The author of the Vita Constantini (traditionally and persistently identified with Eusebius, despite the silence of St. Jerome), tells us that Constantine ‘at a banquet he was giving to the bishops declared that he too was a bishop. He added these words which I heard with my own ears: ἀλλ᾽ ὑμεῖϛ μὲν τῶν εἴσω τῆϛ ἐκτὸϛ ὑπὸ θεοῦ καθεσταμένοϛ ἐπίσκοπϛ ἂν εἴην ’.In attempts to define the relations between the first Christian emperor and the Church, no phrase is more frequently quoted than this obiter dictum. In the sixteenth century the French scholar Henri de Valois rendered τῶν ἐκτόϛ as if it were the genitive of τὰ ἐκτόϛ, and since then it has been the practice to regard Constantine as an ‘évèque du dehors’: the Emperor either exercised episcopal functions though not consecrated, or supervised mundane affairs (that is, the State), after the fashion of a bishop, or else held from God a temporal commission for ecclesiastical government, the bishops retaining control of dogma, ethics and discipline. Each of these three distinct interpretations is equally admissible.
Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.
This article provides an exposition and assessment of the UK Supreme Court judgment in the case of Ivey v Genting Casinos (UK) Ltd. It identifies the Supreme Court’s reconsideration, obiter dictum, of the test of dishonesty in civil and criminal law. This term is used in particular in offences such as those set out in the Theft Act 1968. Prior to the Supreme Court’s intervention, the leading case was R v Ghosh [1982] EWCA Crim 2. However, the Ghosh test in that case has been the subject of significant criticism in the academy and elsewhere, and some such critiques are discussed in the Supreme Court judgment. This article, which considers these developments, was first delivered as the Bristol Alumni Association Lecture on 23 February 2018.
The “rule of reason” remains after almost forty years the most curious obiter dictum ever indulged in by the Supreme Court of the United States. Mistaken though it was in its basic assumptions, the rule nevertheless persists as the Court's standard for construing the Sherman Act. This is not to say, as some critics have said, that the rule has seriously hampered the Department of Justice in enforcing the antitrust laws. We have it on the authority of Thurman Arnold that without the rule die Sherman Act would be “unworkable … because every combination between two men in business is in some measure a restraint of trade.” The rule, he has said, “has the effect of preventing the antitrust laws from destroying the efficiency of diose combinations that are actually serving, instead of exploiting, the consumer.” The fact remains, however, that in adopting the rule the Court erred in at least two respects: first, in applying a test of reasonableness where in the early cases at least none was called for and, second, in basing that rule on a misunderstanding of the common law. For the first of its sins the Court has been scolded many times; for the second, it has received surprisingly litde criticism.
Although Dr. Johnson is one of our best English critics, he has left much that the world would willingly let die. But alas ! the written word is imperishable, and will every now and then repair its drooping head, in spite of the opportunities of oblivion. Johnson's strictures on the shorter poems of Milton have now for a good while been taken for what they are worth; even his severity with Comus is recognized as more than half perversely irrelevant. I say nothing of Paradise Lost, for no other poem so inexorably demands the willing suspension of disbelief which Johnson was incapable of. But recently his obiter dictum that Samson Agonistes is not a dramatic whole in the Aristotelian sense, having a beginning, a middle, and an end; that “ the intermediate parts have neither cause nor consequence, neither hasten nor retard the catastrophe ” has re-entered the listed field. And “ these shifts ” must be “refuted.”
Dishonesty