Legal Studies Research Paper Series Vol. 10, No. 2

The Faculty has published Volume 10 Number 2 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Michael Dafel: The Constitutional Rebuilding of the South African Private Law: A Choice Between Judicial and Legislative Law-Making (1/2019)

A tension arises whenever the South African private law fails to meet constitutional right norms. To remedy a deficiency, two law-making options are available. The first is for the judiciary to develop or change private law principles and rules in order to provide protection for the implicated constitutional norm. The second is for the judiciary to enforce an obligation upon Parliament to enact legislation to amend or replace existing private law rights and obligations so as to safeguard the norm against interference from a private individual or entity. The former is the more conventional option, but, in recent years, the law reports record an increasing reliance on the legislative duty to protect constitutional right norms in private legal relationships.

The thesis investigates the extent to which the latter phenomenon — which will be described as a ‘pivot towards legislative remedies’ — exists, and the circumstances in which the courts pivot towards legislative remedies rather than developing private law of their own accord. The thesis finds that legislative schemes that give effect to constitutional rights are likely to contain an array of benefits that are absent from or reduced in the judicial law-making process. The judicial pivot towards legislative remedies is thus a strategy to enhance the process through which conflicting rights are resolved, as it allows for the constitutional rebuilding of private law in a way that the judiciary is unable to do on its own. Importantly, however, theories of judicial deference do not explain the pivot. On the contrary, the courts have exercised a strict level of control over the legislative law-making pathway. Through either statutory interpretation or the review of legislation, the courts require legislation to contain the essentials of the judicial law-making framework. From this perspective, the judicial law-making process produces the floor of the rebuilding project and the legislative law-making process enhances that framework.

Megan Donaldson: The League of Nations, Ethiopia and the Making of States (2/2019)

This article takes the Ethiopian case as a lens on how the existence of the League refracted approaches to statehood and belonging for polities on the margins of the “family of nations.” Unlike many other doctrinal or historical treatments, this article does not focus on any one juridical concept or doctrine, such as sovereignty, statehood, or recognition. Rather, it traces the flux within concepts, and the uneasy relation between them, which come to light when public statements in the League are read alongside deliberations within European foreign ministries, and projects of reform pursued in Ethiopia itself. Refocusing on the complexity of contemporary discussions reveals how juridical approaches have shifted over time in their relation to concrete factors such as military force, bureaucratic organization and political structures, and bridges a distinction entrenched by disciplinary demarcations in the secondary literature on statehood and state-making.

Martin Dixon: The Organic Nature of the Law of Real Property: Reforming Modern Land Law (3/2019)

An in depth analysis of the nature of modern land law and how it should be reformed.

Andrew Sanger: Transnational Corporate Responsibility in Domestic Courts: Still Out of Reach? (4/2019)

Despite some modest progress, corporate responsibility for human rights abuses in domestic courts remains elusive. In U.S. federal courts, Alien Tort Statute (ATS) litigation is now more precarious than ever before. While there have been some potentially important developments in English courts, judges are reluctant to extend responsibility to parent corporations for harm caused by the operations of foreign subsidiaries. Although U.S. and English courts have been concerned with distinct doctrinal issues, the overall picture appears to be one of deference to the corporation and its anatomized form, and to the goal of promoting investment abroad.

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