This thesis approaches the Weimar constitutional debate by focusing on its most significant participants, Hans Kelsen and Carl Schmitt. It reveals that this debate concerned the constitutional question in the context of the contradiction between the democratic modern state and the capitalist economy. It was in that sense a debate on the 'riddle' that was identified by the young Marx concerning the problem of the political form through which modern societies are regulated, caught between the political question, namely that of political power, and by the social question, namely that of the socio-economic structures of power. In effect the term “political constitutionalism” captures this tension through which Hans Kelsen and Carl Schmitt approached the constitutional question. The historical context of the Weimar Republic is important in order to bring into the light the theories of Kelsen and Schmitt (and, secondarily, of other Weimar theorists who also approached the constitutional question through similar problématiques). Regarding this context, it is, firstly, demonstrated that the Weimar Constitution was a post-traditional constitution that dealt both with the political question (the introduction of parliamentary democracy) and with the “social question” through its “economic constitution”. It is, secondly, demonstrated how the relationship between political and socio-economic power affected, in turn, the constitutional order throughout Weimar by leading ultimately to its structural transformation. This thesis argues, firstly, that Schmitt’s solution to Marx’s riddle dissociated the constitution from its democratic promise in order to protect a concept of constitutionalism that would maintain the 19th century liberal political-economic divide. Hence, it ended up as a theory of “authoritarian liberalism” that legitimized the “structural transformation” of the Weimar constitutional order between 1930-32; secondly, that Kelsen’s solution, while placing emphasis on the association of the constitution with the democratic promise, underplayed the power of the capitalist mode of production to affect both the State and the constitutional order itself. As a result, and although he defended the Republic and the Weimar Constitution, he could not see that the constitution itself was traversed by the power of capital in its entanglement with the mode of production.

This thesis seeks to provide a deeper understanding of public attitudes to inheritance in contemporary Scottish society, with particular regard to perceptions of parental obligation in an era of increased family diversity. The cornerstone of the thesis is an empirical study conducted in 2014 against the backdrop of the Scottish Law Commission’s (SLC) 2009 succession law reform proposals that would seriously curtail children’s inheritance rights. The thesis begins by contextualising the empirical study. It explains the current law of succession as it relates to provision for adult partners and children and examines the SLC’s proposed reforms. It argues that the SLC’s proposals to further bolster the spouse’s position at the expense of the deceased’s children are not supported by public opinion. Through analysis of a range of other empirical studies it demonstrates that public opinion supports continued recognition of children in succession law, particularly in reconstituted families. The second part of the thesis explains how the empirical study was planned and executed before detailing the methodological approach used to analyse the data. Having established the methodological framework, the thesis then discusses the key research findings, focusing primarily on the parent-child relationship. Firstly, it explores the obligations parents are considered to owe their children, addressing how these obligations can be reconciled with conceptions of testamentary freedom. Secondly, it examines whether parental duty is viewed differently when the deceased’s surviving spouse is not his children’s other parent and, thirdly, it asks what duty, if any, the deceased owes his stepchildren. While the parent-child relationship is the main focus of this thesis, the SLC also proposed reforms to the inheritance entitlements of half-siblings and these proposals are examined in the context of broader discussion on reconstituted families. The thesis concludes by arguing that, while the SLC rightly identifies social change as a ground for law reform, its proposed reforms fail to adequately reflect social norms in the context of the parent-child relationship. This is because the proposed reforms do not correspond to the societal changes identified: whereas the SLC acknowledges the rise in the number of reconstituted families, the reforms do not adequately consider how these families can be better served by succession law. Instead, confronted with increased family diversity, the SLC opts for simplicity, privileging the spouse ahead of all others regardless of the effect this will have on children in reconstituted families.

This is the first in-depth empirical research into the UK “innocence movement,” which refers to the establishment of innocence projects (IPs) across the UK. IPs are university clinics in which students investigate cases of alleged miscarriages of justice. The Innocence Network UK (INUK) was founded in 2004 and assisted in the development of thirty-six IPs across the UK. This thesis utilised empirical methods undertaking semi-structured interviews with past and present leaders of IPs and other criminal appeal units. It provides three original insights into the UK innocence movement. First, it explored the distinctive model of IPs offered in the core literature and identified several underlying tensions within it. However, the research found the majority of sampled IPs did not conform to this model. Thus for heuristic purposes, and to examine the contrasting aims and objectives of criminal appeal clinics, the thesis sets out two ideal types and uses the evidence from interviews to place the sampled projects along a continuum between these. This section illustrated that the tensions within the literature model of IPs resulted in the sampled projects either evolving away from this approach, or not adopting it in the first place. Secondly, the thesis asks whether the innocence movement can be seen to follow a “rise and fall” trajectory, as the initial expansion of INUK was followed by its closure and the demise of several IPs. Instead, it is argued that the movement is better understood as having undergone a reconfiguration, and that the future landscape for miscarriage of justice work looks likely to be very different from that portrayed in the literature. Finally, the thesis adapts Luhmann’s Social Systems theory as a theoretical framework for examining the evolution of the UK innocence movement. The analysis concludes that this can provide theoretical insights into why the original aims and objectives of IPs were not realised. Insight is also drawn from Nobles and Schiff and their account of systems theory, which is used to further explore the tensions within the IP concept. The thesis conclusion reflects on the findings and offers suggestions for future research opportunities in these areas of legal education and analysis.

No description available.

The United Nations Convention on Contracts for the International Sale of Goods (CISG) is one of the most successful international instruments that provide uniformity in the rules for international trade. It has been adopted by seventy-three countries and has been in force for twenty-one years. The People’s Republic of China (PRC) signed the CISG on 30th September 1981 and many international sales of goods cases have been resolved under the CISG in China. The author will investigate these Chinese cases to examine the effectiveness of the CISG in order to establish whether the application of the CISG has been successful in leading to predictable judgments. This thesis focuses on remedies for breach of contract in the international sale of goods. Remedies are the main reason why claims are made in the international sale of goods and as such they are fundamental to that trade. The main remedies considered in this thesis are the avoidance of contract, damages and specific performance. In addition, mitigation and the categorisation of the breach of contract are discussed where the former is an important means to restrict the recoverable damages and the latter constitutes the foundation for the study of remedies for breach of contract. Furthermore, the provisions related to the remedial rule of the CISG are those that the Chinese tribunals have applied most in their judgments. Research in this area provides the author with sufficient sources of cases for the examination of the Chinese decisions. Two other alternative national regimes are compared with the CISG to assess the predictability of decisions under these systems. These are the old Chinese law, i.e., the PRC Foreign-Related Economic Contract Law (FECL) and English law, i.e., Sale of Goods Act 1979 (SGA) together with English case law. The FECL was the governing law of the international sale contract before China acceded to the CISG. The SGA is the present statute of English international sale contract law. The similarities and differences of the remedial rules between the CISG, FECL and English law are compared in this thesis. Analysis of the Chinese cases tried under the rules of the CISG shows that the outcomes of these cases are not predictable. The author will apply the remedial rules of the FECL and English law to the Chinese cases examined here to find out whether the application of either of these two alternative regimes could have led to outcomes that are more predictable. The conclusion of this thesis summarizes the results of the author’s examination with regard to the Chinese tribunals’ difficulties in making predictable judgments, the causes of difficulty where judgments have been unpredictable and the author’s proposals as to how to resolve such difficulties

Competition and intellectual property rights (IPRs) are both necessary for a market to work efficiently and to promote consumer welfare. The tension between them is only apparent. Properly applied, intellectual property rules define a legal framework which allows undertakings to profit from their inventions. This in turn encourages competition among firms and enhances dynamic efficiency, to the benefit of consumer welfare. From this perspective, IPRs and competition generate a fruitful symbiosis. Standard setting represents one of the fields where the interaction between competition law and IPRs clearly comes to light. The collaborative goal of standard setting organizations (SSOs) is to adopt and promote standards that either do not conflict with anyone’s right or, if they do, are developed under condition that patents are licensed under defined terms. On the one hand, patents are important to promote innovation, as they confer exclusive rights to the inventors. On the other, standards are paramount for enhancing the interoperability of products, expanding network externalities, and facilitating the dissemination of knowledge. Conflicts between IP and competition laws may arise in case IPRs owners in standardization contexts overexploit the rights they have been granted. This may lead to the hold-up problem, which represents both a private and public concern. How to strike, then, the optimal balance between IPRs and industry standards? By answering the question, this work aims at filling a gap in the academic literature, which does not appear so far to have attempted an in-depth assessment of the right equilibrium between investment incentives and competition goals in standard setting. Any abuse of market power may harm significantly consumer well-being. At the same time, any form of control of market power should preserve the incentives of firms to invest in the market. The crucial aim, hence, is to define the optimal balance in order to avoid risks of significant losses in consumer and societal welfare.

This thesis examines the impact of the Public Sector Equality Duty (PSED) on work to promote gender equality through case studies of three local authorities. It aims to both provide new empirical evidence on the impact of the PSED on the behaviour of public bodies and to analyse for the first time the relationship between mainstreaming (the approach to equality within the PSED) and reflexive/responsive regulation (the regulatory mechanism used to enforce mainstreaming). I show that the PSED has not led to the ‘transformational’ approach to equality which some hoped it would represent. Practice varies significantly within and between local authorities; while there were examples of changes as the result of the PSED, the duty was often implemented in a minimalist or bureaucratic manner. These findings support the conclusions of earlier studies of mainstreaming which identify the variety of practices described as mainstreaming and highlight the importance of participation by civil society organisations if mainstreaming is to be transformative. I find that in two of the case studies there was little recognition of or action to promote gender equality, contributing to the debate about the practical implications of replacing a focus on gender with a broader focus on equality and diversity. My analysis draws on feminist literature on mainstreaming and legal literature on reflexive and responsive regulation, which are not usually combined. I identify an important relationship between the regulatory means by which mainstreaming is enforced and the forms of mainstreaming that result. I show that although the terms reflexive and responsive regulation are often used interchangeably in analysis of the PSED there are significant differences between the two. I conclude that changes introduced by the Coalition Government reduced responsive elements in the PSED, while making it more reflexive. This increased the likelihood that public bodies would develop a bureaucratic rather than participatory form of mainstreaming in response to the PSED. I call for the introduction of a duty to consult and engage with civil society as part of the PSED. This would make the duty less reflexive, but more responsive and be more compatible with a participatory approach to mainstreaming.

This study examines the problems we face in making a coherent theoretical link between the international law of piracy and the law of the sea in the context of the rise in maritime piracy in Africa over the past three decades. It focuses on four nations affected by piracy in the Gulf of Guinea and Horn of Africa. Furthermore, the international law of piracy is concerned with two types of jurisdiction: prescriptive jurisdiction and enforcement jurisdiction. However, the law of the sea (UN Law of the Sea Convention) defines five types of jurisdiction: territorial seas, exclusive economic zone (EEZ), the continental shelf, high seas, and seabed or seafloor outside the area of claims of territorial seas under the EEZ. The above implies that where a State that has enforcement jurisdiction is unable or unwilling to enforce prescribed international laws against piracy, recourse ought to be had to a State with jurisdiction under the law of the sea. The current thesis seeks to demonstrate that maritime piracy has substantially increased in north-eastern and western parts of Africa because, albeit the development of the law of the sea has transposed towards acknowledging the rights (and obligations) of coastal States in order to defend their territorial seas with reference to the piratical incursions, not enough attention has been given to the consequences flowing from the fact that the coastal states in question do not possess the requisite resources and systems to enforce international law and/ or prosecute pirates. It is submitted here that piracy in its modern form in the Gulf of Aden and Gulf of Guinea is a transnational crime that may best be contained through a regional legal infrastructure. It is also argued that the multilateral approach of linking enforcement jurisdiction to Universal Jurisdiction is problematic since it translates into ‘relational statism’ that is, where States habitually pursue only their self-interests. As such, consistency and clarity in the international legal situation may best be achieved by recourse to a traditional ‘auto-limitation’ approach whereby jurisdiction is essentially territorial and can only be exercised by a State outside its territory where it obtains the consent of the territorial State (perhaps through Convention or Treaty) or in accordance with a permissive rule derived from international custom. Therefore the thesis of this study suggests the need for legal reform. Chapter 1 provides the background to the study as well as the framework for the research. The main research aims, objectives and research questions are addressed in Chapters 2, 3, 4, 5 and 6. Chapter 7 concludes the research by presenting the findings and recommendations together with an outline of the research contribution.

The mutual funds regulation in Middle Eastern countries is still insufficient and lacks the detailed rules that regulate all aspects of the mutual funds industry. Despite the fact that the current mutual fund regulation addresses different aspects of the fund industry, it is still far from the international standards applied in many countries such as the UK and the USA. The main purpose of this thesis is to investigate the possibility of exporting certain essential regulatory rules form the mutual funds regulation in the UK to the mutual funds regulation in Middle Eastern countries in order to enhance investors’ protection. Enhancing the mutual funds regulations generally and investors protection particularly would accelerate the development of the mutual funds industry in those countries. The first chapter of the thesis is an introduction. The second chapter defines mutual funds by showing their significant role in the financial market and showing their unique attributes which differentiate them from other financial institutions. The third chapter scrutinises the existing mutual funds laws and regulations and their amendments in the UK, namely the Financial Services and Markets Act 2000, the Open Ended Investments Companies Regulations 2001 and the Financial Conduct Authority Sourcebook. The fourth chapter examines the governance of mutual funds under the current legal framework in the UK. The fifth chapter focuses on how the features discussed in the previous chapters could be used in Middle Eastern countries. Finally, chapter six provides the general conclusion of the thesis and the contribution of this research. The findings from the research show that the unique nature of mutual funds as useful financial institutions comes from the combination of the advantages offered to the investors by one financial institution. They also illustrate that mutual funds in the UK are governed by a robust legal framework that regulates nearly all aspects of the industry in detail. This legal framework adopts efficient governance mechanisms that provide investors with a high level of protection. The governance mechanisms ensure investors protection and play a key role in mitigating the potential conflicts of interests between the self-interests of the fund management and the interests of the investors. Another important finding of the research is that the current mutual funds regulations in Middle Eastern countries lack the detailed rules, and they do not regulate all aspects of the fund industry. Therefore, mutual funds investors are not well protected. Finally, the research shows that certain regulatory rules form the UK regulations are exportable to Syrian Mutual funds regulations and can be exportable to Middle Eastern countries. These rules will increase investors’ protection and fill the gap between the international standard and those applied in Middle Eastern countries.

State capitalism, which refers to an economic system wherein the state maintains a guiding role in the economy based on the functioning of a market mechanism that is instrumental to the state, has experienced a rapid proliferation during recent decades. As a typical example of a state capitalist country, China has developed a highly institutionalised economic system characterised by a deep integration between the state and the market. This thesis aims to answer the questions as to how and why the rise of Chinese state capitalism has challenged the existing international economic order. It begins with an exploration of the ways in which Chinese state capitalism functions, submitting that the state simultaneously fulfils a triple role when intervening in the market, namely that of a planner, competitor, and a regulator. This research then doctrinally analyses the legal instruments adopted by China to advance its state capitalist practice, through which it argues that, compared to public law, private law has assumed greater importance in underpinning Chinese state capitalism. Next, by exploring both the world trading system and the international investment regime, the thesis contends that the international economic order has a limited ability to properly respond to the development of China’s state capitalism. The reason behind the limitation results from a failure to understand China’s contemporary state capitalism as an economic model that transcends the traditional market-state paradigm long-held by orthodox capitalism.