Chapter Two explores the declaration of colonial peace through the amnesty offered to rebels in the Queen’s Proclamation of 1858. While this document has already piqued the interest of historians and political theorists of liberalism and “indirect rule,” I turn to this document as an instrument of post-conflict resolution. Comparing and contrasting the variety of strategies used by the state to temper forgiveness, this chapter tracks the creation of an uneven hierarchy of colonial subjecthood organized along lines of relative loyalty and disloyalty. In exploring the wider importance of amnesty at this juncture, this chapter examines this offer as a founding political bargain presented to the defeated. This promise of mercy, in this instance, had been contingent on the full surrender of Indian political agency.

This chapter addresses the suggestion that for a special regime to exist, community members must be engaged in a joint enterprise. In the context of international law, to claim that a group of international law specialists is engaged in a joint enterprise is to assert that they do what they do based on the idea that some certain state of affairs is desirable. As Chapter 4 argues, in the context of international law, the existence of such a presupposition can be inferred from the actual pursuit of those specialists of a distinct state of affairs, and the way in which they perform assignments.

Chapter Four focuses on how the colonial judiciary and the local government wielded the discretion available in the IPC to manage the punishment of capital crimes. The chapter begins by studying the implications of the new High Courts Act of 1861. I then explore sentencing practices for the crimes of domestic murder and infanticide to consider when and why decision-makers passed more or less severe punishments. I argue that the decision to save some subjects from the gallows helped the law build vital but ultimately fragile alliances between local elites as colonial authorities sought access to the most intimate and politicized areas of Indian life. This process also sharpened colonial terror by regulating the decision to send certain subjects to their death.

This chapter will briefly describe the outcomes of a coroner’s inquest: the findings available to the coroner, and the types of concerns that they can express. It will also explain Regulation 28 (Prevention of Future Death) reports.

Chapter 3 focuses on the application of the reasonable person in the nineteenth and twentieth centuries. The chapter begins by considering why the reasonable person is frequently placed on means of public transport. It argues that the reasonable person’s presence on the omnibus means that others can see it and that the reasonable person itself sees others. The chapter then considers whether the standard of the reasonable person was meant to be an empirical standard or a standard controlled by the courts. It does so by asking whether the idea was that one could actually encounter the reasonable person on the Clapham omnibus. Contrasting the concept of the reasonable person with the concept of the average human person proposed by the Belgian sociologist and astronomer Adolphe Quetelet, the chapter establishes that the reasonable person was meant to be a court-controlled standard. Finally, the chapter shows how the standard has historically been construed exclusively in male terms. It addresses the discriminatory potential of the standard and acknowledges that the reasonable person concept has often been applied in a manner that excludes anyone who does not share the characteristics of the male, white, middle-aged judge who applies the standard.

A core impediment to refugee applicants providing a credible narrative account of their claims to protection is the profound fragmentation and unpredictability of the structure, content and conduct of the oral hearing. This chapter argues that the conduct of the oral hearing severely fragmented applicants’ testimony in three key ways: reverse-order questioning; decision-makers’ abrupt subject switching during the hearing; and questions pertaining to time, sequencing and precise dates of events. This leads to the conclusion that applicants were both expected to present their oral evidence in a form that fulfilled the credibility criteria and the demand for narrative, and actively impeded in their efforts to do so. Further, where applicants displayed an ability to present evidence in a narrative form, in all but a minority of hearings this was done despite, rather than because of, the structure and setting of the hearing.

Prosecutors’ decisions in common law jurisdictions remain understudied. Drawing on examples in Australian cases of child sexual abuse, this chapter provides insights into case attrition or advancement at the discretion of the prosecution. We discuss contextual factors that support this expanding area of prosecutorial practice, including legislation, available special measures for vulnerable complainants, and recommendations of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse. We review factors that influence decisions on charges, whether a case proceeds, plea negotiation, jury versus judge-alone trials, and joint trials. These factors include the age difference between complainants and offenders, the time lapse between alleged offending and reporting, the quality of prerecorded interviews, and the amount of evidence. Recent research and developments affecting decisions by prosecutors about evidence by the complainant and expert witnesses in CSA trials are summarized. We conclude with suggestions for future research to expand understanding of the role of prosecutors’ decisions in this discrete area of criminal justice process.

This chapter lays the necessary conceptual foundation for the book’s proposed trust-based framework. It draws on theoretical and empirical scholarship on trust to offer a conceptualisation of trust in the social rights context. It first envisages trust as relational, meaning that trust may only arise in a relationship that contains three elements: control, discretion/uncertainty and vulnerability (a ‘trust relationship’). Secondly, it defines trust in a trust relationship as a set of three expectations held by a truster about a trustee: an expectation that the trustee will exercise goodwill towards the truster (‘expectation of goodwill’); an expectation that the trustee will exercise competence towards the truster (‘expectation of competence’); and an expectation that the trustee will fulfil her fiduciary responsibility (if any) to the truster (‘expectation of fiduciary responsibility’). The chapter then applies this conceptualisation to the relationship between citizens and the elected branches of government with respect to social rights (the ‘citizen-government relationship’), characterising it as a trust relationship and defining trust in it.

This chapter addresses the tensions between the high level of independence granted to the European Central Bank (ECB) under the Treaties and its accountability. In a first step, it sets out the legal framework of monetary policy within the system of the European System of Central Banks and explains in more detail the quantitative easing programmes of the ECB. It goes on to provide a summary of the back-and-forth litigation on the scope of monetary policy between the Court of Justice and the Bundesverfassungsgericht in Gauweiler and Weiss. Next, the chapter focuses on the judicial review of the monetary policy decisions by the Court of Justice and the national courts. Both these sections follow the same structure: first, they analyse access to courts and remedies; and second, they show how the courts under analysis approached the principles of equality and solidarity, for the purposes of achieving the common interest. The chapter closes with an examination of judicial interactions between EU and national courts and the role these play in the legal accountability of the ECB.

This chapter first introduces the main debates on the legitimacy of judicial review. It then turns to the most problematic examples of non-accountable decision-making that recently took place in the EMU, causing problems for individuals accessing fora of legal accountability, most visibly in the reduction of the protection of fundamental rights. The purpose of this exercise is to offer a sneak-peek preview of what went wrong, how (the lack of) judicial review contributed to this problem, and why traditional arguments against judicial review do not work in this context. Given that the EMU is an area characterised by high redistributive effects coupled with a wide discretion on the part of decision-makers, courts are in the perfect position to ensure that such decisions meet the Treaty objectives of the common interest. Any review of decisions in the EMU entails two duties. First, the starting point for courts must be an assumption of a full review. Second, decision-makers have an extensive duty of giving reasons for their decisions and put to the court the arguments on the nature of their discretion and how they used it. The chapter closes with conclusions on how the proposed framework will be used in the book.

The transformation of the ECB powers in the past decade opened fundamental questions pertaining to the judicial review of monetary policy decisions and, more deeply, to the role of law in the government of money. Underlying those questions is the inadequacy of categories of public law we use to understand the power of administrative and executive institutions when acting in instances of uncertainty, technical complexity, and high political stakes. Against this background, this chapter characterizes the powers of the ECB as constitutive. It argues that this constitutive nature explains the difficulties of judicial review over monetary policy decisions, and, furthermore, that constitutive powers justify a shift in understanding the role of law in relation to the action of executive bodies. Law can and must operate in the absence (or irrespective) of judicial review, and support accountability outside of the courtroom. This last point will be demonstrated through the analysis of the legal and constitutional scope of the duty to give reasons in EU law.

Leadership in crisis response has traditionally been strongly centralized and hierarchical. Top-down command and control is popular, because a strict hierarchy and clear lines of command enable rapid decision-making and coordinated actions. Critics, however, have argued that centralization is both impossible and undesirable during crises, because leaders lack situational awareness and cannot control frontline responders from a distance. They argue that operational personnel should take charge to ensure an adaptive frontline response, potentially at the cost of efficiency and speed. The operational dilemma of crisis leadership revolves therefore around the tension between centralization and decentralization. To deal with this dilemma, it is useful to study how influence is exercised and power circulates during crises. Rather than a static authority structure, different types and phases of crises require different forms of leadership. Authority structures have to be tested and adjusted throughout the response, so they can be continuously co-constructed by frontline responders and operational leaders, as the complex and dynamic crisis situation evolves.

This chapter shows how changes to officeholding shaped practices of arrest in the capital. It uses a new dataset to rethink established accounts of early modern policing based on widespread participation. Most arrests in London were made by men and, from the late seventeenth to the mid-eighteenth century, a growing proportion were made by officers. At the same time, constables and their colleagues acquired greater powers to arrest people on the basis of suspicion alone. These powers were frequently used against poorer women, who officers arrested on ill-defined charges of vagrancy, night-walking, or suspected theft. In the early eighteenth century one judge called for closer adherence to due process in such arrests, but this had little long-term effect.