Legal Studies Research Paper Series Vol. 13, No. 3

The Faculty has published Volume 13 Number 3 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Eilis Ferran: International Competitiveness and Financial Regulators’ Mandates: Coming Around Again (6/2022)

Using post-Brexit regulatory freedom to strengthen the financial sector is a priority for the UK government and the laying before Parliament of the Financial Services and Markets Bill (July 2022) marks the start of a multi-year process to transform the regulatory framework. Adding a competitiveness and growth secondary objective to regulatory mandates is an important part of the reform agenda.

This paper draws on theory (regulatory competition, regulatory procyclicality and regulatory design) and recent history (post 2008-crisis regulatory reform) to question the wisdom of reinstating international competitiveness in regulatory mandates in this way. The key concern is that this change risks opening the door to an excessively deregulatory agenda and the undermining of regulatory independence. That the new competitiveness and growth objective will be used to advance deregulatory agenda is already evident as the UK debates the adaptation and evolution of EU-derived prudential and capital market laws to suit its new situation.

Since the competitiveness and growth objective bandwagon now looks unstoppable, the paper directs attention to the role of accountability in protecting regulatory independence. Regulators need to be able to resist pressure to lower standards unduly, and an effective system of accountability can support them in doing so.

Matthew H. Kramer: Hoary Precedents (3/2022)

Hoary precedents are rulings or sets of rulings which were issued by courts many decades ago and which have never been overturned subsequently. Can it ever be the case that a hoary precedent, invoked as legally binding by judges and other legal-governmental officials in numerous contexts, is not in fact legally binding? This paper will argue that the answer to such a question is affirmative, and that the affirmative answer is entirely consistent with legal positivism. That answer will be reached through some reflections on the metaphysics of legal objectivity.

Matthew H. Kramer: Hate-Speech Bans are at Odds with the Central Principles of Liberalism (5/2022)

In line with my 2021 book Freedom of Expression as Self-Restraint – albeit in a much shorter compass – this essay will argue against the moral defensibility of hate-speech laws like those in the United Kingdom and Canada and the Antipodes and most countries of western Europe. Such laws contravene the moral principle of freedom of expression, and therefore contravene one of the central principles of liberal democracy. After expounding the principle of freedom of expression, this essay explains why some hateful utterances can be prohibited in full compliance with that principle and without any hate-speech legislation. It then recounts how a system of governance should deal with hateful utterances that cannot properly be prohibited. Finally, the essay argues that hate-speech laws are profoundly degrading for any society in which they are adopted.

Sarah Nouwen: Tensions between the Pursuit of Criminal Accountability and Other International Policy Agendas in Situations of Armed Conflict (8/2022)

The individualisation of war – defined by the editors as ‘a process in which individuals … increase in importance compared with collective entities for the purposes of explaining and normatively assessing the causes and conduct of war’ – produces tensions. Focusing on one manifestation of the individualisation of war, this chapter illustrates how the pursuit of individual criminal accountability can create tensions with at least nine other policy agendas: the promotion of peace; humanitarian relief; humanitarian law promotion; military action to end atrocities; peacekeeping; economic cooperation; human rights promotion; rule-of-law promotion and democratisation. When exploring these tensions, this chapter also evaluates the strengths and limitations of the theoretical framework set forth in the Introduction of this book. It discusses both the editors’ categories of tensions (normative; practical-inherent; practical-contingent) and the strategies of resolution (reconceptualisation; reconciliation; ad hoc) that they have identified. The chapter adds another explanation for the tensions. Whereas most of the tensions discussed in this chapter do not exist at the normative level—the objectives are not conflicting— and the difference between inherent and contingent is hard to draw, one cause of tensions is the diverging logics of policy agendas, that is to say, what is deemed necessary to pursue those objectives. With respect to the ‘resolution’ of the tensions, the chapter argues that some tensions are inherent in the concept of individualisation, while others are intentionally created and therefore not meant to be resolved. Finally, the chapter points out that some of the purported strategies for resolution in fact do not ‘resolve’ tensions but prioritise one policy agenda over another: the tension continues to exist. Whether through law or ad hoc, these prioritisations are ultimately determined by political choice.

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