Modern Law Review
About: Modern Law Review is an academic journal. The journal publishes majorly in the area(s): Human rights & Common law. It has an ISSN identifier of 0026-7961. Over the lifetime, 2395 publication(s) have been published receiving 27981 citation(s). The journal is also known as: The modern law review.
Topics: Human rights, Common law, Legislation, Public law, Appeal
Papers published on a yearly basis
01 Jan 1999-Modern Law Review
TL;DR: The notion of the precautionary principle was first proposed in The Modern Law Review [Vol. 7, No. 1, No 2] as discussed by the authors, and it has been applied to a wide range of areas of law, insurance, and politics.
Abstract: level. Risks only exist when there are decisions to be taken, for reasons given earlier. The idea of responsibility also presumes decisions. What brings into play the notion of responsibility is that someone takes a decision having discernable consequences. The transition from external to manufactured risk is bringing about a crisis of responsibility, because the connections between risk, responsibility and decisions alter. This is a crisis of responsibility with negative and positive features, roughly corresponding to the negative and positive aspects of risk. Given the inherently ambiguous nature of most situations of manufactured risk, and the inherent reflexivity of these situations, responsibility can neither easily be attributed nor assumed. This applies both where responsibility means limiting risk (as in ecological risks, or health risks) and where risk is an energising principle (financial markets). Several consequences follow: 1. The emergence of what Beck calls ‘organised irresponsibility’. By this he means that there are a diversity of humanly created risks for which people and organisations are certainly ‘responsible’ in a sense that they are its authors but where no one is held specifically accountable. Various questions then come to the fore. Who is to determine how harmful products are, what side effects are produced by them, and what level of risk is acceptable? How can ‘sufficient proof’ be determined in a world full of contested knowledge claims and probabilities? If there are damages to be paid, or reparations made, who is to decide about compensation and appropriate forms for future control or regulation? Much of the ‘social interrogation’ of risk and responsibility takes place through the prism of external risk and simple modernisation. This is true, for example, of anyone who expects an actuary to predict risk, and therefore assess responsibility, on the basis of past trends; or of anyone who supposes that one can simply turn to experts to provide solutions. Coping with situations of organised irresponsibility is likely to become more and more important in the fields of law, insurance and politics, but this won’t be easy to do precisely because of the rather imponderable character of most circumstances of manufactured risk. The dilemma of scaremongering versus cover-ups is a direct indication of the deep seated nature of the problems involved here. 2. Some say that the most effective way to cope with the rise of manufactured risk is to limit responsibility by adopting the ‘precautionary principle’. The notion of the precautionary principle seems to have first emerged in The Modern Law Review [Vol. 62 8 s The Modern Law Review Limited 1999 Germany in the 1980s, in the context of the ecological debates that were carried on there. At its simplest, it proposes that action on environmental issues (and by inference other forms of risk) should be taken even though there is scientific uncertainty about them. Thus in the 1980s, in several Continental countries, programmes were initiated to counter acid rain, whereas in Britain lack of conclusive evidence was used to justify inactivity on this and other pollution problems too. Yet the precautionary principle isn’t always helpful or even applicable as a means of coping with problems of responsibility. The precept of ‘staying close to nature’, or of limiting innovation rather than embracing it, can’t always apply. The reason is that the balance of benefits and dangers from scientific and technological advance, and other forms of social change, is imponderable. We may need quite often to be bold rather than cautious in supporting scientific innovation or other forms of change. This having been said, variations on the precautionary principle can nevertheless be a significant way of reintroducing responsibility. One variant of the principle, for example, is that firms producing goods should think through the whole product cycle before those goods are released onto the market or relevant technical processes utilised. Thus in the Brent Spar episode, the company putting up the oil platform in the first place had not adequately thought through to the final point of effective and reasonably safe disposal. 3. Situations of manufactured risk shift the relation between collective and individual responsibility in many risk situations. Although in many circumstances individuals cannot be held culpable, this is not the same as non-culpability in conditions of organised irresponsibility. In the latter case, this results from viewing responsibilities through the lenses of external or passive risk. Consider, for instance, health risks. Many people get ill through no fault of their own. But a large proportion of illnesses are related both to lifestyle practises and to wider conditions of the ‘created environment’. It doesn’t make any sense to suppose that liability in these circumstances can remain wholly with the collectivity, whether this be government or an insurance company. The active assumption of responsibility, as in attempts to reduce levels of smoking, becomes part of the very definition of risk situations and therefore the attribution of responsibility. Something quite similar applies to our responsibilities towards future generations. When most risk was external, such responsibility was relatively limited: nature was largely intact. Our responsibilities to future generations now are thoroughly infused with decisions we have to take resulting from our transformation of nature. 4. These considerations are relevant to one of the major political issues of our times, the future of the welfare state. The history of the welfare state in all countries is a tangled one. The welfare state emerged in some part as a means of holding back the aspirations of the poor and of controlling them – it had some of its roots in the political right. In recent years, however, as described earlier, the left has appropriated the welfare state as its own project. The debate around the welfare state has therefore concentrated to a considerable degree upon its role in limiting or reducing inequality. But the welfare state is more correctly seen as a form of collective risk management. The idea that the welfare state should be understood as a ‘safety’ or ‘provident’ state has been raised most forcefully in the writings January 1999] Risk and Responsibility s The Modern Law Review Limited 1999 9 of the French thinker Francois Ewald. The welfare state is tied into the basic suppositions of modernity – that security comes from the ever more effective control by human beings of their material and social environments. The crisis of the welfare state is usually represented as a fiscal one. If the welfare state is in trouble, it is because people won’t pay the taxes needed to fund welfare systems properly. There is some validity to this, but it is more illuminating to see the crisis of the welfare state as a crisis of risk management. The welfare state was built up on the presumption of external or passive risk. If you become unemployed, fall ill, become disabled or lose your home, the welfare state will step in to protect you. Welfare systems must now confront large areas of manufactured risk, shifting the relation between risk and responsibility. It isn’t surprising that there is now a great deal of talk about the need to connect rights with responsibilities. Unconditional rights might seem appropriate when individuals bear no responsibility for the risks they face, but such is not the case in situations of manufactured risk. 5. Where a society hasn’t got effective means of dealing with organised irresponsibility, the result isn’t always that no one is held culpable. On the contrary, the price of manufactured uncertainty is probably closely associated with the emergence of the ‘litiginous’ society. Where a common ‘contract of responsibility’ has broken down, culpability can appear everywhere. Here indemnity has effectively been separated from causality. I might be held responsible, for example, if someone is hurt through slipping on my garden path. 6. The theme of responsibility has to be integrated with a concern for the two sides of risk. The negative and positive sides of risk are still often discussed as though they were separate from one another. This translates into a division between two large bodies of literature. It is a remarkable fact that most of those who write about environmental risk make no reference at all to the literature on financial or entrepreneurial risk, or vice versa. Two of the most influential books to have been written about risk over the past ten years, for example, are Risk Society by Ulrich Beck and Against the Gods written by Peter Bernstein. Yet these books make no reference at all to one another. The fact that risk is often a positive or energising phenomenon is relevant to most of the situations of risk and responsibility discussed above, not just to economic risk. Thus to create a more effective welfare state, it is important that in some situations people are psychologically and materially able to take risks albeit in a ‘responsible’ way. It isn’t a good outcome for the individual or the wider society where a person is stuck on benefits or unwilling to take the risk of plunging into the labour market. The same applies to someone caught up in a dysfunctional or violent relationship. Risk is not only closely associated with responsibility, but also with initiative and the exploration of new horizons – something which takes us back to our starting point when the notion was first developed in post-
01 Jan 1974-Modern Law Review
20 May 2003-Modern Law Review
TL;DR: In this article, the importation of the civil law concept of good faith into British law illustrates the coevolving trajectories of the legal system and tightly coupled social systems which instead of furthering harmonisation of laws produces new divergences as their unintended consequences.
Abstract: Legal transplant is an unsatisfactory metaphor for describing the transfer of legal rules from one legal system to another. Instead, the metaphor of legal irritant better describes the impact on the legal system, and then a distinction between tight and loose coupling between law and its social context better explains the trajectory of social effects. The example of the importation of the civil law concept of good faith into British law illustrates the co-evolving trajectories of the legal system and tightly coupled social systems which instead of furthering harmonisation of laws produces new divergences as their unintended consequences.
01 Jan 1993-Modern Law Review
TL;DR: In this article, a new conceptual analysis of sovereignty and statehood, moving forward from the juristic inheritance, is presented, and some consequences of a belief in sovereign statehood are discussed.
Abstract: A different view would be that sovereignty and sovereign states, and the inexorable linkage of law with sovereignty and the state, have been but the passing phenomena of a few centuries that their passing is by no means regrettable. This will be the view stated in the present lecture. The order of presentation will be through consideration of some connected points. The first one is to locate sovereignty and the theory of sovereign statehood in the setting of legal theory, showing how developments in European Community law raise difficulties for some standard positions in legal theory. The second point is to proceed into some fresh conceptual analysis of sovereignty and statehood, moving forward from the juristic inheritance. The third is to discuss some consequences of a belief in Sovereign Statehood. The difference between the predominantly legal and the predominantly political conception of sovereignty now appears.
01 May 2002-Modern Law Review
TL;DR: A rehabilitated language of constitutionalism would meet these challenges through a version of constitutional pluralism as discussed by the authors, which recognises that in the post-Westphalian world there exists a range of different constitutional sites and processes configured in a heterarchical rather than a hierarchical pattern, and seeks to develop a number of empirical indices and normative criteria which allow us to understand this emerging configuration and assess the legitimacy of its development.
Abstract: Constitutional discourse has perhaps never been more popular, nor more comprehensively challenged than it is today. The development of new constitutional settlements and languages at state and post-state level has to be balanced against the deepening of a formidable range of sceptical attitudes. These include the claim that constitutionalism remains too state-centered, overstates its capacity to shape political community, exhibits an inherent normative bias against social developments associated with the politics of difference, provides a language easily susceptible to ideological manipulation and, that, consequent upon these challenges, it increasingly represents a fractured and debased conceptual currency. A rehabilitated language of constitutionalism would meet these challenges through a version of constitutional pluralism. Constitutional pluralism recognises that in the post-Westphalian world there exists a range of different constitutional sites and processes configured in a heterarchical rather than a hierarchical pattern, and seeks to develop a number of empirical indices and normative criteria which allow us to understand this emerging configuration and assess the legitimacy of its development.
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