Injurious acts that fall within the rules in competitive sports lack unlawfulness or can be justified. The rationales of justifying such injurious acts include the theory of legitimate professional conduct, the theory of acceptance of dangers (quasi consent) and the principle of superior interest. Acts that break sports’ rules, causing serious injuries, are usually dealt with by the internal regulations of the sports industry, following the principle of ‘judicial non-intervention’. However, industry self-regulation does not eliminate the application of law. It is necessary for criminal law to intervene where the rule-breaking acts have caused serious harm to the protected interests. To achieve the protective goals of offences against the person, actors who break the sports rules causing serious injuries or death or who deliberately take advantage of sports rules to injure others should be criminally liable for certain offences depending on their subjective mental state.
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WWI has left a vast, dispersed and distinctive physical legacy - particularly rich in wrecks. This chapter considers how we should value this legacy today in the context also of how this legacy was valued in the past, and whether those past values can be reconciled with emerging values. These values have changed over time, and where once these wrecks were looked on as merely a hazard or as a source of scrap metal, their historical and archaeological value has emerged. That many of these legacy wrecks entomb the remains of their crew or are associated with the loss of lives with the sinking, and should thus be treated with the respect and the sanctity they deserve as a ‘maritime war grave’ or memorial, is perhaps the strongest emerging value.
A great many legacy wrecks of WWI have historical and archaeological value. This chapter considers the evolution of the laws that recognise and protect these values, especially the UK’s Protection of Wrecks Act 1973. This was largely prompted by increasing unregulated salvage and the rise in sports diving. As access to these wrecks reached into international waters, so the need to address this in international law grew. The chapter considers the legal response to this growth and especially the resulting Convention on the Protection of the Underwater Cultural Heritage adopted at UNESCO in 2001.
An emerging value of legacy wrecks is there use as memorials and the recognition of many legacy wrecks as maritime war graves. This chapter considers the nature of war memorials and the possible role that legacy wrecks might play in the evolving memorialisation of WWI. It also addresses the vexed question of recognising and protecting maritime war graves, and the attempts made to protect legacy wrecks, especially by the UK through the Protection of Military Remains Act 1986.
This chapter considers the application of salvage law to legacy wrecks. For over a century this body of admiralty law has been applied to legacy wrecks. During that time the rationale for salvage has changed, as have the values legacy wrecks imbue. What has not changed much - at least in the UK - is the legal regime that regulates the salvage of legacy wrecks. The chapter addresses the continued and problematic application of salvage law to the recovery of legacy wrecks. Indeed, it is argued that the application of salvage law to legacy wrecks poses the greatest threat to this finite resource and fails to meet the values contemporary society ascribed to legacy wrecks.
Chapter 5 considers the threats posed by legacy wrecks, as a navigational hazard, a pollution hazard and a threat to health and safety given the munitions and dangerous cargo that may have been aboard the legacy wreck when it sank. The legal regimes that apply to the elimination of such hazards in territorial waters and those that pose a threat to a State but lie beyond its territorial waters is explained and explored. The chapter considers the approach taken to these wrecks where the wreck has no commercial salvage value, and thus is not addressed directly through traditional admiralty law of salvage, or where the legacy value prevents salvage, but necessitates addressing the hazard.
This chapter introduces the legal framework applicable to wrecks, including, but especially, legacy wrecks. This involves a complex interaction between private law, particularly property law, admiralty law and international law. Importantly, it considers in some detail the constitutional framework contained in the 1982 United Nations Convention on the Law of the Sea (LOSC) within which many matters affecting legacy wrecks are addressed. It is an evolving legal seascape that has adapted to these changing values, but to different degrees and at different speeds in various States. As wrecks of a world war, of different nationalities and lying in waters of different States, their future is dependent on a uniform body of law applied by all States; a role that international law seeks to fulfil.
This chapter identifies current post-factual politics as a result of the way references to emotions have been placed outside truth production in modern science and politics. As such, they have created a powerful binary of factual knowledge and emotions, which dominates the public discourse on truth. The frequent assertion that we find ourselves in post-factual times implies that at some point in the past there was a time when truth could easily be distinguished from a lie, and a time when it was clear that governing institutions held the truth. This chapter challenges such a view by citing the historical example of the Viennese obstetrician Ignaz Philipp Semmelweis, who made himself unpopular in his day because of his discovery of the origins of childbed fever. While Semmelweis has been often portrayed as a tragic hero who could not achieve his aim because he was ‘too emotional’, viewing this historical anecdote in light of the development of the modern notion of truth as a fact-based and unemotional knowledge enables us to problematize further how truth breaks with accepted path-dependencies and institutional responsibilities and how it becomes negotiated. This paradoxical character of truth – as solid knowledge, while being revolutionary – calls for a subtler analysis of truth’s scenography.
Though there is no precise legal or political science of constitutional engineering, maxims are articulated here regarding constitution making for deeply divided places, constitutional drafting, and about constitutional advisors themselves. Constitutional settlements for deeply divided places may take a long time, and yet are likely to have short lives, even if they are comprehensive, inclusive, and have widespread support at their inception. Governments without formal constitutions cannot make credible bargains, but constitutions cannot guarantee settlements. When they are negotiated, they rarely start with blank pages. They are layered with norms and expectations from previous settlements, whether ratified or implemented, or otherwise. Therefore, advisors are unlikely to be useful until immersed in the drafting histories of previous negotiating successes, and failures. Constitution makers will not be guided by statistically informed legal and social science. Advocates of locally novel institutions and practices are better off citing examples from places locally admired, or visibly flourishing (if only in comparison to their recent past). Advisors should be wary of an obsessive focus on process in the making of constitutions: after all the goal is the end-product, a workable constitution for a deeply divided place, and that should guide strategy and tactics on process (though process sometimes shapes outcomes). Agents making constitutions assume (often wrongly) that advisors will follow the system of their countries of origin, or their interests, or both. In fact, international constitutional advisors have a distinctive reformist bias. They are prone to promote abroad the reforms they believe their home system requires. Lastly, there is a limited repertoire of grand strategies available to the ethical constitutional advisor working in a deeply divided place, committed to standard human rights protections, and well disposed toward representative government.
Justin O. Frosini
While often overlooked as a mere introduction to a country's constitution, a preamble may provide insight into certain issues that the framers were unable to work into the articled provisions during the constitution-making process. The chapter begins by providing a notion of what preambles are and what they contain. The core of the chapter then looks at how preambles are treated by Constitutional and Supreme Courts as a litmus test of whether they have legal value or not. This is followed by a theoretical summary of the main lessons drawn from the various country studies explaining why in some cases preambles play a more significant role compared with other places where the preamble is rarely used by the courts. The chapter goes on to underline the fact that constitutional drafters and scholars ought to pay more attention to preambles, especially the issue of what legal status they are intended to have. The chapter ends by posing a series of questions that designers and scholars should think about when drafting constitutional preambles.