ are disrespectful of the equal moral value of LGBTIQ+ people and violate specific protected areas of liberty and equality that are inherent in the idea of human dignity. Secondly, the article (...)
    Direct download (2 more)  
     
    Export citation  
     
    Bookmark  
 Previous issues
  
Next issues