Moving Along the Continuum of Loyalty From a Standard Towards Rules

This article focuses on the location of the duty of loyalty—a unique legal norm in Common Law jurisdictions—both actual and desirable, on the continuum between rules and standards. A rule is a relatively ‘closed’ technical norm, at a high level of specificity; it requires little judicial discretion. A standard is an ‘open’ norm, with a greater degree of flexibility, that requires the exercise of discretion. The insights from this jurisprudential perspective are used to reveal the preferred way for further developing the duty of loyalty. The article explains that ‘loyalty,’ intuitively classified as a ‘pure’ standard, has been reconstructed over time as more specific rules. Moreover, it suggests that, ideally, this movement should continue; namely, when applying loyalty to a specific case, courts should include informative content that would promote predictability. It then illustrates that, unfortunately, this road is not always taken by the courts. A decision to retain loyalty as an ad hoc standard, or an inverse attempt to delineate the boundaries of this norm, has implications on the certainty, consistency, and ethical content of the law. Considering that this duty spreads across different legal fields, personal and commercial, the significance of this discussion becomes all the more evident.

Auswirkungen von Ermessensspielräumen in Vergütungssystemen auf das Verhalten von Mitarbeitern

The design of compensation systems and performance evaluation are subject to subjective influences by the compensation authority. The ex-post adjustment of performance measures is one way of adjusting compensation if an uncontrollable event has affected the achievement targeted. Clawback clauses are intended to reduce manipulation in reporting by allowing compensation that has already been paid out or promised to be reclaimed. Whether ex-post adjustments or clawback clauses are exercised is at the discretion of the compensation authority. This dissertation therefore uses experiments to investigate the effect of the relationships between the design and exercise of discretion on employee behaviour.

Police officers’ discretion and its (in)adequacy as a safety valve against unnecessary arrest

The Supreme Court of Appeal has ended the recent uncertainty on whether there is a need for the fifth jurisdictional fact in the process of arrest. The result is that South African law is back at the well-known four jurisdictional facts that must be present before a lawful warrantless arrest may take place. This article assesses whether, after the demise of the fifth jurisdictional fact, police discretion can adequately protect the right to liberty. The discussion starts with a contextual background outlining the role of the jurisdictional facts and the emergence and demise of the fifth jurisdictional fact. This is followed by an outline of the legislative framework applicable to arrest, pointing out that the law bestows wide discretion on police officers in the exercise of their duties, including securing the court attendance of accused persons. Relying on relevant decided cases, it is submitted that the courts focus on the police discretion exercised at the point of arrest, not in the process preceding that stage (for example, the choice of method). The central submission is that, given that the only viable pre-court appearance protective mechanism against unnecessary arrests is the proper exercise of police discretion, focus on the exercise of discretion at the point of arrest is not the most prudent and/or effective approach in the quest to protect the right to liberty.

Tracking Value and Extending Duties

This chapter shows how both perfect and imperfect duties require both agents and institutions to take responsibility for tracking moral value across their respective contexts of right and duty. The casuistry that belongs to perfect duties is contrasted with the exercise of discretion essential to acting on an imperfect duty. A defense of juridical imperfect duties is offered. Citizens and officials of the state acting under the auspices of a juridical right or duty may need to exercise the kind of discretion that is the mark of an imperfect duty. Questions about moral change in the content and locus of duties are introduced.

Law Enforcement Issues During Covid-19: Experience from Malaysia and Indonesia

This article examines the legal issues relating to the State Administrators’ enforcement of policies, rules, and decision-making in Malaysia and Indonesia during the pandemic from the perspective of administrative law. The State Administrators have come out with various Standard Operating Procedures (SOP) that impacted the people. It is argued that administrative law can discern potential abuse by State administrators while enforcing the law. This article will examine the enforcement issues in both nations by utilizing doctrinal and comparative analysis. Consequently, some exercise of discretion of the executive can be questioned and challenged under the purview of administrative law. Keywords: Administrative law, law enforcement, administrative discretion; Covid-19 eISSN: 2398-4287 © 2021. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BYNC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia. DOI: https://doi.org/10.21834/ebpj.v6iSI6.3052

5. Special duty problems: public bodies

Public bodies have extensive powers to act for the public benefit but often have limited resources. Difficult decisions have to be made, and if those decisions are wholly unreasonable they may be corrected by judicial review; that is, by public law remedies. A more difficult question is whether failure by a public body provides a private right of action to someone harmed (or not benefited) by the decision. While the general principles of duty of care apply (that is, proximity and whether it is fair and just to impose liability), there are several limitations on the liability of public bodies in negligence. This chapter first discusses the special common law principles applicable to the exercise of discretion by public bodies. It then considers specific problematic areas, including the difficulties involved in establishing duties of care by the emergency services before examining the effect of the Human Rights Act 1998 in establishing obligations owed directly by the state.

The power-trust cycle in global health: Trust as belonging in relations of dependency

Trust between actors is vital to delivering positive health outcomes, while relationships of power determine health agendas, whose voices are heard and who benefits from global health initiatives. However, the relationship between trust and power has been neglected in the literatures on both international politics and global health. We examine this relationship through a study of relations between faith based organisations (FBO) and donors in Malawi and Zambia, drawing on 66 key informant interviews with actors central to delivering health care. From these two cases we develop an understanding of ‘trust as belonging’, which we define as the exercise of discretion accompanied by the expression of shared identities. Trust as belonging interacts with power in what we term the ‘power-trust cycle’, in which various forms of power undergird trust, and trust augments these forms of power. The power-trust cycle has a critical bearing on global health outcomes, affecting the space within which both local and international actors jockey to influence the ideologies that underpin global health, and the distribution of crucial resources. We illustrate how the power-trust cycle can work in both positive and negative ways to affect possible cooperation, with significant implications for collective responses to global health challenges.

2. Stop and search

This chapter examines the powers of the police to stop and search people in the context of an initial discussion of police culture and discretion in general. The development of greater powers over the last 35 years since the Police and Criminal Evidence Act 1984 (PACE) was introduced is charted. The chapter considers whether stop and search is racially discriminatory; the constraints and controls on the exercise of discretion; and the impact of stop-search powers. It argues that the working assumptions based on ‘suspiciousness’—i.e. hunch, incongruity, and stereotyping on the basis of types of people, previous records, and so forth—still play as important a part in influencing the exercise of discretion as do legal constraints. This is all true even when responding to citizen reports of suspected offences.

ABUSE OF THE RIGHT AND JUDICIAL ERRORS IN THE EXERCISE OF DISCRETION BY THE JUDGE IN THE CONSIDERATION OF CRIMINAL CASES WITH THE CONSENT OF THE ACCUSED WITH THE CHARGE BROUGHT AGAINST HIM

The article examines the categories of "abuse of law" and" miscarriage of justice", as well as the factors contributing to their occurrence, reveals the mechanism of occurrence of miscarriages of justice, the sources and causes of their occurrence. The author substantiates the claim that the defect of interest, as an aspect of law enforcement, causes the occurrence of abuse and can cause a miscarriage of justice. The main characteristics of a miscarriage of justice, as well as the signs that distinguish a miscarriage of justice from abuse, are revealed. The definition of "abuse of the right" is given, its properties and features are revealed. The article analyzes the peculiarities of committing judicial errors and abuses under a special procedure of judicial proceedings.