Comparative Law and the Ius Gentium

Constitutional principles are sometimes invoked in adjudication as a bridge to foreign law. This article argues that a cosmopolitan approach, such as that advocated by Jeremy Waldron through his ius gentium theory, is useful in accounting for the use of constitutional principles by courts insofar as the commonality of language and methodology surrounding the use of constitutional principles is connected to societal and institutional needs. The article argues that constitutional principles often serve as a connection to foreign law because the principles are applied as representations of a societal need for order and stability. At the same time, the article cautions that transnational judicial dialogue is impacted by compartmentalisation and divergence. Consequently, arguments for a ius gentium must be more cautious and nuanced. As a step in this direction, the article proposes two ideas for modifying the ius gentium theory: conceiving of the ius gentium as an emerging but not yet fully realised system and characterising the ius gentium as a convergence of methodology rather than substantive norms

Common Law Constitutionalism Through Methodology

This paper makes the case that methodology is a cornerstone of the advance of common law constitutionalism both within jurisdictions and transnationally. Common law methods, including interpretive presumptions and reasoning by unwritten principles, are central to an appreciation of the development of common law constitutionalism. Moreover, methodological practices present a more fruitful basis for lasting common law constitutionalism in several respects. Firstly, methods have the potential to survive legislative winds of change. Path dependence (in the sense that legal decisions and outcomes are shaped by the historical sequence of legal developments) points to the retention of techniques through embedded judicial practice. Secondly, methods also travel well across borders and thereby enable further development of the transnational dimension of common law constitutionalism. Common law methods are capable of adaptation across borders; they are less susceptible to barriers erected by claims of national or constitutional identity. Against this background, I argue that debates about the merits and impact of common law constitutionalism must contain and respond to accounts of the methods engaged in common law constitutionalist reasoning

A Common Law Resurgence in Rights Protection?

Following a period of relative dormancy, the UK Supreme Court has revitalised the notion that the common law might provide effective protection for human rights. In Osborn v Parole Board , Kennedy v Information Commissioner and A v BBC the Supreme Court has provided support for the suggestion that the common law—and not the jurisprudence of the European Court of Human Rights—should be the primary source of legal authority for a domestic court considering an issue of individual rights. This piece traces this resurgence of common law rights reasoning, and assesses the nature of the primacy it seeks to accord to the common law

Unity, Disunity and Vacuity: Constitutional Adjudication and the Common Law

Roger Masterman Se-Shauna Wheatle Our thanks are due to Mark Elliott and William Lucy for their comments on a previous draft. The common law is often seen as a unifying and stabilising factor across and within jurisdictions; in the United Kingdom, for instance, the common law is appealed to as a familiar and certain alternative to the unpredictable and overweening impacts of European human rights law. This is in spite of the common law’s propensity for reinvention, and the internal divisions and tensions within both the substance and methodologies of the common law. These ructions are particularly evident in the constitutional common law and its approach to the resolution of fundamental constitutional conflict. Though primarily regarded as the vehicle for the realisation of the private law of obligations, the last 20 years have seen the English common law assume a distinctly constitutional character. The articulation of fundamental rights, though lacking..

Dialogue on the Impact of Coronavirus on Research and Publishing: Monday 22nd June 2020

This roundtable took place via Microsoft Teams on Monday 22nd June 2020 to discuss the impact of COVID-19 on Research and Publishing in the U

Understanding and reducing sexual prejudice in Jamaica: Theoretical and practical insights from a severely anti-gay society

Jamaica has earned an international reputation for severe sexual prejudice: perhaps disproportionately so compared to other severely anti-LGBT societies. Until recently, however, no quantitative empirical research had investigated Jamaica’s sexual prejudice, leaving the prejudice poorly understood and methods of reducing it unclear. This article reviews the past 15 years of empirical research on Jamaican anti-LGBT prejudice. It situates Jamaica within the global context, explains the current understanding of the severity and nature of the problem, evaluates solutions currently being explored and suggests promising strategies based on available evidence. Importantly, this article also reflects on lessons learned from Jamaica that are relevant for other severely anti-LGBT societies

Jamaica, Three Years Later: Effects of Intensified Pro-Gay Activism on Severe Prejudice Against Lesbians and Gay Men

Jamaica has developed an international reputation for severe anti-gay prejudice. However, in the past few years, between 2012 and 2015, intensified waves of activism have increased the visibility of lesbian, gay, bisexual, and transgender (LGBT) Jamaicans, and supported their social and legal inclusion in Jamaican society. This research investigated the effects of that activism by taking advantage of two large, representative surveys of Jamaicans' attitudes toward lesbians and gay men: one in 2012 and one in 2015. Over the three-year period there were significant reductions in desire for social distance and opposition to gay rights. However, there was no significant change in anti-gay attitudes, and there was evidence of an increase in anti-gay behaviors. There was also no evidence of polarization of responses to gay men and lesbians; rather, the most prejudiced Jamaicans showed the largest reductions in bias. Implications of these findings for activism in Jamaica and other anti-gay countries are discussed