The Modern Law Review

vLex
Publisher:
Wiley
Publication date:
2021-02-01
ISBN:
0026-7961

Issue Number

Latest documents

  • THE MODERN LAW REVIEW
  • Folúkẹ́ Adébísí, Decolonisation and Legal Knowledge: Reflections on Power and Possibility, Bristol: Bristol University Press, 2023, 204 pp, hb £85.99, pb £26.99
  • The Authority of Constituent Power

    This article delves into a specific facet of the widely acknowledged ‘paradox of constitutionalism’. Specifically, it focuses on the tension between the disruptive aspect of constituent power and its alleged authority. Paying special attention to the Chilean social outbreak and the constitutional process that followed, the article draws inspiration from Robert Brandom's recent work to examine a constituent moment in action and argues that the constitutional paradox can be productively addressed if the pragmatic and semantic dimensions of the constituent moment are both distinguished and harmonised. By aligning these two aspects, the article offers a novel version of a ‘relational’ approach to the paradox, revealing the potential for reconciling the disruptive and authoritative elements of a constituent moment, and providing fresh insights into the Chilean case.

  • Universal Jurisdiction: Law out of Context

    Universal jurisdiction enables the prosecution of international crimes by domestic courts in the absence of any nexus between the prosecuting state and the crime charged. While the temptation is for domestic judges to proceed with ‘business as usual’ in the conduct of such trials, difficulties in the practice of universal jurisdiction reflect the importance of developing a better understanding of the distinctive communities, interests, crimes and cultures these trials are intended to serve. The exercise of universal jurisdiction is commonly regarded as a form of domestic jurisdiction exercised pursuant to a sovereign right under international law. This article invites a re‐conceptualisation of the concept of universal jurisdiction, explaining that it is not a form of domestic jurisdiction acquired based on sovereign nexus between the crime charged and the prosecuting state. Instead, it should be recognised as a form of decentralised ‘international jurisdiction’, exercised as part of a state's contribution to the enforcement of international criminal law. This re‐conceptualisation has implications for the way in which domestic courts engage with many of the challenges facing universal jurisdiction trials, including problems of community, case selection, proof and translation.

  • The Connection‐Friction Axis in Devolved Health Policy and Law‐Making in the UK: A Case Study of Organ Donation

    This article explores the dynamics of devolved health policy and law‐making in the UK, drawing on a case study of opt‐out organ donation reform. Given that health is a significant area of devolved competence, such case studies offer the opportunity to examine both similarities and differences in approach between the four nations in the context of the UK's evolving constitutional settlement. We argue that there is a need to move away from the characterisation of the devolved health policy‐making process as being grounded in a convergence‐divergence approach, towards one that recognises the connection‐friction axis around which this process takes place. To explore this, we present findings from empirical research on opt‐out organ donation law reform. This, we suggest, demonstrates that whilst connectedness between government stakeholders, experts and advocacy groups was clearly vital in structuring the policy process, account should also be taken of how law operates not only as a medium for the playing out of political and ideological friction, but also for the achievement of connection to overcome this.

  • Still No(,) More Bolam Please: McCulloch and others v Forth Valley Health Board

    McCulloch v Forth Valley Health Board concerned an allegation of negligence, in failing to consider treating pericarditis with non‐steroidal anti‐inflammatory drugs as a reasonable alternative treatment and not discussing this option with the patient. Montgomery v Lanarkshire Health Board held that a medical professional must disclose to a patient material risks and any reasonable alternative treatments. The materiality of a risk is to be decided by reference to a reasonable person in the patient's position, or where the medical professional should be reasonably aware that the particular patient is likely to attach significance to that risk. However, Montgomery did not define the legal standard relating to the assessment of whether an alternative treatment is reasonable. McCulloch held the correct legal test to be applied as to whether an alternative treatment is reasonable is the professional‐practice test in Bolam v Friern Hospital Management Committee. There are practical, doctrinal and normative reasons to question whether Bolam is the correct legal test in respect of the assessment of reasonable alternative treatments. Additionally, the conceptualisation of Bolam in McCulloch is overly deferential. McCulloch fails to fully consider Montgomery’s emphasis that autonomy‐respecting principles are the values that risk disclosure practices are sensitive to.

  • A Bird's‐Eye View of Animals in the Law

    The article develops an analytic account of nonhuman animals’ current legal status. Animals are often characterised as legal things and property, but this characterisation is both simplistic and, in some cases, incorrect. The article seeks to dispel a number of orthodoxies regarding the legal status of animals and offer a more nuanced and contextual account. The emphasis is on Western law, with a particular focus on European jurisdictions. The article approaches animal legal status in terms of two historical regimes: the Commodity Regime and the More‐than‐Commodity Regime. While treating animals as commodities has been the rule for millennia, the situation has recently become more multifaceted. For instance, the private law status of companion animals has shifted away from that of commodities. Furthermore, it is argued that some wild animals have stopped being legal things altogether as a result of EU wildlife law. The multifarious arguments are then synthesised in order to produce a bird's‐eye view of animals in the law.

  • Sovereignty and the Persistence of the Aesthetic

    British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. As Loughlin and Tierney have recently argued, this approach obscures the political considerations which undergird the legal precept. In this article we argue that this approach misses a third, and essentially important, dimension to sovereignty. Law, politics and aesthetics all play equally important parts in constituting the essential structure of the concept. We elaborate this claim through a reading of some prominent accounts of sovereignty within the history of political modernity. At bottom, aesthetics is concerned with the ways in which the body's senses are stimulated and ordered; it therefore includes pictorial representation, ideation and imagination, as well as affect, instinct and habituated feeling. We argue that these different elements are usefully understood as all pertaining to a distinctive, and persistent, aesthetic dimension which is essential to the sovereignty concept.

  • Issue Information
  • Unpicking Torts: Elements, Conditions of Actionability and Standing Rules

    There is a clear tendency among judges and scholars to regard torts like chemical compounds: as things comprising a fixed list of elements (such as duty, breach, causation etc). But it is sometimes said that claimants in tort cases must also demonstrate that a condition of actionability has been met, or that a standing requirement within a particular tort has been satisfied. The use of these other terms raises two important questions. First, how a tort's elements may be distinguished from (1) conditions of actionability and (2) standing rules; and secondly, why any such distinction matters. This article addresses these questions and makes three key claims. The first such claim is that conditions of actionability may indeed be distinguished from elements. The second is that rules described as standing requirements within certain torts have no discrete juridical identity. The final claim is that appreciating the distinction between elements and conditions of actionability is important in both practical and theoretical terms.

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