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Barker K: Enforcement Rights in Public
and Private Law

Enforcement Rights in Public and Private Law

Paradigms, Exceptions and Hybrids

<ul><li>Part I. Preliminaries</li> <li>Chapter 1: Introduction</li> <li>Chapter 2: Enforcement Primer: Concepts, Terms, and Definitions</li> <li>Part II. Analytics and Early Legal History</li> <li>Chapter 3: Enforcement Analytics</li> <li>Chapter 4: Primordia</li> <li>Part III. Modelling</li> <li>Chapter 5: Public Law, Public Enforcement</li> <li>Chapter 6: Public Law, Private Enforcement: State Duties and Liabilities</li> <li>Chapter 7: Public Law, Private Enforcement Citizen Duties</li> <li>Chapter 8: Private Law, Private Enforcement</li> <li>Chapter 9: Private Law, Public Enforcement</li> <li>Chapter 10: Rationalizing Enforcement Choices</li> </ul>

Human Rights Law in Perspective

This book conceptualises the European Court of Human Rights' judgments on Islamic dress as manifestations of the fascist impulse in modern human rights law. The author argues that human rights are thus not an antidote to fascism but are constituted through a fascist inflection and implicated in circulating fascism in the everyday. The inability of human rights to say 'no' to laws regulating and criminalising Islamic dress in Europe engenders an institutional Islamophobia in the law and Islamic dress debate in Europe. The author interrogates the historical emergence of human rights, through a methodology of interdisciplinary, theoretical oscillations between feminism, decolonial, phenomenological and neo-Marxist thought to establish the rights/fascism dialectic. She argues that beyond exclusion and erasure the ownership of rights discourse enables the exploitation of racialised and gendered bodies for the maintenance of material and epistemological privilege with a white, Christian, male norm. It is this moment of ownership, where rights are both propertied and property, that constitutes the rights/fascism dialectic. The author goes on to argue that the rights/fascism dialectic operates at the heart of the Islamic dress debate in Europe to create the impossibility and instrumentalisation of Muslim women's bodies in European public space. The book challenges shifting legal justifications by exposing the functioning of capital, colonialism, patriarchy and power at the European Court of Human Rights in key cases such as Sahin v Turkey and SAS v France. Theoretical insights of the rights/fascism dialectic are applied to the law and Islamic dress debate in the multicultural UK, assimilationist France and at the ECtHR. The conclusion is that the Islamic dress debate in Europe manifests the gender and racial differentiation and instrumentalisation that is essential to the maintenance of human rights and the modern, capitalist state in which rights are enmeshed.

This book conceptualises European Court of Human Rights’ judgments on Islamic dress as manifestations of the fascist impulse in modern human rights law. The author argues that human rights are thus not an antidote to fascism but are constituted through a fascist inflection and implicated in circulating fascism in the everyday. The inability of human rights to say ‘no’ to laws regulating and criminalising Islamic dress in Europe engenders an institutional Islamophobia in the law and Islamic dress debate in Europe.

The author interrogates the historical emergence of human rights, through a methodology of interdisciplinary, theoretical oscillations between feminism, decolonial, phenomenological and neo-Marxist thought to establish the rights/fascism dialectic. She argues that beyond exclusion and erasure the ownership of rights discourse enables the exploitation of racialised and gendered bodies for the maintenance of material and epistemological privilege with a white, Christian, male norm. It is this moment of ownership, where rights are both propertied and property, that constitutes the rights/fascism dialectic. The author goes on to argue that the rights/fascism dialectic operates at the heart of the Islamic dress debate in Europe to create the impossibility and instrumentalisation of Muslim women’s bodies in European public space.

The book challenges shifting legal justifications by exposing the functioning of capital, colonialism, patriarchy and power at the European Court of Human Rights in key cases such as Sahin v Turkey and SAS v France. Theoretical insights of the rights/fascism dialectic are applied to the law and Islamic dress debate in the multicultural UK, assimilationist France and at the ECtHR. The conclusion is that the Islamic dress debate in Europe manifests the gender and racial differentiation and instrumentalisation that is essential to the maintenance of human rights and the modern, capitalist state in which rights are enmeshed.

Rights and Fascism in Europe

Law and Islamic Dress

New Directions in Critical Criminology

Written by experts in the field, this book critically evaluates what restorative justice means today in its various different contexts and examines how the current state of research succeeds or fails in capturing the true state of the art.

Written by experts in the field, this book critically evaluates what restorative justice means today in its various different contexts and examines how the current state of research succeeds or fails in capturing the true state of the art.

Restorative Justice Practice

This book challenges the near-universal acceptance of a US-style, Western constitutional paradigm as the best basis for comparative constitutional studies. It does so on three main grounds: anachronism, 'othering' and cultural specificity. Main pillars of 'convergent constitutional theory' are rooted in the revolutionary, late-eighteenth century - a lost world; constitutional arrangements that deviate from the paradigm are often branded as 'outliers' or even as not constitutional at all; and the foundations of the paradigm in liberal democracy give no space for other forms of constitutionalism. Whatever the attractions of convergent theory as a normative ideal of good government, for the purposes of understanding, analysing and explaining constitutional systems it is far from ideal. This book discusses and questions: convergent theory's weddedness to writing as the technology of constitution-making; its image of a constitution as fundamental law; its idea that a constitution expresses the 'sovereignty of the people'; its use of tripartite separation of powers as the basic principle of institutional design; its relative neglect of administrative law; its association of 'rights' with judicially enforceable bills of rights; and its obsession with a vaguely specified concept of 'democracy'. It makes suggestions for alternative, preferable methods of understanding, analysing and explaining constitutions, and governmental and constitutional systems.

The Distorting Lens of Convergent Constitutional Theory

This open access book assesses whether European data regulation can be amended in light of contemporary technological developments. In an era when data powers our daily lives, economies and societies, data regulation is essential. However, European data regulation is still premised on concepts and foundations that were developed more than 50 years ago. The book offers an in-depth exploration of the European data regulatory landscape, from its historical roots to the challenges posed by new technological advancements. Through a detailed legal and technical analysis, it explores key data categories - such as anonymised, pseudonymised, aggregated, sensitive data, and metadata - highlighting their fluid and changing nature and the growing possibilities for transitioning between them. By identifying regulatory tensions and challenges arising from various technologies, such as AI, Big Data, and quantum computing, the book offers policymakers, legal scholars, computer scientists and data protection experts different perspectives on how to reshape future privacy and data protection legislation in a rapidly advancing technological world. The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

The Past, Present, and Future of European Data Regulation

This collection of essays presents a socio-legal history of epidemics from the medieval period to the present day. Building on previous studies of infectious diseases undertaken by social historians of medicine, this collection explores the histories of epidemics and disease by looking at the legal measures deployed against them. Whilst previous works have considered the mechanisms by which legal change occurs, the social and political assumptions on which new laws and new legal structures are premised and the social changes which follow, this book focuses on the way in which historical actors understood law to be a complex means of responding to disease and the way in which that law shaped (and limited) the responses which could be made to disease. Taking an interdisciplinary approach, it features contributions from scholars across a range of academic disciplines who consider the wider implications of epidemics and disease beyond the obvious health effects. The collection focuses first on regulatory responses such as the quarantine laws and border policies in the eighteenth century, the framing of 'disease' in the Colonial Immigration Acts in the nineteenth century and the ethics of public health in the twentieth century in Great Britain. It then goes on to consider developments in broader legal doctrine which themselves resulted from social and/or legal responses to disease, including the centralisation of labour regulation in the wake of the black death, property disputes about leper houses, pest houses and fever hospitals, and the prosecution of medical professionals for disease transmission in 19th century England. Methodologically all the chapters are historical, but a range of approaches has been taken, from quite traditional doctrinal legal history through socio-legal history to traditional political and social history, to bring the history of epidemics and the legal measures deployed against them in to sharp focus.

Epidemics and the Law from Plague to the Present

This book's essays want to provide the intellectually-sophisticated and ethically-sensitive comparatist with the equipment that will stand comparison in optimal epistemic stead as one embarks upon the journey of elicitation and inscription towards foreign law.

The Ways of Negative Comparative Law

Forests are central to international security, peace, and justice, as they provide livelihoods for millions of impoverished people in developing countries. Threat's to the world's forests may result in a reduction in basic livelihood resources and will have significant consequences on a global scale. There is no existing international treaty on the protection of forests, with the result that their international protection is governed by disparate areas of international law and smaller-scale local initiatives. In this context, this book reviews the history of international law on forests, evaluating the effectiveness of the existing international legal framework to protect them. The book investigates the impact of the initiatives which have emerged in the absence of a dedicated international agreement, including Reducing Emissions from Deforestation and Forest Degradation (REDD+) and forest certification, which are assessed in the wider context of the development of international environmental law. It also considers the role of regional forest agreements in the international protection of forests. It assesses the challenges to the effectiveness of international law governing forests, in particular the disparate nature of the law as it stands, and posits that the solution can be found in existing regional agreements. It argues that a more specific international treaty, consistent with the recent decisions of international courts on environmental protection and building on the experience of regional legal instruments, may offer an effective path forward.

Forests are central to international security, peace, and justice, as they provide livelihoods for millions of impoverished people in developing countries. Threat's to the world's forests may result in a reduction in basic livelihood resources and will have significant consequences on a global scale. There is no existing international treaty on the protection of forests, with the result that their international protection is governed by disparate areas of international law and smaller-scale local initiatives. In this context, this book reviews the history of international law on forests, evaluating the effectiveness of the existing international legal framework to protect them. 

The book investigates the impact of the initiatives which have emerged in the absence of a dedicated international agreement, including Reducing Emissions from Deforestation and Forest Degradation (REDD+) and forest certification, which are assessed in the wider context of the development of international environmental law. It also considers the role of regional forest agreements in the international protection of forests. It assesses the challenges to the effectiveness of international law governing forests, in particular the disparate nature of the law as it stands, and posits that the solution can be found in existing regional agreements. It argues that a more specific international treaty, consistent with the recent decisions of international courts on environmental protection and building on the experience of regional legal instruments, may offer an effective path forward.

International Law and the Protection of Forests

This volume offers a comprehensive examination of Hans Kelsen's legal and political philosophy, focusing on four central themes. The first part analyses Kelsen's theory of norms, including its periodisation and concepts of validity and coercion. The second part explores his perspectives on international law, addressing its structural analysis, primitive law characterisation, and teleology. The third part examines Kelsen's theory of democracy, its relationship with the pure theory of law, collective will, and democratisation of the administration. The final part discusses Kelsen's influence on the Vienna School of Legal Theory and its impact on case law and jurisprudence beyond Europe. This collection is essential for scholars and practitioners seeking to understand Kelsen's legacy.

Legal Normativity, International Law and Democracy

Kelsen’s Legacy

Anthem Environment and Sustainability Initiative

This book considers the value of constitutional environmental rights in protecting water resources through an examination of the legal strategies utilized by communities engaged in protracted mining conflicts, including oil sands development in the Canadian boreal forest and gold mining in ecologically sensitive, glacier-rich areas of Argentina.

Water, Oil and Gold

The Power of Constitutional Rights in Resource Conflicts

Drawing on the experience of recognised experts from across a range of different fields and jurisdictions, this landmark publication tackles default rules in private law in comparative perspective. Often underestimated, but highly influential, default rules are non-mandatory rules that kick in where nothing else has been agreed or provided. The contributions explore default rules from a variety of angles relevant to both scholarship and legal practice, including: - behavioural aspects and the role of platform terms in the digital age; - the remit and operation of defaults in different areas, ranging from contract and commercial law to succession, civil procedure and private international law; - a comparison between Common law and Civilian approaches as well as the EU level; - the perspectives of different 'players' engaged in the generation and application of default rules.

Default Rules in Private Law

Modern Studies in European Law

The European Union undoubtedly has and continues to face a period of crisis and this book assesses this critical juncture in its history. It adopts a unique multidisciplinary approach drawing on philosophy, social theory, and law, and focusing on the European institutional framework and EU law on free movement and citizenship. This perspective leads to the conclusion that central to the EU's problems is the non-emergence of a European people. This multifaceted approach also allows the author to suggest how the EU might move positively beyond its current challenges. This book provides a genuinely fresh and innovative comment on a much-examined question.

Between Immunity and Recognition

The Search for a European People

This book analyses laws distinctively normative contribution to place-making. In an original, cross-disciplinary, analysis drawing on scholarship in law, geography, philosophy and politics, Antonia Layard considers how law operates in the fixing of borders that both protect and exclude. Centred upon four legal case studies - on public space; housing regulation; rules on the manifestation of religion; and geographic indications in intellectual property law - the book pursues a critical geographical consideration of how place is integral to ideas about identity, belonging and territory.

Law, Place &amp; Maps: Balancing Protection and Exclusion analyse law’s distinctively normative contribution to place-making. In an original, cross-disciplinary, analysis drawing on scholarship in law, geography, philosophy and politics, Antonia Layard considers how, both formally and formally, law operates in the fixing of borders that both protect and exclude. Centred upon four legal case studies – on public space; housing regulation; rules on the manifestation of religion; and geographic indications in intellectual property law – the book pursues a critical geographical consideration of how place is integral to ideas about identity, belonging and territory. It will be of much interest to critical legal geographers and socio-legal scholars, as well as planning, environmental, intellectual property, housing and land use lawyers.

Balancing Protection and Exclusion

Law, Place and Maps

Enforcement Rights in Public and Private Law

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