Modern Statutory Interpretation

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A Note From the SLS 2016 Conference at Oxford.

Every student of law will know about the ‘sources of law’: statues, judicial reasoning, European legislation and cases.  They will be familiar with the cannons of statutory interpretation, the so called Literal, Golden and Mischief rules, purposive and contextual interpretation.   

All students  will have studied how under our constitutional settlement, the  judges interpret and apply statutes such as to articulate the will of the democratically legitimated Parliament,  (the supreme law making body), how the judges attempt to discern the will of Parliament reconciling  that with their judicial obligation to serve justice and the principles of legality.

It is apparent that modern law-making in common law jurisdictions comes from a constant recurring argument and debate between Parliament, the judges and legal academics.  In this spirit of a debate the conference offered a distinguished panel vividly embodying the dynamic of the ‘law making’ conversation. On the panel chaired by Lady Justice Arden the speakers were Lord Justice Sales, Professor John Bell from Cambridge and Daniel Greenberg a former Parliamentary Counsel.

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Filed under Carl Schmitt, Contextual Interpretation, Democracy, Giorgio Agamben State of Exception, Hansard, Legal interpretation, Parliamentary sovereignty, Pepper v Hart, Rule of Law, Society of Legal Scholars, Statutory interpretation, Uncategorized

The Panama Papers and Material Law.

Panama Canal Construction Historic Photo - Culebra Cut 1898

This photograph taken in 1898[1]  shows the physically demanding excavation works, needed to cut the artificial valley through the continental divide in Panama.

The work was done by men under inhospitable tropical conditions, with daily temperatures ranging from about 24 °C to 32 °C.  The French company, encouraged by the success of the Suez Canal, raised funds from many individual investors to build the Panama Canal. It started the works in about 1881 but the tropical jungle climate, wet seasons, landslides and floods, difficult terrain, an environment quite unlike the calm flat surroundings of the Suez Canal,  lead to increasing costs. In 1889  the company became bankrupt. 22,000 workers were estimated to have been killed during the abortive construction, 800,000 investors lost their money and the ensuing scandal became known as the “Panama Affair”.

However, unlike now, in 19th Century the financial managers and those with important and high-ranking social positions were not protected by their social status or the law but were in fact held accountable and punished by the law for the social consequences of the financial disaster.

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Filed under Asset protection, Law, Market, Rule of Law, Social Justice, The Guardian, Uncategorized

Good News! The Strasburg Court does not overrule UK laws after all.

The forthcoming election campaign in UK may well include promises by the Conservative Party to withdraw from the European Convention on Human Rights (‘ECHR’) should the party win the next election.

The original proposals to withdraw from the Convention were launched at the Conservative Party conference in October 2014 but instantly denounced as legally illiterate and based on nothing more that fundamentally flawed misunderstanding of human rights jurisprudence.

In short the proposals never made sense, were full of legal howlers and were not supported by any credible legal authority. Moreover the proposals disregarded the implications for the constitutional structure of United Kingdom.

It now transpires that not only are the proposals legally illiterate but there is in fact no empirical evidence to suggest that UK has been subject of especially harsh treatment by the European Court of Human Rights (‘The Strasburg Court’).

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Filed under European Convention on Human Rights, European Court of Human Rights, Human Rights, Human Rights Act 1989, Parliamentary sovereignty, Protecting Human Rights in UK, Vinter and Others v United Kingdom

A worrying new anti-terror law is sneaking through Parliament – Angela Patrick

UK Human Rights Blog

9/11 attack man accused gets compensation

As the world’s press and public stand vigil in support of Charlie Hebdo and the families of the victims of Wednesday’s attack, we wake this morning to reports that our security services are under pressure and seeking new powers. The spectre of the Communications Data Bill is again evoked. These reports mirror renewed commitments yesterday to new counter-terrorism measures for the EU and in France.

This blog has already covered the reaction to the shootings in Paris in some detail.   The spectrum of reaction has been about both defiance and fear. The need for effective counter-terrorism measures to protect us all, yet which recognise and preserve our commitment to the protection of fundamental rights is given a human face as people take to the streets to affirm a commitment to protect the right of us all to speak our mind, to ridicule and to lampoon, to offend and…

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philpapers

 ‘Teaching Law Etymologically’ by James Ressel has been indexed by the philpapers index and is available at http://philpapers.org/rec/RESTLE
“PhilPapers is a comprehensive index and bibliography of philosophy maintained by the community of philosophers. Using advanced trawling techniques and large scale crowdsourcing, we monitor all sources of research content in philosophy, including journals, books, open access archives, and personal pages maintained by academics.”
For further information about philpapers please see: http://philpapers.org/

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Law, Culture & Ideas blog – 2014 in review

WordPress.com, the blogging software we use to make the blog, prepared a 2014 annual report. Here is a link to a copy of the review.

Thanks for reading and a happy new year.

James Ressel

Here’s an excerpt:

A San Francisco cable car holds 60 people. This blog was viewed about 1,200 times in 2014. If it were a cable car, it would take about 20 trips to carry that many people.

Click here to see the complete report.

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‘I am on annual leave’: Why being on holiday is taboo.

'Going anywhere nice?'The use of the  word ‘holiday’ in any work related electronic communication appears to have become taboo. Why might this have occurred?

From our reading of Freud we know that a taboo signifies something sacred and yet at the same time something dangerous’ and ‘uncanny’ – reflecting the exhilaration, giddiness of speed of fairground circularity – the childish joy in the visceral irrational but inevitable motion of the wheel.

In Totem and Taboo Freud wrote that “For us the meaning of taboo branches off into two opposite directions. On the one hand it means to us sacred, consecrated: but on the other hand it means, uncanny, dangerous, forbidden, and unclean. The opposite for taboo is designated in Polynesian by the word noa and signifies something ordinary and generally accessible. Thus something like the concept of reserve inheres in taboo; taboo expresses itself essentially in prohibitions and restrictions. Our combination of ‘holy dread’ would often express the meaning of taboo.” [1].

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Filed under Human Rights Council, Totem and Taboo, Uncategorized, United Nations

Human rights, the law, common sense and the question of freedom.

imagesOn Friday 3rd October the Conservatives published a paper ironically but presumably unintentionally, entitled ‘Protecting Human Rights in the UK’ [1]. The aim of the proposal set out in the paper is to restore “common sense” and to “put Britain first” in relation to the legal protection of human rights.

As we shall see, the somewhat ill thought out proposal, seemingly largely driven by fear of increasing popularity of the UKIP party, seeks to restore the UK Parliament to full vigour, protecting our UK laws and UK constitution from interference by the Strasbourg Court and dastardly European human rights law.

In the paper the Conservative Party sets out its plans for the next Parliament for human rights law in UK. They propose:-

  1. to repeal the Human Rights Act 1998[2],
  2. incorporate the European Convention on Human Rights into primary legislation, and
  3. to pass a new British Bill of Rights to set out a “proper balance between rights and responsibilities”.

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Filed under Democracy, European Convention on Human Rights, European Court of Human Rights, Ghaidan v Gobin-Mendoza, Human Rights Act 1989, Law, Northampton, Parliamentary sovereignty, Protecting Human Rights in UK, Rule of Law, Uncategorized, Vinter and Others v United Kingdom

Aysha King – Medical Treatment and the notion of ‘neglect’.

????????????????????????On 3 September 2014 I was interviewed by Helen Blaby of BBC Radio Northampton [1] on the legal and social issues arising from the case of Aysha King.

The story, although not establishing any legal precedent in UK, raises a number of interesting legal and moral issues.

The primary point was whether the parents were entitled to remove their 5 year old son from the hospital care on the basis that the treatment they felt was appropriate for Aysha was not offered in UK by the National Health Service, (‘NHS’). Unfortunately, in absence of a Court order that specific medical treatment is provided and which can only be granted in judicial review proceedings, a doctor cannot be lawfully compelled by the parents to provide specific medical treatment at the behest of the parents.

It remains a matter of professional medial judgment as to what treatment is appropriate for a particular patient. However, the parents with parental responsibility powers are entitled to remove their child from the hospital in face of medical advice, similarly to any adult who can discharge themselves from hospital in face of contrary medical advice.

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Filed under Children Act 1989, Children and Young Persons Act 1933, European Convention on Human Rights, Law, Medical treatment, Northampton, Radio Prague, Uncategorized

Teaching Law Etymologically.

Northampton-University-Student-accomodation[1]On 22 May 2014 I gave a paper at the University of Northampton annual Teaching & Learning conference. The opportunity gave me a chance to reflect on why learning of law is generally perceived by students as dry, boring and tedious: a subject to be tolerated in the interests of future gains.

In the paper I tried to argue that critical approaches to teaching law can transform the experience of learning law making the possibilities of freedom, equality and justice a reality. The argument was that most law students perceive learning law as “hard and boring” but necessary as an instrument to a singular outcome – a well-paid career in law!

That is all fine, but the unintended consequence of this approach to law studies is that learning of law becomes commodified, measured by reference to the size of the ultimate financial return, and by reference to the coefficient [1] of delivery of teaching of law. Thus, teaching of law risks being reduced to the realisation of an economic equation. I contend that such a transactional relationship is not an interesting or intellectually useful experience for the student or the teacher of law. Continue reading

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