Legal Studies Research Paper Series Vol. 9, No. 5

The Faculty has published Volume 9 Number 5 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Eyal Benvenisti: Community Interests in International Adjudication (16/2018)

This chapter develops the following propositions: All courts seek to be consistent to ensure equal treatment and a reputation for impartiality. Therefore, they have to look beyond the specific case and the specific parties. Therefore they have to take broader interests into account and anticipate the ramifications of each and every judgment for future litigants. To ensure consistency and deflect accusations of double standards, courts also have to develop coherent “rules of recognition.” These factors lead all independent courts to act necessarily in an “other-regarding” manner when adjudicating, and turn every judgment into a piece in the puzzle of law. When we focus on the latter, several additional factors highlight their role as communal legislators. International courts have an inherent interest in coordinating with other courts. They also have an interest in positive reception by national courts. Therefore they look beyond their specific area (trade, human rights, etc.) and try to accommodate the concerns of other legal systems and diverse stakeholders. In doing so, these courts participate in a collective effort to incrementally weave a web of norms called international law. The systemic character of judge-made international law permits regional and international courts to curb executive power and resolve collective action problems for states. Hence international courts are inherently attuned to take community interests into account and promote community interests where states fail.

Eyal Benvenisti: Ensuring Access to Information: International Law's Contribution to Global Justice (17/2018)

This essay examines the role of international law is in promoting indirectly global (and domestic) distributive justice. This focus on institutions and processes at the global level is grounded on the assumption that questions of the just allocation and reallocation of resources are ultimately resolved through processes of public deliberation or open contestation (including through the involvement of courts). I argue that the key to approaching a more just allocation of resources is by addressing the democratic deficits that underlie the skewed distribution (or the lack of redistribution) of assets and opportunities. My claim is that international law can play a role in the political empowerment of weak constituencies (within and between states). In doing so, international law can indirectly shape the distribution and redistribution of resources, in a manner that is more dignified and preferable to handing them charitable contributions. Just like the empowerment of labor by the freedom of association, legal intervention that empowers disadvantaged communities will not only increase their bargaining power, but also enable them to function as agents rather than as charity recipients.

Matthew H. Kramer: Power-Conferring Laws and the Rule of Recognition (19/2018)

As every reader of THE CONCEPT OF LAW is aware, H.L.A. Hart severely criticized John Austin for failing to take account of the operativeness of power-conferring laws in legal systems. Given the trenchancy of Hart’s animadversions on Austin’s disregard of power-conferring norms, it is surprising that Hart himself omitted to take account of such norms at some key junctures in his theorizing. Quite a few examples of his neglect of power-conferring norms could be adduced here, but –- to keep this paper within the prescribed word limit –- I will confine myself to one especially important instance. After doing so, I will explore how the power-conferring aspect of the Hartian Rule of Recognition has been denied or obscured by many present-day legal philosophers. Though the Rule of Recognition does impose duties, it also confers powers; it authorizes as well as obligates legal-governmental officials to ascertain the law of their jurisdiction in accordance with certain prescribed criteria. In the final few sections of this paper, I will maintain that some recent objections to Hart’s conception of the Rule of Recognition are misconceived precisely because they disregard the hybrid character of the Rule of Recognition as both duty-imposing and power-conferring. This paper has been written for an Oxford symposium on the work of John Gardner. As my citations will suggest, some of the arguments advanced in this paper align me with positions taken by Gardner, whereas other arguments herein are opposed to Gardner’s stances.

Christopher Kuner: International Organizations and the EU General Data Protection Regulation (20/2018)

The importance of personal data processing for international organizations (IOs) demonstrates the need for them to implement data protection in their work. The new EU General Data Protection Regulation (GDPR) will have considerable influence around the world, and will impact IOs as well. The application of the GDPR to IOs should be determined under relevant principles of EU law and public international law, and it should be interpreted consistently with the international obligations of the EU and its Member States. It is in the interest of IOs to implement data protection measures regardless of whether the GDPR applies to them in a legal sense. There is a need for the requirements of EU law and international law to take each other better into account, so that IOs can enjoy their privileges and immunities also with regard to EU law and avoid legal conflicts, while still providing a high level of data protection in their operations.

Sarah Fraser Butlin & Robin Allen QC: Worker Status and Vicarious Liability: The Need for Coherence (21/2018)

Gig economy cases continue to dominate the news and work their way through the courts. This paper considers a different angle to the issues and argues that the developments in vicarious liability should apply to the “worker status” debate. Specifically, that to avoid regulatory dissonance, the tests applied to determine those who are in a situation “akin to employment” should be aligned with the worker definition in s230(3)(b) ERA 1996. This would result in a reduced focus on personal service and substitution, and a greater concentration on the second part of the statutory test of whether the individual is in business on their own account.

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