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Chapter

Cover International Law

5. Soft Law in International Law-Making  

Alan Boyle

From a law-making perspective the term ’soft lawʼ is in most cases simply a convenient description for a variety of non-legally binding instruments used in contemporary international relations by States and international organizations. Soft law in this sense can be contrasted with hard law, which is always binding. Non-binding soft law instruments are not law per se, but may be evidence of existing law, or formative of the opinio juris or State practice that generates new customary law. They may additionally acquire binding legal character as elements of a treaty-based regulatory regime, or constitute a subsequent agreement between the parties regarding interpretation of a treaty or application of its provisions. Other non-binding soft-law instruments are significant mainly because they are the first step in a process eventually leading to conclusion of a multilateral treaty, or because they provide the detailed rules and technical standards required for the implementation of a treaty. An alternative view of soft law focuses on the contrast between ’rulesʼ, involving clear and reasonably specific commitments which are in this sense hard law, and ’normsʼ or ’principlesʼ, which, being more open-textured or general in their content and wording, can thus be seen as soft even when contained in a binding treaty. It is a fallacy to dismiss soft law because it does not readily fit a theory of what is ‘law’: properly understood, it can and does contribute to the corpus of international law-making.

Chapter

Cover European Union Law

7. EU law: is it international law?  

Bruno de Witte

This chapter examines the legal nature of EU law—that is, its place within the realm of international law. Today still, the TEU and the TFEU form the basic documents of the EU legal order. It logically follows from this that EU law is still part—albeit a very distinctive and advanced one—of international law. There are, however, also good reasons for thinking that the EU is now so different from any other international organization in the world that it has become ‘something else’, more like the central unit of a European federal State. The chapter first presents the ‘straightforward’ view that EU law is a part (or ‘sub-system’) of international law. It then considers the ‘alternative’ view that EU law, although originating in international law, is now so distinctive that it should no longer be considered to be part of international law. It concludes with a discussion of the EU as both an object and subject of international law.

Chapter

Cover Smith, Hogan, & Ormerod's Text, Cases, & Materials on Criminal Law

16. Related offences in the Theft Acts 1968 and 1978  

This chapter examines a number of related offences that are found in the Theft Acts 1968 and 1978. The chapter considers the rationale for the existence of these offences and examines why it was considered necessary to have offences that supplement the general offence of theft.

Chapter

Cover An Introduction to the Law of Trusts

9. Dispositive Discretions  

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 considers the questions that arise when trustees are given a dispositive discretion, i.e. the power to decide whom to pay, how much, and when. It first identifies five of the most important types of dispositive discretion: discretionary trusts; powers of appointment; powers of accumulation; powers of maintenance; and powers of advancement. It then turns to the duties and certainty requirements in trusts involving dispositive discretions. There are two main ones. The first is remaining within the terms of the disposition as laid down by the settlor (above all, paying only the right people). The other is handling the exercise of the discretion in a proper way. The chapter also discusses the proper bases for a decision and the depth of information with which trustees are required to equip themselves before making their decision.

Chapter

Cover Environmental Law

9. Public participation  

Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes

This chapter deals with public participation in environmental law and policy. Over recent years, there have been significant moves towards increasing both the quantity and quality of public participation in many different areas of environmental decision-making. The exact nature of public participation can take many forms, but the chapter concentrates on access to information on the environment and public participation in environmental decision-making. It also looks at some of the reasons for giving greater access to environmental information; the types of environmental information that are available; the use of environmental information as a regulatory instrument; international and European initiatives; and past, present, and future approaches to access to environmental information in the UK.

Chapter

Cover Administrative Law

6. Reasons: process and substance  

This chapter illustrates the principle of relativity by explaining why public authorities may or may not be required to give reasons for their decisions, depending on the type of decision and its context. The reasons why public authorities should sometimes explain their reasons for a decision reflect the process values explained in Chapter 4: requiring reasons may improve decisions, it may be unfair (to a person affected by the decision) for the decision to be unexplained, and reasons may support judicial review, and may improve transparency and accountability in government in other ways. The discussions cover the deprivation principle, the duty of respect, trigger factors for reasons, the Padfield practicality principle, the content of reasons, how to remedy inadequate reasons, process danger, and the difference between process and substance, and why the difference matters.

Chapter

Cover European Union Law

5. Legislating in the European Union  

Kieran Bradley

This chapter discusses the procedures for the adoption of legislative and other normative measures in the EU. It touches on a wide variety of subjects: forms of legal act; law-making competences and choice of procedure; the delegation of normative powers; and the application of the constitutional principles of conferral, subsidiarity, and proportionality. A number of more abstract matters are also covered, such as the hierarchy of norms and the ‘democratic deficit’. The chapter thus describes the legal structures and the rules governing the allocation of powers between the Union and the Member States, and the distribution of powers between the different organs of Union government.

Chapter

Cover European Union Law

5. Legislating in the European Union  

Kieran Bradley

This chapter discusses the procedures for the adoption of legislative and other normative measures in the EU. It touches on a wide variety of subjects: forms of legal act; law-making competences and choice of procedure; the delegation of normative powers; and the application of the constitutional principles of conferral, subsidiarity, and proportionality. A number of more abstract matters are also covered, such as the hierarchy of norms and the ‘democratic deficit’.

Chapter

Cover Environmental Law

13. Environmental assessment  

Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes

This chapter looks at the international, European, and national laws relating to environmental assessment, and the explosion of litigation that has occurred over the years. Environmental assessment has emerged as one of the key environmental law mechanisms. Its essence is that information about likely environmental impacts of things such as development projects, and now also plans and programmes, is properly considered before potentially harmful decisions are made. It can be useful to think about environmental assessment in the context of some wider issues of environmental decision-making. Another basic issue addressed here is one that frequently crops up in environmental assessment law; namely, the tension between adhering strictly to procedural rules and adopting a pragmatic approach to decisions that are considered sensible.

Chapter

Cover Public Law Directions

8. Rule of law  

This chapter assesses the rule of law. The rule of law is a constitutional value or principle which measures good governance, fair law-making, and applying law in a just way. It acts as a protecting mechanism by preventing state officials from acting unfairly, unlawfully, arbitrarily, or oppressively. These are also key terms in judicial review. The rule of law is also regarded as an external measure for what a state does; if the rule of law breaks down in a state, it will fail to function in an internationally acceptable way. Ultimately, the core meaning of the rule of law is that the law binds everyone. This includes those in government, who must obey the law. Moreover, any action taken by the government must be authorised by law, that is, government needs lawful authority to act.

Book

Cover Cassese's International Law

Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalá

This book provides an authoritative account of international law. It preserves and extends Antonio Cassese’s exceptional combination of a historically informed, conceptually strong, and practice-infused analysis of international law, comparing the treatment of most issues in classical international law with the main subsequent developments of this constantly evolving field. Part I of the book covers the origins and foundations of the international community. Part II is about the subjects of the international community, including States, international organizations, individuals, and other international legal subjects. Part III examines the main processes of international law-making and the normative interactions between different norms, of both domestic and international law. Part IV studies the mechanisms of implementation of international law, including State responsibility, diplomatic and judicial means of dispute settlement, and enforcement mechanisms. Part V covers a number of areas which have undergone particular development and reached a high level of specialization, namely, UN law, the law governing the use of force, international humanitarian law, international human rights law, international criminal law, international environmental law, and international economic law (trade and investment).

Book

Cover EU Law

Paul Craig and Gráinne de Búrca

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 seventh edition of EU Law: Text, Cases, and Materials provides clear analysis of all aspects of European law in the post Lisbon era. This edition looks in detail at the way in which the provisions of the Lisbon Treaty have worked since the Treaty became operational, especially innovations such as the hierarchy of norms, the different types of competence, and the legally binding Charter of Rights. The coming into effect of the new Treaty was overshadowed by the financial crisis, which has occupied a considerable part of the EU’s time since 2009. The EU has also had to cope with the refugee crisis, the pandemic crisis, the rule of law crisis and the Brexit crisis. There has nonetheless been considerable legislative activity in other areas, and the EU courts have given important decisions across the spectrum of EU law. The seventh edition has incorporated the changes in all these areas. The book covers all topics relating to the institutional and constitutional dimensions of the EU. In relation to EU substantive law there is detailed treatment of the four freedoms, the single market, competition, equal treatment, citizenship, state aid, and the area of freedom, security and justice. Brexit is the rationale for the decision to have a separate UK version of the book. There is no difference in the chapters between the two versions, insofar as the explication of the EU law is concerned. The difference resides in the fact that in the UK version there is an extra short section at the end of each chapter explaining how, for example, direct effect, supremacy or free movement are relevant in post-Brexit UK. Law students in the UK need to know this, law students in the EU and elsewhere do not.

Book

Cover EU Law

Paul Craig and Gráinne de Búrca

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 seventh edition of EU Law: Text, Cases, and Materials provides clear analysis of all aspects of European law in the post Lisbon era. This edition looks in detail at the way in which the provisions of the Lisbon Treaty have worked since the Treaty became operational, especially innovations such as the hierarchy of norms, the different types of competence, and the legally binding Charter of Rights. The coming into effect of the new Treaty was overshadowed by the financial crisis, which has occupied a considerable part of the EU’s time since 2009. The EU has also had to cope with the refugee crisis, the pandemic crisis, the rule of law crisis and the Brexit crisis. There has nonetheless been considerable legislative activity in other areas, and the EU courts have given important decisions across the spectrum of EU law. The seventh edition has incorporated the changes in all these areas. The book covers all topics relating to the institutional and constitutional dimensions of the EU. In relation to EU substantive law there is detailed treatment of the four freedoms, the single market, competition, equal treatment, citizenship, state aid, and the area of freedom, security and justice. Brexit is the rationale for the decision to have a separate UK version of the book. There is no difference in the chapters between the two versions, insofar as the explication of the EU law is concerned. The difference resides in the fact that in the UK version there is an extra short section at the end of each chapter explaining how, for example, direct effect, supremacy or free movement are relevant in post-Brexit UK. Law students in the UK need to know this, law students in the EU and elsewhere do not.

Chapter

Cover EU Law in the UK

7. Connecting EU law to domestic law: the preliminary reference procedure  

This chapter assesses how conflicts between national law and EU law actually reach the Court of Justice of the European Union (CJEU). The Treaties have created a distinct role for the CJEU: it can decide cases where the validity of an EU law is not necessarily at issue, but rather its meaning is not entirely clear to a body that is meant to apply it. That process is set out in Article 267 TFEU (Treaty on the Functioning of the European Union), and involves two separate but related steps. First, a domestic court has to refer (or ask) a question of the CJEU about the meaning of EU law at stake in a dispute it is hearing. Second, the CJEU offers an interpretation of EU law to the domestic court, enabling the domestic court to decide the dispute before it. The chapter then looks at the attitude of the UK courts towards the preliminary reference process, and considers judicial law-making. It also discusses the impact of Brexit on the preliminary reference process.

Chapter

Cover Public Law

22. Institutions of the European Union  

This chapter introduces the project of European integration and discusses the legal basis of the EU, which consists of treaties that authorize law-making. It will identify the principal executive institutions of the European Union and their functions. They will be classified under the headings of supranationalism and intergovernmentalism. The chapter will also examine the process of enacting legislation and the role of the European Parliament. Drawing on an understanding of similar institutions and processes in the UK, the discussion is particularly concerned with an assessment of the institutions in terms of public law values, such as legitimacy, accountability, and transparency.

Chapter

Cover Legal Skills

12. Legal reasoning and ethics  

This chapter introduces legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.

Chapter

Cover Administrative Law

5. Impartiality and independence  

This chapter examines the role of impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful) and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process and as a flaw in the substance of a decision maker’s reasoning.

Chapter

Cover Legal Skills

12. Legal reasoning and ethics  

This chapter provides an introduction to legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.

Chapter

Cover International Law

13. The Relationship between International and National Law  

Eileen Denza

This chapter examines the relationship between international and national law. It discusses the approach of international courts and tribunals; the approach of national parliaments and national courts; and some problems that arise in national courts. While prospects for a harmonized approach to the relationship between international and national law are dim, conflict can be avoided through the close involvement of international lawyers in the treaty-making and ratification process; attention at the time of ratification to implementation questions; the teaching of international law as part of the professional training of judges; and expert assistance to national courts when international law questions arise.

Book

Cover Contemporary Intellectual Property

Abbe Brown, Smita Kheria, Jane Cornwell, and Marta Iljadica

Contemporary Intellectual Property: Law and Policy, fifth edition, offers a unique perspective on intellectual property (IP) law, unrivalled amongst IP textbooks. An accessible introduction to IP law, it provides not only a comprehensive account of the substantive law, but also discusses the overarching policies directing the legal decision-making, as well as areas for further debate. Intellectual property law is an increasingly global subject, and the book introduces the relevant European and international dimensions to present a realistic view of the law as it actually operates. It explores IP law as an organic discipline, evaluating the success with which it has responded to new challenges. Images and diagrams, with analysis of key cases and key extracts, are all incorporated alongside the author commentary to clearly illustrate the core principles in IP law. Exercise, questions, and discussion points are provided to help the reader to engage with the material, and additional material is provided in the Online Resources. Beyond providing an up-to-date account of IP law, the text examines the complex policies that inform modern IP law at the domestic (including Scottish), European, and international levels, giving the reader a true insight into the discipline and the shape of things to come. The focus is on contemporary challenges to IP law and policy, and the reader is encouraged to engage critically with the text and the subject matter. The book has been carefully developed to ensure that the complexities of the subject are addressed in a clear and approachable way.