Category Archives: Articles

Articles published in the OUCLF

A Case for a Customary Right to Privacy of an Individual: A Comparative Study on Indian and other State Practice

by Arvind Pillai, Raghav Kohli

(2017) Oxford U Comparative L Forum 3 at | How to cite this article

Privacy as a concept has been hotly debated with regard to its role in an individual’s personal sphere since antiquity. The inception of international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, along with institutions such as the United Nations, the Inter-American Commission on Human Rights and the Council of Europe, have made the codification of privacy a global concern. However, despite the inception of these institutions, several states have refused to codify and respect privacy as a fundamental right guaranteed to an individual. Thus, the need arises to highlight the development of a right to privacy as a customary right with the help of widespread state practice around the world. The most recent country to address the question of what status privacy holds in the legislative framework of that state is India. Here a unique identifying number is provided to each citizen based on biometric and demographic information. Known as the ‘Aadhaar’ scheme, this is giving rise to grave concerns about bodily integrity, informational self-determination, and decisional freedom. Indeed, a nine-judge Constitution Bench has just unanimously affirmed that the right to privacy is a fundamental right under the Constitution of India (Justice K S Puttaswamy (Retd.), and Anr v Union of India and Ors (2017) 10 SCC 1)
This article traces the evolution of the right to privacy in India, starting with an exploration of its conception in the Constituent Assembly Debates of the longest Constitution in the world. It attempts to ascertain the intent behind the exclusion of the right to privacy as a fundamental right from the Constitution, and analyses the contemporary position developed by the inconsistent jurisprudence of the Courts in India. Finally, by scrutinizing the practices of states from around the world, it argues that the right to privacy, and in particular data privacy, can be considered a binding principle of customary international law.

Continue reading

Indigenizing Constitutionalism: A Critical Reading of “Asian Constitutionalism”

by Pranoto Iskandar *

(2017) Oxford U Comparative L Forum 2 at | How to cite this article

The intense rise of the “Rest” has not only significantly wrought the real-world dimensions of the political and economic global landscape, which marked the power shift from the traditional West, but serenely introduced a different kind of intellectualism that challenges the Enlightenment based orthodoxies that have typically supported the liberal tradition. As a distinct scholarly strain, this vantage point of the “other” primarily rests on the binary self-proclaimed indigeneity, i.e. the native values of a society, that eventually challenges the legitimacy of the once well-established notions such as the rule of law, separation of power, secularism and constitutionalism that are the indisputable buttresses of democracy. In that light, this article situates the emerging ni debate on a distinct model of constitutionalism in Indonesia and the surrounding countries as the most current rebellious streak against the liberal constitutionalism. In so doing, more specifically, this article critically examines the application of the indigeneity-based arguments in the context of the discourse on constitutionalism. Rather than speaking for the population that they are purportedly representing, this article finds that the indigeneity-based arguments are no less alien than the liberal model that they despise as both culturally and sociologically estranged.
Continue reading

Canada’s Statutory Privacy Torts in Commonwealth Perspective

by Chris D. L. Hunt* and Nikta Shirazian**

(2016) Oxford U Comparative L Forum 3 at | How to cite this article

In the last decade common law privacy torts have emerged in Ontario, England and New Zealand, and three recent law reform commissions in Australia have issued reports recommending similar actions in that country. Four Canadian common law provinces have had statutory privacy torts for decades (British Columbia, Manitoba, Saskatchewan and Newfoundland). These statutes offer little guidance as to when a privacy interest will arise and the case law does little to illuminate. Despite dozens of decisions, few are at the appellate level, and none have engaged in a detailed assessment of the factors relevant to assessing privacy claims in the tort context. In this paper, the authors undertake a thorough analysis of the Canadian case law, uncovering the principles latent in the existing jurisprudence, and critically examine them in light of the dynamic developments occurring in other parts of the Commonwealth. After exploring the structure and scope of these statutory torts in Part One, the authors propose that courts employ a reasonable expectation of privacy test, turning on the existence of 10 contextual factors that are elucidated in Part Two. The authors recommend that these factors be analyzed from two perspectives—the extent to which they serve to identify a privacy interest, and the extent to which they suggest an intrusion was sufficiently objectionable to warrant recognition of a prima facie claim. While the recommendations in this paper are often directed at a Canadian audience, they are informed by the comparative experience abroad and hence could be of real interest to jurists throughout the Commonwealth concerned with the principled operation of privacy torts.
Continue reading

Judicial Independence: The Judge as a Third Party to the Dispute

by Lorne Neudorf*

(2015) Oxford U Comparative L Forum 2 at | How to cite this article


In this article, the author sets out a conceptual framework for judicial independence. From the starting point of adjudication as the basic function of the judiciary, the author embarks on an historical inquiry to shed light on the role of the judge in resolving legal disputes. The inquiry reveals a tradition of adjudicative impartiality that stretches back to the legal system of ancient Egypt. While all judges strive to maintain the status of a third party to the dispute, the historical development of an adjudicative tradition in Egypt resulted in a path-dependent conception of the judicial role that influences present understandings of judges, most prominently seen in the continuing use of the scales of justice hieroglyph. Given its significance to the resolution of disputes, judicial impartiality is the unifying theme in the theory of law advanced by Hobbes, who was keenly aware of the Egyptian practice. According to Hobbes, in the state of nature, each person possesses complete liberty. In order to enter into a peaceful society, individuals must give up the right to decide their own disputes. When individuals no longer act as their own judges, a third party must be called upon to resolve conflict. This decision-maker must maintain third party status by avoiding close connections with the parties or the issue in dispute in order to maintain legitimacy. Given this understanding, the author proposes the perception of impartiality as the rationale of an independent judiciary. Judicial independence seeks to preserve the status of the judge as a third party to the dispute by creating the necessary space between judges and actual and potential sources of improper influences. Because the definition of improper influence is determined by individuals from the community, the principle of judicial independence is significantly context-dependent. Finally, the author critiques the doctrine of judicial independence in Canadian law from the perspective of this conceptual framework.

Table of contents

Continue reading