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Oxford Journal of Legal Studies, Volume 20, Issue 4, pp. 499-532: Abstract.


Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights
CHRISTOPHER McCRUDDEN

Professor of Human Rights Law, Oxford University


It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of comparative judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. This article raises for debate, therefore, the meaning and significance of national judges» citation of judgments from other jurisdictions as part of their reasoning in cases with a significant human (or constitutional) rights aspect. Several questions are identified and explored in an attempt to consider various aspects of the general phenomenon. These include empirical questions (how far does it happen, and where?), jurisprudential questions (can we identify criteria that help explain why it does or does not happen?), and normative questions (is it legitimate?). A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in answering these questions. The article concludes that significant gaps exist in our understanding of the phenomenon and raises for discussion the methodologies that may be appropriate for addressing the phenomenon in the future.

Oxford Journal of Legal Studies, Volume 20, Issue 4, pp. 579-596: Abstract.


Law and Content-Independent Reasons
P MARKWICK


Department of Moral Philosophy, University of St Andrews


Say a reason to ø is legal just in case at least a part of the reason is the fact that ø-ing is legally required. This paper is about the widely accepted claim that legal reasons have a certain distinctive formal property-content-independence. I argue that, on two important interpretations, this claim is false. It is false either because legal reasons contingently lack the relevant property or because no reason lacks it. I also argue that, given these two interpretations, content-independence could not be a property of singular legal reasons.



Oxford Journal of Legal Studies, Volume 20, Issue 3, pp. 367-390: Abstract.


Designing Default Rules in Contract Law: Consent, Conventionalism, and Efficiency
C A RILEY


University of 'Newcastle upon Tyne


This article considers the principles that ought to be used to determine the scope and content of contract law's «default rules», the rules that will, in the absence of express exclusion, govern parties» contractual relationships. It examines three, ostensibly competing, approaches discussed in the literature: that defaults be grounded in the subjective consent of contracting parties, in the customs and norms immanent within the parties» community, and in the value of economic efficiency. It argues that each has something of value to tell us about default rules, but that none can, in isolation, offer a wholly compelling prescription for their design. Rather, the best such prescription must be an eclectic one, drawing something from all three accounts, but varying to reflect the institution promulgating the default. Where defaults are promulgated legislatively, the case for choosing rules that will promote efficiency is a strong one, and the main criticism of efficiency analysis is shown, in this particular context, to be misguided. Where, however, defaults are promulgated adjudicatively-in the context of settling individual cases-the normative appeal of efficiency is much reduced. The article, then, criticizes efficient adjudicative defaults against their defenders, whilst defending efficient legislative defaults against their critics.