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  • 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.
  • L Lazarus, 'The Right to Security - Securing Rights or Securitizing Rights' in Dickinson et al (ed), Examining Critical Perspectives on Human Rights (Cambridge University Press 2012)
    This paper examines the rise of the right to security within human rights discourse and its potential to erode human rights more generally. It argues that political discourse around the apparent conflict between security and rights since 9/11 has been complicated by an emerging notion of the 'right to security' as the meta-right (the right of rights). This claim (and the inherent ambiguity of what the right to security requires) has the potential to lead to a 'securitization' of human rights, a process that threatens to erode the traditional foundations of human rights, and human rights themselves. Operating in tandem with this 'securitization' process, the discourse of the right to security has been used to sanitize, or at least to legitimate, coercive security measures. This is a process I refer to as 'righting' security. These two processes combine in complex ways to give security an effective trump claim over other rights.
  • C O'Regan, '"A Forum for Reason: Reflections on the Role and Work of the Constitutional Court"' (2012) South African Journal on Human Rights
    ISBN: 0258-7203
  • C O'Regan, '"Text Matters: Some Reflections on the Forging of a new Constitutional Jurisprudence in South Africa"' (2012) Modern Law Review 1
    ISBN: 1468-2230
  • TAO Endicott, 'Legal Interpretation' in Andrei Marmor (ed), The Routledge Companion to Philosophy of Law (Routledge 2012)
    Interpretation is a creative reasoning process of finding grounds for answering a question as to the meaning of some object. Deciding what is to be done according to law sometimes takes interpretation. But no need for interpretation arises, if no question arises as to the meaning of an object. And interpretation will not help to resolve a legal problem that does not depend on a conclusion as to the meaning of some object. Legal reasoning is not generally a matter of interpretation. I argue that each of the following aspects of legal reasoning need not involve interpretation: resolving indeterminacies as to the content of the law, working out the requirements of abstract legal provisions, deciding what is just, equitable interference with legal duties or powers or rights, and understanding the law.
    ISBN: 978-0-415-87818-0
  • TAO Endicott, 'Review of Reflections on The Concept of Law, by A.W.Brian Simpson, (Oxford University Press 2011)' (2012) 128 Law Quarterly Review 305 [Review]
  • L Lazarus, Adam Tomkins and Helen Fenwick, 'Terrorist asset-freezing - Continuing flaws in the current scheme' (2011) 25 International Review of Law, Computers and Technology 117
    The Terrorist Asset-Freezing etc Act 2010 came into force on 17 December 2010. The 2010 Act repealed the previous Temporary Provisions Act. This article does not purport to provide comprehensive coverage of the Act; it outlines four main areas of concern that arose in respect of the Draft Terrorist Asset-Freezing Bill and that now arise in respect of the Terrorist Asset-Freezing etc Act 2010. In summary, these are as follows: problems of parliamentary scrutiny relating to the scope of the Act; problems relating to the reasonable suspicion test; problems relating to judicial process; problems relating to ECHR rights.
  • Juan Pablo Perez-Leon Acevedo and Thiago Alves Pinto, 'Correspondents’ Reports, Peru' (2011) 14 Yearbook of International Humanitarian Law 1 [Case Note]
    DOI: 10.1007/978-90-6704-855-2
  • C O'Regan and Nick Friedman, 'Equality' in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011)
    ISBN: 978 1 84844 539 0
  • TAO Endicott, 'Human Rights and Intellectual Disabilities' in D Griffiths, F Owen and S Watson (eds), Human Rights Agenda: An Action Plan to Advance the Rights of Persons with Intellectual Disabilities (Brock University 2011)
  • C O'Regan and Edwin Cameron, 'Judges, Bias and Recusal in South Africa ' in H P Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press 2011)
    ISBN: 978-0-521-19060-2
  • Alecia Johns, Hayley Hooper and L Lazarus, Report for JCHR - Supplementary Comparative Research on the use of Secret Evidence in the United States (Oxford Pro Bono Publico 2011)
    This was a follow-up to the 2011 comparative report on secret evidence, requested by the JCHR. It focused on the operation of security-cleared counsel in US habeas corpus proceedings as well as the US doctrine of State secrets privilege in order to help the JCHR whether those aspects of US practice should be adopted in the UK.
  • Anne Carter, Nabiya Syed, Ryan Goss and L Lazarus, Report for JCHR - The Use of Secret Evidence in Judicial Proceedings: A Comparative Survey (Oxford Pro Bono Publico 2011)
    On 19 October 2011 the Government published a Green Paper on Justice and Security that proposes reforms to the use of secret evidence. This research paper by Oxford Pro Bono Publico (OPBP) is intended to assist the Joint Committee of Human Rights (JCHR) in its scrutiny of the Government's proposals in the Green Paper.
  • L Lazarus, Cathryn Costello, Nazila Ghanea-Hercock and Katja Ziegler, The Evolution of Fundamental Rights Charters and Case Law (European Parliament Directorate General for Internal Policies 2011)
    This report examines the human rights protection systems of the United Nations, the Council of Europe and the European Union. It explores the substantive rights, protection mechanisms, modes of engagement within, and the interactions between each system. The report also outlines the protection of minority rights, and the political processes through which human rights and institutions evolve and interact. A series of recommendations are made on how to advance the EU human rights system.
  • TAO Endicott, 'Vagueness and Law' in Giuseppina Ronzitti (ed), Vagueness: a Guide (Springer 2011)
    DOI: 10.1007/978-94-007-0375-9
    After explaining two respects in which law is reflexive, this chapter points out that vagueness in law is typically extravagant, and that extravagant vagueness is a necessary feature of legal systems. Some philosophers of law and philosophers of language claim that bivalence is a property of statements in the domains that concern them; the chapter argues that the bivalence claim should be rejected. In philosophy of law, the motivation underlying the bivalence claim is an urge to assert the principle that the law must be capable of standing against arbitrary use of political power. The chapter seeks to articulate that principle in a way that is compatible with the possibility of indeterminacy in the application of vague laws.
    ISBN: 978-94-007-0374-2
  • TAO Endicott, '‘The Logic of Freedom and Power’ ' in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford University Press 2010)
    A state is sovereign if it has complete power within its political community, and complete external freedom. It may seem that the idea of sovereignty is incoherent, or that sovereignty is objectionable, because of a paradox and two moral principles. The paradox is that a sovereign state must be capable of binding itself and also must not be capable of binding itself. The moral principles are that no state can justly have complete freedom internally, and that a state ought to be bound in international law by rules that it has not agreed to, such as norms of ius cogens. I argue that the paradox is only apparent, and that the moral principles are compatible with state sovereignty. So the idea of sovereignty is a coherent idea, and sovereignty is a potentially valuable feature of states in international law. Sovereignty is to be understood as internal power and external freedom that are complete for the purposes of a good state.
    A state is sovereign if it has complete power within a political community, and complete independence. It may seem that the idea of sovereignty is objectionable because of two moral principles, or incoherent because of a paradox. The paradox is that a sovereign state must be capable of binding itself and must also be incapable of binding itself. The moral principles are that no state can justly exercise complete power internally, or complete independence (since complete independence would imply freedom from norms of ius cogens, and from interference with mass atrocities by the state). Through an analogy with human autonomy, I argue that the paradox is only apparent, and that the moral principles are compatible with state sovereignty. So the idea of sovereignty is a coherent idea, and sovereignty, rightly understood, is a valuable feature of states in international law. Sovereignty is to be understood as internal power and external freedom that are complete for the purposes of a good state.
    ISBN: 0199208573