Legal Studies Research Paper Series Vol. 10, No. 4

The Faculty has published Volume 10 Number 4 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Kenneth Armstrong: An 'Implementation Protocol' to Unblock the Brexit Process: A Proposal for a Legal Bridge between a Revised Political Declaration and the Withdrawal Agreement (9/2019)

Following the failure of the UK Government to secure parliamentary approval for the texts of its Brexit deal with the European Union, attention is now focusing on how to break the political impasse that could result in a “No Deal” Brexit.

Professor Kenneth Armstrong proposes an “Implementation Protocol” to unblock the Brexit process. The Protocol would be an integral part of the Withdrawal Agreement and would act as a legal bridge between the legal text of the Agreement and the Political Declaration on the future relationship between the Union and the UK.

Matthew H. Kramer: Impartiality in a System of Governance (10/2019)

Impartiality as a property of government is central to many of the major constitutional concerns of liberal democracy. This essay, which has been written for the Cambridge Handbook of Constitutional Theory, tersely considers the nature and implications of impartiality in three main areas: the rule of law; the distinction between the right and the good; and freedom of speech. Because of constraints of space, each of the discussions in this paper is no more than a sketch of the complex matters that are at issue in debates over impartiality.

Matthew H. Kramer: The Legal Positivism of H.L.A. Hart (11/2019)

H.L.A. Hart was the foremost Anglophone philosopher of law in the twentieth century, and he was rivaled only by Hans Kelsen as the foremost philosopher of law in any language during that century. Among his many sterling accomplishments in the philosophy of law was his reinvigoration of the tradition of legal positivism. His revival of that tradition greatly strengthened it by transforming it in some major respects – not least by severing it from the command theory of law that had been propounded (in distinct versions) by his illustrious predecessors Jeremy Bentham and John Austin. Yet, in spite of the distance that Hart put between himself and those predecessors, he was firmly aligned with them in his emphasis on the distinction between what legal institutions are and what legal institutions morally ought to be. With his general insistence on the separability of law and morality, he established himself as an opponent of natural-law theorists and their efforts to show that law is an inherently moral phenomenon. Indeed, the arguments through which he impugned a multiplicity of natural-law lines of reasoning are one feature of his book THE CONCEPT OF LAW that has cemented its place as a classic text with which generations of legal philosophers will perennially grapple. The present essay, written for the CAMBRIDGE COMPANION TO LEGAL POSITIVISM, provides an overview of Hart's contribution to the tradition of positivist thinking about law.

David A. Simon: Analogies in IP: Moral Rights (12/2019)

This Article critically examines the analogies scholars use to explain the special relation between the author and her work that copyright law protects under the doctrine of moral rights. The goal of this Article is to determine “when to drop the analogy and get on with developing the” content of the relation between the author and the work.” Upon examination, that moment approaches rather quickly: none of these analogies provide any helpful framework for understanding the purported relation. At worst, they are misleading rhetorical devices used to gain support for moral rights. At best, these analogies are first attempts at describing the relation between author and her work. So I assume that analogies are valuable as starting points for thinking about the relation between the author and her work, rather than explaining the nature of the relation. Even when viewed this way, however, the analogies raise more questions than they purport to answer. Because the analogies discussed do not explain the author-work relation, scholars must look elsewhere for arguments to support moral rights.

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