Legal Studies Research Paper Series Vol. 14, No. 6

The Faculty has distributed Volume 14 Number 6 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Mark Elliott & Nicholas Kilford: Nothing To See Here? Allister in the Supreme Court (20/2023)

In the Allister case, it was argued (among other things) that the Northern Ireland Protocol (agreed between the UK and the EU as part of the arrangements for the withdrawal of the former from the latter) was incompatible with certain ‘rights of a constitutional character’ contained in Article VI of the Acts of Union 1800. Since the Protocol is assigned a form of supremacy over domestic law by the European Union (Withdrawal) Act 2018 (as amended), Allister raised a fundamental question about the extent, consistent with constitutional doctrine, to which domestic legislation can accord external legal norms such supremacy over national law. That question is closely analogous to that which arose — but which was never fully resolved, at least at the level of constitutional theory — about domestic accommodation of the supremacy of EU law while the UK was a Member State of the EU. The Court in Allister held that the Northern Ireland Protocol was not vulnerable to challenge on the ground of incompatibility with the Acts of Union because the 2018 legislation could be largely treated as providing a complete answer to the question, rendering questions of constitutional character ‘academic’. Accordingly, it failed to recognise that the meaning and legal effects of that Act could only be satisfactorily determined by locating the statutory language within a wider constitutional framework. This paper critiques the approach adopted by the Court, arguing that it is problematic in both pragmatic and theoretical terms. It is also contended that the Court’s omission to engage with questions of theory supplies grounds for doubting the extent to which the Allister judgment (despite what certain dicta might suggest) displaces jurisprudence that paints a more nuanced theoretical picture, in which common law and statutory norms are accorded variable degrees of constitutional weight that inform the extent of their vulnerability to casual legislative erosion, and which bear on the statutory language necessary to modify them.

Ahmed Izzidien: Using the Interest Theory of Rights and Hohfeldian Taxonomy to Address a Gap in Machine Learning Methods for Legal Document Analysis (21/2023)

Rights and duties are essential features of legal documents. Machine learning algorithms have been increasingly applied to extract information from such texts. Currently, their main focus is on named entity recognition, sentiment analysis, and the classification of court cases to predict court outcome. In this paper it is argued that until the essential features of such texts are captured, their analysis can remain bottle-necked by the very technology being used to assess them. As such, the use of legal theory to identify the most pertinent dimensions of such texts is proposed. Specifically, the interest theory of rights, and the first-order Hohfeldian taxonomy of legal relations. These principal legal dimensions allow for a stratified representation of knowledge, making them ideal for the abstractions needed for machine learning. This study considers how such dimensions may be identified. To do so it implements a novel heuristic based in philosophy coupled with language models. Hohfeldian relations of ‘rights-duties’ vs. ‘privileges-no-rights’ are determined to be identifiable. Classification of each type of relation to accuracies of 92.5% is found using Sentence Bidirectional Encoder Representations from Transformers. Testing is carried out on religious discrimination policy texts in the United Kingdom.

Henning Grosse Ruse-Khan: Does IP improve the world? Technology and its impact on our planet (22/2023)

Utilitarian objectives for intellectual property (IP) rights as incentive mechanisms for innovative technologies are widely shared, even though significant debates remain on how to appropriately balance exclusivity and access. This utilitarian perspective is based on the assumption that new technologies and their deployment are in fact welfare enhancing. But is there a sound basis for this assumption? This contribution critically reviews how the technology incentivised by IP protection, as an expression of narratives of progress or ‘sustainable development’, has impacted on life on Earth. While recognising the immense benefits new technologies have brought humanity, it points to the equally severe consequences of technological progress – especially for the poor, for animals and plants. It also highlights our default reliance on technology as solution to our problems, and the un-even distribution of its benefits. Concluding with a brief analysis of the role the IP system, my main aim is to challenge conventional thinking that uncritically welcomes all technological innovation.

Sarah Nouwen: Peacemaking (23/2023)

Unlike intuitively related areas such as dispute settlement, the use of force, the law of armed conflict, human rights and international criminal law, ‘peacemaking’ is not a recognised subfield of international law. It was not recognised as such in the beginning of the period under review in this volume (1989), nor by the end of it (2021). However, after the term ‘peacemaking’ rose to prominence in the 1990s as a concept and objective of global governance, legal scholars sought to capture the proliferation of peacemaking practices in legal language, coining or invoking concepts such as lex pacificatoria, ‘legal tools for peacemaking’ and jus post bellum. By the end of the period under review, none of these projects had managed to establish their version of a ‘law of peacemaking’ as a generally recognised subfield of international law. Lawyers had come relatively late to the practice of peacemaking, and when they did, the terrain – both in terms of political thought and practices – had already begun to shift. But while falling short of establishing a recognised subfield of international law, attempts to let law speak to peacemaking continue, albeit in less universalist terms.

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