All posts by Mechanic101

Defences by MSs

Force majeure

    • Usually rejected by ECJ! MS is responsible for breach, regardless of which agency of the State caused the failure to fulfil obligations
      • Even fact that institution is constitutionally independent is not a defence (Comm v Belgium, 1970)
      • Comm v Belgium, 1970: ECJ rejected dissolution of Parlt as a defence – normally have significant amount of time for implementation anyway, longer than it’ll take to dissolve Parlt.
  • MS cannot argue that national provisions/circumstances/practices justify failure – Comm v Italy, 1984
    • In a rare case of Comm v Italy, 1970, ECJ agreed force majeure could be pleaded where a bomb attack presented ‘insurmountable difficulties’ (but not on the facts!)
  • Lack of intentional wrongdoing by MS
    • ECJ has rejected such arguments, holding that admissibility of art 258 action is based on objective test, whether MS failed to fulfil obligation. No need to look for subjective intent/deliberateness.
  • EU measure on which infringement proceedings are based is illegal

 

    • Comm v Greece, 1988: MS contested lawfulness of Comm’s initial decision, after action brought against it for failing to amend national legislation.
      • **ECJ held that system of remedies under the Treaty distinguishes between (i) remedies under art 258/259 (declaration that MS failed to fulfil obligations), and (ii) art 263/265 (JR of measures adopted by EC institutions). Just like Manchester Taxi, Hence, in absence of express provision of Treaty, MS can’t plead unlawfulness of decision under (ii) as defence to action under (i).
      • Once time limit for art 263 expired, MS cannot call into question validity of EU measure! Only possible defence will be absolute impossibility of implementation.
      • If MS had objected to decision, it had opportunity to bring direct action for annulment under art 263.
  • But plea of illegality might be defence where Union measure was so gravely flawed it was legally ‘non-existent’, or if it was a regulation (as opposed to decision addressed to MS) and illegality was not apparent to MS until Comm brought enforcement proceedings.

Human Rights Monitoring and Data Protection

This is sponsored by Notary Public solicitors London

Human Rights Act 1998 (HRA) came into force on 2.10.2000

Purpose It incorporates into domestic law the European Convention for the Protection of

Human Rights and Fundamental Freedoms 1950 (the Convention)

Main Purpose

The mainstay of the HRA 1998 is that it permits victims to sue public authorities. It creates a

new free-standing cause of action for the victims of unlawful acts by public authorities.

Victims would also be entitled to rely on their Convention rights in proceedings brought against

them, or in conjunction with other existing causes of action – for example breach of contract or

unfair dismissal claims.)

Section 6 provides that it is unlawful for a public authority to act in a way which is incompatible

Continue reading Human Rights Monitoring and Data Protection

Devlin

  • Criminal law is based upon moral principle
  • Poses the question of what’s the connection b/w crime & sin, and to what extent, if at all, should crim law of England concern itself w/enforcement of morals & punish sin or immorality as such à Wolfenden report proposed no act of immorality should be made criminal unless it’s accompanied by some other feature, such as indecency, corruption, exploitation, and proposed to make consensual homosexual act b/w people legal.
  • law overlaps w/morality: e.g. treatment of consent in English law has always concerned itself w/moral principles: mainly not permitted to be used as defence b/c an offence against society. There are certain standards of behaviour or moral principles which society requires to be observed & their breach is an offence not merely against person injured but against soc as a whole = the basis of crim law.
  • In response to Mill: euthanasia, suicide, abortion, incest b/w brother & sister are acts which can be done in private & w/out offence to others, and don’t involve their exploitation or corruption, yet while some think the law on these requires reform, no one has gone as far as to say they should be taken out of crim law as matters of private morality. They can be brought within crim law by ref to moral principle.
  • Source of law’s authority to speak about morality/immorality + settling of principles which it chooses to enforce
  • As a matter of history, these principles derive from Christianity but dig deeper à the right of society to pass moral judgment = a collective judgment warranting intervention; i.e. public morality. g. if soc isn’t prepared to say homosexuality is morally wrong, the law has no basis for punishing a man for immoral earnings as homosexual prostitute. Private morality = private behaviour in matters of morals.
  • Society is made up of community of ideas, both political & about how members should behave & govern their lives à it has a moral structure made up of moral & political beliefs. g. whether man take more than one wife is something soc has to make up its mind on. Institution of marriage is an example of division b/w politics & morals & it would be gravely threatened if individuals judgments were permitted about morality of adultery. Society is held together by invisible bonds of common thought – if they were too relaxed, members would drift apart. Common morality is part of that bondage which in turn is a part of a price for society.
  • But beliefs about moral matter change! (Bix: at any time there might be some consensus on some moral questions, yet sharp division on others. Over time, any issue may go from being a matter of consensus to becoming a controversy: so how can we know that our laws are enforcing society’s moral consensus rather than simply protecting last generation’s prejudices against consensus forming around alternative position?
  • But it’s not possible to talk of private/public morality any more than it is of public/private highway – morality is a sphere in which there’s public & private interest, often conflicting, which must be reconciled. Impossible to put forward gen. principles – need toleration of max individual freedom consistent w/integrity of the soc, so that nothing should be punished by law that doesn’t lie beyond the limits of that tolerance. Not enough to say majority dislike the practiceneed real feeling of reprobation. No soc can do w/out intolerance, indignation & disgust – these are forces behind moral law.

Continue reading Devlin

Rationale

  • Contra argument – no person is entirely isolated being & it’s impossible for him to do anything seriously harmful/permanently hurtful to himself w/out mischief reaching at least those near to him & often those beyond. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depend on him for some portion of their happiness but disqualifies him from rendering services which he owes to fellow human beings. He may also injure others by his example (misleading/corrupting their conduct) & ought to be compelled to control himself for their sake. Even where the consequences can be confined to individual, society ought not to abandon seeking to prevent conduct condemned from beginning of time – drunkenness, gambling, uncleanliness – things which experience has shown not to be useful/suitable for any person’s individuality.

 

  • Mill’s response – fully admits mischief which a person does to himself may seriously affect, through their sympathies & interests, those who are close to him & society in a minor degree à when conduct of a person violates a distinct & assignable obligation to any other person, the case is taken out of self regarding class and becomes amenable to moral disapprobation in the proper sense of term; e.g. a man through his extravagance becomes unable to pay of his debts or, having undertaken the moral resp. of having a family, becomes incapable of educating & supporting them – here, he may be duly punished: not for his extravagance but for breach of duty to family & creditors.

Continue reading Rationale

Legal Enforcement of Moral Standards

Mill

  1. On Liberty
  • The sole end for which mankind are warranted, individually or collectively, in interfering w/liberty of any action is self protection. The only purpose for which power can rightfully be exercised over any member of civilised community, against his will, is to prevent harm to others. His own good, moral or physical, isn’t a sufficient warrant & he can’t rightfully be compelled to do/be prevented from doing something b/c it’s better for him/will make him happier/others consider it a better thing to do. These are good reasons for reasoning w/him or persuading, but not compelling him/causing him evil if he chooses not to listen. The only part of conduct for which anyone is amenable to society is that concerning others. In the part which merely concerns him, his independence is as of right absolute. Over himself, individual is sovereign (doesn’t apply to kids, barbarians).
  • People should be able to do different things – society isn’t to be made of people doing the same thing
  • Human liberty = 3 parts
  1. Inward domain of conscience – liberty of thought & feeling, absolute freedom of opinion & sentiment
  2. Liberty of tastes & pursuits – framing the plan of life to suit your character, doing as we like, subject to consequences which follow, w/out impediment from fellow creatures, as long as we don’t harm them
  3. Liberty within same limits of combination of individuals – freedom to unite, for any purpose, not involving harm to others

No society where these aren’t respected is free, regardless of form of govt. – must be free absolutely & unqualifiedly. The only freedom deserving of its name is that of pursuing our own good in our own way, so long as we don’t deprive others/impede their efforts. Each is the proper guardian of own health: mental, bodily & spiritual.

  1. On Limits of Authority
  • Individual should seize of that part which is chiefly for his own interest & society of that which is chiefly for its interest
  • Although soc isn’t founded on contract, everyone who receives its protection owes it a duty to:
  1. observe certain line of conduct by not injuring interests of others; and
  2. bear his own share, to be fixed on some equitable principle of the labours & sacrifices incurred for defending soc/its members from injury.
  • These two conditions society can enforce at all costs but, aside of them, the offender may only be punished by opinion only, not by law. As soon as any part of individual’s conduct affects prejudicially interests of others, society has jurisdiction over it à questions of general welfare then come into consideration. But until then, there’s no room for such questions & individual should have perfect freedom, legal & social, to do the act & stand the consequences.
  • Doctrine isn’t one of selfish indifference – it doesn’t pretend that human beings have no business w/each other’s conduct in life & shouldn’t concern themselves w/each other’s well-being. They owe each other duty to help to distinguish the better from the worse & encourage to choose the former, and should always stimulate each other to do good things but neither is warranted in saying to another he won’t do w/his life for his own benefit as he chooses to.

https://www.oxbridgenotes.co.uk/revision_notes/law-jurisprudence/samples/the-legal-enforcement-of-moral-standards