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  • TAO Endicott, 'Arbitrariness' (2014) Canadian Journal of Law and Jurisprudence
    In order to identify the form of arbitrariness that is relevant to the rule of law, I discuss a Supreme Court of India decision and a Supreme Court of Canada decision in which judges held that other public authorities had acted arbitrarily. I also discuss Jeremy Bentham’s work on the rule of law, and his notion that the interpretive power of judges is itself an arbitrary power. I argue that the interpretive role of judges is not necessarily hostile to the rule of law, but that there is a standing tension between the two. In the decisions under discussion, the Canadian and Indian judges used their doctrines of arbitrariness to reallocate power to themselves, without any resulting enhancement in the rule of law.
    ISBN: 0841-8209
  • Thiago Alves Pinto, 'Avilkina and others v Russia' (2014) 3 Oxford Journal of Law and Religion 181 [Case Note]
    DOI: 10.1093/ojlr/rwt049
  • C O'Regan and Madhav Khosla, 'Equality in Asia' in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law in Asia (Edward Elgar 2014)
    ISBN: 978 1 78100 269 8
  • TAO Endicott, 'Interpretation and Indeterminacy' (2014) Jerusalem Review of Legal Studies 1
    DOI: 10.1093/jrls/jlu005
    Legal interpretation is a reasoning process. It is needed whenever reasoning is needed in order to decide what a legal instrument means. I defend this approach through a critical discussion of the view that Andrei Marmor defends, in Philosophy of Law (2011), that legal interpretation is needed when the law is indeterminate. I also offer reasons for disagreeing with Marmor’s argument that H.P.Grice’s ‘cooperative principle’ does not generally apply in legal discourse. The content of the law made by legislation includes what the legislation asserts, and also those implicatures that courts have conclusive reason to act upon, in light of the cooperative principle.
  • TAO Endicott, 'Proportionality and Incommensurability' in Grant Huscroft, Bradley W. Miller, Gregoire Webber (ed), Proportionality and the Rule of Law (Cambridge University Press 2014)
    Proportionality doctrines in human rights adjudication require the judges to ‘balance’ interests that cannot actually be weighed against each other in any sort of scales. If judges are purporting to balance things that cannot actually be balanced, it may seem that the doctrines mean a departure from the rule of law, in favour of arbitrary rule by judges. I will argue that the resolution of incommensurabilities is not in itself a departure from the rule of law; the rule of law demands a system in which judges are often responsible for reconciling incommensurable interests. But some theorists have seen a potential in proportionality for rationality, transparency, objectivity, and legitimacy, which the doctrine cannot actually deliver. And proportionality reasoning involves pathologies, by which I mean structured tendencies toward misconceived decisions. I comment on some of these dangers, to illustrate the claim that they all depend on particular mistakes, and do not arise automatically from the judges’ role in resolving conflicts among incommensurable interests.
    ISBN: 9781107064072
  • L Lazarus, Chris McCrudden and Nigel Bowles (eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing 2014)
    This collection examines judicial engagement with human rights from a comparative perspective. It is divided into four sections: proportionality, security and human rights, religion and human rights and socio-economic rights.
  • Miles Jackson, Tamas Szigeti and L Lazarus, Report for Hungarian Civil Liberties Union on Comparative Hate Crime (Oxford Pro Bono Publico 2014)
    This research report offers a comparative analysis of the application of hate crime laws to victims who belong to non-disadvantaged or majority groups in the surveyed jurisdictions. The report was commissioned by by the Hungarian Civil Liberties Union (HCLU), a Budapest-based human rights and civil liberties NGO.
  • Eirik Bjorge, Vrinda Bhandari, Eleanor Mitchell, Kate Mitchell and L Lazarus, Report for UN Special Rapporteur on Arbitrary Detention on Rights of Persons Deprived of their Liberty (Oxford Pro Bono Publico 2014)
    This is a report prepared by Oxford Pro Bono Publico (‘OPBP’) for the United Nations Special Rapporteur on Arbitrary Detention. The Special Rapporteur has been tasked by the United Nations Human Rights Council with preparing a set of principles and guidelines on ‘remedies and procedures on the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before a court’.
  • C O'Regan, 'Tradition and Modernity: Adjudicating a Constitutional Paradox' (2014) Constitutional Court Review 105
    ISBN: 2073-6215
  • C O'Regan, '"The right to equality in the South African Constitution" Symposium in Honour of Justice Ruth Bader Ginsburg' (2013) Columbia Journal of Gender and the Law
    ISBN: 1062-6220
  • Kate Mitchell, Tamas Szigeti and L Lazarus, Comparative Study for Blackstone Chambers on Mass Surveillance and Civil Liberties (Oxford Pro Bono Publico 2013)
    This report explores the existing legal frameworks governing national security programmes of mass surveillance, in light of the recently discovered PRISM and TEMPORA programmes in the United States (US) and United Kingdom. The report was prepared to support the work of Tom Hickman and Ravi Mehta of Blackstone Chambers in August 2013.
  • L Lazarus and Ryan Goss, 'Criminal Justice under the UK Human Rights Act: dynamic interaction between domestic and international law' (2013) Singapore Academy of Law Journal
    The article demonstrates how, both before and after the HRA, UK courts and legislators have sought to reconcile common law approaches to protecting rights and liberties with the approaches of the Strasbourg Court. It uses the development of the case law as an insight into a dynamic institutional dialogue: how interaction with the ECtHR has shaped the way that UK courts, governments and Parliament have acted on criminal justice issues and vice versa.
  • TAO Endicott, La Generalità del Diritto (Mucchi Editore 2013)
    Translation into Italian of 'The Generality of Law' in Luís Duarte Almeida, Andrea Dolcetti, James Edwards (eds), Reading The Concept of Law (Oxford University Press 2013). With a new Preface on H.L.A.Hart and Jurisprudence in Oxford.
    ISBN: 978-88-7000-614-8
  • Ch. Kypraios Kypraios, I. Bantekas and I. Kebreab, 'Outsourcing Law Reform to Private Contactors: A Human Rights Perspective' (2013) 2 International Human Rights Law Review 1
  • TAO Endicott, 'The Generality of Law' in Luís Duarte Almeida, Andrea Dolcetti, James Edwards (ed), Reading The Concept of Law (Oxford University Press 2013)
    Chapter 2 of The Concept of Law is an accidental essay on the generality of law. Hart points out ways in which generality is a necessary feature of law. I point out ways in which his account can be made more complete, and I argue that law necessarily involves particularity as well as generality. Then I ask what ‘necessary’ means in all these claims. It is a popular idea that legal theorists should not try to identify necessary features of law; I argue that the popular idea is a mistake. I conclude by arguing that Hart should have been more willing to pass value judgments about law: the elucidation of the necessary features of law depends on an elucidation of the value of law.
    ISBN: 978-1849463249
  • TAO Endicott, 'The Irony of Law' in John Keown and Robert P George (eds), Reason, Morality, and Law: The Philosophy of John Finnis (Oxford University Press 2013)
    John Finnis says that central cases of the concepts of social theory fully instantiate values that are instantiated in more-or-less watered-down ways in peripheral cases. I argue that the central case of a concept essential to social theory may excel in some specific good or in some specific ill, or in neither, or in both. As for law, the central cases of a legal system, or of a law, do indeed involve goods that Finnis ascribes to them; the central cases also involve certain ills. That is the irony of law. It secures essential goods for a community, and also (and, in fact, by the same token) it incurs certain ills that are necessarily involved in its specific techniques for securing those goods. I conclude by pointing out a resulting tension over a legal system’s regulation of the validity of its own legal norms.
    ISBN: 978-0-19-967550-0
  • R Martin, 'The Recent Supergrass Controversy: Have We Learnt From the Troubled Past?' [2013] Criminal Law Review
  • L Lazarus, 'Positive Obligations and Criminal Justice: Duties to Protect or Coerce' in Julian Roberts and Lucia Zedner (eds), Principled Approaches to Criminal Law and Criminal Justice: Essays in Honour of Professor Andrew Ashworth (Oxford University Press 2012)
    Human rights advocates internationally, and supporters of socio-economic rights, have battled for many years to get States and courts to accept that human rights give rise to positive obligations upon States and that such obligations ought to be justiciable in principle. Much of the rhetoric deployed in this campaign has focused on the importance of protecting and respecting basic human needs and capabilities, and ensuring that individuals enjoy a basic level of subsistence in order to secure the enjoyment of all rights. In the context of criminal justice and criminal law: positive obligations are very often cast as duties on the State to protect individuals from the criminal acts of others (protective duties). Very little attention is paid however to the potential for such positive obligations to give rise to what I term ‘coercive duties’. In other words, duties upon the State to coerce individuals through the criminal law, or criminal justice mechanisms, in the name of protecting others from their criminal acts. The coercive aspect of positive obligations comes more sharply into focus when we look at the rhetoric around, and judicial enforcement of ,the right to security. But the development of coercive duties are evident in the positive aspect of other rights too. This chapter explores the ambiguity involved in the growing development of positive rights in the field of criminal law and criminal justice. It dwells briefly on the emerging right to security case law and rhetoric internationally, and goes on to examine cases within the UK and ECHR. The thesis of the chapter is that while some protective duties arising from human rights may be a positive development, the extension of coercive duties on the State to coerce others in the name of another individual’s rights is an overseen and more pernicious part of this development of human rights. The chapter will end by exploring how we reconcile coercive duties arising out of human rights with opposing negative rights protections, or even other protective duties.

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