Browse

‘Communal’ property is an important mechanism for allocating natural resources and regulating their use – whether for economic exploitation, recreational use or the promotion of biodiversity and nature conservation. The form which communal property regimes take, however, and their relationship to private property structures, varies from jurisdiction to jurisdiction and is poorly understood. Nevertheless, the importance of communal property, transcending the public/private divide in property rights, is increasingly apparent globally. Contributions to this volume focus on legal strategies for the development and protection of communal property and how these strategies ‘map’ over different jurisdictions (England and Wales, Scotland, South Africa, Cameroon, Italy, Israel and China) and jurisprudential approaches. They look at property beyond the traditional, individualist, and exclusive ownership model, engaging with communal property ‘practices’ in different jurisdictions to explore the theoretical grounding of communal property, not only linking theory with practice but also linking the local with the global.

The question of inequality has moved decisively to the top of the contemporary intellectual agenda. Going beyond Thomas Piketty’s focus on wealth, increasing inequalities of various kinds, and their impact on social, political and economic life, now present themselves among the most urgent issues facing scholars in the humanities and the social sciences. Key among these is the relationship between inequality, crime and punishment. The propositions that social inequality shapes crime and punishment, and that crime and punishment themselves cause or exacerbate inequality, are conventional wisdom. Yet, paradoxically, they are also controversial. In this volume, historians, criminologists, lawyers, sociologists and political scientists come together to try to solve this paradox by unpacking these relationships in different contexts. The causal mechanisms underlying these correlations call for investigation by means of a sustained programme of research bringing different disciplines to bear on the problem. This volume develops an interdisciplinary approach which builds on but goes beyond recent comparative and historical research on the institutional, cultural and political-economic factors shaping crime and punishment so as better to understand whether, and if so how and why, social and economic inequality influences levels and types of crime and punishment, and conversely whether crime and punishment shape inequalities.

Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational networking empowered a minority of elite Judiciary revisionists to entrench their institutional template in Eastern European constitutions, setting these transitional democracies on a trajectory toward a global trend of the judicialization of politics. The first, crucial step in that process is traced: the formal disempowerment of democracy through Judiciary revisions that ordinary people and politicians in Central and Eastern Europe little heeded. The causal nexus converging on this outcome is explained. Why it matters is because the revisionist template reorients that most venerable of non-majoritarian institutions beyond adjudication of the guilt or innocence of subjects of state power under legal certainty – the classical role of modern courts – toward the improvisation of public policy, with or without the consent of the majority of the governed, by ‘finding’ it in constitutions; the unique legitimacy of which derives from the prior ratification of a supermajority. The question of who shall have the final disposition of contested constitutional meaning – the Executive, Legislature, Judiciary, the People, or All of these – implicates sovereignty itself and whom it shall rest on: the last word is sovereign for practical purposes. The interdisciplinarity of this study will appeal to a wide audience: scholars of law and politics and socio-legal studies, social scientists researching elite transnationalism and European integration beyond the EU, even institutional design practitioners.

The concept of human dignity has become central to political philosophy and legal discourse on human rights, but it remains enigmatic. Understanding Human Dignity is a book of original essays by a multi-disciplinary group of historians, legal academics, judges, political scientists, theologians, and philosophers, which aims to debate a broad range of current approaches to how to understand the concept. Some of the main issues considered include fundamental theoretical questions: Is there a minimum core to the meaning of human dignity? Is a person’s human dignity to be assessed subjectively from his or her point of view, or ‘objectively’? Can human dignity be understood in purely secular terms? Can there be a shared meaning of human dignity where there is religious and ideological pluralism? What ontological claims are implied by appeals to human dignity? Other questions are more directed at the implications of dignity for relations between individuals, and between individuals and the state: What are the implications of human dignity for the ways in which we should behave towards each other? What are its implications for the ways in which the state should treat those who fall under its authority? An important set of questions posed considers specifically the relationship between human dignity, human rights, and other values: Is human dignity more appropriately seen as attaching to some human rights rather than others? What is the relationship between human dignity and other values and principles connected with rights, such as autonomy, freedom, equality, social solidarity, and identity? What is the weight and status of human dignity? Does human dignity have a status superior to that of other values? Is it absolute, or can it be balanced against other values? Does human dignity essentially serve community or individual goals? Can it also serve moralistic and paternalistic goals? Is human dignity necessarily an emancipatory idea? Is it rights-supporting or rights-constraining? Also considered is how, if at all, the concept of human dignity helps us to deal with claims made in relation to several issues that are among the most divisive current political and social questions. Does dignity apply only to sentient humans, or can it apply to animals, dead humans, and human foetuses? What is the relation between the idea of dignity and what appears to be voluntary self-degradation (for example, in some instances of prostitution and pornography)? How far, if at all, can a person waive his or her human dignity? Does human dignity determine the boundaries of religious pluralism? A further set of questions considered are more institutional, or related to the relationship between disciplines: How appropriate is the use of the concept of human dignity for judicial decision-making? What is the role of courts and legal authorities in developing and elaborating the concept of human dignity? What role, if any, should human dignity play in adjudicating conflicts of human rights, philosophical and legal?

More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights protection with the UK's parliamentary democratic tradition and that it has given rise to a sophisticated interplay between the judiciary and elected politicians. Critics of the Act, on the other hand, charge it with failing in one of two opposing directions — either by ushering in judicial supremacism or as an exercise in futility. Unloved by the political elite, the Act's future is once again under review. This book takes stock of the impact of the Human Rights Act. The relationship of the UK courts with the European Court of Human Rights in Strasbourg is examined as is the corresponding question of the status of Convention jurisprudence within domestic courts. The effect of the Act on democratic governance is assessed by chapters addressing the issues of dialogue and the impact of the Act on established constitutional principle. From a practitioner viewpoint the revolutionary impact on legal argument and reasoning is analysed. A comparison of the Westminster model with other schemes for rights protection adopted in New Zealand, Hong Kong, and some Australian states is undertaken to measure the international impact of the Human Rights Act. Finally, the question of further constitutional reform is discussed in chapters giving a Scottish perspective, examining the processes of enacting rights protections and on options for the ‘British Bill of Rights’.