Author Archives: Christoph

The Role of Reasonable and Unreasonable Mistake in Justified Defences A Comparative and Analytical Study

Khalid Ghanayim*

(2007) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

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Dignity – The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as a Free Speech Justification

Guy E. Carmi*

(2007) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

Abstract

This Article challenges the use of human dignity as an independent free speech justification. The articulation of free speech in human dignity terms carries unwarranted potential consequences that may result in limiting free speech rather than protecting it. This possible outcome makes human dignity inadequate as a free speech justification.

This Article also demonstrates why articulations of the rationales behind the argument from dignity are either superfluous, since they are aptly covered by the argument from autonomy, or simply too broad and speech-restrictive to be considered free speech justifications. As a matter of principle, the nexus between freedom of speech and human dignity should be construed as inherently contentious.

This Article combines theoretical and comparative analyses to demonstrate why European and other Western democracies are more susceptible to the use of human dignity, both in their constitutional doctrines and as a speech-restrictive term. Current American scholarship regarding dignity as a free speech justification neglects to recognize the harms of such discourse in a non-American setting, as well as in the United States. Thus, unintentionally, advocates of free speech may actually promote a justification that eventually will lead to speech restriction. For these reasons, the Article warns that inserting human dignity into the realm of free speech justifications may be analogous to inserting a “Trojan Horse,” with human dignity as “the enemy from within.”

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Codification of Private Law in Scotland: Observations by a Civil Lawyer

Andreas Rahmatian*

(2007) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article

Abstract

This article discusses, by reference to Scotland, the problems of codifying a mixed system of private law, presenting an outline of some parts in a draft civil code. A civil code must resolve divergence between Civil Law and Common Law concepts. Such divergence is demonstrated here by reference to the conceptual conflict between the Scots (Civil) law of error and the English (Common) Law of misrepresentation. The article outlines how codified provisions in this area might be drafted. It discusses the German, French, Swiss and Austrian rules (the last being remarkably similar to Scots law), and offers possible Common Law and Civil Law-style codifications of the Scots law of error. As Scots statutes follow the Common Law drafting style, it is argued that they are unsuitable for comprehensive codification. A code in a Civilian style, on the other hand, requires the adoption of Civilian statutory interpretation, but as this is inconsistent with Scots legal culture, the final question raised is whether codification of Scots private law is desirable at all.

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“Equality of Arms”: Challenges Confronting the Legal Profession in the Emerging International Criminal Justice System

Elise Groulx*

(2006) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

Abstract

The protection of the rule of law requires that the international criminal justice system focus on two key elements: (i) the substantive objective of ending impunity by bringing war criminals to justice, and (ii) the procedural objective of ensuring a fair trial. The prosecutorial bias inherent in the institutional designs of the international criminal tribunals for the former Yugoslavia and for Rwanda, and the International Criminal Court (ICC), poses a serious challenge to the individual’s right to a fair trial. In addition to an independent judiciary and prosecution, the international criminal justice system requires an independent legal profession (including both defence and victims’ counsel). The incorporation of a “third pillar” will help to legitimize the new justice system and strengthen the rule of law by providing a formal voice for lawyers and enabling the protection of individual rights. In the same vein, the international community’s commitment to democracy in post-conflict states should include strong measures to protect the institutional, legal and political independence of lawyers.

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“Did God say, ‘You shall not eat of any tree of the garden’?”* Rethinking the “Fruits of the Poisonous Tree” in Israeli Constitutional Law

Mohammed Saif-Alden Wattad**

(2005) Oxford U Comparative L Forum 5 at ouclf.iuscomp.org | How to cite this article

You may freely eat of every tree of the garden; but of the tree of the knowledge of good and evil you shall not eat, for in the day that you eat of it you shall die.***

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A Note on Comparative Family Law: Problems, Perspectives, Issues and Politics

David Bradley*

(2005) Oxford U Comparative L Forum 4 at ouclf.iuscomp.org | How to cite this article

Abstract

Many comparatists view family law as an impenetrable and unproductive field of legal policy. This perspective invariably draws on Montesquieu and the argument that there are particularly close ties between a system of family law and the jurisdiction in which it has developed and operates. Consequently, there is no incentive to develop a method for comparative analysis in this field. This negative position has been challenged on a variety of grounds: that family laws can operate as legal transplants; that legal policy in different jurisdictions is converging; or that family law can be treated as well as classified as ‘private law’ and affects only parties to domestic relationships. This note reviews the opposing positions and outlines supporting evidence. It provides a perspective on comparative family law to resolve the controversy referred to above. The central argument is that a system of family law operates as a component of political economy and is conditioned by political culture and processes. These inter-related concepts provide a framework and basis for comparative analysis of family laws.

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