Human Dignity, ‘Unfair Discrimination’ and Guidance

In Human Dignity: Lodestar for Equality in South Africa, Justice Laurie Ackermann, one of the 11 judges appointed to the South African Constitutional Court after the end of apartheid, presents the most extensive examination yet of the connection between human dignity, equality and the prohibition of ‘unfair discrimination’ under the South African Constitution. This article focuses on one of Ackermann’s central assumptions: that a deeper understanding of human dignity can provide South African courts with clear guidance in identifying unfair discrimination. I argue that human dignity cannot offer this type of guidance. Instead, I contend that the search for guidance should begin with a closer examination of the Constitutional Court’s reasoning in its unfair discrimination decisions. I proceed to develop a novel understanding of the Court’s reasoning which, I argue, offers a surer route to the guidance that Ackermann seeks and indicates where his important appeals for transparent, rigorous judicial reasoning are best directed.

New Rationales for Women on Boards

Should measures promoting women to corporate boards be solely justified in terms of economic arguments? Traditionally, such measures have tended to rely on utilitarian arguments, despite the fact that the most prominent of these arguments—the relationship between women’s presence on boards and firm financial performance—is equivocal. Conversely, this article argues that rationales for increasing women on boards should be based on both equality and economics grounds. An equality rationale is necessary as it clarifies the underlying issues which have given rise to the lack of women on boards as well as enables female representation to be valued in its own right, instead of in terms of business reform. At the same time, an economic rationale remains necessary in order to convince ardent sceptics. Yet because the most prominent rationale is ambivalent, a new economic rationale is needed. This article proposes that the new rationale be drawn from strategic management theory to focus on the contributions women can make to the board decision-making process.

Analogical Reasoning in the Common Law

Analogical reasoning is a pervasive feature of the common law, yet its structure and rational force is much disputed by legal theorists, some of whom are sceptical that it has any rational force at all. This article argues that part of the explanation for these disagreements lies in there being not one form of analogical reasoning in the common law, but three: classificatory analogies, close analogies and distant analogies. These three differ in their functions and rationale. Classificatory analogies involve the use of decided cases to help characterize novel fact situations, and are justified by the rule of law ideal of minimizing the dependence of judicial decisions on the individual views of decision-makers. Close analogies are used to help resolve unsettled issues by reliance on decisions from other branches of the same legal doctrine. They complement the doctrine of precedent, and rest on similar considerations. Distant analogies are also used to help resolve unsettled issues, but by reference to decisions from other legal doctrines. They are the most susceptible to sceptical critique: although they can serve to maintain coherence in the law, they deserve a more modest role in legal reasoning than they are often given.

Taking a ‘Hard Look’ at ‘Irrationality’: Substantive Review of Administrative Discretion in the US and UK Supreme Courts

This article undertakes the heretofore untried task of documenting and explaining the antithetical case law of the American and UK Supreme Courts as to substantive review of administrative discretion over the past three decades. Despite sharing common legal origins and experiencing comparable aggrandisements of administrative power in the latter half of the 20th century, the two courts are now sharply divided by the standard levels of intensity and modi operandi they adopt in exercising arbitrariness and irrationality review, respectively, for instance, the UK Supreme Court has affirmed many more administrative acts than its US counterpart under both Wednesbury and anxious scrutiny review. In determining the standard intensity of substantive review with little or no guidance from statutory or human rights norms, America’s and Britain’s apex courts have taken their cues from the framework principles of their respective polities, as well as from the relative adequacy and efficiency of other oversight mechanisms.

Nonreciprocity and the Moral Basis of Liability to Compensate

This article offers a normative critique of the view, proposed by George Fletcher, that holding one person liable to compensate another for an injury she has caused is justified if it results from a nonreciprocal risk imposition. I briefly attempt to ascertain the moral underpinning of nonreciprocity, considering the concepts of fairness, standing and causation. Concluding that there is no compelling moral rationale for nonreciprocity, I use case analysis to show that two competing considerations—the extent to which either party could have avoided the risk and the distribution of benefits created by the risky activity—override nonreciprocity. I conclude that we ought to reject the nonreciprocity principle as a moral basis of liability to compensate. The results of the critique are not purely negative, however. In outlining and assessing the relevance of avoidability and benefit distributions, I make some progress towards a new account of liability to compensate for unintentional harm.

Proportionality and Parliamentary Debates: Exploring Some Forbidden Territory

In the case law under the Human Rights Act 1998, the courts often say that they will pay substantial respect to the considered decisions of democratic assemblies. Two questions arise from this. (i) Should a court deciding on the human rights compatibility of legislation inquire into whether the human rights issue has actually been considered during parliamentary debate and, if so, how seriously? (ii) What legal relevance, if any, should such parliamentary consideration have for the judicial assessment of human rights compatibility? This article seeks to answer these questions through an examination of the leading case law on judicial recourse to Hansard in compatibility cases, the requirements of Article 9 of the Bill of Rights 1689, the practice of the domestic courts in giving weight to parliamentary engagement with the human rights issue, as well as an examination of the relevant Strasbourg jurisprudence.

Setting Labour Law’s Coverage: Between Universalism and Selectivity

The question of who is (and who should be) covered by labour law is highly contested and often debated. This article addresses several problems related to the coverage question, and employs some novel concepts as an aid to better understand and analyse these problems. It begins by explaining the different aspects of labour law coverage and how all the branches of government are involved in setting it. It is then argued that we are currently facing a major coverage crisis in labour law. The concepts of universalism and selectivity, long used in the welfare state literature to describe possible methods for the delivery of benefits in terms of their coverage, are introduced and adapted to the labour law context. The article then proceeds to make several arguments by using this new framework. Firstly, a descriptive-historical argument: during the 20th century there was a development from selectivity to universalism in labour law, and then back to selectivity of a different kind (regressive). Secondly, a normative argument: a balance must be struck between universalism and selectivity. Several proposals are offered to assist in achieving a better balance compared to the current situation in many countries. Finally, a critical argument: some proposals to ‘expand’ labour law beyond the confines of the employment relationship are considered, showing the dangers of extreme universalism.

Global Legal Pluralism: What’s Law Got To Do With It?

This review article examines the conceptual possibility of ‘cosmopolitan pluralism’, a jurisprudential theory developed by Paul Schiff Berman in his recent book, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. Cosmopolitan pluralism is presented as a conceptual framework for understanding and managing situations of multiple legal orders which overlap and conflict. It seeks to avoid the pitfalls of both sovereigntist territorialism, which attempts to solve all legal disputes by exclusive application of the norms of some single territorially-based jurisdiction, as well as universalism, which always looks for norms which transcend the differences of particular communities. Cosmopolitan pluralism maintains that conflicts ought to be preserved, not eliminated, and local variations should be recognized and accommodated to the greatest extent possible. Here I argue that while Berman has constructed a worthy and desirable goal for communities which find themselves in an increasingly globalized world, much work of an analytical kind remains to be done to show how such a goal is conceptually possible. As I shall attempt to demonstrate, Berman’s cosmopolitan pluralism asks for a radically revisionist understanding of the nature of law’s claim to authority, but it is not (yet) clear that such an account is available.

Books Received

Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg

This article examines the development of the prisoner voting saga concerning the UK and Strasbourg, setting it in the context of the strained relationship existing between the former and the latter in recent years. It examines and offers a critique of the relevant Strasbourg jurisprudence, commencing with the Grand Chamber judgment in Hirst v United Kingdom (No 2). It discusses the ‘brinkmanship’ that ensued between Strasbourg and the UK as regards the enforcement of that judgment, and how Strasbourg responded via a further Grand Chamber judgment (Scoppola v Italy (No 3)). The reaction to that judgment is contextualised by a detailed examination of why the relationship between the UK and Strasbourg has been a difficult one recently, at least from the former’s perspective. These issues are then reflected upon in a final section.