R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603, House of Lords

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603, House of Lords. This case explored whether a United Kingdom court could suspend the effect of primary legislation where it was in conflict with European Community law. It necessarily raises questions about the nature and limits (if any) of parliamentary sovereignty, and for this reason remains relevant notwithstanding the UK’s departure from the European Union. The document also includes supporting commentary from author Thomas Webb.

Law and Literature in Intellectual Property Methodologies

This chapter offers an overview of Law and Literature and explores three primary areas in which intellectual property (IP) scholarship engages with Law and Literature’s methods and tools: the creation of objects that give rise to rights; the definition and enforcement of those rights and their limits; and the narrative of progress and revisionist theories of the field. IP concerns intangible constructs: works, inventions, secrets, marks, or personas. IP ownership implicates theories of representation given the symbolic nature of IP rights to the things they protect, and determining the scope of protection almost always entails multiple interpretive steps. Hence theories of representation and interpretation are relevant to defining the work, assessing the scope of protection, and conducting infringement analysis. Lastly, Law and Literature offers larger narratives about IP that centre on values, history, textuality, theory, culture, context, selfhood, or community. Law and Literature has helped broaden beyond the narrow utilitarian framing of the received approach to IP and thus provided disciplinary cover for pluralistic accounts of the field to emerge. In this revisionism, the three main strands of Law and Literature—which centre on practical wisdom, interpretation, and narrative—offer diverse alternatives for measuring progress or evaluating the IP system in broader sociological and constitutional context.

THE EUROPEAN COMMISSION AS THE GUARDIAN OF THE TREATIES

As in any community, coexistence and cooperation only works if it is well organized. In the EU, there are EU bodies for this purpose. We all know that living together of different members can often lead to a dispute. In the European Union, the subject of dispute can not only be the violation of primary law, but also the violation of secondary community law. In order to better understand the important role of the Commission in the EU, we examine in this paper its composition and Tasks. We know that the European Union is based on the rule of law. This means that every EU activity is based on treaties that have been accepted by all EU Member States on a voluntary and democratic basis. A contract is a binding agreement between the EU member states. It sets out the objectives of the EU, the rules governing the EU institutions, the decision-making process and relations between the EU and its Member States. Therefore it is important to adhere to these treaties to carry out community policy. According to Art. 258 and 259 of the Treaty on the Functioning of the EU, actions for breach of contract can be filed against a Member State by the EU Commission or another Member State (1, Art.258-259). For the European Commission, as the «Guardian of the Treaties», this option is a particularly important instrument of power politics that it can use against member states' governments that do not recognize or do not comply with the norms of Community law. In practice, the infringement procedures requested by the Commission are of particular importance for ensuring compliance with Community law by the Member States. In no other area does the Commission have so much power and independence against the Member States. Now we should take a closer look at the EU institution and especially the EU Commission.

Revisiting the Monism and Dualism Dichotomy: What does the South African Constitution of 1996 and the Practice by the Courts tell us about the Reception of SADC Community Law (Treaty Law) in South Africa?

The jurisprudence of the (suspended) SADC Tribunal shows that the Tribunal was prepared to utilise the principles of democracy, human rights and the rule of law contained in the Treaty of the Southern African Development Community (SADC Treaty) to ensure that SADC member states fulfil their treaty obligations. The decisions rendered by the SADC Tribunal and the participation of the South African former President in a process that halted the functioning of the Tribunal have brought interesting legal developments in the South African legal system in so far as the reception and application of SADC community law in South African municipal law is concerned. The argument presented in this article is that the recent seemingly monist approach by the courts represents a major shift from a prescribed procedure provided for in the Constitution of South Africa, 1996 (the Constitution). The practice by the courts further ignores the dualist nature of South Africa's legal system. The main question presented in this discourse is whether a departure by the courts from a constitutionally mandated procedure of domesticating SADC community law into municipal law signifies a new and settled norm which entails that South Africa now follows a hybrid system (i.e. monism and dualism) of treaty incorporation? In light of this possible legal uncertainty, I propose that South Africa adopts a harmonisation theory to address the legal gap created by the courts.

Abstract versus Folk Legal Pluralism

This chapter differentiates between abstract legal pluralism and folk legal pluralism. Abstract concepts of law within legal pluralist literature can be placed in one of two broad categories based on form and function: the inner ordering of associations or institutionalized rule systems. However, both types of concepts of law inevitably result in over-inclusiveness by encompassing social phenomena that are usually not considered to be law, creating irresolvable problems. Folk legal pluralism identifies coexisting forms of law in terms of what people collectively view as law, examined through a social-historical lens that pays attention to how forms of law vary across social contexts and change over time. It also articulates three categories of law applied throughout this book: community law, regime law, and cross-polity law. This approach offers a commonsensical account of law and legal pluralism useful for scholars, development practitioners, social scientists, and legal theorists.

National to Transnational Legal Pluralism

This chapter studies state law within the United States legal system(s), showing that law is not fully unified and hierarchically organized, a condition that also exists within highly developed national legal systems across Europe. It looks at pluralism internal to national legal systems before considering constitutional pluralism in the European Union, as well as global legal pluralism. Flowing through preceding chapters is the movement from decentralized community law to the consolidation of law within the territorial state—with regime law absorbing or trying to suppress or recognizing or accommodating or turning a blind eye to resilient forms of lived community law. The chapter leaves aside community law to center on the state legal system itself, and thereafter on manifestations of cross-polity laws. As with previous chapters, the focus is on legal pluralism while questioning the image of the monist law state. Unlike previous chapters, which have been largely descriptive, the last part of the chapter is more analytical and critical in discussing global legal pluralism.

Legal Pluralism in the West

This chapter counters the widely held view in the West that the state exercises a monopoly over law. Romani (Gypsy) communities across Europe have lived in accordance with their own law for a thousand years. Indigenous law and tribunals exist in New Zealand, Canada, Australia, and the United States, in various relationships with state law. In a number of Western countries, Jewish law and Muslim law and institutions interact with state law as well as exist apart from state law. All of these examples involve the continuation of community legal orders (customary and religious) that long predate the modern state and have continued in different forms, adjusting to and surviving the extension and penetration of state law. In many of these contexts, state law has tried to suppress, denigrate, or ignore these bodies of community law, denying their legal status, but despite of this treatment they continue to exist and are considered law by adherents.

Introduction: Three Themes

This introductory chapter provides an overview of legal pluralism. Legal pluralism refers to a multiplicity of law in various senses across multiple scholarly disciplines and law and development contexts. The chapter identifies what legal pluralism is framed in opposition to: the image of monistic state law. It also sets forth two streams of legal pluralism: abstract legal pluralism constructed by theorists versus folk legal pluralism understood in social-historical terms. Finally, the chapter outlines three categories of law that appear throughout the book: community law, regime law, and cross-polity law.