Legal Studies Research Paper Series Vol. 6, No. 9

The Faculty has published Volume 6 Number 9 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Lorand Bartels: The Relationship between the WTO Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures (38/2015)

Since the expiry of the ‘peace clause’ at the end of 2003, it has been unclear which obligations under the WTO SCM Agreement apply to subsidies granted to agricultural products. This is in particular important for export subsidies, which are prohibited under the SCM Agreement, but, to some degree, recognised in the Agriculture Agreement. The matter is regulated by Article 21.1 of the Agriculture Agreement, which has been interpreted by the WTO Appellate Body in different ways, including as an expression of the lex specialis principle. This paper analyses this provision, and considers how it affects different forms of agricultural subsidies. It concludes that it would take an extension of the Appellate Body’s current interpretive framework to save export subsidies from the disciplines of the SCM Agreement.

Brian Cheffins: Corporate Governance Since the Managerial Capitalism Era (39/2015)

Today’s public company executives face a considerably different set of opportunities and constraints than their counterparts from the managerial capitalism era, which reached its apex in the 1950s and 1960s. The growing prominence of corporate governance played a significant role in this process. This paper explores these developments, taking into account in so doing prominent corporate scandals occurring in the first half of the 1970s and early 2000s, the 1980s “Deal Decade”, the “imperial” chief executive phenomenon and changes to the roles played by directors and shareholders of public companies.

Findlay Stark: Regina v. Howe (1987): Heroism, Terrorism and Competence (41/2015)

In Howe (1987) the House of Lords held that duress is no defence to murder. The Lords relied upon three main arguments:

1. The Heroism Argument: citizens can legitimately be expected to sacrifice their own lives heroically, rather than take an innocent third party’s on the orders of a duressor.

2. The Terrorism Argument: duress must be unavailable lest terrorists or organised criminals cajole innocent citizens into carrying out murders.

3. The Competence Argument: courts should defer to the legislature when developing the common law in an area where doctrine is relatively clear, and the issues raised are viewed properly as controversial.

Textbooks tend to focus on Lord Hailsham LC’s endorsement of the Heroism Argument, and its reliance on upholding the sanctity of life. The Lords are chastised for endorsing a ‘blueprint for saintliness’ (as JC Smith put it). This chapter – for a forthcoming collection on landmark cases in English criminal law – seeks to rehabilitate the decision in Howe by arguing that it should be seen as a landmark endorsement of the Competence Argument. Given the relatively stable nature of the law on duress and murder before Howe, the inherent epistemic and deliberative limitations placed on criminal courts (even at the highest appellate level), and the fraught issues of morality and politics involved in decisions about when killing is not criminal, the Lords’ decision is defensible.

Simon Deakin & John Hamilton: Russia's Legal Transitions: Marxist Theory, Neoclassical Economics and the Rule of Law (42/2015)

We review the role of economic theory in shaping the process of legal change in Russia during the two transitions it experienced during the course of the twentieth century: the transition to a socialist economy organised along the lines of state ownership of the means of production in the 1920s, and the transition to a market economy which occurred after the fall of the Soviet Union in the 1990s. Despite differences in methodology and in policy implications, Marxist theory, dominant in the 1920s, and neoclassical economics, dominant in the 1990s, offered a similarly reductive account of law as subservient to wider economic forces. In both cases, the subordinate place accorded to law undermined the transition process. Although path dependence and history are frequently invoked to explain the limited development of the rule of law in Russia during the 1990s, policy choices driven by a deterministic conception of law and economics also played a role.

Sarah Nouwen: International Criminal Law: Theory All Over the Place (44/2015)

Written for the forthcoming Oxford Handbook of the Theory of International Law, this chapter analyses the role of ‘theory’ in the field of international criminal law. It finds theory in international criminal law all over the place: theory is almost irrelevant whilst also highly influential; it is both explicated and covered up; it is developed but also immature. However, it is not just that the state of theory is all over the place; there is no shared understanding of what ‘theory’ in, or of, international criminal law refers to. Theorising the concept of theory itself, the chapter identifies at least four types of ‘theories’ in international criminal law: (1) ‘factual theories’ (theories of a case); (2) ‘operational theories’ (mental schemes that the field employs in its operations, for instance to organise modes of liability, systematise crimes, or classify sentences); (3) ‘foundational theories’ (systems of ideas about the origins, essence and rationales of the field); and (4) ‘external theories’ (theories that try to make sense of international criminal law as a phenomenon, and study the meaning and effects of the field as a whole beyond its stated objectives, usually from a perspective external to international criminal law).

Theorising international criminal law is not exclusive to scholars or practitioners: international criminal law is also ‘theorised’ by millions of people who, without considering themselves to be ‘theorists’ or ever using the word ‘theory’, try to make sense of international criminal law as they encounter it in their daily lives. As a result, in addition to the axis along which we find factual, operational, foundational and external theories, we can also identify a further axis, with ‘official’ and ‘popular’ theories at its ends.

It is usually when the different types of theories in international criminal law are considered in light of each other that theoretical weaknesses are revealed and, on that ground, the field is labelled as ‘under-theorised’. Perhaps the greatest disconnect is between the official and the popular theories. Tribunals increasingly pay attention to ensuring that the official theories (in particular, the foundational theories) inform the general public’s views, especially in countries where international criminal tribunals intervene. Far less attention, however, is being given to ensuring that popular theories are fed back into the official theories, which in fact have much to gain from connecting with the day-to-day experience of international criminal law. However, for that to happen, official theories of international criminal law must first recognise popular theories as valuable.

Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.