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  • TAO Endicott, 'Law and Language' (2016) Summer 2016 Stanford Encyclopedia of Philosophy
    An outline of ways in which philosophy of law and philosophy of language can learn from each other. Philosophy of law can gain from a good philosophical account of the meaning and use of language in law, and of the institutionalized resolution of disputes over language. Philosophy of language can gain from studying the stress-testing of language in legal regulation and dispute resolution –and from the reminder that the task for philosophers of language is not only to account for what people share in virtue of the mastery of a language; they also need to account for the intelligibility of disagreements over the meaning and use of language, and for the possibility that there might be good reason for resolving those disagreements in one way rather than another.
    ISBN: 1-58113-513-0
  • TAO Endicott, 'Magna Carta 1215: A Glorious Failure' (2016) 11 Frontiers of Law in China 204
    DOI: 10.3868/s050-005-016-0012-2
    Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose (which was not to achieve responsible government but to preserve the property of wealthy landowners), its force (it was annulled by the Pope and repudiated by the king within a few weeks), and even its success as a peace treaty (war broke out within a few months). The author will outline the reasons for skepticism, because we can only see what there is to celebrate in 2015, if we understand that the Charter of 1215 was the failed result of a reactionary armed tax rebellion by wealthy and powerful landowners, who were not trying to make a new constitution. What is there to celebrate? The author will address that question by asking why the Charter of 1215 was neither void (as the Pope asserted) for repugnancy to the King’s authority, nor voidable for duress. The author challenges the idea that the Charter of 1215 is the foundation of the rule of law in England, arguing that the rule of law goes back farther, and that the Charter of 1215 was very limited in its impact. But it did promote the rule of law in two ways: by giving new specificity to legal duties and restrictions that the king had already been subject to, and by highlighting the country’s need for effective processes for giving effect to those duties and restrictions.
    ISBN: 1673-3428
  • TAO Endicott, 'Parliament and the Prerogative: From the Case of Proclamations to Miller' (2016) Policy Exchange Lecture, 1 December 2016
    The Government’s argument in the Miller case is that triggering Article 50 lies within the power of the Crown to make and unmake international treaties – a power the leading litigant, Gina Miller, has termed ‘this ancient, secretive Royal Prerogative’. The legitimacy of the use of the prerogative is questioned by critics, who view its proposed use to trigger Article 50 as an unconstitutional scheme to bypass Parliament. This paper argues that there are positive reasons of constitutional principle for an efficient, unified and democratic executive. We can only understand the extent of the executive power, and how it ought to be constrained, if we understand what it is for. Acting to initiate a withdrawal from the European Union is within the proper constitutional role of the executive. Using the royal prerogative in this way is entirely consistent with the sovereignty of Parliament and the rule of law.
  • S Theil, 'Constitutions as culture: Two insights from Peter Häberle’s “The rationale of constitutions from a cultural science viewpoint"' (2015) U.K. Constitutional Law Blog
    Constitutions are the cultural achievement of centuries of historical legal development, an expression of the cultural self-presentation of a people. For all their variety, constitutions seek to set the rules for a fundamental order in an objective, rational and principled manner. The general structure of the state, the inclusion and contours given to basic legal principles (Rule of Law, Separation of Powers, Legality) and the human rights a society may wish to uphold receive varied and diverging replies in the Constitutions analysed by the Constitute Project. From the very beginning of the drafting process, those replies can scarcely be separated from the cultural background on which the views and perspectives on these matters of principle are based.
  • S Theil, 'Polycentricity – A fatal objection to the adjudication of environmental rights?' (2015) U.K. Constitutional Law Blog
    In an unprecedented ruling, the Hague District Court has recently compelled the Dutch State to reduce the greenhouse gas emissions of the Netherlands by 25% by 2020 based on the emissions levels of 1990. The Urgenda Foundation had successfully argued that the Dutch State was under an obligation to protect its citizens form climate change on the basis of domestic tort law. For many this development is symptomatic of a broader, more general concern: a court engaging with a highly complex policy question, which is better left to other modes of decision-making. Lon Fuller makes the strongest and most fully developed argument along this view in his article on polycentricity. Although Fuller does not reference environmental protection specifically, his concerns are readily transferable: if threshold values for dangerous air pollutants are exceeded, regulators may resolve the matter through a vast number measures ranging from limiting vehicular traffic to long term shifts towards cleaner energy production. In essence, Fuller argues that choosing between these options or indeed setting binding targets with any nuance is a task ill-suited to courts.
  • S Theil, 'Three insights from Peter Häberle’s “Preambles in the text and context of constitutions"' (2015) U.K. Constitutional Law Blog
    Preambles are a hallmark of constitutions, and questions regarding their inclusion and content are an important part of the drafting process: a clear majority of the 194 constitutions analysed by the Constitute Project opted in favour of more or less expansive preambles. In this country, an early draft of a Constitution for the UK by the Institute for Public Policy Research included a preamble, and a more recent effort of the Institute of Public Affairs at LSE at crowdsourcing a UK Constitution will likely address the question in due course. Certainly, we would not deem a preamble an absolute necessity. There is a sizeable minority of written Constitutions without preambles. Most recently in the UK, the draft Scottish Independence Bill (2014), whose Part 2 was intended to serve as an interim constitution in the event of independence, contained no preamble. In spite of the mixed evidence on the necessity preambles, we may well have good reasons to incorporate them into constitutions: preambles express aspirations, hopes and commitments to higher ideals in a particularly exalted language. As Peter Häberle surmised, they thus attempt to foster a link to the history and culture of a nation, provide a justification and rationalization for the birth of the constitution, and establish a connection with its citizens, while also influencing the interpretation and application of the law.
  • TAO Endicott, 'Comity among Authorities' (2015) Current Legal Problems 1
    DOI: 10.1093/clp/cuv004
    An authority often needs to take account of the decisions of another authority, in order to carry out its own responsibilities. This essay outlines general principles of the approach that authorities ought to take toward the decisions of others. The most important is the principle of comity: that the authority passing judgment (I will call it the 'second authority') ought to act in a way that respects the capacity of the other (the 'first authority') to carry out its own role. A duty of comity is not a duty to trust the first authority. It does not require the second authority to approve of the decisions of the first. It arises not from the rights of the first authority, nor even from the first authority's success in carrying out its duties, but from the second authority's duties to those whom the second authority serves, and to those whom the first authority serves. The reasons for the principle of comity support two more principles: that the second authority has limited responsibility for justice, and that the second authority has no general duty to agree with the judgment of the first authority.
  • Iginio Gagliardone, Danit Gal and Thiago Alves Pinto, Countering Online Hate Speech (UNESCO 2015)
    French version: Arabic version:
    ISBN: 978-92-3-100105-5
  • L Lazarus and Natasha Simonsen, 'Democratic Deliberation and Judicial Review' in Murray Hunt (ed), Parliament and Human Rights: Redressing the Democratic Deficit (Oxford University Press 2015)
    This chapter argues provides a model which Courts could apply in their assessment of Parliamentary deliberation of rights limiting legislation. It argues for such a transparent assessment as a prerequisite of the exercise of judicial deference.
  • R Martin, 'Informers’ (Criminal Evidence) ' (2015) Westlaw UK Insight
  • S Atrey, 'Lifting as We Climb: Recognising Intersectional Gender Violence in Law' (2015) 5 Oñati Socio-Legal Series 1512
  • S Atrey, 'The Danger of a Single Story: Introducing Intersectionality in Fact Finding' in P Alston and S Knuckey (eds), The Transformation of Human Rights Fact-Finding (Oxford University Press 2015)
  • A Micus, The Inter-American Human Rights System as a Safeguard for Justice in National Transitions. From Amnesty Laws to Accountability in Argentina, Chile and Peru. (Brill - Nijhoff 2015)
    In The Inter-American Human Rights System as a Safeguard for Justice in National Transitions, Annelen Micus analyzes the importance of the Inter-American Human Rights System for transitional justice processes in Latin America, with a focus on Argentina, Chile and Peru. She examines which factors influence a country’s approach in confronting its past and addressing impunity. The emphasis is placed on the way countries may overcome amnesty laws with the support of international law in order to hold perpetrators of grave human rights violations to account. The book’s main focus is on the Inter-American Court of Human Rights, and the impact of its jurisprudence on legal proceedings and political decisions within the national transitional justice processes in the three countries.
    ISBN: 978-9004289727
  • L Lazarus, 'The Right to Security' in Rowan Cruft, Matthew Liao and Massimo Renzo (eds), The Philosophical Foundations of Human Rights (Oxford University Press 2015)
    This paper surveys and critiques the philosophical theories that engage with and support a moral right to security.
  • TAO Endicott, 'Was Entick v Carrington a Landmark?' in Adam Tomkins and Paul Scott (eds), Entick v Carrington: 250 Years of the Rule of Law (Hart Publishing 2015)
    Entick v Carrington (1765) 2 Wils KB 275 was a landmark not only in the development of the law of the constitution, but also in the development of a distinctively English mixture of judicial restraint and judicial creativity. Lord Camden’s decision was a model of the common law method of devising new ways of controlling public powers, while disclaiming any power to legislate and, in fact, claiming to abide by the ‘ancient venerable edifice’ of the constitution. The result was a practical reform that protected civil liberties, on the basis of a very conservative understanding of the constitution, according to which public authorities are limited by law, but have powers that are not specified by law. I defend that understanding against the twenty-first-century idea that public authorities may do nothing except what the law expressly or impliedly authorises.
    ISBN: 9781849465588
  • S Theil, 'What red lines, if any, do the Lisbon Judgments of European Constitutional Courts draw for future EU integration?' (2014) 15 German Law Journal 599
    The paper critically examines the Lisbon decisions of European Constitutional Courts and attempts to tease out what red lines they draw for future European integration. Overall, the Constitutional Courts leave much hope for an enduring legal development of the EU. The only definitive red line is not of a legal, but of a moral nature. As long as the EU continues to exist for the sake of the European People,and the common good is truly best served by it, then deeper integration can be morally justified, politically achieved, and legally implemented. This conception of the European idea, this dream of Europe, can be defended in the face of critics, regardless of the red lines to integration.
  • S Theil, 'Der Umfang des Umweltschutzes in der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte' (2014) 36 Natur und Recht 330
    Mit dem erneuten Scheitern der jüngsten Klimakonferenz in Warschau wurde abermals die mangelhafte Umsetzung verbindlicher Klimaschutzziele durch die Politik auf internationaler Bühne demonstriert. Doch nicht nur auf Klimakonferenzen obsiegen oft nationale Interessen an Wohlstand und Wirtschaftswachstum über die langfristigen Belange des Umweltschutzes. Einige Stimmen schlagen deshalb vor, umweltrechtliche Belange als ein Problem des Menschenrechtsschutzes zu begreifen, um so dem Umweltschutz mehr Durchsetzungskraft zu verleihen. Der Beitrag untersucht anhand der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte, in wie fern der internationale Menschenrechtsschutz bereits heute Umweltbelange anerkennt und welche Grenzen diesem Bestreben gesetzt sind.
    ISBN: 1439-0515