Law Of Republic Research Articles

The Transplantation of the European Principle of ‘State Liability’ in Caribbean Community (Caricom) Law: A Normative Assessment

(2014). The Transplantation of the European Principle of ‘State Liability’ in Caribbean Community (Caricom) Law: A Normative Assessment. Oxford University Commonwealth Law Journal: Vol. 14, No. 1, pp. 73-104.

Spill-Over Reputation in Passing Off Actions: Indian and English Law Compared

(2014). Spill-Over Reputation in Passing Off Actions: Indian and English Law Compared. Oxford University Commonwealth Law Journal: Vol. 14, No. 1, pp. 21-45.

Statutes, Intentions and the Legislature: A Reply to Justice Hayne

(2014). Statutes, Intentions and the Legislature: A Reply to Justice Hayne. Oxford University Commonwealth Law Journal: Vol. 14, No. 1, pp. 3-20.

The Juridical Nature of User Damages for Wrongful Detention of Property: Aces System Development Pte Ltd v Yenty Lily

(2014). The Juridical Nature of User Damages for Wrongful Detention of Property: Aces System Development Pte Ltd v Yenty Lily. Oxford University Commonwealth Law Journal: Vol. 14, No. 1, pp. 127-131.

Inconsistency between Commonwealth and Territory Laws

The rules concerning the inconsistency of Commonwealth and territory laws have been little explored and largely neglected. They rose to recent prominence in the challenge to the validity of the ACT's same-sex marriage laws. The ACT claimed that even if the Commonwealth's Marriage Act was intended to cover the field, the ACT's same-sex marriage law could still operate concurrently with it, because of the different application of inconsistency rules in the ACT. This article considers how inconsistency rules operate in the different territories, what was intended by the ACT inconsistency provision, how the High Court determined the issue, and whether a better explanation can be given for the outcome.

Inconsistency between Commonwealth and Territory Laws

The rules concerning the inconsistency of Commonwealth and territory laws have been little explored and largely neglected. They rose to recent prominence in the challenge to the validity of the ACT's same-sex marriage laws. The ACT claimed that even if the Commonwealth's Marriage Act was intended to cover the field, the ACT's same-sex marriage law could still operate concurrently with it, because of the different application of inconsistency rules in the ACT. This article considers how inconsistency rules operate in the different territories, what was intended by the ACT inconsistency provision, how the High Court determined the issue, and whether a better explanation can be given for the outcome.

Germany in a Changing World

Germany in a Changing World

International civil legal cooperation

At the last Commonwealth Law Ministers’ Meeting in Sydney, Australia, in 2011, law ministers mandated the Commonwealth Secretariat to develop a scheme for international cooperation in civil legal matters. This article explores the issues that would be covered by such a scheme and examines whether they are best addressed under existing international mechanisms, in particular the Hague Conventions. The article analyses the relevant provisions of the Hague Conventions and determines whether an intra-Commonwealth scheme on international civil legal cooperation would bring an advantage. It then makes recommendations in that regard.

Foreword: New Zealand Studentss Law Journal.

This paper is a foreword by Lord Cooke to the second edition of the New Zealand Students’ Law Journal. This Journal has been replaced in spirit by the (on-going) New Zealand Law Students’ Journal. Although Lord Cooke first provides “rather jaundiced comments” on the proliferation of new legal periodicals he quickly moves to commenting favourably on both The Oxford University Commonwealth Law Journal and the New Zealand Students’ Law Journal. Lord Cooke highlights two purposes of the latter publication. First, it gives a picture of the present interest and concerns of lawyers of the future. Secondly, it provides discipline and satisfaction for successful contributors. He considers that the range of subject-matter and the fact that two thirds of contributors are young women are two particularly striking features of this publication. He concludes by noting that “[f]or the male chauvinist lawyer, the writing may be on the wall”.

Fungsi Filsafat Hukum dalam Pembentukan Hukum di Indonesia

Philosophy of Law seeks to examine ideas about the law that already exists oris to be held (legal establishment), see coherence, correspondence and legal functions arecreated,. Relation to Philosophy of Law against the legal establishment in Indonesia,that the Philosophy of Law was instrumental in shaping the direction of democratic law,leads to the essential needs of the community. The function of the national law is toprotect, then change the law or the establishment of Indonesia must go through theprocess of Legal Philosophy, in which is able to direct and accommodate the needs of lawin accordance with the progress of development in all fields, were also able to meet thediverse needs of the wider community, which established the rules for the game of life.Law established to regulate the behavior of members of the public. Most importantly,legally constituted as a fulfillment of a sense of justice for the wider community,regardless of race, class, ethnicity, party, religious, or other discrimination in theframework bhineka tunggal ika.

The Partisan Ordering of Candidacies and the Pluralism of the Law of Democracy: The Case of Taiwan

Political parties are more than key players to be protected and regulated by the law of democracy. In addition to acting behind the scene of election law-making, political parties regulate themselves in the name of ‘party autonomy,’ and the extra-legal self-regulations they make often have external effects on the democratic political process as a whole. The most important thing political parties do is to select candidates for electoral competition, and the partisan ordering of candidacies — as first-order rules for candidate selection — exemplifies the role of political parties as co-regulators of electoral democracy. Using Taiwan as a case study, this paper explores how partisan self-regulation of legislative candidacies has diversified and complicated the qualifications for elected offices. It also attempts to grasp the normative significance and implications of such partisan rules by theorizing a pluralistic account of democratic authorities and election law-making: the pluralism of the law of democracy. By taking pluralism seriously, this paper hopes to shed new light on the regulatory role of political parties and the private/public distinction in the law of democracy.

Property as the Law of Democracy

In both his article Property as the Law of Things and his prior work, Professor Henry Smith has revitalized property law theory by emphasizing the architectural role that property plays in private law and the ways in which modular property rights reduce information costs and promote both property use and transfer. I applaud Smith’s insistence that we focus on the systemic nature of property rights and the benefits of bundled entitlements. At the same time, it is important to understand the limitations of Smith’s analysis.Property law goes beyond managing the complexity of human interaction. Property not only presents a coordination problem but also a constitutional problem. Many issues fundamental to property law systems require attention to the norms, values, and ways of life that a society embraces. The problem is not just how to grease the wheels of social interaction; the problem is how to determine the character of that interaction. Value choices must be made to determine what property rights can be created, how many owners we should have, who can become an owner, how long rights last, and what obligations owners should have. Because we live in a free and democratic society that treats each person with equal concern and respect, we must interpret the fundamental values of liberty, equality, and democracy to define the set of property rights that we can recognize.Property law is not simply about best management practices or coordination in the face of scarcity. Democracies elect leaders who pass laws that establish minimum standards for social and economic relationships compatible with our justified expectations and our considered judgments about what it means to treat others with dignity and respect. Property law is not just a mechanism of coordination; it is a quasi-constitutional framework for social life. Property is not merely the law of things. Property is the law of democracy.

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Courts

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (‘the Act’) has established a new model of pre-legislative rights scrutiny of proposed Commonwealth laws. This is undertaken by the political arms of government and involves: (1) the requirement that a statement of (human rights) compatibility must accompany proposed laws and certain legislative instruments when introduced into Parliament; and (2) the establishment of the Parliamentary Joint Committee on Human Rights (‘PJCHR’) which regularly reports to the Parliament on the compatibility of its proposed laws with human rights. This article looks at the relationship between the Act – and these two new mechanisms – and the interpretive role of the courts. It does so by first considering the (possible) direct use of statements of compatibility and PJCHR reports by Australian courts in the interpretation of Commonwealth laws that engage human rights. It then assesses whether the Act may exert an indirect influence on the content and scope of the common law interpretive presumptions that protect human rights.

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Courts

This article looks at the relationship between the Act and the interpretive role of the courts. It does so by first considering the (possible) direct use of statements of compatibility and PJCHR reports by Australian courts in the interpretation of Commonwealth laws that engage human rights. It then assesses whether the Act may exert an indirect influence on the content and scope of the common law interpretive presumptions that protect human rights.

Compulsory Voting in a Representative Democracy: Choice, Compulsion and the Maximisation of Participation in Australian Elections

(2013). Compulsory Voting in a Representative Democracy: Choice, Compulsion and the Maximisation of Participation in Australian Elections. Oxford University Commonwealth Law Journal: Vol. 13, No. 2, pp. 283-312.

The Way we do things back home: Do Expatriate Judges Preferentially Cite the Jurisprudence of their home Countries?

(2013). The Way we do things back home: Do Expatriate Judges Preferentially Cite the Jurisprudence of their home Countries? Oxford University Commonwealth Law Journal: Vol. 13, No. 2, pp. 331-345.

Statutes, Intentions and the Courts: What Place Does the Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction?

(2013). Statutes, Intentions and the Courts: What Place Does the Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction? Oxford University Commonwealth Law Journal: Vol. 13, No. 2, pp. 271-282.

Democratic theories and the problem of political participation in Nigeria: Strengthening consensus and the rule of law

Abstract This paper addresses the problem of the strategies and theories of democratic participation in Nigeria that breed institutional marginality and bad governance due to shortfalls in pursuing the values of justice and empowerment as core democratic characteristics. The same democratic principles such as voting, parliament, constitution, judiciary, that are suggestive of gains such as responsible use, and peaceful transfer of power may not have translated fully into sociopolitical empowerment for responsibility and representation in evolving democratic practice in Nigeria due to problems of agency and political ideology. Democratic theorizing and participation in Nigeria has defied orthodox presuppositions seen in the disrespect for basic rights and the disregard for the rule of law in democracy that allow for fair play within and among the elites and political grassroots. Thus this study investigates the Nigerian predicament as a model or case study, raising questions about the reasons for the systematic disempowerment of groups.

In Defence of Consideration

(2013). In Defence of Consideration. Oxford University Commonwealth Law Journal: Vol. 13, No. 1, pp. 209-238.

New Zealand's New Privacy Tort in Comparative Perspective

(2013). New Zealand's New Privacy Tort in Comparative Perspective. Oxford University Commonwealth Law Journal: Vol. 13, No. 1, pp. 157-166.