Private Law Rights Research Articles

The Employment Contract Revisited. Undocumented Migrant Workers and the Intersection between International Standards, Immigration Policy and Employment Law

AbstractThis article considers recent legal developments on undocumented migrant workers, finds the acceptance of international legal standards unsatisfactory and argues that the private law rights derived from the “semi-legal” employment contract between the employer and the undocumented migrant worker generates a solid base for significant legal claims. It further monitors the promotion of the position of the undocumented migrant workers under recent EU law and calls for a refocusing on the employment contract in the reading of a relevant EC Directive, with a particular emphasis on the issue of access to justice for the migrant workers. The increased number of undocumented migrants who leave their countries of origin for reasons outside the scope of the asylum procedure, as well as the circumstances under which this migration is undertaken and the working conditions of these individuals in the host countries, have brought about legal activities from governments and institutions such as the EU. The aim has in general been to establish sanctions against employers of undocumented migrant workers, but a shift towards a compensatory, employee protective, attitude has recently emerged, both in EU legislation and in a broader perspective in US case law. The article concludes that such a development must be massively supported in relation to access to justice in order to fulfill the ambition. The poor legal position of the undocumented migrant workers is significantly connected to issues of legal representation, trade union participation and the threat of repatriation.

Misfeasance as an Organizing Normative Idea in Private Law

The familiar principle that there is no liability for nonfeasance but only for misfeasance is often presented as reflecting a merely factual difference between acts and omissions and is discussed as a discrete issue in negligence alongside and after the treatment of the general tort principles. In striking contrast, Francis Bohlen took this distinction to be normative, not factual, and wrote that none is more deeply rooted in and more fundamental to the common law. This Article investigates whether his contention is sound and, if so, how it might be accounted for. Its main thesis is that, properly understood, the misfeasance requirement is a central organizing normative idea in private law, providing a unifying moral framework for specifying the varieties of private law relations. Part One fixes the meaning and the role of misfeasance through a discussion of a variety of situations in which the law denies liability for even foreseeable loss. We see that the misfeasance requirement makes a certain kind of protected interest, namely, an exclusive right, the necessary condition of liability in private law. But the character of an exclusive right requires explanation and the fact that it is the only relevant conception of protected interest needs to be justified from a moral point of view. Part Two undertakes an analysis of exclusive rights and shows how it is reflected in the main forms of substantive private law rights. Parts Three and Four take up the further question of the moral acceptability of the misfeasance requirement as part of a liberal theory of justice.

A guide to the Banking Bill 2008

The Banking Bill 2008 was introduced into Parliament in October 2008 in response to the financial crisis of 2007–2008, and came following a series of consultations published by the Government during 2007 and 2008. The Bill has the overall objective of enhancing financial stability and improving depositor protection, and includes a raft of new powers, including tools the UK tripartite authorities can use to deal with failing and failed banks – known as the Special Resolution Regime (SRR). Following the failures of Northern Rock and Bradford and Bingley a number of new tools are proposed to deal with failing banks. Some of the tools proposed, principally the “partial transfer” powers, have proved controversial due to the effect they could have on stakeholders' private law rights during a bank insolvency or rescue. The Government has proposed a safeguard order and a code of conduct to meet concerns, but many feel the Government must go further if they are to prevent rising costs for UK banks and further financial instability.

EU Fundamental Rights, EC Fundamental Freedoms and Private Law

Originally, private law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defenses against the vigilant eye of the state. This traditional view, however, has been put under pressure as a result of the growing effect of fundamental rights in private law, which makes it possible to speak about the tendency towards the constitutionalization of private law. Although until recently this tendency has primarily manifested itself in the national law of many EU Member States as a result of the readiness of the domestic courts to grant effect to fundamental rights embodied in national constitutions and international human rights instruments in purely private law disputes, an interesting perspective on the issue is also provided by EU law. The aim of this article is to trace in EU law the signs of the developments which have been occurring in national legal systems with regard to the effect of fundamental rights in private law, and, in the light of this, to outline possible directions in the evolution of the relationship between private law, on the one hand, and EC fundamental freedoms and EU fundamental rights, on the other, in the context of EU law.

Ownership and Eviction: Constitutional Rights in Private Law

* Professor, Department of Public Law, Stellenbosch University. Research for this article was made possible by financial assistance from the Alexander von Humboldt Foundation, the National Research Foundation (grant number GUN 2050532), Stellenbosch University, and Trinity College, Cambridge. Opinions, conclusions and recommendations expressed in the article do not necessarily reflect the views of these institutions and should not be attributed to them. For parts of the article I relied on sections from three other articles written in the same period: see A J van der Walt, “Property theory and the transformation of property law”; “The Public aspect of private property”; and “Constitutional rights and private-law rules” (all forthcoming). Thanks are due to the participants in seminars at Aberdeen and Edinburgh where the paper was presented, as well as to Greg Alexander, Laura Underkuffler and Hanoch Dagan for extensive, incisive and helpful comments on various drafts of this paper.

Book Review: Human Rights in Private Law

Book Review: Human Rights in Private Law

ARTICLE 6(1) OF THE EUROPEAN CONVENTION AND THE CURATIVE POWERS OF JUDICIAL REVIEW

The European Convention on Human Rights and Fundamental Freedoms makes no mention of any right to procedural justice in the making of administrative decisions. Any protection for such rights must be found in Article 6(1) which provides that in the determination of their “civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. But Article 6(1) was originally intended to apply to the determination of private law rights only and not to public law matters (see Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1, 36 (Sir Vincent Evans, dissenting); Konig v. Germany (1978) 2 E.H.R.R. 170 (Matscher J., dissenting)). The article plainly envisages judicial proceedings, and there are obvious difficulties in applying it straightforwardly to administrative proceedings.

The Law and Politics: More Power to the Judges--and to the People?

DURING the final decades of the twentieth century, there was a steady shift in power from politicians to judges, as judicial review, the mechanism by which public bodies are held legally accountable, became increasingly important. This shift received considerable impetus with the passing of the Human Rights Act 1998 (HRA), which came into force in England and Wales on 2 October 2000. It not only provides an additional ground for individuals to challenge executive action, but it also gives the courts wide interpretative powers and a set of principles against which the actions of public bodies can be measured. It is too early to determine the effect of the Human Rights Act on executive/ judicial relations. However, there is already some evidence of how the courts will use their new powers. This article will examine this evidence, as provided by judicial review, private law and human rights actions brought in the courts during the year 2000. It will then consider the wider implications of the HRA. Judicial decisions during 2000 judicial review. At the beginning of the year 2000, the issue of General Pinochet still lingered. The legal intricacies of the case had preoccupied the courts since October 1998 but early in the new millennium the matter was resolved when the challenge of the decision of the Home Secretary, Jack Straw, to allow Pinochet to return to Chile on the grounds that he was unfit to stand trial was unsuccessful and the general left the country. The judges were, no doubt, relieved to see the end of the Pinochet saga, not only because of the highly charged nature of the succession of challenges and appeals to which it had given rise, but also because of the damage caused to the reputation of the House of Lords by the Hoffmann incident. Lord Hoffmann, one of the Law Lords who had heard Pinochet’s appeal against extradition, had a close association with Amnesty International and this was held by an appeal panel of the House of Lords to have given rise to a real danger of bias. As a result, the House of Lords had to rehear the case. The finding of bias produced a surge of challenges on similar grounds and confusion among judges as to when they should stand down from hearing cases. These culminated in the Locobail case, heard by the Court of Appeal in November 1999, 1 which sought to give some guidance. However, the issue of bias did not go away, arising in the context of the Human

Die verdienstes en tekortkominge van ’n alsydige regsakademikus. ’n Kritiese waardering van Johan van der Vyver se bydrae tot die regswetenskap in Suid-Afrika

The merits and demerits of an all-rounder legal ac ademic. A critical appraisal of Johan van der Vyver’s contribution to legal scholarship in South Africa This article assesses the contribution of Johan van der Vyver to legal scholarship in South Africa. It does so with reference to his qualities and contributions as:• all-rounder,• mentor;• Neo-Calvinist legal philosopher,• herald of human rights,• scholar and theoretician of Private Law and• scholar and theoretician of Public Law. His achievement as legal academic is not merely described but also appraised. It is argued that he must primarily be seen as a Neo-Calvinist legal philosopher in the Kuyperian tradition. His work as one of three foremost academic exponents of the idea and practice of human rights in South Africa is all the more remarkable because his initial ideas were developed in an environment not particularly conducive to an endeavour of this kind. As scholar of Private Law his main contribution has been the development of the theory of subjective rights in Private Law (and in a purist vein). He is, however, criticised for a paucity of reflection on the development of a similar theory in Public Law.

Special educational and social services, statutory duties and financial resources

Local authority - community care services - special educational provision - resources - eligibility criteria - private law rights Cases: R. v Brent and Harrow Health Authority, ex parte London Borough of Harrow, and R. v London Borough of Harrow, ex parte M Law report of cases: The Times (1996) 15 October; transcript no. CO/2322/96 (judgment given 8 October 1996)

Unifying Remedies: Property Rules, Liability Rules, and Startling Rules

Imagine that B complains about pollution spewing forth from a factory owned by her neighbor, A. A generation of law students has now learned that ZTs possible remedies traverse the boundaries normally drawn between legal subject areas, much as the previous generation of lawyers learned to lower the divide between law and equity. The educational watershed was surely Calabresi and Melamed's justly celebrated article of twenty-five years ago, suggesting a theory of remedies and concentrating on what it called property rules and tort liability rules.1 By focusing on (and moving between) property rights, damage awards, and private bargains around these rights and awards, Calabresi and Melamed vaporized the inherited barriers between private law rights and remedies. In retrospect, that article is at least as interesting for what it missed as for what it wrought. Readers of law reviews know that a good deal of attention had been paid to the question of when judges should assign property rights or liability awards, and Calabresi and Melamed can be said to have anticipated and initiated that inquiry?which I largely avoid in the present Essay.2 Some readers also know that Calabresi and Melamed might be described as having produced something less than a theory of remedies?if grand implies completeness?because subsequent innovators have shown remedies not anticipated twenty-five years ago. My aim here is, first, to learn about

Protocol No. 5 to European Convention on Human Rights

This Council of Europe Convention adds to the European Convention on Human Rights substantive rights with respect to procedural safeguards on the expulsion of aliens and to equality of spouses' private law rights and responsibilities concerning marriage. The government of Denmark ratified this Protocol on August 18, 1988; the government of Luxembourg ratified it on April 19, 1989; the government of Norway ratified it on October 25, 1988; the government of San Marino ratified it on March 22, 1989; and the government of Switzerland ratified it on February 24, 1989.

Société Lévy Fils v. Crédit Industriel d’Alsace et de Lorraine.

Armistice Treaty — Nature of — Interpretation of.Treaties — Interpretation of — Agencies of — Interpretation of Treaties by Municipal Courts — Distinction between Litigation concerning Private Law Rights and that of a Public Nature — Interpretation of Article 17 of the Franco-German Armistice Convention of June 22, 1940.

The Pure Theory of Law. William Ebenstein

Previous articleNext article No AccessBook ReviewsThe Pure Theory of Law. William Ebenstein Gustav BergmannGustav Bergmann Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Ethics Volume 56, Number 1Oct., 1945 Article DOIhttps://doi.org/10.1086/290477 Views: 1Total views on this site Citations: 1Citations are reported from Crossref PDF download Crossref reports the following articles citing this article:Helge Dedek Private law rights as democratic participation: Kelsen on private law and (economic) democracy, University of Toronto Law Journal 71, no.33 (Apr 2021): 376–414.https://doi.org/10.3138/utlj-2020-0039