This book examines the role played by domestic and international judges in the "flexibilization" of legal systems through general principles. It features revised papers that were presented at the Annual Conference of the European-American Consortium for Legal Education, held at the University of Parma, Italy, May 2014. This volume is organized in four sections, where the topic is mainly explored from a comparative perspective, and includes case studies. The first section covers theoretical issues. It offers an analysis of principles in shaping Dworkin's theories about international law, a reflection on the role of procedural principles in defining the role of the judiciary, a view on the role of general principles in transnational judicial communication, a study on the recognition of international law from formal criteria to substantive principles, and an inquiry from the viewpoint of neo-constitutionalism. The second section contains studies on the role of general principles in selected legal systems, including International Law, European Union Law as well as Common Law systems. The third section features an analysis of select legal principles in a comparative perspective, with a particular focus on the comparison between European and American experiences. The fourth and last section explores selected principles in given areas of law, including the misuse of the lex specialis principle in the relationship between international human rights law and international humanitarian law, the role of the judiciary in Poland as regards discrimination for sexual orientation, and the impact of the ECtHR case law on Italian criminal law with regard to the principle of legality. Overall, the book offers readers a thoughtful reflection on how the interpretation, application, and development of general principles of law by the judiciary contribute to the evolution of legal systems at both the domestic and international levels as well as further their reciprocal interactions.

A comprehensive overview of the field of comparative administrative law, the specially commissioned papers in this landmark volume represent a broad, multi-method approach combining history and social science perspectives with more strictly legal analyses. Comparisons of the United States, continental Europe, and the British Commonwealth are complemented by contributions that focus on Latin America, Africa, and Asia. The work aims to stimulate comparative research on public law, reaching across countries and scholarly disciplines. Beginning with historical reflections on the emergence of administrative law over the last two centuries, the volume then turns to the relationship of administrative and constitutional law, with an additional section focusing on the key issue of administrative independence. Two further sections highlight the possible tensions between impartial expertise and public accountability, drawing insights from economics and political science as well as law. The final section considers the changing boundaries of the administrative state - both the public-private distinction and the links between domestic and transnational regulatory bodies such as the European Union. In covering this broad range of topics, the book illuminates a core concern of administrative law: the way individuals and organizations across different systems test and challenge the legitimacy of the modern state. This extensive, interdisciplinary appraisal of the field will prove a vital resource for scholars and students of administrative and comparative law. Historians of the state looking for a broad overview of a key area of public law, reformers in emerging economies, donor agencies looking for governance options, and policy analysts with an interest in the law/policy interface will also find this work a valuable addition to their library.

Corporate social responsibility codes are guidelines that companies voluntarily develop and publish with the objective of showing the public their commitment to respect human rights, to improve fundamental workplace standards worldwide and to protect the natural environment. These corporate codes have become a crucial element in the regulatory architecture for globally operating companies. By focusing on the characteristics of the codes, their effects on society and their legal consequences, this book seeks to provide a comprehensive analysis of corporate codes and the law. Enforcing Corporate Social Responsibility Codes develops proposals on the relationship between global corporate self-regulation and the national private law systems. It uses methods of comparative law and sociological jurisprudence to argue that national private law can, and in fact should, enforce these codes as genuine legal obligations. The author formulates legal policy recommendations for English and German private law that indicate how the proposed legal enforcement could be realised in practice. The dissertation on which this book is based was awarded the second prize in the humanities category of the Deutscher Studienpreis (German Thesis Award) by the Koerber Foundation in November 2015.

In economic sectors crucial to human welfare - agriculture, education, and medicine - a small number of firms control global markets, primarily by enforcing intellectual property (IP) rights incorporated into trade agreements made in the 1980s onward. Such rights include patents on seeds and medicines, copyrights for educational texts, and trademarks in consumer products. According to conventional wisdom, these agreements likewise ended hopes for a 'New International Economic Order,' under which wealth would be redistributed from rich countries to poor. Sam F. Halabi turns this conventional wisdom on its head by demonstrating that the New International Economic Order never faded, but rather was redirected by other treaties, formed outside the nominally economic sphere, that protected poor countries' interests in education, health, and nutrition and resulted in redistribution and regulation. This illuminating work should be read by anyone seeking a nuanced view of how IP is shaping the global knowledge economy.

Where products develop ever more rapidly, the law may face difficulties in responding accordingly to new security threats which may arise. In the field of product liability, an extraordinary need for legal development has thus been perceived, with legislators and judges feeling compelled to find new solutions and to look across borders for these. In the detailed reports in this book, the World Tort Law Society proves that it is in an ideal position to examine the most significant concepts. The report on North America studies the special regime for product liability from its origin in the case law of the US; the European report is centred around the EU Product Liability Directive with its merits and faults; and the influence of these two systems as well as new answers are shown in the reports on Asia, Russia and four key jurisdictions in the rest of the world. Similar questions are discussed worldwide: How can a strict liability regime for products be justified, and can it be justified in all cases? How does the special regime relate to general rules of tort law? Should services be subject to a similar regime? The Members of the Society seek to provoke thought for solutions to these pervasive problems. In this spirit, the volume's comparative conclusions invite discussion, and the book includes four responses to that call from eminent tort lawyers from different legal backgrounds.

Offers unique comparative perspective of counter-terrorism legislation in different states, including UK, Europe and North America. Accessible enough to be used at both undergraduate and postgraduate levels. Reflection points and further reading make it the perfect springboard for further study in this evolving area. The new edition offers increased coverage of issues around returning foreign fighters, links to organized crime, and electronic surveillance.

This book provides a comprehensive assessment of the effectiveness of Mobility Partnerships and their consequences for third countries. Mobility partnerships between the EU and third countries are usually viewed as reflecting asymmetric power relations where development aid, trade relations and visa policies are made conditional upon the cooperation by third countries with an EU agenda of migration control. This book argues that three main factors condition the relevance of Mobility Partnerships: the state of relations between EU Member States and a third country, and in particular, the role of postcolonial ties; the power of negotiation of a third country, which is linked to its geopolitical importance for the EU; and its administrative capacity, which is understood as the capacity of a state to define and implement policies and to legislate and enforce the law. The work combines a comparative legal analysis of the development of the legal and policy frameworks in the cases of Morocco and Cape Verde with an empirical study of the implementation of Mobility Partnerships' projects. The analysis demonstrates that Mobility Partnerships, despite their non-binding nature, have legal and policy relevance for these third countries with regard to the regulation of migration, asylum, human trafficking and even labour law. As such, this book makes a contribution to the understanding of the interplay between the interests of EU, Member State and third country actors in the implementation of the Mobility Partnerships. The book will be a key resource for academics and students focusing on Migration Law, EU Studies, Geopolitics and African Studies. The empirical approach will also appeal to policy-makers, international organisation representatives and NGOs.

The criminalisation of healthcare malpractice has become a highly topical and somewhat controversial question in recent years. Studies have demonstrated that in England and Wales, the trend towards holding healthcare professionals to account for malpractice is rapidly growing, abolishing the deference doctors enjoyed decades ago. The changing attitude of judges to claims for clinical negligence has been well documented. The role of the criminal process in England and Wales has been less fully analysed with the criminal law playing a very limited role until recently in the regulation of poor healthcare practice. In contrast, in France, the criminal process has for a long time been invoked more readily to respond to cases of healthcare malpractice, which involved even mere errors. This book compares English and French criminal law responses to healthcare malpractice and considers what lessons the French model can provide for potential reform in England and elsewhere. The book takes the HIV-contaminated blood episode as a primary example of the different approaches France and England have in dealing with healthcare malpractice. Kazarian emphasises the impact of rules of substantive criminal law and criminal procedure on the way in which healthcare malpractice is criminalised in a given country. This book explores the key lessons to be drawn on whether the criminal process is an appropriate means to respond to instances of healthcare malpractice. It proposes that features of French criminal law and criminal procedure might be useful to counteract healthcare malpractice.

It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis. They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law. Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all these claims remain just that - there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims. This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.

Currently, some 2,500 civilian experts work across Europe, Africa, and Asia in ten ongoing civilian missions launched under the Common Security and Defence Policy (CSDP). Mandates cover a broad range of multidimensional tasks, such as rule of law support, law enforcement capacity building, or security sector reform. Numerous (recent) incidents from the field underscore that there are serious institutional as well as procedural weaknesses and irregularities tied to accountability in these EU peacebuilding missions. This title offers a comprehensive legal analysis and empirical study of accountability concerning the Union's peacebuilding endeavours, also referred to as civilian crisis management. Along with examining the governance credentials of EU peacebuilding, the monograph thoroughly scrutinizes de jure and de facto accountability arrangements of political, legal, and administrative nature existing in the domestic sphere, at EU level, and across levels. With a view to providing for a nuanced picture, the assessment further distinguishes between different accountability finalities and evaluates the appropriateness of existing accountability arrangements in civilian crisis management based on a combination of quantitative and qualitative criteria.

In this challenging collection of new essays, leading philosophers and criminal lawyers from the United States, the United Kingdom, and Canada break with the tradition of treating the philosophical foundations of criminal law as an adjunct to the study of punishment. Focusing clearly on the central issues of moral luck, mistake, and mental illness, this volume aims to reorient the study of criminal law. In the process of retrieving valuable material from traditional law classifications, the contributors break down false associations, reveal hidden truths, and establish new patterns of thought. Their always illuminating and sometimes startling conclusions makes this essential reading for all those interested in the philosophy of criminal law.

This book explores the legal dimension of the Islamic State, an aspect which has hitherto been neglected in the literature. ISIS' dystopian experience, intended as a short-lived territorial and political governance, has been analyzed from multiple points of view, including the geopolitical, social and religious ones. However, its legal dimension has never been properly dealt with in a comprehensive way, assuming as a point of reference both the Islamic and the Western legal tradition. This book analyzes ISIS as the expression of a potential though never fully realized legal order. The book does not describe ISIS' possible classifications according to the standards and the criteria of international law, such as its possible statehood or proto-statehood, issues that are however touched upon. Rather, it analyzes ISIS' own legal awareness, based on the group's literary materials, which show a considerable amount of juridical work. Such material, mainly propagandistic in its nature, is essential in understanding which kind of legal order ISIS aimed at establishing. The book will be of interest to students and academics in the fields of Law, International Relations, Political Sciences, Terrorism Studies, Religion and Middle Eastern Studies.

Written by experts from within their communities, this book compares the legal regimes of Christian churches as systems of religious law. The ecumenical movement, with its historical theological focus, has failed to date to address the role of church law in shaping relations between churches and fostering greater mutual understanding between them. In turn, theologians and jurists from the different traditions have not hitherto worked together on a fully ecumenical appreciation of the potential value of church laws to help, and sometimes to hinder, the achievement of greater Christian unity. This book seeks to correct this ecumenical church law deficit. It takes account of the recent formulation by an ecumenical panel of a Statement of Principles of Christian Law, which has been welcomed by Pope Francis and the Ecumenical Patriarch of Constantinople, leader of the Orthodox Church worldwide, as recognizing the importance of canon law for ecumenical dialogue. This book, therefore, not only provides the fruits of an understanding of church laws within ten Christian traditions, but also critically evaluates the Statement against the laws of these individual ecclesial communities. The book will be an essential resource for scholars of law and religion, theology, and sociology. It will also be of interest to those working in religious institutions and policy-makers.

This book presents new research assumptions aiming at a significant expansion of a typical, common paradigm of law sciences. It focuses on the process of law-making, which is an important subject of interest in broadly understood legal sciences. Although many books have been written on this subject, new problems are still emerging. In many countries of the world, current political and legal theories are becoming less and less adequate to the description of reality. One of the causes is that too little empirical research is conducted in legal sciences on the links between the legal system and its socio-economic environment. This book is a result of discussions among researchers from different parts of the world. The multiplicity of points of view and the diversity of assumptions adopted by the authors, allows them to present a multi-faceted image of law-making processes.

This book examines two problems in Private law which are posed by the 'good Samaritan': First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, as the good Samaritan did, will we have any claim for the expenses that we incurred, or perhaps even for a reward? Kortmann examines and compares the varied responses of the Roman, French, German, and English legal systems to these problems, providing the first comprehensive treatment of English law in relation to 'liability for nonfeasance' (or 'liability for omissions') and 'negotiorum gestio' (or 'the doctrine of necessity'). In Part I, Kortmann examines English law which draws a distinction between action and inaction, or 'feasance' and 'nonfeasance'. In general, one is not held liable for failing to act. He explores the theoretical justifications for drawing this distinction and reveals through a short comparative survey the fundamentally different approaches taken in France and Germany, concluding that the English rule of no liability for nonfeasance requires a reconsideration. In Part II the English approach to the problem of reimbursement or reward is examined, detailing its profound differences from the Continental European approach. In principle, English law does not grant the necessitous intervener a claim against the beneficiary of his intervention. Kortamnn examines the theoretical justifications for assuming this position and again concludes that the law deserves reconsideration. Finally, Kortmann concludes by demonstrating close interconnections between the two, traditionally independent issues. He argues that the law ought not to introduce a general duty to intervene without at the same time granting the intervener a claim, at the very least for reimbursement of expenses and compensation of any loss suffered in the course of the intervention.

The purpose of this book is to compare different solutions adopted by nine industrialized countries to common problems of income tax design. As in other legal domains, comparative study of income taxation can provide fresh perspectives from which to examine a particular national system. Increasing economic globalization also makes understanding foreign tax systems relevant to a growing set of transnational business transactions. Comparative study is, however, notoriously difficult. Full understanding of a foreign tax system may require mastery not only of a foreign language, but also of foreign business and legal cultures. It would be the work of a lifetime for a single individual to achieve that level of understanding of the nine income taxes compared in this volume. Suppose, however, that an international group of tax law professors, each expert in his own national system, were asked to describe how that system resolved specific problems of income tax design with respect to individuals, business organizations, and international transactions. Suppose further that the leaders of the group wove the resulting answers into a single continuous exposition, which was then reviewed and critiqued by a wider group of tax teachers. The resulting text would provide a convenient an comprehensive introduction to foreign approaches to income taxation for teachers, students, policy-makers and practitioners. That is the path followed by Hugh Ault and Brian Arnold and their collaborators in the development of this fascinating book. Henceforth, a reader interested in how other developed countries resolve such structural issues as the taxation of fringe benefits, the effect of unrealized appreciation at death, the classification of business entities, expatriation to avoid taxes, and so on, can turn to this volume for an initial answer. This book should greatly facilitate comparative analysis in teaching and writing about taxation in the US and elsewhere.

The agenda of the 11th CEE Forum Conference in Bratislava, Slovakia, held on 25-26 April 2019 was focused on the reassessment of the Central and Eastern European position in Europe and in the world, seeking for the specificities of this region, being often perceived as a double periphery - of the West and of the East. Since thirty years have passed since the disintegration of the bipolar world, the time has come for a critical reconsideration of the earlier scholarly findings or commonplaces and the formulation of more nuanced and refined conclusions. The selection of papers offered by the organizers in this volume provides an up-to-date view of the CEE region and issues and problems shared by the CEE countries

This collection examines case-based reasoning in constitutional adjudication; that is, how courts decide on constitutional cases by referring to their own prior case law and the case law of other national, foreign, and international courts. Argumentation based on judicial authority is now fundamental to the resolution of constitutional disputes. At the same time, it is the most common form of reasoning used by courts. This volume shows not only the strengths and weaknesses of such argumentation, but also its serious methodological shortcomings. The book is comparative in nature, with individual chapters examining similar problems that different courts have resolved in different ways. The research covers three types of courts; namely the civil law constitutional courts of Germany, Italy, Poland, Lithuania, and Hungary; the common law supreme courts of the United States, Canada, and Australia; and the European international courts represented by the European Court of Human Rights and the Court of Justice of the European Union. The authors are distinguished scholars from various countries who specialise in constitutional justice issues. This book will be of interest to legal theorists and practitioners, and will be especially insightful for constitutional court judges. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

Offers unique comparative perspective of counter-terrorism legislation in different states, including UK, Europe and North America. Accessible enough to be used at both undergraduate and postgraduate levels. Reflection points and further reading make it the perfect springboard for further study in this evolving area. The new edition offers increased coverage of issues around returning foreign fighters, links to organized crime, and electronic surveillance.

Providing a thorough, well-researched investigation of the socio-legal issues surrounding medically assisted death for the past century, this book traces the origins of the controversy and discusses the future of policymaking in this arena domestically and abroad. Should terminally ill adults be allowed to kill themselves with their physician's assistance? While a few American states-as well as Holland, Switzerland, Belgium, and Luxembourg-have answered "yes," in the vast majority of the United States, assisted death remains illegal. This book provides a historical and comparative perspective that not only frames contemporary debates about assisted death and deepens readers' understanding of the issues at stake, but also enables realistic predictions for the likelihood of the future diffusion of legalization to more countries or states-the consequences of which are vast. Spanning a period from 1906 to the present day, Dying with Dignity: A Legal Approach to Assisted Death examines how and why pleas for legalization of "euthanasia" made at the beginning of the 20th century were transmuted into the physician-assisted suicide laws in existence today, in the United States as well as around the world. After an introductory section that discusses the phenomenon of "medicalization" of death, author Giza Lopes, PhD, covers the history of the legal development of "aid-in-dying" in the United States, focusing on case studies from the late 1900s to today, then addresses assisted death in select European nations. The concluding section discusses what the past legal developments and decisions could portend for the future of assisted death. Provides comprehensive, well-researched, and accessible information on a timely and controversial topic Presents a socio-legal explanation rather than a simple description of the emergence and evolution of the legal concepts involved with medically assisted death Offers invaluable historical perspective for academics in the fields of sociology, criminal justice, law, and related disciplines as well as practitioners who deal with end-of-life decision-making and lay readers

This book presents problems that often arise in the context of international/cross-border insolvencies; analyzes and compares national legislations and jurisprudence; elucidates the solutions offered by international/regional instruments; and explores the differences in the implementation of these instruments by various countries and the consequences of these differences. It examines in detail a number of famous and less famous cases tried by national courts, in which it became readily apparent that insolvency law remains one of the bastions of national law. In addition, the book discusses the notion of transplanting foreign [international] insolvency rules and especially the influence that US insolvency law has exerted on other countries' insolvency [and international insolvency] law. Far from adopting an unrealistically optimistic stance, it soberly examines the complications of cross-border insolvencies, while also presenting potential solutions.

This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law. Divided into sections on constitutional design and redesign, identity, structure, individual rights and state duties, courts and constitutional interpretation, this comprehensive volume covers dozens of countries as well as a range of approaches to the boundaries of constitutional law. While some chapters reference the text of legal instruments expressly labeled constitutional, others focus on the idea of entrenchment or take a more functional approach. Challenging the current boundaries of the field, the contributors offer diverse perspectives - cultural, historical and institutional - as well as suggestions for future research. A unique and enlightening volume, Comparative Constitutional Law is an essential resource for students and scholars of the subject. Contributors: Z. Al-Ali, T. Allen, N. Bamforth, J. Blount, P.G. Carozza, C. Charters, J.A. Cheibub, S. Choudhry, D.M. Davis, R. Dixon, V. Ferreres Comella, D. Fontana, N. Friedman, S. Gardbaum, T. Ginsburg. J. Greene, O. Gross, J.L. Hiebert, R. Hirschl, N. Hume, H. Irving, V.C. Jackson, G.J. Jacobsohn, D.P. Kommers, R.J. Krotoszynski, Jr, N. Lenagh-Maguire, F. Limongi, F.I. Michelman, K. O Regan, R.H. Pildes, K. Roach, K. Rubenstein, C. Saunders, D. Schneiderman, A. Stone, R. Teitel, M. Tushnet

Over the last decades, provisions for direct democracy have increasingly been added to new constitutions around the world, including in the Baltic States of Estonia, Latvia and Lithuania. Using a comparative legal approach, this book identifies a large set of direct democratic instruments in the Baltics that are being activated either automatically, by public authorities or by the citizens. Although direct democracy should empower the people to share state power and to take political decisions over the heads of their representatives, the results of its practical use between 1991 and 2014 do not confirm these assumptions. Besides informal aspects there are many procedural obstacles in each country that restrict not only the use of such tools but also the chance that the referendum will pass.

Provides a tightly structured introduction to this complex topic, supported by well chosen case studies from a variety of jurisdictions. Appropriate for law students looking to practice contract law in a transnational environment.

Provides a tightly structured introduction to this complex topic, supported by well chosen case studies from a variety of jurisdictions. Appropriate for law students looking to practice contract law in a transnational environment.