Suchergebnisse

This wide-ranging comparative account of the legal regimes for controlling administrative power in England, the USA and Australia argues that differences and similarities between control regimes may be partly explained by the constitutional structures of the systems of government in which they are embedded. It applies social-scientific and historical methods to the comparative study of law and legal systems in a novel and innovative way, and combines accounts of long-term and large-scale patterns of power distribution with detailed analysis of features of administrative law and the administrative justice systems of three jurisdictions. It also proposes a new method of analysing systems of government based on two different models of the distribution of public power (diffusion and concentration), a model which proves more illuminating than traditional separation-of-powers analysis

Introduction / Carolyn Evans -- The moral economy of religious freedom / Lawrence G. Sager -- Understanding the religion in freedom of religion / Jeremy Webber -- Why religion belongs in the private sphere, not the public square / Denise Meyerson -- Pluralism an law and religion / Margaret Davies -- The influence of cultural conflict on the jurisprudence of the religion clauses of the First Amendment / Michael W. McConnell -- From Dayton to Dover : the legacy of the Scopes Trial / Peter Radan -- A very English affair : establishment and human rights in an organic constitution / Dr. Charlotte Smith -- Days of rest in multicultural societies : private, public, separate? / Ruth Gavison and Nahshon Perez -- Australian legal procedures and the protection of secret aboriginal spiritual beliefs : a fundamental conflict / Ernst Willheim -- Secular and religious conscientious exemptions : between tolerance and equality / Yossi Nehushtan -- Law's sacred and secular subjects / Ngaire Naffine -- Freedom of religion and the European Convention on human rights : approaches, trends, and tensions / Malcolm D. Evans

1. Moral and Legal Responsibility -- 2. The Nature and Functions of Responsibility -- 3. Responsibility and Culpability -- 4. Responsibility and Causation -- 5. Responsibility and Personality -- 6. Grounds and Bounds of Responsibility -- 7. Realising Responsibility -- 8. Responsibility in Public Law -- 9. Thinking about Responsibility -- References -- Index.

The articles in this issue, devoted to legal and constitutional issues around executive primacy and populism, were first presented at an Advanced Workshop on the Resurgence of Executive Primacy in the Age of Populism, organised by Professor Cheng-Yi Huang and held at the Institutum Jurisprudentiae of the Academica Sinica in Taipei, Taiwan on June 21 and 22, 2018. Scholarly interest in populism has grown over the past thirty years to the point where it could recently be the subject of The Oxford Handbook of Populism, published late in 2017. According to the editors of that volume, the bulk of scholarly analysis of populism since 1990 (outside the United States, at least) has been undertaken by political scientists. Some legal scholars have written about what we might call "popular constitutionalism," which can be understood as referring to the theoretical and legal framework of liberal democracy. So far, however, public lawyers have not shown a great deal of interest in what we might call "populist constitutionalism," which can be thought of as the theoretical and legal framework of "populism," understood as a pathology of liberal democracy. The Taipei workshop was designed to encourage lawyers to think more carefully about legal tools, expressions, and implications of populism, if only because "the devil you know is easier to live and deal with than the devil you don't."

As the articles in this Symposium suggest, populism and authoritarianism present ongoing challenges not only to liberal democracy but also to its legal underpinnings. Manipulation, avoidance, evasion, and outright rejection of the constitutional and legal frameworks of liberal democracy are features of populist authoritarianism. The basic argument of this article is that liberal-democratic public law and legal theory no longer satisfy human needs and desires because they were conceived in worlds that no longer exist, when the main pre-occupation was to secure liberty, not equality. The aim of the article is to explain the inherited structure of our public law and theory and the main events and developments that have produced this mismatch between public law and social aspiration.

Major pollution incidents and a concern for the future well-being of the planet have caused many lawyers to support the idea of a distinct civil liability regime for compensating environmental damage. But unless we are sure that environmental harms do deserve special treatment, special liability regimes may prove to be a mistake in the long-run. The main aim in the design of liability law should be to distribute the past costs of pollution rather than to punish or act as a future deterrent. A critical evaluation of the nature of environmental harms suggests that they are not special in a way that justifies a special legal regime, and where liability regimes are used as a means of raising money to clean up the environment they are a costly and cumbersome means of doing so. Similarly, when most legal systems start from a position that non-contractual liability for harm should be based on fault, it is difficult to justify in terms of legal policy and principle a pocket of strict liability for environmental harm. People who view environmental harms as presenting distinctive legal issues do so because they focus on the environmental source of the harm rather than its nature. This may be usefully politically but it creates legal confusion. In constructing regimes for liability for environmental harms, it is important to appreciate the limits of compensation law for achieving our environmental goals.

Major pollution incidents and a concern for the future well-being of the planet have caused many lawyers to support the idea of a distinct civil liability regime for compensating environmental damage. But unless we are sure that environmental harms do deserve special treatment, special liability regimes may prove to be a mistake in the long-run. The main aim in the design of liability law should be to distribute the past costs of pollution rather than to punish or act as a future deterrent. A critical evaluation of the nature of environmental harms suggests that they are not special in a way that justifies a special legal regime, and where liability regimes are used as a means of raising money to clean up the environment they are a costly and cumbersome means of doing so. Similarly, when most legal systems start from a position that non-contractual liability for harm should be based on fault, it is difficult to justify in terms of legal policy and principle a pocket of strict liability for environmental harm. People who view environmental harms as presenting distinctive legal issues do so because they focus on the environmental source of the harm rather than its nature. This may be usefully politically but it creates legal confusion. In constructing regimes for liability for environmental harms, it is important to appreciate the limits of compensation law for achieving our environmental goals.

This article explores the relevance of disagreement about values and about the functions and effects of law to debates concerning the appropriate relationship between courts and legislatures, common law and statute. Recent developments in tort law provide a context for the discussion. The argument is that in general, political processes of law-making should be preferred judicial processes.