This chapter begins with a discussion of the meaning of the rule of law, one of the fundamental doctrines or principles of the UK constitution. The concept is by no means straightforward, and opinions vary as to the principles or values which underpin the doctrine. The chapter distinguishes between formal and substantive meanings of the rule of law. It discusses principles encompassed by the rule of law. These include that laws should be prospective, laws should be open and clear, and that there should be natural justice, access to the courts, and equality before the law. The chapter concludes with an assessment of the contemporary significance of the rule of law.
Chapter
3. Rule of law
Chapter
2. What is International Law For?
Martti Koskenniemi
This chapter provides four responses to the question: what is international law for? First, international law seeks to advance the values, interests, and preferences that those in dominant positions seek to realize in the world. Second, it gives voice to those who have been excluded from powerful positions and are regularly treated as the objects of other peoples’ policies; it provides a platform on which claims about violence, injustice, and social deprivation may be made even against the dominant elements. Third, the objective of international law is always also international law itself. Fourth, international law exists as a promise of justice.
Chapter
17. Feminist criminology: Inequalities, powerlessness, and justice
Michele Burman and Loraine Gelsthorpe
This chapter addresses complexities and continuing concerns in thinking about feminist perspectives and contributions to criminology. It charts feminist contributions to criminology over time, dwelling on paradigmatic shifts in substantive, epistemological, and methodological terms, and the ways in which feminism has transformed criminological research and practice. The chapter explores contemporary feminist research agendas focused on issues of powerlessness, justice, and inequality, addressing research on violence against women, digital technology, human trafficking, migration, and criminal justice. The notion of feminist criminology as a transitional phase towards a more humanistic stance in relation to crime and justice in a globalized context is also explored.
Chapter
2. What Is International Law For?
Martti Koskenniemi
This chapter provides four responses to the question: what is international law for? First, international law seeks to advance the values, interests, and preferences that those in dominant positions seek to realize in the world. Second, it gives voice to those who have been excluded from powerful positions and are regularly treated as the objects of other peoples’ policies; it provides a platform on which claims about violence, injustice, and social deprivation may be made even against the dominant elements. Third, the objective of international law is always also international law itself. Fourth, international law exists as a promise of justice.
Chapter
3. What is ‘justice’?
This chapter examines justice in an absolute sense, and also justice in the context of the criminal justice system. The criminal justice system is the set of rules and practices under which government institutions and agencies act in order to prevent or control crime, to deal with those who break the law, and to support victims. ‘Justice’ in the context of ‘criminal justice’ refers to the extent to which the system aims to prevent or reduce offending; ensures that those who are accused, convicted, and sentenced are treated fairly (justly); and works to support victims and communities. Justice should be guaranteed by the law, especially the criminal law, in any state and should be clearly present in all decisions about crime and social issues made by those working for the state. As such, justice is core to almost every aspect of the criminal justice system. The chapter also considers broad definitions of justice; frameworks called criminal justice models on which understandings of justice in the criminal justice system can be anchored; philosophical ideas about the concept of justice; and the main systems used to bring about criminal justice.
Book
Alison Liebling, Shadd Maruna, and Lesley McAra
As the most comprehensive and authoritative single volume on the subject, the seventh edition of the acclaimed Oxford Handbook of Criminology is a completely revised collection of 44 essays by leading authors in the field. It is organized into four sections: constructions of crime and justice; borders, boundaries, and beliefs; dynamics of crime and violence; and responses to crime. Criminology is expanding its borders and seeking new answers to questions of crime and punishment, citizenship, and democratic living, including issues of state crime and globalization. Some of the newest areas of study in criminology include migration, asylum, and the integration of global populations following war or famine; privacy and the governance of ‘big data;’ and the movement to abolish the police and prisons. All of these topics, as well as classic questions of the causes and consequences of crime, receive attention here. The editors have also made room for greater inclusiveness and diversity, with a wider range of newer scholars, and taking account of new developments in the fields of zemiology and green criminology, as well as previously neglected themes such as victimology, sexual violence, and atrocity crimes. The chapters contain extensive references to aid further research, and the book is accompanied by an online resource centre featuring: selected chapters from previous editions; guidance on answering essay questions; practice essay questions; web links; and figures and tables from the text.
Chapter
12. John Rawls’ Political Liberalism
J. E. Penner and E. Melissaris
This chapter explores John Rawls’s political liberalism, a contemporary reworking of the idea of the social contract and one which straddles the boundary between Hobbesian rationality and Kantian reasonableness. The discussions cover the ‘fact of reasonable pluralism’; the ‘original position’ and Rawls’s political constructivism; the principles of justice; the stability of the liberal State; the stages of application of the political conception of justice; and justice and liberal legitimacy.
Chapter
VIII. Justice and Morality
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines the claim that, between law and morality there is a connection which is in some sense ‘necessary’, and that it is this which deserves to be taken as central, in any attempt to analyse or elucidate the notion of law. The chapter attempts to separate and identify some long-entangled issues. The first of these issues concerns the distinction within the general sphere of morality of the specific idea of justice and the special features which account for its peculiarly intimate connection with law. The second concerns the characteristics which distinguish moral rules and principles not only from legal rules but from all other forms of social rule or standards of conduct.
Chapter
2. Negligence
Duty of care
This chapter discusses law on duty of care. Duty is the first element in the ‘negligence equation’ and the primary means of limiting liability in negligence. It begins with the fundamental ‘neighbour principle’ of Donoghue v Stevenson and charts its evolution throughout the 20th century. The current ingredients of the test for determining duty of care in novel situations are: foreseeability; proximity; and fairness, justice, and reasonableness. This is the ‘three-stage’ test set out in Caparo v Dickman (1990), used in novel situations. Policy is a major influence on the development of duty in negligence.
Chapter
9. Constitutional rights and principles
This chapter addresses the doctrine of common law constitutional rights. This is a controversial area where judges uphold the rule of law to restrict not only government power, but occasionally the meaning of statutes in order to protect the fundamental rights and values that permeate the UK constitution. This can create tensions between parliamentary sovereignty, separation of powers, and rule of law. There is no definitive list of common law constitutional rights and values and they are unwritten, but they are essentially the rights and values protected by the rule of law that have evolved as rules of ‘fair play’ and justice. They include justice; legality; fundamental rights such as liberty, freedom of expression, and equality; accountable government; and democracy.
Chapter
15. Review of Legality: Access
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The EU develops policy through regulations, directives, and decisions. Any developed legal system must have a mechanism for testing the legality of such measures. This chapter focuses on access to justice and review of legality by the EU Courts. There are a number of ways in which EU norms can be challenged, but the principal Treaty provision is Article 263 of the Treaty on the Functioning of the European Union (ex Article 230 EC). Five conditions must be satisfied before an act can successfully be challenged: (i) the relevant body must be amenable to judicial review; (ii) the act has to be of a kind that is open to challenge; (iii) the institution or person making the challenge must have standing to do so; (iv) there must be illegality of a type mentioned in Article 263(2); and (v) the challenge must be brought within the time limit indicated in Article 263(6). The UK version contains a further section analysing the relevance of legal challenge to EU norms in relation to the UK post-Brexit.
Chapter
15. Review of Legality: Access
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The EU develops policy through regulations, directives, and decisions. Any developed legal system must have a mechanism for testing the legality of such measures. This chapter focuses on access to justice and review of legality by the EU Courts. There are a number of ways in which EU norms can be challenged, but the principal Treaty provision is Article 263 of the Treaty on the Functioning of the European Union (ex Article 230 EC). Five conditions must be satisfied before an act can successfully be challenged: (i) the relevant body must be amenable to judicial review; (ii) the act has to be of a kind that is open to challenge; (iii) the institution or person making the challenge must have standing to do so; (iv) there must be illegality of a type mentioned in Article 263(2); and (v) the challenge must be brought within the time limit indicated in Article 263(6). The UK version contains a further section analysing the relevance of legal challenge to EU norms in relation to the UK post-Brexit.
Chapter
2. Negligence
Duty of care
This chapter discusses law on duty of care. Duty is the first element in the ‘negligence equation’ and the primary means of limiting liability in negligence. It begins with the fundamental ‘neighbour principle’ of Donoghue v Stevenson and charts its evolution throughout the 20th century. The current ingredients of the test for determining duty of care in novel situations are: foreseeability; proximity; and fairness, justice, and reasonableness. This is the ‘three-stage’ test set out in Caparo v Dickman (1990), used in novel situations. Policy is a major influence on the development of duty in negligence.
Chapter
15. Review of Legality: Access
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The EU develops policy through regulations, directives, and decisions. Any developed legal system must have a mechanism for testing the legality of such measures. This chapter focuses on access to justice and review of legality by the EU Courts. There are a number of ways in which EU norms can be challenged, but the principal Treaty provision is Article 263 of the Treaty on the Functioning of the European Union (ex Article 230 EC). Five conditions must be satisfied before an act can successfully be challenged: (i) the relevant body must be amenable to judicial review; (ii) the act has to be of a kind that is open to challenge; (iii) the institution or person making the challenge must have standing to do so; (iv) there must be illegality of a type mentioned in Article 263(2); and (v) the challenge must be brought within the time limit indicated in Article 263(6). The UK version contains a further section analysing the relevance of legal challenge to EU norms in relation to the UK post-Brexit.
Chapter
15. Review of Legality: Access
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The EU develops policy through regulations, directives, and decisions. Any developed legal system must have a mechanism for testing the legality of such measures. This chapter focuses on access to justice and review of legality by the EU Courts. There are a number of ways in which EU norms can be challenged, but the principal Treaty provision is Article 263 of the Treaty on the Functioning of the European Union (ex Article 230 EC). Five conditions must be satisfied before an act can successfully be challenged: (i) the relevant body must be amenable to judicial review; (ii) the act has to be of a kind that is open to challenge; (iii) the institution or person making the challenge must have standing to do so; (iv) there must be illegality of a type mentioned in Article 263(2); and (v) the challenge must be brought within the time limit indicated in Article 263(6). The UK version contains a further section analysing the relevance of legal challenge to EU norms in relation to the UK post-Brexit.
Chapter
2. The English Legal system, Constitution, and Human Rights
This chapter, in discussing the English legal system and its features, begins by outlining what the law is and some important constitutional principles. The discussion is primarily based on the institutions and personnel involved in the practice and administration of justice. It therefore involves a description and evaluation of the courts, tribunals, and the judiciary, including their powers and the rationale for such authority, as well as the mechanisms of control and accountability. The aim of this chapter is to demonstrate how the mechanisms of the justice system work. The English legal system exists to determine the institutions and bodies that create and administer a just system of law. It should be noted here that the UK does, in fact, possess a written constitution, it is merely uncodified.
Chapter
12. Hearsay in criminal cases
This chapter discusses the meaning of hearsay in criminal proceedings and the categories of hearsay admissible by statute in such proceedings. It considers the relationship between the hearsay provisions of the Criminal Justice Act 2003 (the 2003 Act) and Art 6 of the European Convention on Human Rights as it relates to hearsay; the definition of hearsay, and its admissibility under the 2003 Act, including admissibility under an inclusionary discretion (s 114(1)(d)); and safeguards including provisions relating to the capability and credibility of absent witnesses, the power to stop a case and the discretion to exclude. Also considered in this chapter are: expert reports; written statements under s 9 of the Criminal Justice Act 1967; and depositions of children and young persons under s 43 of the Children and Young Persons Act 1933.
Chapter
2. Critical Frameworks in Bioethics
A. M. Farrell and E. S. Dove
This chapter digs deeper into the theories and critical frameworks that are widely used to characterise the concerns, interests, and principles at stake in ethical challenges arising in medicine and health-related contexts and that we can use to justify our responses to these challenges. In doing bioethics we are required to challenge easy assumptions and to interrogate the relevance and persuasiveness of reasons that might be given for ethical positions. The range of responses to questions surveyed in this chapter—such as what matters? Who matters? What defines right and wrong? And what does justice demand of us?—provide a range of frameworks that can be used in this critical endeavour.
Chapter
12. Hearsay in criminal cases
This chapter discusses the meaning of hearsay in criminal proceedings and the categories of hearsay admissible by statute in such proceedings. It considers the relationship between the hearsay provisions of the Criminal Justice Act 2003 (the 2003 Act) and Art 6 of the European Convention on Human Rights as it relates to hearsay; the definition of hearsay, and its admissibility under the 2003 Act, including admissibility under an inclusionary discretion (s 114(1)(d)); and safeguards including provisions relating to the capability and credibility of absent witnesses, the power to stop a case, and the discretion to exclude. Also considered in this chapter are expert reports, written statements under s 9 of the Criminal Justice Act 1967, and depositions of children and young persons under s 43 of the Children and Young Persons Act 1933.
Chapter
9. Constitutional rights and principles
This chapter addresses the doctrine of common law constitutional rights. This is a controversial area where judges uphold the rule of law to restrict not only government power, but occasionally the meaning of statutes in order to protect the fundamental rights and values that permeate the UK constitution. This can create tensions between parliamentary sovereignty, separation of powers, and rule of law. There is no definitive list of common law constitutional rights and values and they are unwritten, but they are essentially the rights and values protected by the rule of law that have evolved as rules of ‘fair play’ and justice. They include justice; legality; fundamental rights such as liberty, freedom of expression, and equality; accountable government; and democracy.
