17 January 2013

SSRN: A Selection of Recent Papers

Nicholas W Barber, "Legal Realism, Pluralism, and their Challengers"
EUROPEAN LEGAL METHOD - TOWARDS A NEW EUROPEAN LEGAL REALISM?, U. Neergaard, R. Nielsen, eds., Copenhagen: DJOEF Publishing, 2013
Oxford Legal Studies Research Paper No. 76/2012

This paper looks at the intersection of three strands of legal scholarship. Legal realism and legal pluralism can each trace their origins back to the early years of the last century. After a comparative decline of interest, they are now back in fashion, with energetic debate raging over their implications for legal scholarship. Alongside this revival, a challenger has emerged. Inspired by the work of Ronald Dworkin, a number of scholars have argued for an understanding of law that, initially at least, appears to place both realism and pluralism beyond the reach of legal theory. This paper seeks to defend both realism and pluralism against this challenge. It contends, first, that the complementary analytical attractions of realism and pluralism provide reasons why the Dworkinian approach to law ought not to be embraced. Secondly, even if we were to adopt the Dworkinian account of law, this would still leave the core insights of realism and pluralism untouched: even a Dworkinian must accept the need for a complementary ‘sociological’ concept of law to supplement her ‘doctrinal’ account of law. Finally, under certain conditions even a Dworkinian account of law leaves space for legal pluralism, though not for legal realism. Perhaps Dworkinians can be pluralists, too.

Simon Butt and Luke R Nottage, "Book Review: Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations, Anne Black and Gary Bell (Eds.)"
LAWASIA Journal, pp. 143-155, 2011
Sydney Law School Research Paper No. 12/78

This is a book review of Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations by Ann Black and Gary Bell (eds), Cambridge University Press, 2011. This book provides a comprehensive assessment of the legal systems of 11 significant Asian jurisdictions: China, Hong Kong, Taiwan, Japan, Korea, Vietnam, Malaysia, Indonesia, Brunei Darussalam, Singapore and the Philippines. In systematically focusing on the way that law and legal institutions 'work' in Asia, or fail to work (as is often the case), this excellent book fills an important gap in the literature.

Mark Cammack and Michael Fenner, "The Islamic Legal System in Indonesia"
Pacific Rim Law & Policy Journal, Vol. 21, No. 1, 2012

This chapter describes the historical evolution and current structure of Indonesia’s Islamic legal structure. The current system of Islamic courts in Indonesia is traceable to a late nineteenth century Dutch decree establishing a system of Islamic tribunals on the islands of Java and Madura. The decree created collegial courts in which a district-level religious official called the penghulu acted as chair and was assisted by member judges chosen from the local religious elite. The courts were authorized to decide matrimonial and inheritance disputes, but execution of the courts’ decisions required an executory decree from the civil court. The system was expanded to south Kalimantan in the 1930s, but at the same time the jurisdiction over inheritance was transferred to the civil courts. At independence, the Islamic judiciary was placed under the authority of the Ministry of Religion, which used executive powers to expand the system to other parts of the country. It was not until 1989 with the passage of the Religious Judicature Act that the existence of the courts was guaranteed by statute. The 1989 Act also vested the courts with enforcement powers and mandated changes in the organization and staffing of the courts modeled after the parallel system of civil courts. The substantive jurisdiction of the courts has also been expanded to include inheritance cases as well as a so far little-used power to decide cases involving economic transactions based on Islamic law. In 2004, the administrative supervision of the Islamic judiciary was transferred from the Ministry of Religion to the Supreme Court. In 1999, the province of Aceh was granted special autonomy status that included the authority to enforce Islamic law in areas beyond the established jurisdictions of Shari‛a courts in the rest of the country. These developments add a new dimension to the institutional structures for the practice of Islamic law in the country.

Maksumilian T Del Mar, "Legal Fictions and Legal Change"
Queen Mary School of Law Legal Studies Research Paper No. 128/2012

This paper offers a definition of legal fictions and an evaluation of the role of legal fictions in legal practice, especially insofar as they enable legal change. The first part of the paper defines legal fictions as any suspension of one or more of the required operative facts leading to the imposition of an associated normative consequence, whether this suspension is introduced because of 1) the absence of proof of some previously required fact; or 2) the presence of proof to the contrary. The second part argues that legal fictions have an unjustifiably bad reputation as enablers of legal change. This paper makes a plea for seeing legal fictions as forms of tentative cognition that enable courts to communicate with each other, exploring whether a certain change in the law (i.e. precisely a suspension of a required operative fact in the imposition of a certain normative consequence) ought to be introduced at a more explicit level. Under the guise of this relational reading of legal reasoning, legal fictions become an instrument of careful experimentation – a way of testing the extent to which the potential introduction of a rule will be beneficial. Seen in this light, legal fictions are by no means signs of the immaturity of the system; they are, instead, dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability.

Peter Tiersma, "Roots of the Law: The Origins of Legal Concepts, Institutions, and Language"
Loyola-LA Legal Studies Paper No. 2013-02

This is the first part of a planned encyclopedic dictionary of the history of the language of law, as well as legal concepts and institutions. It contains entries beginning with the letter A, including abandon, abate, accomplice, accuse, acquit, admiralty, adultery, aiding and abetting, alimony, Anglo-Saxon law, animal, arraign, arson, assault, attorney, and many others. 

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