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Criminal Sentencing as Practical Wisdom
Graeme Brown
How do judges sentence? In particular, how important is judicial
discretion in sentencing? Sentencing guidelines are often said to promote
consistency, but is consistency in sentencing achievable or even desirable?
Whilst the passing of a sentence is arguably the most public stage of the
criminal justice process, there have been few attempts to examine judicial
perceptions of, and attitudes towards, the sentencing process.
Through interviews with Scottish judges and by presenting a
comprehensive review and analysis of recent scholarship on sentencing –
including a comparative study of UK, Irish and Commonwealth sentencing
jurisprudence – this book explores these issues to present a systematic theory
of sentencing. Through an integration of the concept of equity as
particularised justice, the Aristotelian concept of phronesis (or ‘practical
wisdom’), the concept of value pluralism, and the focus of appellate courts
throughout the Commonwealth on sentencing by way of ‘instinctive synthesis’, it
is argued that judicial sentencing methodology is best viewed in terms of a
phronetic synthesis of the relevant facts and circumstances of the particular
case. The author concludes that sentencing is best conceptualised as a form of
case-orientated, concrete and intuitive decision making; one that seeks
individualisation through judicial recognition of the profoundly contextualised
nature of the process.
Graeme Brown LLB (Hons), LLM, MSc, MJur
(Dunelm), PhD (Edin), Dip LP is a solicitor and Honorary Fellow in the School
of Law, University of Edinburgh.
June 2017 9781509902613
304pp Hardback RSP: $108
DISCOUNT RATE TO EMAIL LIST SUBSCRIBERS: $97.20 (+
postage)
Human Rights and Judicial Review in Australia and Canada
The Newest Despotism?
Janina Boughey
It is commonly asserted that bills of rights have had a ‘righting’
effect on the principles of judicial review of administrative action and have
been a key driver of the modern expansion in judicial oversight of the
executive arm of government. A number of commentators have pointed to
Australian administrative law as evidence for this ‘righting’ hypothesis. They
have suggested that the fact that Australia is an outlier among common law
jurisdictions in having neither a statutory nor a constitutional framework to
expressly protect human rights explains why Australia alone continues to take
an apparently ‘formalist’, ‘legalist’ and ‘conservative’ approach to
administrative law. Other commentators and judges, including a number in
Canada, have argued the opposite: that bills of rights have the effect of
stifling the development of the common law. However, for the most part, all
these claims remain just that – there has been limited detailed analysis of the
issue, and no detailed comparative analysis of the veracity of the claims. This
book analyses in detail the interaction between administrative and human rights
law in Australia and Canada, arguing that both jurisdictions have reached
remarkably similar positions regarding the balance between judicial and
executive power, and between broader fundamental principles including the rule
of law, parliamentary sovereignty and the separation of powers. It will provide
valuable reading for all those researching judicial review and human rights.
Janina Boughey is a Lecturer in Public Law
at Monash University.
June 2017 9781509907861
320pp Hardback RSP: $108
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postage)
General Principles of Law
European and Comparative Perspectives
Edited by Stefan Vogenauer and Stephen Weatherill
Examining general principles of law provides one of the most instructive
examples of the intersection between EU law and comparative law. This
collection draws on the expertise of high-profile and distinguished scholars to
provide a critical examination of this interaction. It shows how general principles
of EU law need to be responsive to national laws. In addition, it is clear that
the laws of the Member States have no choice but to be responsive to the
general principles which are developed through EU law. Viewed through the
perspective of proportionality, legal certainty, and fundamental rights, the
dynamic relationship between the ingenuity of the Court of Justice, the
legislative process and the process of Treaty revision is comprehensively
illustrated.
Stefan Vogenauer is Director of the Max Planck
Institute for European Legal History, Frankfurt.
Stephen Weatherill is Jacques Delors Professor
of European Law, University of Oxford.
June 2017 9781509910717
432pp Hardback RSP: $114
DISCOUNT RATE TO EMAIL LIST SUBSCRIBERS: $102.60 (+
postage)
Gender Equality in Law
Uncovering the Legacies of Czech State Socialism
Barbara Havelková
Praise For The Book
‘In ‘Gender Equality in Law: Uncovering the Legacies
of Czech State Socialism’, Barbara Havelková offers a sober and sophisticated
socio-legal account of gender equality law in Czechia. Tracing gender equality
norms from their origins under state socialism, Havelková shows how the
dominant understanding of the differences between women and men as natural and
innate combined with a post-socialist understanding of rights as freedom to
shape the views of key Czech legal actors and to thwart the transformative
potential of EU sex discrimination law. Havelková’s compelling feminist legal
genealogy of gender equality in Czechia illuminates the path dependency of
gender norms and the antipathy to substantive gender equality that is common
among the formerly state-socialist countries of Central and Eastern Europe. Her
deft analysis of the relationship between gender and legal norms is especially
relevant today as the legitimacy of gender equality laws is increasingly
precarious.’
Professor Judy Fudge, Kent Law School
Gender equality law in Czechia, as in other parts of post-socialist
Central and Eastern Europe, is facing serious challenges. When obliged to
adopt, interpret and apply anti-discrimination law as a condition of membership
of the EU, Czech legislators and judges have repeatedly expressed hostility and
demonstrated a fundamental lack of understanding of key ideas underpinning it.
This important new study explores this scepticism to gender equality law,
examining it with reference to legal and socio-legal developments that started
in the state-socialist past and that remain relevant today.
The book examines legal developments in gender-relevant areas, most
importantly in equality and anti-discrimination law. But it goes further,
shedding light on the underlying understandings of key concepts such as women,
gender, equality, discrimination and rights. In so doing, it shows the
fundamental intellectual and conceptual difficulties faced by gender equality
law in Czechia. These include an essentialist understanding of differences
between men and women, a notion that equality and anti-discrimination law is
incompatible with freedom, and a perception that existing laws are objective
and neutral, while any new gender-progressive regulation of social relations is
an unacceptable interference with the ‘natural social order’. Timely and
provocative, this book will be required reading for all scholars of equality
and gender and the law.
Barbara Havelková is the Shaw Foundation Fellow
in Law at the University of Oxford.
June 2017 9781509905867
368pp Hardback RSP: $94
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postage)
The Fundamental Right to Data Protection
Normative Value in the Context of Counter-Terrorism Surveillance
Maria Tzanou
Since the entry into force of the Lisbon Treaty, data protection has
been elevated to the status of a fundamental right in the European Union and is
now enshrined in the EU Charter of Fundamental Rights alongside the right to
privacy. This timely book investigates the normative significance of data
protection as a fundamental right in the EU. The first part of the book
examines the scope, the content and the capabilities of data protection as a
fundamental right to resolve problems and to provide for an effective
protection. It discusses the current approaches to this right in the legal
scholarship and the case-law and identifies the limitations that prevent it
from having an added value of its own. It suggests a theory of data protection
that reconstructs the understanding of this right and could guide courts and
legislators on data protection issues. The second part of the book goes on to
empirically test the reconstructed right to data protection in four
case-studies of counter-terrorism surveillance: communications metadata, travel
data, financial data and Internet data surveillance. The book will be of
interest to academics, students, policy-makers and practitioners in EU law,
privacy, data protection, counter-terrorism and human rights law.
Maria Tzanou is a Lecturer in Law at the
University of Keele.
June 2017 9781509901678
320pp Hardback RSP: $94
DISCOUNT RATE TO EMAIL LIST SUBSCRIBERS: $84.60 (+
postage)
Religion, Equality and Employment in Europe
The Case for Reasonable Accommodation
Katayoun Alidadi
Praise For The Book
'This book offers a comprehensive exploration of a
traditionally neglected theme which is of great practical significance for the
prosperous development of multi-religious societies. Alidadi presents an
innovative combination of findings from different normative and empirical
disciplines, particularly law and sociology, and offers critical contributions
to central debates within legal theory, including on the meaning of State
neutrality vis-à-vis religion, secularity, formal and substantive equality,
diversity and multiculturalism …a 'must' for everyone in the future dealing
with issues of religious freedom, tolerance or discrimination in the
workplace.'
Heiner Bielefeldt, Professor of Human Rights and Human Rights Policy at
the University of Erlangen and Former UN Rapporteur on Freedom of Religion or
Belief
'…a timely, expansive, and tremendously important book
which offers a smart, sophisticated examination of divisive issues. Alidadi
presents her thought-provoking argument in a balanced and compelling fashion....
The case for reasonable accommodation may very well provoke opposition in the
current socio-political European context. But there can be no doubt that this
rich study will have an impact on any future academic discussion on the
accommodation of religious diversity in the workplace.'
Rik Torfs, Professor of Canon Law and University
Chancellor Catholic University of Leuven, Belgium
'Alidadi’s work will rapidly emerge as the premier
study of religion in the workplace. Drawing on extensive empirical and
legal research, she provides a powerful analysis pointing to the crucial
importance of reasonable accommodation as a vital solution not only in
employment settings, but in the larger context of our increasingly diverse
societies.'
W. Cole Durham, Jr., Founding Director, International
Center for Law and Religion Studies, Brigham Young University Law School
The management of religious and ideological diversity remains a key
challenge of our time – deeply entangled with debates about the nature of
liberal democracy, equality, social cohesion, minorities and nationalism,
security and foreign policy. This book explores this challenge at the level of
the workplace in Europe. People do not surrender their religion of belief at
the gates of their workplace, nor should they be required to do so. But what
are the limits of accommodating religious belief in the workplace, particularly
when it clashes with other fundamental rights and freedoms?
Using a comparative and socio-legal approach that emphasises the practical
role of human rights, anti-discrimination law and employment protection, this
book argues for an enforceable right to reasonable accommodation on the grounds
of religion and belief in the workplace in Europe. In so doing, it draws on the
case law of Europe’s two supranational courts, three country studies –Belgium,
the Netherlands and the UK – as well as developments in the US and Canada. By
offering the first book-length treatment of the issue, it will be of
significance to academics, students, policy-makers, business leaders and anyone
interested in a deeper understanding of the potentials and limits of European
and Western inclusion, freedom and equality in a multicultural context.
Katayoun Alidadi is an Assistant Professor of
Legal Studies at Bryant University (Smithfield, RI, USA) and a Research
Associate at the Max Planck Institute for Social Anthropology (Halle, Germany).
Her work focuses on human rights, conflict of laws, employment law and the intersections
of law and religion. She was awarded the 2013 Ius Commune Prize for her
research on reasonable accommodation for religion and belief. Katayoun holds a
PhD in law from the KULeuven (Leuven, Belgium) and an LL.M. from Harvard Law
School (Cambridge, MA, USA).
June 2017 9781509911370
320pp Hardback RSP: $108
DISCOUNT RATE TO EMAIL LIST SUBSCRIBERS: $97.20 (+
postage)
