Legal Studies Research Paper Series Vol. 8, No. 7
The Faculty has published Volume 8 Number 7 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.
This issue includes the following articles:
Paul Daly: Brexit: Legal and Political Fault Lines (25/2017)
The argument I will advance in this extended note on the United Kingdom Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union is that the decision and its aftermath can be usefully understood by reference to three fault lines: between form and substance (Part I); between the old constitution and the new constitution (Part II); and between political accountability and legal accountability (Part III). The decision and the academic debate the litigation provoked revealed that British lawyers are deeply divided about how to resolve important questions about the relationship between Parliament, the executive and the courts. And the legislative response to Miller reveals that the fault lines can operate differently in a political context than they do in a legal context (Part IV).
Brian Sloan: Burdens, Presumptions and Confusion in the Law on Want of Knowledge and Approval (26/2016)
In the context of an ageing population and numerous challenges to wills in England and Wales, this article considers the doctrine that a testator must know and approve of the contents of his will to ensure its validity. It analyses several ostensible fundamental principles related to it, particularly in light of the potentially difficult and contradictory Court of Appeal decision in Gill v Woodall. These principles include: (1) that the propounder of a will must “prove” it; (2) that a testator with capacity who duly executes a will is nevertheless presumed to know and approve of its contents; and (3) that (notwithstanding principle (2)) “suspicious circumstances” will require affirmative proof of knowledge and approval. The paper investigates the origin, normative justifications and current status of the principles, and in particular whether they are compatible with each other. It suggests a number of reforms.
Kathleen Liddell & Jeffrey Skopek: Informed Consent for Research Using Biospecimens, Genetic Information and Other Personal Data (27/2017)
While human subjects research once consisted primarily of research on people, advances in biobanking, genetics and big data have transformed the research landscape. Personal data and biospecimens are increasingly at the centre of research, giving rise to difficult questions about whether and how to apply legal and ethical principles – such as informed consent – that were developed for research on people.
The first part of this article explores questions about consent that arise in the context of authorising research on personal data and biospecimens, focusing on the legal and ethical basis of the consent requirement, the use of specific versus broad consent, and the significance of anonymisation. The second part of the article looks at issues of consent that arise beyond the individual’s decision to participate, focusing on the return of individualised research results, community consent, and the ownership of biospecimens.
Eyal Benvenisti & Doreen Lustig: Taming Democracy: Codifying the Laws of War to Restore the European Order, 1856-1874 (28/2017)
In this article, we contend that the canonical narrative about civil society’s efforts to discipline warfare during the mid-nineteenth century – a narrative of progressive evolution of Enlightenment-inspired international humanitarian law (IHL) – does not withstand scrutiny. On the basis of archival work and close reading of protocols, we argue that European governments codified the laws of war not for the purpose of protecting civilians from combatants’ fire, but rather to protect combatants from civilians eager to take up arms to defend their nation – even against their own governments’ wishes. We further argue that the concern with placing “a gun on the shoulder of every socialist” extended far beyond the battlefield. Monarchs and emperors turned to international law to put the dreaded nationalist and revolutionary genies back into the bottle. Specifically, we propose that it was the Franco-Prussian War of 1870 – 1871 and the subsequent short-lived, but violent, rise of the Paris Commune that prompted governments (more than any other war during this formative era of international law) to adopt the Brussels Declaration of 1874, the first comprehensive text on the laws of war. The new law not only exposed civilians to the war’s harms, but also supported the growing capitalist economy by ensuring that market interests would be protected from the scourge of war and the consequences of defeat. The laws of war, in this formative stage, were more about restoring the political and economic order of Europe than about wartime.