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The European Court of Human Rights has recognized positive obligations to develop a legal framework to adequately protect the rights guaranteed by the European Convention on Human Rights (‘protection by the law’). This article examines both the substantive and the procedural guarantees that are encompassed by this legal framework. The article examines the rationale behind, as well as the extent of substantive and procedural ‘protection by the law’, thereby identifying the general principles that can be induced from the European Court’s jurisprudence. Where possible, the article compares the European Court’s approach with the one taken by the United States Supreme Court, and with the theoretical account of ‘protection by the law’ as provided by the German Constitutional law theorist Robert Alexy. The article further argues that ‘protection by the law’ could be the key to the proper application of the European Court’s margin of appreciation doctrine. Moreover, ‘protection by the law’ could be seen as a step in the direction of a more ‘constitutionalized’ positive obligations jurisprudence.

The question of extraterritorial applicability of the principle of non-refoulement – as implicitly present in Article 3 ECHR – on the high seas was decided by the European Court of Human Rights (ECtHR) on 23 February 2012 in Hirsi Jamaa and Others v. Italy. The ECtHR found that the applicants had fallen within the jurisdiction of Italy as in the period between boarding onto the Italian ships on the high seas and being handed over to the Libyan authorities, the applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities. This chapter will deal with the impact of this judgment on the law of the sea rules concerning search and rescue at sea.

Following an overview of Canada’s historical and social situation, the author describes the division of legislative power between the federal Parliament on the one hand and the provincial legislatures on the other. This is followed by a description of the various means and methods of legal unification (federal, provincial, courts, Uniform Law Conference of Canada, legal profession, law schools, among other factors). The chapter ends with the state of unification in Canada. In the chapter, the author emphasizes the difference between the federal and provincial concepts of harmonization. At the federal level, the various harmonization initiatives stem in part from articles 8.1 of the Interpretation Act of Canada, according to which both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada. For the reasons explained in the report, this can give rise in certain circumstances to federal enactments that are applied differently in Quebec and in the common law parts of Canada.

Finland counts as a civil law jurisdiction, but Finnish private law is not based on a comprehensive civil code. As in the other Nordic countries, codification of private law has taken place in the form of statutes, that is, various individual acts. General principles and other contents of the “general part” of private law are largely uncodified and will most likely remain so. The absence of a civil code and a comprehensive statutory general part leaves the system of private law open-ended, which accounts for several aspects of the Finnish overall approach to private law. These concern interpretation and application of law, the relative weight of different sources of law, the role of legal science, and the openness of law to external influence. Despite the absence of a civil code, Finnish lawyers perceive domestic private law as a systematic whole, a doctrinal structure. Systematisation is entrusted to legal science, rather than predetermined by legislation.

This Chapter explains the selection of the topics researched and the methodology used. The main research question was on the criteria which determine the proportionality of biometric data processing. To analyse and explain the variety of legal criteria, the method of evaluating existing legislation, in particular of the Directive 95/46/EC as implemented in national law, was deployed in combination with comparative law research. Three civil law countries, i.e. Belgium, France and the Netherlands, where the rule of law is important while sharing legislation as the main source of law, were selected for a detailed analysis of the law, decisions and opinions on biometric data processing. At the same time, relevant developments in other EU countries and abroad on regulation of biometric data processing were taken into account as well to formulate suggestions for legal criteria for biometric data processing.

Chapter IV zooms in into the concept and the application of the proportionality principle, a leading principle in data protection and privacy legislation and a recurring ‘mantra’ in reviews of the legal aspects of biometric data processing. Starting with explaining its origin, this Chapter dissects this proportionality principle and describes each of its constituent elements, first as how it unfolds in the Data protection Directive 95/46/EC, requiring that the data, which shall be adequate, relevant and not excessive, shall be processed lawfully and for legitimate purposes. We continue with Article 8 ECHR allowing interference under strict conditions and limiting the legitimate aims for interference to six. The criteria as developed in case law of the European Court of Human Rights in Strasbourg are discussed as well, noting that the Court has fine-tuned some criteria in relevant case law, including in S. and Marper examining the retention of fingerprint, cellular samples and DNA profiles. It is also briefly questioned whether the same criteria apply under the recent Articles 7 and 8 EU Charter juncto Article 52 EU Charter. This elaborate Chapter further details and analyzes the law, the theory and the practice applied by three data protection authorities (DPAs) over the last fifteen years in relation to biometric applications and investigates how the authorities treat biometric data processing and apply the principle of proportionality. The countries selected are of the group of European continental democratic legal systems, i.e. Belgium, France and the Netherlands, governed by ‘the rule of law’ principle and where legislation is the main source of law. They are comparable, as they have all implemented Directive 95/46/EC, while their data protection legislation has evolved differently and imposes different accents.

This chapter has two main sections: Section 9.2 deals with two critiques of human rights-based judicial review based on the democratic thesis that law-makers should be accountable to the people they represent: (1) a rule of law objection, that the bills of rights are insufficiently specific and clear as to what they require and permit, and (2) a practical objection: that human rights judicial review is largely ineffective in promoting human rights goals. Section 9.3, argues (1) that the weaker ‘Dialogue’ or ‘Commonwealth’ versions of court-based human rights judicial review do not successfully evade either the rule of law or the efficacy critiques, and (2) that a better alternative is to institutionalise bills of rights as political constitutions involving mechanisms such as human rights-based legislative review of existing and prospective legislation.

The current Portuguese Civil Code was enacted in 1967 and subsequently amended a number of times. It covers the basic categories of civil law relationships (obligations, real rights, family relationships and successions mortis causa) and contains a general part with provisions governing issues common to all these kinds of legal relationships, as well as rules on the sources of the law, the efficacy, interpretation and application of laws, conflict of laws and personality rights. Commercial, labour and consumer relationships are left to specific codes and statutes, although the Civil Code, which is the common core of Portuguese Private Law, subsidiarily applies to such relationships. Thanks to its enactment in the former Overseas Provinces of Portugal, the Code also applies in several African and Asian Portuguese-speaking countries, and it has influenced the Brazilian Civil Code. It is therefore the basis of a Portuguese legal community covering four continents and comprising over 250 million people.

The concept of the rule of law and the ideals expressing its content are deeply contested. Theorists distinguish two broad conceptions: procedural rule of law and substantive rule of law. The former focuses largely on the procedures by which law is enacted and applied while the latter focuses on the content of the law. One might argue that both conceptions are somehow part of the very concept of law, but this much is clear: whether internal to law or not, the standards comprising the rule of law, procedural and substantive, are also standards of political legitimacy. This chapter analysis those elements of the U.S. rule of recognition dealing with constitutional interpretation and judicial supremacy in order to evaluate them under procedural rule of law standards; as these elements are increasingly common among other legal systems, the conclusions drawn here will be applicable to these other legal systems. But while judicial supremacy seems to violate procedural rule of law standards, which are also standards of political legitimacy, it does not follow that judicial supremacy is politically illegitimate. The analysis here is concerned with just one element that contributes to political legitimacy; no assumption is made, though, satisfaction of procedural rule of law standards is a necessary condition of legitimacy.

Acknowledgments.- Introduction Imer B. Flores and Kenneth E. Himma.- The Concept of the Rule of Law Courtney Taylor Hamara.- Plato and the Rule of Law Brian Burge-Hendrix.- Kantian Re-construction of Intersubjectivity Forms: The Logic of the Transition from Natural State to the Threshold of the Civic State Andrzej Maciej Kaniowski.- Radbruch's Formula, Conceptual Analysis, and the Rule of Law Brian H. Bix.- Law, Liberty, and the Rule of Law (in a Constitutional Democracy) Imer B. Flores.- The Rule of Law: Is the Line between the Formal and the Moral Blurred? Gulriz Uygur.- Political Deliberation and Constitutional Review Conrado Hubner Mendes.- The Rule of Law and Human Rights Judicial Review: Controversies and Alternatives Tom Campbell.- The Rule of Law, Judicial Supremacy, and Legal Positivism Kenneth Einar Himma.- Retroactive Application of Laws and the Rule of Law Juan Vega Gomez.

According to Aquinas, human creatures participate in the eternal law in two different ways: as a mere material inclination stamped in nature (the improper concept of law), and as a formal participation, as imperative towards an end, constituted by human reason (the proper sense of law, insofar as it only exists in rational creatures). According to this second sense, human reason is regulatory and prescriptive, the creative source of law, in an analogous way as divine wisdom is. Natural law consists properly in this participation of human reason in the divine reason; in that it manifests itself in such a way that, in a similar manner to divine reason and cooperating with it, human reason is able to contribute to the ordering of everything —of oneself first of all— towards its end. In this ordering task, man’s reason and appetitive power interact, being perfected by moral virtue.

The law that applies to paid work includes a plurality of rules, including a plurality of stated-based laws (i.e. labour law statutes, civil law, human rights protections) and rules emanating from social actors in the workplace (rules found in collective agreements, individual contracts of employment, corporate policies, workplaces practices and customs). The specificity of labour law is derived in large part from the ways in which these diverse sources of law co-exist and interact. At the same time, labour law has historically affirmed legal pluralism, according special legitimacy to rules created by workers and employers through the processes of collective negotiation. From a human rights perspective, labour law can be understood as part of a global movement towards the affirmation of economic and social rights of workers. As such, it endeavours to secure rights that are collective and diverge from the traditional individual rights of liberal legalism. In this chapter, these themes are explored by examining two areas where adjudicators have confronted the intersection of the plurality of sources that constitute labour law. The first area reviews the approach of labour arbitrators regarding the interface of state-based human rights guarantees and the resolution of grievances in the workplace; the second concerns judicial assessments of the interface of state-based laws and collective agreements, focusing on cases implicating protections for the rights of vulnerable workers.

Chapter 8 shows how the idea of the social State under the rule of law has been linked to the European Union since its inception. The founding fathers (Adenaeur, de Gasperi, Monet, Schuman) set the principles of dignity, freedom, equality and solidarity as a way of freeing European citizens from fear, misery and misfortune. Welfare is, above all, a state of justice that defines the threshold between indecency and well-being and affirms that human development is not (only) economic growth. Jacques Maritain, whose influence on the European Union is well known, proclaimed the order that contains the three principles of the social state: the primacy of the person, the priority of civil society and the subsidiarity of the state. This is the great goal that the European Union must face today to fulfil the Millenium Objectives, reduce poverty and achieve human development, social well-being, justice and peace.

The central hypothesis of this chapter is that the post 9/11 era has spawned a new hybrid form of terrorism regulation. The Oxford English Dictionary defines hybrid as follows: “Derived from heterogeneous or incongruous sources; having a mixed character; composed of two diverse elements; mongrel” (Oxford English Dictionary, 2nd edn, online version, http://www.oed.com/view/Entry/89809, Accessed 4 Aug 2011). Hybrid for the purpose of our legal analysis is defined as a measure or law containing elements/characteristics of two previously distinct legal entities. The contention is not entirely novel. Control orders in the United Kingdom as hybrids between criminal and civil law, and melding powers of an executive/judicial nature. Equally, in the Australian context, scholars have identified the hybridisation of techniques of power, as well as the blurring of police and military powers, and crime and war. Hybrids are not however exclusive to terrorism law. Legal hybrids are also evident in fields such as drug law and public order, where strict liability, reverse onus clauses and civil standards of proof have been long applied. That said, the scale and extent to which regulatory efforts to counter terrorism in Australia span various modes of governance (criminal versus civil measures; judicial versus administrative power) makes legal hybrids a mode of regulation worthy of examination.

Universality of human rights is understood as a propensity towards global acceptance of human rights. This has a horizontal and vertical dimension (geographical) and an inner, quality-related dimension (who is eligible). The ideology has been transformed into normative structures through UN and regional covenants. The national law in this area has been internationalized, with a tendency toward supranationalization. In countries where there are culture clashes or notable cultural diversity, interpretation of human rights may diverge on cultural grounds. Human rights principles become incorporated into national law either by incorporation into the constitution or by international covenant. It appears that the power of the international order is sufficiently powerful to reform deeply rooted traditional systems. Human rights become binding by reference to traditional sources of law as well as by reference to soft-law.

In this chapter the principles of legal documents identification, as pre-condition to guarantee interoperability between legal information systems, are discussed. In particular the main initiatives aiming to provide unique identifiers to sources of law, in accordance with the Functional Requirements for Bibliographic Records (FRBR) model, are presented. The http-based and URN identification schemes, based on the FRBR model, as conceived within the CEN Metalex initiative are presented.

Single arguments referred to in legal reasoning are those that make the conclusion valid as a legal standpoint – that is, that connect the arguments as well as the conclusion to the legal order. From this point of view, the arguments are called the sources of law.

The subject-matter of interpretation consists of legal sources, and, among these sources, statutes in particular. Any investigation of the nature of interpretation is therefore predicated upon a prior presentation and analysis of the texts which are to be interpreted. The interpreter has to take account of the different structural and historical conditions that may affect various legal sources. General or specific statutes, their hierarchy, or competing spheres of validity in the shape of legal decisions and juristic analysis, set the boundaries for the task of interpretation. These factors are decisive in determining the competence of the political, judicial or academic interpreter in the course of the history of statutory law in Europe. It follows that the history of interpretation also entails the history of legal sources and statutory law making, which will be discussed in this article.

Coherence is a quality that is accorded to a scientific theory or any other collection of linguistic sentences, assertions, or propositions. The definition of coherence yet turns out to be problematic. Robert Alexy and Aleksander Peczenik define coherence in quantified terms, i.e. “… the more/longer/greater (…), the more coherent the theory”, which, however, misses the point. Yet, coherence is an inherently constructive phenomenon that cannot be captured by quantified criteria. Ronald Dworkin’s idea of law as integrity, though on the right track with its emphasis on the qualitative side of the issue, is not entirely satisfactory either, since his analysis is burdened with sky-soaringly abstract metaphors, like the chain novel metaphor, courts taken as the capitals and judges as the princes of the law’s empire, and Judge Hercules, or “a lawyer of superhuman skill, learning, patience, and acumen”, will serve as a model for the more human judges. A more analytical approach is therefore needed. The Duhem-Quine Thesis that underscores the inherently holistic and underdetermined character of a scientific theory, is extended to the domain of legal analysis and legal argumentation. Dworkin’s notion of law, in specific, is judged in light of the Duhem-Quine Thesis. A (re)definition of coherence is then given in terms of the mutual match, reciprocal support, common alignment, absence of dissonance, and/or shared congruence of a set of sentences that make up a scientific theory or other discourse formation, to the effect that they collectively make sense when inserted in, and read as part of, the same narrative structure or pattern. The narrative structure in a collection of sentences consists of a set of successive choices made in the logico-conceptual space that consists of the syntagmatic and paradigmatic dimensions of language. Syntagmatic relations are based on a sequence or combination of signs, as brought into effect in their linear succession in the flow of speech (parole). Paradigmatic relations, in turn, are based on the ever-present possibility of effecting a selection among the mutually exclusive signs, where one sign can be substituted, or replaced, by another with an equivalent or parallel value in a language taken as a momentary system of signs (langue).

In 1667, the southern part of the Spanish Low country was conquered by Louis XIV, and came under French sovereignty. In the same year, a high court of justice was created in Tournay, not only as an expression of sovereignty in the newly conquered territory, but also as a guarantee of local customs. Twenty years later it became known as “Parlement”. Several judges of the court took private notes of the court’s practice and in the late 17th and the first years of the 18th century, collections of court decisions were also printed. They can now provide information about different sources of law; about the relations between local customary law, royal statutes and ius commune; and about the interpretation of law by the Flemish court. Interpretation could then act in two ways: on one hand, as a legal and political instrument to preserve local customary law from foreign influence (i.e. French Law); and on the other hand, as a way to pursue royal centralization and a more uniformed law, paving the way to codification.

The Australian legal system is based on the English common law system. Within this system, the sources of law are (a) statute and delegated legislation; (b) common law, equity and custom; and (c) judge-made and international law.

This chapter introduces the reader to the variety of law and policy issues relating to gender and sexual diversity in schools. The focus is on laws at the federal level in both the United States and Canada and their impacts in the experiences of students, teachers, and families. A series of legal cases that have directly impacted the obligations of education professionals and schools are discussed.

Despite the great many works which jurists devote to the sources of law—and which, as Roger Shiner observes in Section 1.1 of this volume, are cast in a legal-dogmatic perspective—recent analytical jurisprudence seems to largely ignore the theoretical relevance of this topic. And, with some exceptions, the same applies to the tradition of civil law. Other questions come to the centre of legal-theoretical investigation: the ontology and nature of law, the theory of normativity, law and morality, law and politics, legal epistemology, legal reasoning, and so on. This does not mean that the sources of law are completely disregarded, but perhaps that legal philosophers tend to treat this question from specific perspectives. To see this, we will take a quick look, by way of example, at three classic contributions to the general theory of sources: those of Hans Kelsen, H. L. A. Hart, and Alf Ross.

261 In contemporary French public law doctrine, the notion of Etat de droit has two broad meanings: 1. The state acts exclusively in a legal manner, i.e. it operates by means of law. Since it is sovereign, the state founds and delimits the national legal system, namely all of the rules it dictates to itself and those that derive from them. As the source of law, the state is competent to define its own competences. 2. The state is subjected to law: the objective pursued is that of framing and limiting the state by means of law. Political power is framed by law, by means of the following guarantees: separation of powers, which implies in particular the independence of the judiciary from political agencies; proclamation of rights and liberties; and judicial review of legislation and administrative acts.1 These two meanings, which complement more than contradict each other, are traditionally attributed to the Etat de droit, a concept elaborated by jurists and designed for use by them. The French term is nothing but a literal translation of the word Rechtsstaat, which received its first theoretical treatment in the works of the German jurists Robert von Mohl2 and Friedrich Julius Stahl,3 before the Rechtsstaat became a commonplace of legal doctrine beyond the Rhine in the second half of the nineteenth century (Carl Friedrich von Gerber, Rudolf von Jhering, Paul Laband, Georg Jellinek), which in turn was to have decisive influence on the public law scholars in the Third Republic.4 The idea of a state limited by law was not unknown before the nineteenth century. Its seeds were already sown in the ancien regime. But while in the modern period jurists made use of the theory of the rule of law to place limits on the power of the state and, in particular, to limit the omnipotence of parliament that derives from the theory of national sovereignty, jurists prior to 1789 were primarily concerned to lay legal foundations for the omnipotence of the monarch, the rights of the king, in the face of the resistance the King encountered in the ordinary exercise of his power.

It is important that law students as well as legal practitioners receive education tailored to meet the challenges of the modern world, but the unknown is intimidating and it may seem unnecessary to spend time on comparative law. In overburdened curricula with space being sought for an ever increasing number of new topics such as e-commerce, law and technology, communications law and law on terrorism, how is comparative law to be accommodated? In law teaching institutions the number of students taking comparative law courses, when on offer, is rather small, especially in undergraduate studies.

Today, the concept of universality is inherent in that of human rights. Human rights are by definition the rights of all human beings around the world. At the same time, human rights are increasingly considered to be the most fundamental norms, which should receive priority over all other norms and interests. Human rights are presented as the ultimate criteria of human behavior: of government behavior but also increasingly of the behavior of economic actors and private individuals. The question that is addressed here relates to the tension between this claim of universality and the reality of enormous diversity in the world.

The principle of legal certainty has been designated as a fundamental principle of EC law.1 In general terms, one might note that the application of the law to a specific situation must be predictable. For example, the principle of legal certainty requires that acts which have been relied on as legal will not turn out to be invalid. On the other hand, the principle of legal certainty is not a compelling legal principle, one to be safeguarded at all costs. It can be outweighed by other legal principles or more momentous legal rules. For example, the ECJ has expressly held that the application of legal certainty must be combined with that of the principle of legality.2

The Sources of EC law have roughly been divided into the categories of primary law,1 secondary law and case law. The emphasis is on the EC and EU Treaties, binding secondary legislation and the preliminary rulings of the ECJ. The Treaty establishing the European Community (EC Treaty), as amended, among others, by the Single European Act (SEA),2 the Treaty on European Union (the EU Treaty),3 the Amsterdam Treaty4 or most recently by the Nice Treaty,5 is the most important source of primary law. The Treaties can from the practical point of view be referred to as the constitution of the Community, because their provisions take priority over all other sources of law within the EC, they define the limits of the EC’s competence to act and provide the legal basis for secondary legislation. The EC Treaty sets out the basic objectives, principles, foundations and policy of the Community and the rules which govern its institutions. It establishes a European Community with legal personality.6 The protocols annexed to the EC Treaty form an integral part of it.7 The EC Treaty is essentially a framework Treaty (traite cadre), which leaves its institutions, namely the Commission and Council with increased consultation and sometimes through co-decisions with the European Parliament, to fill in the gaps by means of secondary legislation.8

In spite of the many conspicuous virtues of Stig Kanger’s well-known theory of rights, as presented e.g. in (1957), , (1972), and also in Lindahl (1977, Chapter 1), there are quite a few intriguing problems connected with that theory, especially when it is considered from a legal or juristic point of view. Some of these problems have been very ably discussed in two fairly recent important contributions, viz. (1986) and (1994). For instance, they are both concerned with the difficulty, on Kanger’s approach, of capturing the “full Hohfeldian relationality” involved in rights relationships ((1919) was concerned not just with claims and duties simpliciter, but with claims held by y on x, and duties borne by x towards y, with regard to specified states of affairs). Already (1970) dealt with this type of difficulty as a problem for so-called deontic logic, although without explicitly relating it to Kanger’s theory of rights; but (1919) forms the starting point of his paper.

The objective in this part of the book is to consider the “practice” of comparative reasoning in law from the point of view of the ideas developed in the previous chapters. This means an examination of the value-based argumentative and justificatory restrictions and the determination of the scope of the use of comparative observations in legal decision-making institutions. In this way one may be able to determine the limits of traditional uses of comparative law in the traditional theory of legal discourse. Only by making some conclusions on the instrumental and value-based adjudicative uses on these empirical basis, one is able to check the validity of the premises developed in the previous chapters, and, on the other hand, to consider the validity of comparative considerations from the point of view of the value-based theory of legal justifications.

The sources of law give rise not only to norms, but also to hierarchical criteria that determine the relative importance of various norms that form part of a legal order. The identification of the material of which a legal system is composed must include a series of relations determining the relative weight of norms. The clearest example is the criterion based on the level of the authority that enacted the norm: for example, a constitutional rule is hierarchically superior to a rule enacted by the ordinary legislature, and the latter, in turn, is superior to a rule enacted by a city council. This criterion is called the ‘Lex Superior’. The ‘Lex Superior’ principle is based on the general hierarchy of a legal system: normative authority is divided along the lines of the hierarchical structure of the normative system; authorities with a lower rank of authority have to respect what was enacted by an authority with a higher rank.

How, then, does Zweigert and Kotz’s fourth aspect of style — the kind of legal sources acknowledged and the way they are handled — operate in Scotland? Here something needs to be said about what is meant by a source of law. Sometimes the term “source” is used in a historical sense, referring to the different elements that have contributed to the development of the law, as with canon law and feudal law. Sometimes it is used to refer to the bodies that are regarded as generating the law, such as Parliament, the courts and, on some accounts, the people. Sometimes it is used to refer to the places one needs to look in order to find out what the law is, such as statutes, reports of judicial decisions, institutional writings. Sometimes it is used to refer to the factors that may legitimately be considered in establishing the law on a given matter, such as rules of statute law, judicial precedents, authoritative statements, principles, equity and custom, even policies.

Since the provision of public school education is one of the most important functions of government, the administration of public schools and public school systems necessarily has a legal context. Both those responsible for the development of educational policy and those charged with the daily management of education need to be aware of the legal parameters of their work. The purpose of this chapter is to explore some salient features of the interface between education and the law in the administration of public education in both Australia and Canada. Examples drawn from both countries illustrate the kinds of factors which control the extent to which law and the courts influence the context for educational leadership and educational administration in modern post-industrial societies where there is a Westminster-style political system and a legal system based on an adversarial common law system. Inter alia, the Chapter covers the sources of law in education, the influence of statute law, the influence of the common law, the effects of the nature of the culture of the legal system and the scope of litigation in education.

There are a number of appropriate objects of legal research in the area of computers and the law. This paper studies an aspect of legal justification, ‘policy arguments’, which introduce a wider range of considerations than those found in the posited sources of law. It looks at arguments which are, or ought to be, acceptable justifications for a legal decision or solution, i.e. the regulative ideals which are accepted in a legal community. The function of legal theory is not just to reproduce what is actually done or believed, but to point out inadequacies and inconsistencies in arguments to ensure that legal reasoning is the best it can be within a particular legal system. Implemented through a decision support system, a model of justification can support best practice among lawyers.

The administration of the Commission and furthermore the management of the process of European integration have played a leading role in the outstanding career of Emile Noel, who after three decades of service at the top level of practical administration in the EEC has invested his widespread knowledge and experience in the presidency of the European University Institute. Thus, it may be appropriate to discuss as a topic in this contribution in honour of President Noel the legal basis of the administration in the context of the EEC, i. e. the sources of European administrative law.

There are some few, land-mark decisions that stand out in the history of any tribunal, as either marking the end of an historical era in Court jurisprudence, or else presaging new and radically different trends in judicial policies for the future. This is understandable enough in the case of a Common Law or Common Law-influenced court, since the Common Law doctrine of precedent admits of the existence of locus classicus decisions; but it is also true with Civil Law courts where the authoritative text-writers seem very readily, and quickly, to establish their own consensus as to which Court decisions are worthy of notation and analysis in depth, in the learned doctrines, as heralding significant change to the jurisprudence constante. With Common Law-influenced tribunals, it may well be the public reaction to a judgment and the public perception of its political impact, rather than the opinio iuris, that supplies the dynamic, dialectical, law-in-the-making element. Charles Evans Hughes, a sometime Justice of the U.S. Supreme Court, and then, briefly, a Judge of the old Permanent Court of International Justice in The Hague, before his resignation to take up the Chief Justiceship of the U.S. Supreme Court, identified certain land-mark decisions in the work of the U.S. Supreme Court, on the basis of their negative public impact at the time of their first publication, and then the immense political reaction that they brought in their wake.

The aim of this paper is to suggest a competitive model for describing the relationship between the so-called sources of law. This model should substitute for the traditional one of hierarchical co-operation. In the first section we will describe the ideas of co-operation and the competitive models to be used in our paper. We will then show the theoretical reasons why a competitive model is preferable in describing the creation of the legal rule. In the second part we will offer, through historical and comparative discussion, empirical evidence on our hypothesis. A brief conclusion follows.

On the continent of Europe, always an area of migrating populations, both bilateral and multi-lateral international treaties governing the status and rights of migrant workers have traditionally assumed great importance.

This paper, which is based on a course of lectures delivered in Tilburg in March 1979, represents the attempt of a ‘private’ lawyer to explain some aspects of English law as they relate to ‘fundamental rights.’ To the professing ‘public’ lawyer the approach adopted and, in particular, the reduction to three only in the number of ‘rights’ specifically discussed, may seem strange. An English ‘public’ lawyer would, however, probably agree that the formal distinction between ‘public’ and ‘private’ law has been of little importance in England save for academic purposes and he would also agree, at least if pressed, that the casuistical nature of English law renders somewhat artificial and unhistorical the attempt to expound it as a system of ‘rights.’ His preconceptions and the inarticulate premises that inform his approach to a legal subject are more likely than those of the ‘private’ lawyer to lead him into a treatment of ‘fundamental rights’ which takes as its starting point a number of ‘Rights’ and he will, very properly, draw attention to the undoubted importance in the modern world of the various Declarations of Rights which have legal force in other national legal systems and in international or supra-national law.

An interesting aspect of the circumstances surrounding the adoption of the new Law on Citizenship of the USSR was the recurrent emphasis by the official rapporteur of the bill1 and three of the five delegates picked to speak on its behalf2 on the legislation’s complete concordance with the USSR’s treaty commitments in general and the provisions of various conventions dealing with human rights issues to which the USSR is a party in particular. The same note was sounded in two editorial commentaries on the latest law: “Grazhdanin Sovetskogo Soiuza”,3 and “Grazhdanin strany Sovetov”.4 In light of these official assertions, a brief inquiry into how valid these claims really are should be instructive.

In an attempt to assist Canadian readers of this paper, the following short notes on Dutch civil law have been added.

In 1960 the Swedish Government decided to entrust to the law commission (Lagberedningen) the preparation of a comprehensive reform of the law on execution in matters of private law.