School of Law

The Leeds Journal of Law & Criminology

2013 edition

Leeds Journal of Law and Criminology cover

Download the complete journal as a PDF file [7MB].

Individual articles can be downloaded by clicking on the titles below:

Foreword

Professor Alastair Mullis
Head of School of Law, University of Leeds

Introductory Note

Rosalee S. Dorfmann
Editor-in-Chief

On Our Editorial Process

Christopher Ferguson
Managing Editor

Article 12 of the United Nations Convention on the Rights of Persons with Disabilities and the Legal Capacity of Disabled People: The Way Forward?

Alex L Pearl
Graduand LLM International and European Human Rights Law (University of Leeds), LLB (Hons) (University of Leeds).

Article 12 of the UN Convention on the Rights of Persons with Disabilities provides that disabled people are entitled to legal capacity on an equal basis with others in all areas of life. Crucially Article 12(3) obliges State Parties to provide access to the support that disabled people may require in exercising their legal capacity. Legal capacity is not defined in the Convention. However it can be understood as the construct which gives our decisions and transactions legal significance. Legal capacity is how we give effect to our preferences and choices in the real world. The revolution of Article 12 lays in its demand that disabled people must enjoy legal capacity on an equal basis with others. Thus, disabled people have equal
rights to make their own life choices and steer the course of their lives on an equal basis. However, linguistic ambiguity present within Article 12 permits diametrically opposed interpretations
of what the provision actually requires.

This paper contends that if Article 12 is interpreted progressively, it has the potential to deliver significant improvements in the lives of disabled people. The paper argues for a redefinition of
personhood under Article 12 coupled with a move towards supported decision-making models which respect disabled people’s equal rights to self-determine. However, this paper also addresses the danger that Article 12’s wording may permit the continuation of guardianship-style systems based on substituted decision-making. The continuation of substituted decision-making models could potentially undermine the transformative potential of the entire Convention. Similarly, the difficulties of implementing Article 12 effectively might reduce the provision to mere rhetoric. In order to realise the potential of Article 12, State Parties must undertake a process of constructive dialogue through which they can share examples of good practice and assess the outcome of pilot initiatives in order to inform the development of models of supported decision-making. Similarly, States must provide the resources and infrastructure necessary to develop models of supported decision-making. If the disability rights community can encourage State Parties to interpret Article 12 in a manner consistent with the aims of the CRPD then it has the potential to deliver real improvements for the lives of disabled people.

Medical Treatment of Children – Who Decides when Doctors and Parents Disagree?

Michael Yap Chih Hong
Barrister, Middle Temple, Postgraduate of the Bar Professional Training (Northumbria University) and LLB Graduate (University of Leeds).

This article aims to explore the key developments of the best interest test in respect of infants, to reveal that when doctors and parents differ on the proper course of action, the courts have preferred the views of doctors. It is important that the scope of the best interest test be redefined to include non-medical considerations, so that parents do not perceive themselves as being alienated from the decision-making process. This article also expresses the author’s view that since there are benefits and risks in prioritising either the doctors’ opinion or the parents’ wishes, the best solution is to reach a consensus and the least desirable solution is to go to court.

Provisional Measures and the Authority of the International Court of Justice: Sovereignty vs. Efficiency

Jake W Rylatt
LLM Candidate (University of Cambridge), LLB (Hons) Graduand (University of Leeds).

Article 41 of the Statute of the International Court of Justice (‘the ICJ’ or ’the Court’) allows the ICJ to indicate provisional measures providing interim protection to the rights of either party to a pending dispute. Provisional measures have rarely received compliance, leading to an apparent lacuna in the authority of the Court. This article will develop an argument from two starting premises: firstly, state consent is the primary value by which we can measure the legitimacy of international law; secondly, that compliance with provisional measures, granted under the ‘inherent’ jurisdiction of the Court and without the ‘ideal’ consent provided by both parties, is a stronger indicator of the Court’s authority. From this position, the author will advocate an approach for greater clarity, consistency and restraint from the ICJ. In doing so, the article will contend that the Court’s jurisprudence has provided an overly broad assertion of authority, leading to recent State and judicial backlash. The article will then consider extensions to Article 41, and argue that whilst the Court has been wise to limit its power to issue orders ‘proprio motu’, the extent of its authority to prevent the aggravation of a dispute is questionable following the recent Temple of Preah Vihear decision. Furthermore, it shall be argued that whilst the binding nature of provisional measures has now been confirmed, the lack of both State compliance and enforcement procedures detracts from the authority of the Court. Finally, experience will be
drawn from courts of the European Union in order to advocate reform that will be both practical and implementable, clarifying the scope of the Courts’ powers and consequently re-injecting legitimacy into its power to indicate provisional measures.

A Critical Perspective on the Principles of Islamic Finance Focusing on Sharia Compliance and Arbitrage

James M Garner
LLM in International Banking and Finance Law (University of Leeds), LLB (University of Nottingham).

This essay is a comprehensive discussion of the crucial Islamic finance principles written within Sharia law that govern the sector. Riba (prohibition of interest) being the major and most widely known is central to the discussion. However, this essay deals with many other of the major financial principles, for instance Gharar (avoidance of excessive risk), Maisir (avoidance of transactions based on luck or chance) and unjust enrichment. The essay then analyses and evaluates how many popular and intrinsic Islamic financial products used today remain commercially competitive whilst still abiding by these strict Sharia principles. This essay also highlights a contemporary issue and idea within Islamic finance, namely that of so-called Sharia Arbitrage. The theory posits that many of the Sharia complaint products available today are not so different from their Western counterparts. Despite the fact that methods that will be highlighted and used to ensure compliance, they do not go far enough to alter the nature of the products themselves.

The Regulation of Fairness and Duty of Good Faith in English Contract Law: A Relational Contract Theory Assessment

Rosalee S Dorfman
LLM Senior Status Graduate (University of Leeds).

One of the first things a student of English contract law learns is that contracting parties are under no obligation to be ‘fair’. However numerous exceptions are encountered which undermine this general principle. Mistake, duress and misrepresentation are instances when law mitigates unfairness. But then one finds more challenging exceptions: the ‘snapping up principle’, increased protection in consumer contracts, and a steady line of eminent judges suggesting that the law should and does do more than merely ascertain the subjective intentions of the parties.

Social expectations of fairness permeate far into legal and economic relations. Law, society and economy all share a part in regulating contractual fairness. At present, to the detriment of social and economic norms, traditional English contract law denies both its power to regulate fairness and any duty on parties to deal with good faith and honesty. This article shows how good faith is regulated implicitly in a piecemeal fashion, by exceptional doctrines of mistake, duress and unconscionability and misrepresentation and the Unfair Contract Terms Act (UCTA) 1977. It is advocated that English contract law recognise its role in regulating fairness. This encompasses an explicit and overriding obligation to contract in good faith based on objective standards. Applying the relational contract theory lens of Émile Durkheim and, more recently, David Campbell, this article argues that the current approach has led to uncertainty and unfairness. Their socio-legal theory illuminates how contract law is based on cooperation and voluntary consent. At a time of mounting pressure from international common law and EU law to adopt a general doctrine of ‘fair and honest dealing’, this paper challenges traditional English contract law to be honest with itself and realise its purpose of regulating fairness by objective means.

© Copyright Leeds 2017