The most prominent type of rules employed in American legal reasoning consists of rules established in binding legal precedents. The next most prominent type consists of authoritative although not legally binding rules. An authoritative although not legally binding rule is one that courts treat as a rule not because after due consideration they regard it as a good rule but because it was adopted in a source to which the courts give deference. In the common law there are several sources of authoritative although not legally binding rules. One source consists of decisions by the Supreme Courts of other jurisdictions. Another source consists of cases decided by coordinate courts in the same jurisdiction as the deciding court. Perhaps the most important sources of authoritative although not legally binding rules are Restatements and leading treatises.

Legal rules are either canonical or malleable. A canonical rule is fixed: it may not be expressed in different ways, may not evolve, and may not be subject to exceptions. Statutes are the paradigm form of canonical legal rules. In contrast, a malleable rule can be expressed in different ways, can evolve, and can be made subject to exceptions. Common law rules are the paradigm form of malleable rules. Legal rules have a core and a penumbra. A common law rule can be articulated through more than one expression of the core of the rule, through evolution of the meaning of the core, or through modification of the rule’s penumbra. In each case the core remains, albeit in somewhat different forms. As Benjamin Cardozo said, “The rules and principles of case law have never been treated as final truths but as working hypotheses, continually retested in those great laboratories of law, the courts of justice.”

Law can be divided into sets of binary categories. One such set consists of public law, which concerns such matters as the powers of governmental institutions, on the one hand, and private law, which concerns such matters as the relationships between private persons, on the other. Another set consists of civil law and common law. In civil law systems, which prevail in Europe, Latin America, and most of Asia, public law is largely found in statutes, while private law is largely found in civil codes. In common law systems, which prevail in England and former English colonies, in particular the United States, private law is largely made by courts, in the form of rules adopted in judicial decisions. American private law is largely made by courts because complex societies need a great deal of private law to facilitate private planning, shape private conduct, and facilitate the settlement of private disputes, and the capacity and ability of American legislatures to make private law is limited. As a result, American courts have two functions: resolving disputes and making law.

The author presents the constitutional model of State responsibility in Central Europe as exemplified by four legal systems: the Czechia, Hungary, Poland and Slovakia. In all of them, the legal rule providing for the reparation of damage caused by public authorities takes the shape of a subjective constitutional right which requires implementation in ordinary legislation. The very generous system of the Polish Constitution led to some limitations and qualifications of the broad constitutional right by the case law. In Hungary, a similarly broadly phrased constitutional right coexists with quite restrictive legislative provisions and a case law which tends to go slowly and cautiously beyond the letter of the ordinary legislation. In the Czech Republic and Slovakia, the drafters of the Constitutions were much more cautious and the precise content of the constitutional right is specified in ordinary legislation. State responsibility mechanisms at the domestic level have proven quite effective to compensate material damage. The greatest remaining challenge is compensation of moral damage.

Taxation is generally understood as a core sovereign function of the state, albeit ‘constrained to a limited extent’ under various international and supranational rules, including European Union (EU) law, World Trade Organization (WTO) law bilateral tax treaties and (possibly) customary international law.1 In this context, tax competition is usually presented as an exercise of sovereignty, or sovereign right, of by tax states. On the other hand, as explained in Chapter 10, the cooperation of states with other states, in an international order of states, is also an exercise of sovereignty. Therefore, a concept of ‘sovereignty’ on its own cannot explain very much about how states behave in the international tax context. The more fundamental issue concerns in what circumstances tax competition, or tax cooperation, would be beneficial or detrimental for tax states or for global welfare.

Policy discussions about the corporate tax often begin with the fundamental question: Why tax corporations?1 Reuven Avi-Yonah observed that corporations are ‘everywhere’ and ‘nowhere’ in economic and social life.2 The corporation is treated as a separate taxpayer in most income tax laws. Yet, like other intermediary business and investment vehicles, it is a legal fiction or construct. A corporation cannot bear the economic burden of a tax: a theory of ability to pay cannot be directly applied to a corporation.3

The report examines whether there is, under international law, a specific Middle Eastern concept of liability for public institutions. While a simple answer is 'no', considering that the Nation-State was unknown in the region for the pre-modern corpus to acknowledge a liability of public authority in the international realm, the chapter proceeds, by way of bricolage, to examine the forms of liability comprised under the three subsets of the question in the volume. It finds in the classical tradition significant attention to the accountability of government under Qur’an 17:34 and its interpretations; a socially stratified understanding of the public/private realm; and a sophisticated corpus in the law of obligations that unifies contracts and torts under a strict liability regime in domestic law.

Tax law constitutes the boundaries of charities, the market and the state in a ‘jumbled mixed economy’.1 Charities are a subset of the broader not-for-profit sector, sometimes called the ‘third sector’ to distinguish it from the market and the state. The charitable tax exemption discussed here sets the border of the tax state with the charitable sector, while its political, or ethical, justification recognises, as Evelyn Brody suggests, that charities are in a sense ‘co-sovereign’ with the state.2

Chapter 3 examines the various regulatory activities in which transnational regulatory regimes commonly engage. These include standard setting, dispute resolution, technical assistance, humanitarian aid, and transnational deliberation. It also explores how each of these particular activities can be devoted to one of two distinct regulatory ‘function’. One such function looks to promote ‘efficacy’ – the regime’s ability to achieve its desired regulatory outcomes. The other looks to promote ‘interest balancing’ – balancing the competing interests of different stakeholders in a way that nevertheless retains the allegiance of all stakeholders despite their disagreements. A regime’s choice as to whether to focus on efficacy or on interest balancing effects how its regulatory activities are structured and implemented. In addition, a regime’s regulatory function can be a matter of contestation, which gives rise to issues of what this volume calls ‘operational legitimacy’ – the degree to which the regime’s stakeholders support the particular regulatory function that regime seeks to promote.

Can States determine unilaterally what counts as a wrongful behaviour in the absence of public international adjudicative institutions? Can meaningful responsibility for wrongful acts exist in the absence of a public adjudicative entity? What happens in the case of a conflict between a unilateral (private) judgment of a State accused of having committed a wrong and the decision of a (public) international adjudicative institution? The authors advocate for a system based on conflicting judgments concerning responsibility made both by international adjudicative institutions (publicly) and by the States themselves (privately), what they refer to as the ‘discordant parity hypothesis’. The case for the overriding power of international adjudicative institutions is based on the importance of the State’s publicly recognized duties. The case for the overriding power of judgments made by States stems from its promise to facilitate active engagement of States with their obligations. The chapter embraces a system that recognizes the normative force of both (and the inevitable resulting conflicts).

Chapter 1 examines the conceptual and methodological foundations that underlie this volume. Conceptually, it delineates transnational ‘law’ as consisting simply of that collection of transnational institutions and practices with which persons with legal training are increasingly engaged. The purpose of this volume, correspondingly, is to facilitate such engagement: to help the legal actor better understand what to look for and what the implications are of what she finds when she encounters such institutions and practices. Its methodology involves identifying the various ‘facets’ of transnational institutions and practices that are of most interest to persons working from the perspective of law (e.g., regulatory activities, governance structures); exploring how different regulatory regimes structure these facets in different ways so as to serve different regulatory purposes; and investigating how a regime’s structuring of that facet affects what the other facets of that regime can and cannot do effectively and, beyond that, the reach and shape of the regime’s overall legitimacy.

The law of responsibility has been subject to massive change over the past centuries. While in key areas such change is well-established in the form of customary law or general principles, for particular transformations the process of change is more difficult to pin down. Major examples are the transition from a private to a public law model and from independent to shared responsibility, where the depth and scope of change and its support in practice remains uncertain. The author argues that the normal rules for determination of change in international law, reflected in the sources of international law, are not always helpful for determining change in the law of responsibility. To understand such change, it is helpful to distinguish change in secondary rules from change in primary rules (substantive rights and obligations) and tertiary rules (procedures and institutional rules for implementing responsibility). Change in the law of responsibility is to some extent driven by prior changes in primary rules, but it is also argued that secondary rules have a logic and justification that is to some extent independent from primary rules.

The report explains how, while it had hardly been recognized in the early years of independence, State responsibility gradually developed in French-speaking Africa from the 1990s onwards under the dual influence of French administrative law and the emergence of pluralist democracy. The development of pluralist democracy led to a renewal of constitutionalism and of administrative law, thereby creating the conditions for a better protection of citizens’ liberties and rights. In spite of this positive evolution, the analysis of African case law shows that redress for injury caused by public authorities appears to be doubly deficient, both in the amounts allocated and in its execution by the administration. At the same time, however, redress for human rights violations is making concrete progress in all African regions (English speaking, French speaking, Arabic speaking, etc.), thanks in particular to the significant role played by the African Commission of Human Rights. Ultimately, the chapter argues that the full implementation of public institutions’ responsibility is highly dependent on the permeation of a rule of law culture in the African States.