Unlock Oxford Law: The biggest challenges to law right now

What are the biggest challenges facing law right now? As part of our upcoming online event, Unlock Oxford Law, we asked some of our expert authors this very question. With constant changes and developments occurring across all the different areas of law, this is a subject that is very much up for debate. Read on to see what our authors said, and to see if you agree.

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“The biggest challenge facing data privacy law arises from the collision between the basic principles of such law and the fundamental logic of our ‘information age’. Whereas data privacy law is, to a large extent, concerned with the containment of information, the logic of the ‘information age’ fosters the production, dissemination, and (re-)utilization of unprecedented amounts of information across traditional organisational and contextual borders. Against such developments, data privacy law faces increasingly serious difficulties in gaining practical traction.

“As for governance of critical internet infrastructure (CII), the greatest regulatory challenge is to find workable mechanisms for enhancing the legitimacy of the current governance structures. This is particularly the case for the regime managed by the Internet Corporation for Assigned Names and Numbers (ICANN). The challenge is especially pertinent in light of the Obama Administration’s recent announcement that it is prepared to give up the last legal vestiges of its oversight powers over the internet naming and numbering system, on the condition that ICANN and the rest of the ‘internet community’ can come up with appropriate replacement accountability mechanisms.”

— Lee Bygrave is Professor in the Norwegian Research Centre for Computers and Law at the University of Oslo, and author of Internet Governance by Contract and Data Privacy Law: An International Perspective.

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“The greatest challenges at the door of international law by globalization are linked to widespread social inequality, destruction of natural resources, and displacements of population. Whether framed as resulting from the pressures of expanding markets, the side-effects of production and supply chains, or the changing forms and requirements of corporate capital, these are generally perceived as governance ‘gaps’, caused by non-legal phenomena beyond the control of the law. However, such gaps have emerged in the face of new (private) forms of sovereignty or authority, which command and structure the global economy without those corresponding channels of accountability or responsibility provided, in domestic contexts, by national regulation.

“Far from being impotent to regulate, private international law has largely participated in (or ‘co-produced’) the shifting divide between the public and the private spheres by providing emancipatory tools through which non-state actors may rise above local constraints. The field should now be expected to provide the vision and methods needed to make a meaningful assessment of the legitimacy of normative claims beyond the state, and to ensure that such claims are correlated to significant ‘extraterritorial’ duties, in relation to an array of individual rights and collective social or environmental concerns.”

—  Horatia Muir Watt is Professor at Sciences-Po Paris School of Law, and the co-editor of Private International Law and Global Governance.

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“The biggest challenge in the area of Sentencing is probably the sheer complexity of the law, which is in a constant state of flux. Part of the problem is legislation, which is a mess. Parliament enacts a criminal justice statute nearly every year, and this always affects sentencing. These provisions are rarely ‘stand-alone’. Instead, new sections are squashed into earlier statutes. Even worse, many of these changes are not brought into force until months or years later, or not at all.

“Parliament decided in 2000 to abolish the sentence of detention in a young offender institution, but this section has never been implemented, requiring every later statute to contain a ‘saving provision’ just in case that change ever happens. The recent decision of the Law Commission to press ahead with a project to codify all sentencing legislation in a single statute is very welcome.”

—  Martin Wasik is Professor of Criminal Justice at Keele University and author of A Practical Approach to Sentencing.

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“A cynical international lawyer would note that they have the luxury of choice in deciding what the greatest current challenge facing the field is: Is it ISIS and its horrendous crimes or the Assad regime and its repression? Is it the attempted secession of Crimea or the ensuing conflict in Ukraine, reportedly with Russian involvement? Is it the threat of terrorism or the US ‘enhanced’ interrogation techniques, aka torture? Is it discrimination in its many intersectional forms or extreme poverty and lack of substantive equality?

“I would argue that while the world today is facing pressing old and new challenges, underpinning them all is the grand and ubiquitous struggle of international law to ensure accountability in an anarchic system. In the absence of an ultimate enforcer, the strength of international law rests on legitimate authority. A second overarching struggle of international law is thus that of ensuring its legitimacy in a context which is simultaneously globalized and localized, universalized and fragmented, secular and religious.

“These challenges are intimately interlinked, because the extent and manner in which international law will address ISIS, the Assad regime, Crimea, Ukraine and Putin’s Russia, terrorism and the use of torture in counter-terrorism, discrimination and poverty, will ultimately affect its legitimacy. Conversely, a legitimate international law will facilitate accountability on some of these matters and others to come. hope, even for a cynical international lawyer may come from internalizing that, to paraphrase Alexander Wendt, anarchy is what state and other actors make of it.”

—  Ioana Cismas, Lecturer in Law at University of Stirling and author of Religious Actors and International Law.

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“Some of the most difficult questions arising within my field of law right now concerns whether, in the first place, the courts can take jurisdiction in the cases that come before them. In international and domestic courts alike, commentators see a push towards more and more types of case being brought before the courts: cases involving acts having taken place far away from the jurisdiction in which the claim is brought, cases involving acts having taken place a long time ago. Both in the domestic and the international courts, States find that they are being held responsible for the actions of their agents even when those state agents act beyond the borders of the State, and that the sins of the past come back to haunt them both before domestic and international courts.

“In relation to both of those types of case, however, we are increasingly finding that law (both domestic and international) possesses the toolkit to deal with these difficult questions. Article 1 of the European Convention on Human Rights provides that the State Members ‘shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. A lot rides on what is understood in that connection by ‘jurisdiction’. In that regard, we are increasingly realizing that traditional concepts of jurisdiction from private international law go very far in providing us with a coherent framework within which to conceptualize extraterritorial jurisdiction.”

—  Eirik Bjorge, is the Shaw Foundation Junior Research Fellow at Jesus College, University of Oxford, and author of The Evolutionary Interpretation of Treaties.

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Keep an eye out for more exclusive insights from Oxford law’s expert authors, and go to the Unlock Oxford Law page to discover more online resources..

Featured image credit: ‘Keys’ by Patrick McFall. CC-BY-SA-2.0 via Flickr.