1,720,976 research outputs found
A Dignity Theory of Equity
No full textThis thesis seeks to advance understandings of the relationship between dignity and Equity, and how Equity can work in practice to address contemporary dignitary challenges. It asks what role Equity plays in upholding dignity within the common law system. Through an exploration of jurisprudential literature on dignity and Equity, the thesis argues that current legal theories do not adequately account for the roles the other plays in each concept's relationship with the law. In response, the thesis establishes the 'Dignity Theory of Equity' (DTE) in which Equity, through its central notion of conscience, is understood as functioning to uphold a standard of human dignity that recognises persons as moral ends and insists upon treating individuals as such within the scope of their interpersonal relations. So understood, Equity engages the human capacities of conscience, through which individuals and courts alike are able to recognise human dignity. It does so by demanding the embodiment of a corresponding moral value (dignity) of human conduct from parties, as well as (dignity) of the common law system of private law (including its judicial institutions and offices).
More specifically, the DTE illuminates how Equity deploys conscience to uphold the deeper 'persons as ends' conception of human dignity within a private law system centred on a shallower 'fundamental freedoms' conception of dignity through Common Law. That is, when those freedoms would permit interpersonal conduct inconsistent with the standing of another person as a moral end. Importantly, the DTE demarcates the interpersonal scope inside which Equity's conscience operates and ensures a deeper standard of human dignity is actionable through common law courts.
Two contemporary doctrinal case studies are undertaken to demonstrate the DTE and how its understanding of Equity can assist courts to more effectively uphold dignity. These show how the DTE is embodied in the Equitable claims of unconscionable dealing and breach of confidence and their actual and potential application to two current private law issues-the gig economy and unauthorised disclosure of private sexual images.
The thesis concludes that the DTE provides a better understanding of Equity's distinctive role in the common law system. This, in turn, allows Equity to better fulfil that role by addressing exigent interpersonal dignitary problems presented by the implications of Common Law's shallower conception of dignity
Trusts Law and Structural Power
Get PDFIn his seminal article 'Power, Property and the Law of Trusts', Roger Cotterrell cautions us that to engage in proper sociological critique of the law we must swim the deep and murky waters of society and the human condition. We cannot hope to fully understand the workings of the law without interrogating the social context in which law is placed. Cotterrell's critique of trusts was grounded in the idea of trusts law as a distancing framework which masked the true extent of beneficiaries' power, and seeks thereby to endow the trustee-beneficiary relationship with moral obligations of protection that are not, in fact, justified. Our paper uses Cotterrell's framework as a starting point, but offers a very different diagnosis. We argue that a proper appraisal of the strengths and limitations of trust law must start not with a narrow focus on property-based power, but with the broader issue of structural power. Structural power is concerned with mapping inherent inequities in society, the institutional structures that create those inequities, and their impact on the outcomes of social interaction. This dimension of power matters both because of its historical importance to trust law, and because equitable doctrines and remedies, unlike those of the common law, offer tools to directly address the consequences of structural power. Structural power, and structural inequities, offer a strong normative justification for the imposition of trust-based obligations; yet it is a peculiarity of modern trusts law that they are rarely imposed in such situations. From this perspective, the problem with trusts law lies not in the fact that it creates many moral obligations in favour of powerful beneficiaries, but that it fails to confer the right types of power on the right types of beneficiaries. The problem is not with the conceptual structures and obligations that characterise trusts law, but with the fact that trusts law suffers from a conceptual fossilization which prevents its application in contexts where its ideological underpinnings would most usefully redress the types of structural inequities with which they have the potential to deal. We develop this argument through three case studies, focusing on three specific aspects of this conceptual fossilization: the types of relations where trust-based obligations are appropriate, the types of interests and beneficiaries that merit protection through the instrument of trusts, and the types of obligations that must be imposed to adequately address the underlying problems of structural power. First, we argue that trusts doctrine, particularly in relation to implied trusts, fails to take adequate account of structural imbalances in interpersonal relations in modern society and, hence, leaves those areas to other domains of law such as contract or regulation which are less equipped to deal with them. We use as our example the control and use of information and personal data, focusing in particular on the issues created by the potential use by insurers of genetic information, and the use by internet services of control over information visibility to users, and information about the users themselves. In each case, we show that trust-based obligations offer strong ways of controlling the exercise of, and ameliorating the effects of, the structural power that characterises these relations. Second, we explore the manner in which trusts law conceptualises beneficiaries and the types of interests of beneficiaries that it protects. Using the local authority cases as our example, we show that the law presently embeds a narrow conception of beneficiaries, and of the interests of beneficiaries, which entrenches structural inequalities in society. In particular, there is a strong focus on money, at the expense of other types of value and interests, which leads to focus on a narrow category of beneficiaries (typically, ratepayers). A proper conception of beneficiaries, grounded in a proper understanding of the role of trusts in dealing with structural power, would in contrast recognise the possiblity of different classes of beneficiaries and of the possiblity of different obligations in relation to these different classes. The same is true of interests, where cases such as Harries v Church Commissioners and Martin v City of Edinburgh District Council, in contexts closely intertwined with the political process, lead to trusts law prioritising a particular ideological stance. Here, the consequence is to preclude trustees from being able to mediate between different interests of differing importance to different classes of beneficiaries conflicts, because the central concern is financial. Third, we consider the extent to which beneficiaries have the sort of power that Cotterrell suggests. Using the example of the pension trust---arguably a vehicle for social justice where the beneficiary should be strong and powerful---we show that the reality belies the claim. The state exercises power over both the trustees and the beneficiaries; the trustees have power over the beneficiaries; and the beneficiaries lack any practical power---not even having the ordinary rights given to the beneficiaries of small family trusts because of the impossibility of Saunders v Vautier collective action with such large numbers of beneficiaries. Pension trusts are accordingly susceptible to the whims of the political process and to the ideologies and thought-styles of those with the greatest amount of social power. In the case of pension trusts itself, the result has been a distancing effect from the beneficiaries, with the law prioritising the resilience of the trust fund over beneficiaries. This leaves beneficiaries in a state of abject dependance and powerlessness, with little or no ability to control those who ultimately determine their legal position. Here, the problem is not that the law justifies owing moral obligations to powerful beneficiaries, but that it justifies the absence of moral obligations to powerless beneficiaries. Our analysis thus illustrates dramatic inadequacies in the law of trusts as it is currently constituted, which are deeply embedded in the way trusts law has developed. The result is that whilst trusts law can be used to challenge and remedy imbalanced power relations, its distancing from structural imbalance is so deeply ingrained that it does not do so, and cannot change direction without significant intervention. We argue that there is a strong case for a greater focus on the role of structural power as a normative justification for trust-based obligations, and for studying the manner in which the current conceptual fossilization of trust law might be overcome, enabling it to move in the necessary direction
Critical trusts law: reading Roger Cotterrell
No full textIn his 1987 article, ‘Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship,’ Roger Cotterrell outlined for the first time a critical, socio-legal approach to the law of trusts. Cotterrell’s work is as important as ever in posing questions of power, property, ideology and inequality, opening new perspectives on the broader societal significance of the effects of trusts law.
This edited collection revisits themes and theoretical perspectives in Roger Cotterrell’s now canonical work, bringing the theoretical insights of sociological and critical theory to the field of trusts. Themes explored include power in trusts law and practice, trusts and moral-distancing, ideology, and wealth inequality.
The collection will be of interest to trusts scholars looking for critical reflections on trusts law, theory and practice. The collection will be useful to both academic researchers and for those teaching undergraduate and postgraduate courses on trusts law, private law theory, critical legal theory, and global capitalism
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Narratives of Governance: Understanding Responses to Street Homelessness in Canterbury
No full textIn this thesis I examine the complexities and inconsistencies of the contemporary governance of street homelessness by exploring a particular locale, the city of Canterbury in Kent. Drawing on interdisciplinary perspectives I engage with governance as it presents in Canterbury, expanding existing literature by investigating novel and under researched spaces and practices.
My research, and this thesis, traverses the city. It begins in a local churchyard, passing through the Business Improvement District, into a city centre park before concluding with visits to two homeless charities. In each site I unravel the connections between the contexts in which governance is practised and the range of responses to street homelessness. I explore and critique notions of localism illustrating how responsibility for homelessness has become dispersed and obscured. Further, my analysis problematises universalising accounts of the effects of neoliberalism on the governance of street homelessness in urban settings, uncovering a more varied and variable reality: highlighting, for example, how the stories told about the history, character, and values in and of a city inflect the approach to governance.
I employ a methodology that juxtaposes a close and contextually rich reading of the narratives composed and communicated by different governance actors with the findings from my empirical research. This distinctive approach provides an original account of urban governance, revealing underlying contingencies and demonstrating the significance of local context as a productive site for assessing and extending contemporary discourses of street homelessness.
This thesis proposes that a more nuanced understanding of the governance of street homelessness is possible by paying attention to local context, and the spaces and agencies that are less commonly the focus of analysis. I argue that this approach serves to unravel and reframe usual oppositional explanatory constructs such as deserving/undeserving, compassionate/punitive, public/private, indolent/productive, and unsettles theories of localism and neoliberalism by placing them in the everyday. In doing so, fresh perspectives emerge of street homelessness and the spaces, rationalities, and practices of governance
Variations on the Author
Get PDF“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
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