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Edinburgh Law School Legal Studies Research Paper Series - May 2020

Wed 13 May 2020

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The latest in the Legal Studies Research Paper Series (Vol. 8, No. 3: May 12, 2020) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

Papers include: 

Evidence to the Environmental Audit Committee, Inquiry into UKEF (2019): Scale and Impact of UKEF’s Financing of Fossil Fuels in Low and Middle-Income Countries

  • Edinburgh School of Law Research Paper No. 2020/04

Navraj Singh Ghaleigh, Edinburgh Law School

Abstract: This paper is the written evidence of NS Ghaleigh (University of Edinburgh, School of Law). It was submitted to the UK Parliament’s Environmental Audit Committee, in response to it call for evidence for the inquiry, "UK Export Finance: Scale and impact of UKEF’s financing of fossil fuels in low and middle-income countries”. Ghaleigh also gave oral evidence to the Committee, on 5 February 2019.

The Inference to the Best Legal Explanation

  • Appearing in: Michelon, C (2019) The Inference to the Best Legal Explanation 29(4) Oxford Journal of Legal Studies 878-900
  • Edinburgh School of Law Research Paper No. 2020/05

Claudio Michelon, Edinburgh Law School

Abstract: Courts use inferences to the best explanation in many contexts and for a variety of purposes. Yet our understanding of lawyers’ uses of this inferential form is insufficient. In this article, after briefly introducing this inferential form, I set out (i) to explain the structure of such arguments by reference to an argument scheme; (ii) to clarify the types of claims courts support by deploying such inferences while attempting to justify acting in accordance with explanatory principles (inferences I shall refer to as IBE-P); (iii) to offer an account of the “explanatory” relationship on which IBE-P is predicated; (iv) to explain what precisely can count as part of the explanandum in an IBE-P and, finally (v) to discuss criteria that might be used to adjudicate which is the best among rival explanations.

Legal Reasoning (Virtues)

  • Edinburgh School of Law Research Paper No. 2020/06

Claudio Michelon, Edinburgh Law School

Abstract: This paper addresses the relation between legal reasoning and character virtues, identifying the points of contact between legal reasoning and the possession of intellectual and moral virtues describing the different modes of interaction between them, and discussing some of the virtues that have been said to play a crucial role in legal decision-making, in particular practical wisdom.

A Inferência à Melhor Explicação e a Autoridade Da Doutrina (The Inference to the Best Explanation and the Authority of Doctrinal Scholarship)

  • Edinburgh School of Law Research Paper No. 2020/07

Claudio Michelon, Edinburgh Law School

Portuguese Abstract: Não é pacífico que à doutrina jurídica deva ser atribuída qualquer autoridade, seja teórica, seja prática. Todavia, na medida em que à doutrina se atribua autoridade, esta deve ser fundada em algo que doutrinadores são especialmente capazes de fazer. O presente artigo defende a tese de que um dos predicados mais distintivos de doutrinadores é sua habilidade de produzir argumentos de tipo similar (ainda que não idêntico) ao da Inferência à melhor explicação.

English Abstract: It is not very clear that doctrinal scholarship should be assigned any theoretical or practical authority, but to the extent that it is, this authority should be predicated on something doctrinal scholars are particularly good at. The paper argues that one of their most distinctive qualities is the ability to produce arguments that are somehow similar, albeit not identical, to Inferences to the best explanation.

The Making of EU-Africa Trade Regionalism: The Law and Governance of the Yaoundé and Lomé Conventions (1963-1974)

  • Edinburgh School of Law Research Paper No. 2020/08

Rafael Lima Sakr, Edinburgh Law School

Abstract: How was ‘international trade’ between former European empires and their former colonies in Africa, the Caribbean, and the Pacific governed after decolonisation? As is commonly known, the vast majority of African countries became independent in the 1960s, and so new regional trade agreements (RTAs) were regarded as necessary to govern their economic relations with Europa. The Yaoundé and Lomé Conventions were then concluded between the European Union (EU) and the bloc of newly independent African countries.

Mainstream scholarship provides comprehensive and useful accounts of these post-colonial Conventions. However, little is known about the role of law and lawyers in their making and governance. Part of this history is about the political and intellectual struggles in the legal profession to determine which projects, ideas, and norms could be validly and legitimately applied to EU-Africa RTAs. The other part is about the efforts of lawyers to organise and employ this emerging conceptual framework to structure their negotiations and production while securing the influence of international law in and over the EU-Africa trade governance.

This paper combines historical and social-legal approaches to show that a distinct legal concept – which I call the development framework – was pivotal in designing, interpreting and applying the Yaoundé and Lomé Conventions. This legal concept was particularly developed and persuasively used by a contextualised group of European and African lawyers from 1947 through 1985. This finding contrasts with the common-sense view in the legal profession that concrete RTAs are varieties of a single legal concept. I conclude that the legal governance of EU-Africa regionalism was a singular ideational, institutional and jurisprudential experiment due significantly to the unique features of lawyers’ legal concept of EU-Africa RTAs.

Torture and the Right to Fair Trial in the 9/11 Military Commissions

  • Edinburgh School of Law Research Paper No. 2020/09

Kasey McCall-Smith, Edinburgh Law School

Abstract: This article seeks to shine a light on the military commission cases taking place in Guantánamo. It aims to fill a gap in the legal literature about the interrelated nature of the prohibition against torture and the right to fair trial. It argues that the US government’s failure to directly address the issue of torture of the five 9/11 defendants directly undermines the capacity of the military commission to deliver justice in concert with accepted interpretations of the right to a fair trial because the breach of the prohibition against torture has not been vindicated.

Export Credit Agencies and Climate Change: Selected Legal Considerations

  • Edinburgh School of Law Research Paper No. 2020/10

Navraj Singh Ghaleigh

Abstract: This note is preparatory to a presentation to European Parliament, in the context of the seminar Decarbonizing Export Finance. It seeks to identify a number of select legal considerations pertinent to Export Credit Agencies and climate change, especially as regards the OECD Common Approaches, EU law, and the Paris Agreement.