Jamming the Law: Improvisational Theatre and the 'Spontaneity' of Judgment

Modern ‘nonscripted’ theatre (NST) clearly owes much to improvisation. Perhaps less obviously, and more surprisingly, so too does modern law. In this article I will contend that, despite all the rules of evidence and procedure, statutes and legal precedents that fundamentally govern the decisions and actions of a judge, it is only through ‘spontaneity’ that judgment can take place. This claim may appear strange to those well-versed in the common law tradition which proceeds on the basis of past legal decisions, or reason where no precedent exists. NST, on the other hand, is assumed to rely heavily on the unprecedented and unreasoned. Therefore, when the public watches a NST production, it places its faith in the belief that what is being observed is entirely new and is being produced ‘on the spur of the moment’.

A normative approach to the criminalisation of cartel activity

Although cartel behaviour is almost universally (and rightly) condemned, it is not clear why cartel participants deserve the full wrath of the criminal law and its associated punishment. To fill this void, I develop a normative (or principled) justification for the criminalisation of conduct characteristic of ‘hard core’ cartels. The paper opens with a brief consideration of the rhetoric commonly used to denounce cartel activity, eg that it ‘steals from’ or ‘robs’ consumers. To put the discussion in context, a brief definition of ‘hard core’ cartel behaviour is provided and the harms associated with this activity are identified. These are: welfare losses in the form of appropriation (from consumer to producer) of consumer surplus, the creation of deadweight loss to the economy, the creation of productive inefficiency (hindering innovation of both products and processes), and the creation of so-called X-inefficiency. As not all activities which cause harm ought to be criminalised, a theory as to why certain harms in a liberal society can be criminalised is developed. It is based on JS Mill's harm to others principle (as refined by Feinberg) and on a choice of social institutions using Rawls's ‘veil of ignorance.’ The theory is centred on the value of individual choice in securing one's own well-being, with the market as an indispensable instrument for this. But as applied to the harm associated with cartel conduct, this theory shows that none of the earlier mentioned problems associated with this activity provide sufficient justification for criminalisation. However, as the harm from hard core cartel activity strikes at an important institution which permits an individual's ability to secure their own well-being in a liberal society, criminalisation of hard core cartel behaviour can have its normative justification on this basis.

An Analysis of Soft Law Applicable to Humanitarian Assistance: Relative Normativity in Action?

There is limited binding international law specifically covering the provision of humanitarian assistance in response to natural and human-made disasters. Yet a variety of authoritative soft law texts have been developed in the past 20 years, including the UN Guiding Principles on Internal Displacement, the Red Cross Red Crescent Code of Conduct and the Sphere Project’s Humanitarian Charter and Minimum Standards in Disaster Response. While such ‘non-binding normative standards’ do not carry the weight of international law, they play an essential role in the provision of humanitarian assistance albeit subject to their limited enforceability vis-à-vis intended beneficiaries and to their voluntary application by humanitarian actors. Notwithstanding a lack of legal compulsion, certain non-binding normative standards may directly influence the actions of States and non-State actors, and so obtain a strongly persuasive character. Analysis of texts that influence the practice of humanitarian assistance advances our understanding of humanitarian principles and performance standards for disaster response. As the International Law Commission debates draft articles on the Protection of Persons in the Event of Disasters, such non-binding normative standards are crucial to the development of an internationally accepted legal framework to protect victims of disasters.

EU Non-Discrimination Law and Intersectionality:investigating the triangle of racial, gender and disability discrimination

This book contributes to a critical reflection of current legislative and jurisprudential developments in Non-Discrimination Law, focusing on the European Union. The book is focused on intersectionality between gender, race and disability and the question of whether, and to what extent, this intersection can be adequately addressed in (EU) law. The discussion rests on two basic assumptions. First, the multiplication of 'discrimination grounds' in EU law and other legal regimes should not result in a dilution of the demands of equality law. Accordingly, the book focuses on the three key grounds - race, gender and disability. These constitute nodes around which other discrimination grounds can be grouped. Second, any multi-ground non-discrimination law framework needs to engage with the question of discrimination on several grounds. This book provides a critical evaluation of some of the problems presented by such intersectionality and an opportunity to explore the issues in depth. This collection offers some new proposals relating to the regrouping of identity categories and to the general approach to socio-legal research in the field. It also contains a comparative section, which expands on practical experiences with intersectionality and law, and a section dedicated to juridical responses to intersectionality.

The book will be a valuable resource for researchers, academics and those working in the area of EU non-discrimination law and policy.

Organising EU non-discrimination law around the nodes of ‘race’ gender and disability?

EU non-discrimination law has seen a proliferation of discrimination grounds from 2000. Dis-crimination on grounds of gender (in the field of equal pay) and on grounds of nationality (generally within the scope of application of EU law) were the only prohibited forms of discrimination in EU law, until the Treaty of Amsterdam empowered the Community to legislate in order to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Article 13 EC). Proliferation of non-discrimination grounds is also characteristic for international and national non-discrimination law. As such, proliferation of grounds results in an increase in potential cases of “multiple discrimination” and the danger of diluting the demands of equality law by ever more multiplication of grounds. The hierarchy of equality, which has been so widely criticised in EU law, is a signifier of the latter danger.
This chapter proposes to structure the confusing field of non-discrimination grounds by organising them around nodes of discrimination fields. It will first reflect different ways of establishing hierarchies between grounds. This will be followed by a recount of different (narrow and wide) reading of grounds. A comprehensive reading of the grounds gender, ‘race’ and disability as establishing overlapping fields of discrimination grounds will be mapped out, with some examples for practical uses.

Broadening the Scope and the Norms of EU Gender Equality Law: Towards a Multidimensional Conception of Equality Law

The aim of this article is to discuss some consequences of placing the combating of discrimination and the promotion of equality among the principles of Community law. The focus is firstly on the ensuing widening of the scope of EU (gender) equality law and secondly on the increase of grounds of forbidden discrimination. In concluding, steps towards a multidimensional conception of equality law are proposed.

Labour Law as Human Rights Law: A Critique of the Use of ‘Dignity’ by Freedland and Kountouris

In their recent book, The Legal Construction of Personal Work Relations, Mark Freedland and Nicola Kountouris present an ambitious study of the personal scope of (what they would not want to call) ‘employment’ law. The book does this within a broader argument that calls for the reconceptualization of labour law as a whole, and it is this broader argument on which I shall focus in this chapter. Their aim, in urging us to see labour law through the lens of ‘dignity’ is to bring labour law and human rights law into closer alignment than has sometimes been the case in the past. Increasingly, dignity is seen as providing a, sometimes the, foundation of human rights law, particularly in Europe. I shall suggest that whilst the aim of constructing a new set of foundations for labour law is a worthy and increasingly urgent task, the concepts on which Freedland and Kountouris seek to build their project pose significant difficulties. In particular, their espousal of ‘dignity’ presents problems that must be addressed if their reconceptualization is not to prove a blind alley.

European Union non-discrimination law and intersectionality:Investigating the triangle of racial, gender and disability discrimination

This book contributes to a critical reflection of current legislative and jurisprudential developments in Non-Discrimination Law, focusing on the European Union. The book is focused on intersectionality between gender, race and disability and the question of whether, and to what extent, this intersection can be adequately addressed in (EU) law. The discussion rests on two basic assumptions. First, the multiplication of 'discrimination grounds' in EU law and other legal regimes should not result in a dilution of the demands of equality law. Accordingly, the book focuses on the three key grounds - race, gender and disability. These constitute nodes around which other discrimination grounds can be grouped. Second, any multi-ground non-discrimination law framework needs to engage with the question of discrimination on several grounds. This book provides a critical evaluation of some of the problems presented by such intersectionality and an opportunity to explore the issues in depth. This collection offers some new proposals relating to the regrouping of identity categories and to the general approach to socio-legal research in the field. It also contains a comparative section, which expands on practical experiences with intersectionality and law, and a section dedicated to juridical responses to intersectionality.

The New Architecture of EU Equality Law after CHEZ: Did the Court of Justice reconceptualise direct and indirect discrimination?

The Court of Justice’s decision of the 16 July 2015, in Case C-83/14 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, is a critically important case for two main reasons. First, it represents a further step along the path of addressing ethnic discrimination against Roma communities in Europe, particularly in Bulgaria, where the case arises. Second, it provides interpretations (sometimes controversial interpretations) of core concepts in the EU antidiscrimination Directives that will be drawn on in the application of equality law well beyond Bulgaria, and well beyond the pressing problem of ethnic discrimination against Roma. This article focuses particularly on the second issue, the potentially broader implications of the case. In particular, it will ask whether the Court of Justice’s approach in CHEZ is subtly redrawing the boundaries of EU equality law in general, in particular by expanding the concept of direct discrimination, or whether the result and the approach adopted is sui generis, one depending on the particular context of the case and the fact that it involves allegations of discrimination against Roma, and therefore of limited general application.

Irish social thought and the relief of poverty, 1847-1880

This paper investigates the way in which the ‘problem of poverty’ in Ireland was encountered, constructed and debated by members of the Irish intellectual and political elite in the decades between the Great Famine and the outbreak of the land war in the late 1870s. This period witnessed acute social upheavals in Ireland, from the catastrophic nadir of the Famine, through the much-vaunted economic recovery of the 1850s–1860s, to the near-famine panic of the late 1870s (itself prefigured by a lesser agricultural crisis in 1859–63). The paper focuses on how a particular elite group – the ‘Dublin School’ of political economists and their circle, and most prominently William Neilson Hancock and John Kells Ingram – sought to define and investigate the changing ‘problem’, shape public attitudes towards the legitimacy of welfare interventions and lobby state officials in the making of poor law policy in this period. It suggests that the crisis of 1859–63 played a disproportionate role in the reevaluation of Irish poor relief and in promoting a campaign for an ‘anglicisation’ of poor law measures and practice in Ireland.

A scaling method for modelling the crashworthiness of novel roadside barrier designs

In this paper, a novel method for modelling a scaled vehicle–barrier crash test similar to the 20◦ angled barrier test specified in EN 1317 is reported. The intended application is for proof-of-concept evaluation of novel roadside barrier designs, and as a cost-effective precursor to full-scale testing or detailed computational modelling. The method is based on the combination of the conservation of energy law and the equation of motion of a spring mass system representing the impact, and shows, for the first time, the feasibility of applying classical scaling theories to evaluation of roadside barrier design. The scaling method is used to set the initial velocity of the vehicle in the scaled test and to provide scaling factors to convert the measured vehicle accelerations in the scaled test to predicted full-scale accelerations. These values can then be used to calculate the Acceleration Severity Index score of the barrier for a full-scale test. The theoretical validity of the method is demonstrated by comparison to numerical simulations of scaled and full-scale angled barrier impacts using multibody analysis implemented in the crash simulation software MADYMO. Results show a maximum error of 0.3% ascribable to the scaling method.

Clarifying the acquis humanitaire: a transnational legal perspective on the internalization of humanitarian norms

Although the international obligations and institutional frameworks for disaster response are not yet settled, as evidenced by the International Law Commission’s work on the protection of persons in the event of disasters and the on-going promotion of disaster laws by the Red Cross Movement; the diverse source and nature of such initiatives suggests that the international community is engaged in a process of norm creation, elaboration and interpretation reflecting a desire for legal clarity in humanitarian operations. Situated within the framework of transnational law, this paper argues that an acquis humanitaire, based on the principle of humanity, encapsulates the evolving body of law and practice specifically relating to the protection of persons in times of humanitarian crisis in both armed conflicts and natural or human-made disasters. Reflecting the non-traditional, non-statist, dynamic and normative basis of transnational legal process, as elaborated by Harold Koh, the constant flow of ideas and principles between the national, regional and international spheres provides an analytical framework for the on-going transnational dialogues on the social, political and legal internalization of humanitarian norms. Drawing on the internalization of humanitarian norms within the United Kingdom, this paper concludes that as the international community examines the codification of a universal legal framework for the protection of persons in the event of disasters it is necessary to understand the transnational process of interpretation and internalization of humanitarian norms, and how this may vary across different regions and countries.