Month: April 2010

At the Irish Jurisprudence Society (IJS) Symposium, the second paper was delivered by Dr Darren O’Donovan (UCC) who spoke on The Role of Rights in Furthering Democratic Decision-Making: The Fruitful Conflict between Deliberative Democrats and Critical Race Theorists. Many threads were interwoven into a fascinating cloth. Against the background of the protection of the rights of the travelling community, UK and ECHR case-law concerning the banning of veils and burqas in schools, and special needs education, he strove for participation as a principle for the implementation of rights and and the re-invigoration of a human rights culture. These practical considerations grounded an analysis of two competing perspectives, deliberative democracy as represented by Juregen Habermas and John Rawls, and critical race theory as represented by Iris Marion Young and Melissa Williams. His basic position is that law should be based on a realistic understanding of human behaviour, and that the consequential limits of the law should be properly appreciated. From the abstract:

In deliberative theory, the aim of law, and human rights in particular, is to remove coercion and inequality from democratic decision-making, so that the only influence is the force of the better argument. Much of the work of both deliberative democrats and their critics falls upon the possibility of this ideal consensus. On the other hand, for many critical race theorists and feminists, the emphasis upon consensus fails to account adequately for the rupturing effect of racism and cultural marginalisation. Recently, however, some critical race theorists have adopted empirical approaches to identify the cognitive and affective biases which distort citizens’ ability to shift from an ‘I to we’ perspective in considering questions of justice. These developments provide a measured and co-ordinated account of the difficulties of including minority and excluded perspectives in an impartial public debate.

If human rights are to fulfil their function of integrating minorities and their interests at both national and local levels, an examination of the barriers to genuine consensus must be carried out. From the European Court of Human Rights to constitutional courts around the world, great emphasis has been placed upon statutory schemes involving elaborate consultation and renewed procedures which require decision-making to ‘consider’ or ‘weigh’ human rights. In this analysis, there are common themes: in the context of structural inequalities and entrenched relations of power, how much should be put up for debate? And how frequently does the implementation of human rights through consultation and participation collapse into empty process rather than improved democratic engagement?

Deliberative democracy has at its core a pragmatic circularity: the fundamental position that democracy and rights are co-original and co-dependent. This represents deliberative democracy’s greatest strength, in offering the possibility for revision in the light of actual contexts and exclusions. For lawyers, the picture which emerges is a need to continue to reflect on the role of law in furthering both rights, and mechanisms such as civil society engagement and consultation, in shaping an inclusive, democratic public sphere.

At the Irish Jurisprudence Society (IJS) Symposium on Jurisprudence and Legal Theory at University College Cork, the first paper was delivered by Dr Shane Kilcommins (UCC), who spoke about The Security State and Constitutional Justice: the dangers of ignoring a ‘rights-based conception of the Rule of Law’ that ensures that ‘the majority cannot travel as fast or as far as it would like’. His paper traced the present history of penology from Michel Foucault to David Garland. Garland’s work sees the present as a time of the decline of the rehabilitative ideal, the (re)emergence of punitive sanctions and expressive justice, focus on the perspective of the victim, protection by (rather than from) the state, and the (re)emergence of the prison. In many ways, Irish criminologists can point to a similar development in Ireland: the ‘tooling up’ of the executive power of the state thanks to a hyperactive legislature wanting to be seen to be tough on crime.

Kilcommins’ key point however, is that we must not overstate this development, we must not be misled by the uniqueness of the present. He cites Michel Foucault: “we should have the modesty to say to ourselves that the time we live in is not the unique or fundamental or irruptive point in history where everything is completed and begun again”. Hence, in Kilcommins’ view, Ireland in the early 21st century doesn’t quite fit the Garland narrative; the position is much more nuanced and contradictory, with strong pulls in the opposite direction. For him, the Irish criminal justice is becoming more disaggregated and more contradictory. It is more principled but also more repressive, more instrumental but also more expressive. It continues to emphasise protection from the State, but increasingly also protection by the State. It embodies more authoritarianism but also more pluralism. It involves more monopolised criminal control but also more fragmentation and blurring of boundaries. In particular, for him, whilst legislation is more control-based along Garland lines, the courts are operating as a check on these developments:

The liberal ideology of legalism and constitutionalism has delivered, and continues to deliver, significant protections to those accused of crime that set some limits to the power of the State and the ‘tyranny of the majority’. Though discounted in crime control literature, it has a power and a reach that remains significant and real. Its embedded nature offers more than token resistance to newly emerging, more control orientated, orthodoxies. To dismiss it, or to afford it epiphenomenal status only (as ‘law in books’ or ‘paper rules’), is to neglect its capacity to check power and to offer sustained and dogged opposition to the creation of a ‘culture of control’ society.

Referring to Ronald Dworkin, he argued that the judiciary is by and large constrained by gravitational force of earlier decisions, so that the implementation of crime control legislation runs into a conflicting narrative of rights-based discourse. However, Kilcommins is realistic about the extent of this counter: it is not a complete response, and it is too easy to make complacent assumptions about the unity of law. Nevertheless, he concluded that we should still not close ourselves off from the continued appeal of constitutionalism, legalism, human rights, the internal logic of law, and judicial craft, all of which remain strongly imbricated in the cross-currents of the Irish criminal justice system.

On this day, 15 April, millions of US citizens will complete their annual tax returns: for the IRS, today is filing day, colloquially known as tax day. It is also the day on which, in 1755, the first edition of Dr Samuel Johnson‘s Dictionary of the English Language was published. Many of the US taxpayers filing their taxes today would probably apply to their situations the sentiments of one of his better know definitions:

Excise: a hateful tax levied upon commodities and adjudged not by the common judges of property but wretches hired by those to whom excise is paid.

The Commissioners of Excise sought the advice of the Attorney General as to whether the definition was defamatory and invited Johnson to amend it. Characteristically, he declined, and the definition appeared in subsequent editions of the Dictionary. However, the Commissioners did not pursue a defamation claim against him, but there is evidence to suggest that they did keep watching to see if he ever amended the definition.

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This post is republished from the updates feed of the website for the conference on Restitution of Overpaid Tax (Merton College Oxford, 9 and 10 July 2010).

As I’ve already posted here, the Fourth Legal Education Symposium will be hosted by the School of Law, University of Limerick in the Kemmy Business School on Friday, 14 May 2010.

Due to the generous sponsorship of Limerick solicitors’ firm Holmes O’Malley Sexton, there is no conference fee, but registration is essential, and a form is available by email.The programme for the day includes two plenary sessions, one in the morning and one in the afternoon, and several parallel workshop session in both the morning and the afternoon.

Speaking in the morning plenary session on The Purpose of a Law Degree will be Professor Fiona Cownie, Keele University, Dr John Temple Lang, Cleary Gottlieb Steen Hamilton, Brussels, and Professor Paul McCutcheon, Vice President Academic, University of Limerick.

Speaking in the afternoon plenary session on Promoting Legal Research will be Professor Sally Wheeler, Queens University,Belfast, Dr Neville Cox, Trinity College Dublin, and Professor Sandeep Gopalan, NUI Maynooth.

Kudos to Sinead Eaton for putting together a really excellent package.

From the ever-wonderful Tim Fishburne‘s this one time at brandcamp cartoon blog:

An editorial in today’s Irish Times [with added links]:

Proper Scrabble

QUIXOTRY: According to Webster’s, “Quixotism, or visionary schemes”. And 365 Scrabble points for Michael Cresta on a record-breaking night in October 2006, including a “triple-triple”, covering two triple-word scores with one word – worth nine times the value of the word – a double letter score on the X, plus the 50-point bonus for using all seven letters.

Not to put a tooth in it, however, what we were concerned with this week was definitely not a “visionary scheme”. More like crass commercialism, a pandering to youthful ignorance, and the debasement of a great game played in 121 countries and 29 languages. For Scrabble’s manufacturer Mattel, horror of horrors, had apparently announced it intends to make the first major rule changes in 62 years, allowing inter alia the use of proper nouns including geographic names, celebrities and even products and companies “to enable younger players and families to get involved”.

The reports unleashed a torrent of righteous indignation around the world from traditionalist Scrabblers and the press. The Thunderer thundered. An Australian [Canadian?] writer compared the changes to poet Robert Frost’s view of free verse as akin to playing tennis with the net down. The Hindustan Times railed that “with Scrabble players soon being allowed to spell words backwards, upwards and what not, we could well be writing this editorial from the slewob of Ihled.”

Apart from making it impossible to set limits to the acceptable, setting up the prospect of endless unresolvable family rows, the new rules would so dilute the coinage of scoring as quickly to put Massachusetts carpenter Cresta’s extraordinary records into the shade (highest game – 830 points, highest combined score – 1320, and highest single play – 365, all in the one game). But to what end? What value the Olympic gold medal of a drug-taking athlete?

But all was not as it seemed. In the best journalistic tradition of not letting the facts get in the way of a good story, much of the press omitted to tell readers that Mattel’s intention was not to touch the original game, but to create a separate spin-off product, “Scrabble Trickster”, a Guinness Light, for those for whom the real thing was too strong beer. It will no doubt suffer the same fate.

In the same spirit, however, how about a new twist on Monopoly – incorporating subprime mortgages and bad banks? Or, chess. Reflecting the mood of our times, purging the bishops to replace them with caped superheroes. Now there’s quixotry.

The Long Room Hub, Trinity College Dublin, presents a public lecture entitled

Blasphemy: Historical anachronism or modern crime?

by Professor David Nash, Department of History, Oxford Brookes University, UK.

The lecture will take place from 4:00pm to 5:30pm on Tuesday, 20 April 2010 next, in the Swift Lecture Theatre (Room 2041A), Arts Building, Trinity College Dublin (map here).

David Nash is the author of Blasphemy in Modern Britain 1789-present (Ashgate Publishing, 1999 | Amazon) and Blasphemy in the Christian World (Oxford University Press, 2007 | Amazon) and I am told that all are welcome to attend (though it is probably best to contact the Hub to be sure). I’m really looking forward to this; it is just one of many forthcoming events organised by the Hub, especially their fascinating Trinity Week events (next week, from 12 to 17 April) under the banner of Ideas For the Future.

The Journal of European Tort Law (also here and here) is officially launched today at the 9th Annual Conference on European Tort Law. A joint-venture between the European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law (ETL) of the Austrian Academy of Sciences, it is the first law review to be dedicated to the analysis and development of tort law in Europe. The General Editor is Professor Ken Oliphant, and it is published by de Gruyter, Berlin. The editors welcome all queries and submissions. The table of contents of the first volume:

• Helmut Koziol & Ken Oliphant Preface (2010) 1 JETL 1
• Lord Bingham of Cornhill The Uses of Tort (2010) 1 JETL 3
• Nils Jansen The Concept of Non-Contractual Obligations: Rethinking the Divisions of Tort, Unjustified Enrichment, and Contract Law (2010) 1 JETL 16
• Vaia Karapanou & Louis Visscher Towards a Better Assessment of Pain and Suffering Damages (2010) 1 JETL 48
• Michael G Faure & Niels J Philipsen Fees for Claim Settlement in the Field of Personal Injury: Empirical Evidence from the Netherlands (2010) 1 JETL 75
• Ulrich Magnus Why is US Tort Law so Different? (2010) 1 JETL 102

I am particularly taken by The Concept of Non-Contractual Obligations: Rethinking the Divisions of Tort, Unjustified Enrichment, and Contract Law by Nils Jansen (Professor of Roman and European Private Law and Director of the Institute of Legal History at the Westfälische Wilhelms-Universität Münster). Abstract:

The article proposes a concept of ‘non-contractual obligations’ as a fundamental legal category for European private law. Non-contractual obligations are an internally coherent part of the law of obligations, and they are fundamentally different from contractual obligations. Unjustified enrichment and tort law should therefore not be treated as independent or opposed types of obligations. A fundamental aspect of this conception is that ‘unjustified enrichment’ should not be misunderstood as a distinctive legal category; rather, it is a reason for liability that is functionally and structurally comparable with concepts such as fault or individual responsibility which apply throughout the legal system as a whole. To clarify the distinction between contractual and non-contractual obligations, the interplay of contractual and non-contractual rules and principles in borderline areas such as precontractual negligence is analysed.