Edinburgh Law School Legal Studies Research Paper Series - November 2024
Fri 15 November 2024
The latest in the Legal Studies Research Paper Series (Vol. 12, No. 3: November, 2024) from Edinburgh Law School is now available.
View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN
Testamentary Responsibility
Alexandra Braun, School of Law, University of Edinburgh
Testamentary freedom – the freedom to determine the distribution of our assets after we die – is often described as the bedrock or organising principle of succession law. In fact, for many people testamentary freedom is something we have always had, should continue to have, and is therefore both self-evident and untouchable. This emphasis on testamentary freedom and, simultaneously, testator intent, has had significant consequences for how we have come to perceive not just restrictions on this freedom, but also the rationale underpinning various areas of succession law, including intestate succession, as well as the functions of succession law. The aim of this article is to challenge testamentary freedom as the organising principle of succession law. It does so by bringing into sharper focus another important value of succession law: ‘responsibility’. The article argues in favour of a responsible exercise of testamentary power – an exercise that reflects the relationships that testators leave behind. By exploring the concept of testamentary freedom from a historical, comparative and contextual perspective, the article thus aims: i) to deconstruct the prevailing narrative of the concept of testamentary freedom and to show not only its contingency, but also that testamentary freedom and responsibility are not mutually exclusive concepts; and, ii) to illustrate that shifting our attention to, and acknowledging responsibility as a core value, opens up new and different ways of understanding and theorising succession law and its underpinning rationales and justifications.
Is International Law Progressive?
Cormac S. Mac Amhlaigh, School of Law, University of Edinburgh
The rise of authoritarian populism in recent years has raised the question of whether international law can be co-opted for authoritarian purposes. Tom Ginsburg has recently argued for the rise of what he calls 'authoritarian international law' which, he claims, is undermining the hitherto progressive ethos of international law since the foundation of the United Nations. This paper critically examines this category of authoritarian international law. Adopting a Dworkinian interpretive methodology to the question of the normativity of international law, it argues that authoritarianism is incompatible with the normativity of international law as currently understood. This is the case, the paper concludes, notwithstanding the types of practices to which Ginsburg refers to support his Authoritarian International Law thesis.
The Variation of Commercial and Employment Contracts: Revisiting the Question of Explicit Worker Consent
David Cabrelli, School of Law, University of Edinburgh
One of the great paradoxes of labour law is the patent incongruence between the static contractual framework that governs employment and the inherently dynamic character of the relationship itself. The tendency of the law to reduce the employment contract to ‘an initial treaty which remains in force until its termination [or] unless… modified by another equally decisive and definitive agreement’ generates a sizeable degree of artificiality that haunts the entire governance of the relationship. The managerial prerogative, the implied duty of the employee to obey reasonable orders and instructions and the law regulating the variation of the employment contract are each pressed into service by the common law to address the variety of tensions that emerge as a result of this dissonance.
This paper will steer the discussion towards the nature and requisite quality of the worker’s consent that is demanded by the law to give effect to a variation of the employment contract. This paper will provide a sketch of the orthodox rules of contract law on consent to a contractual variation and compare them with the extant rules applicable in relation to the law governing the contract of employment. The principal claim that I will make is that the less the law demands express mutual consent for a variation to be legally recognised, the greater the extent to which the law of termination of the employment contract and the question of ‘fire and rehire’ are crowded out of view. And, of course, and more notably, vice versa. The insight is that the recognition of a more accepting or stricter notion of the legal conception of consent has significant repercussions for the law regulating the variation and dissolution of employment contracts, giving rise to diametrically opposed policy outcomes.