(1) Bodies amenable to JR/time limit

    • See art 263(1) for scope
      • The Council, Commission and ECB: including legislative acts, other than recommendations/opinions – Dentist Airdrie
      • EP, European Council and EU bodies/offices/agencies: acts intended to produce legal effects against third parties.
        • Lisbon Treaty explicitly included EC and EU bodies/offices/agencies, though this is a codification of prior ECJ jurisprudence which already brought them within scope of JR.
    • Time limit: laid out in art 263(6) – within 2 months of publication/notification to A, or in absence of this, within 2 months after it came to A’s knowledge.
      • After time limit expires, unchallenged decision becomes definitive.
      • Only exception is for measures which have such manifest and serious defects they are regarded as non-existent (BASF v Commission (PVC Cartel), 1992) – HIGHLY exceptional!
      • Rationale = legal certainty!

(2) Acts subject to review – art 263(1)

    • Must be LEGALLY BINDING: acts other than recommendations and opinions = regulations, decisions and directives.
    • Post-Lisbon, both legislative and non-legislative acts can be binding hence reviewable – look at substance, not just title/form.
      • IBM, 1981: early case illustrating this. “any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position” will be reviewable. The form is immaterial! Here, it was statement of objections in investigation – court said must be final measures with intention to impact indiv’s legal position, not intermediate measures (latter has no legal effect).
        • On the facts, letter was merely initiation of the competition procedure (preparatory stage), and did not alter A’s legal position in itself.

positive grounds

  • There are two different theses on the positive grounds for enforcing morality: The extreme one (Stephens) and the moderate on (Devlin). The moderate thesis says that society’s existence depends on a shared morality without which society ceases to exist. The extreme thesis says that, regardless of utility for society, the enforcement of morality is of itself valuable.
  • Hart says that the loosening of moral bonds is not the cause of societal breakdown and Devlin supplies no examples of the fact. Nor do any credible historians maintain this. Devlin also argues that those who do what is generally thought to be immoral are in other ways hostile to society. Again there is no evidence that homosexuals/prostitutes/bigamists are likely to be hostile to society, whatever this means.
  • If a society is to be equated with its basic moral tenets, then a change in these tenets would mean the destruction of society. Hart points out that this is ridiculous as it means that we could not logically say “society’s morality has changed” but rather “one society has disappeared and been replaced”. This would mean that 1950s society was “destroyed” since we no longer share its values.
  • Stephen’s extreme thesis rests on the idea that the law must denounce acts considered by most people to be wrong and to “avenge” feelings of hatred held by the general population, whether rational or not. The criminal law aims to give “form” to public anger (Liberty, Equality and Fraternity, Stephen) Hart questions whether overwhelming moral majorities really do exist and points out that people are capable of having mutually tolerant moral beliefs.
  • Stephen’s view is compatible with that of Lord Denning’s evidence to the Royal Commission on Capital Punishment: that the punishment should fit “public revulsion”. Notary public Solicitors London.
  • Is it a thing of value to simply “denounce” or match popular moral condemnation? Hart notes that this is a similar “justification” to that of human sacrifice! Hart also asks why a denunciation should take the form of punishment? If it is a valuable thing, does it outweigh the human suffering that may result from using the law as a vehicle for popular prejudice? Hart says obviously not.

Hart refutes

    • Hart also rejects Devlin’s argument that the fact that certain acts done in public cause offence and are criminalised on this basis means that they are being punished on the grounds of being inherently immoral. Hart draws a distinction between private immorality and public nuisance. Some acts, viewed privately as fine e.g. marital intercourse is still a nuisance when conducted in public. Equally some acts viewed traditionally as immoral per se, e.g. prostitution are not a public nuisance when conducted in private. Therefore just because there is a justification for punishing an act when committed in public does not necessarily lead to the conclusion that it is right to punish it when conducted in private. What about where people are caused offence/distress simply to know that such actions go on at all- does this make Hart’s distinction false? He says no: If it is true that offence incident to the knowledge that someone is doing an act that one considers wrong is “harm”, and it is right to prevent people from inflicting harm on each other, then nobody would be free to act except in a way that people generally feel is acceptable i.e. barely any activity. The law is not and should not be concerned with this type of harm- we do not punish people just because others object to what they do. – Sponsored by abogados de accidentes de carro

James Fitzjames

    • James Fitzjames Stephen argues that criminal law is the punishment of the grosser forms of vice. As evidence he cites the fact that the severity of punishment often relates to the moral wickedness of the crime. Equally a diminution of moral guilt (e.g. strength of temptation) is pleaded to mitigate the severity of the punishment. Stephen’s argument goes: (1) The gradation of punishment depends moral culpability; (2) Therefore the object of the punishment includes the prevention of vice/promotion of virtue; (3) Therefore we ought to restrain vice not merely insofar as it is necessary for self-protection but on the grounds that vice is a morally bad thing. This argument doesn’t follow: it fails to see that there is a difference between what sort of thing we ought to punish and how severely should we punish different offences. Just look at the case of Dentist CalgaryWhy could we not say that we ought to criminalise certain actions to prevent people harming each other, and on the other hand the quantum of punishment should in part relate to the immorality of the crime? Hart counters Stephen’s argument by saying that there is a difference between justifying the practice of punishment and justifying its amount.

The first step

The first unit you take on the part-time course is business law and practice. If you’re considering doing the part-time course at the University of Law (like me), you’ll have the business exams in March and then follow up with the rest in June, meaning you can concentrate solely on this one topic over the winter months. Having said that, life gets in the way sometimes and I certainly didn’t go into my exam this morning feeling well prepared. Business is quite a heavy-going module if you’re not very experienced in the world of shares and corporation tax, and I’m hoping that some of the future modules will be more up my street (especially my first elective, which starts later this month).

Anyway, beginning with this topic felt a little bit like being thrown in the deep end for me and my first exam being a three-and-a-half hour marathon did nothing to dispel this feeing.