Anglo-American Asian Bi-Jural Chthonic Civil Common Community Comparative Continental Culture Customs Development Diffusion Formants Germanic Hegemony Hindu History Humanities Hybridity Hybrids Interdisciplinary Irritant Islamic Ius Law Law-in-Action Legality Lex Living law Philosophy Plurality Micro-jurisdictions Mixed legal systems Mixity Native Nordic Norm Normativity Polyjural Praxiology Reception Roman Society State Stateless Talmudic Traditions Transplant Transsystemic
Once regarded as mere pawns of their regimes, courts in authoritarian states are now the subject of considerable attention within the field of comparative judicial politics. New research examines the ways in which law and courts are deployed as instruments of governance, how they structure state-society contention, and the circumstances in which courts are transformed into sites of active resistance. This new body of research constitutes an emergent field of inquiry, while simultaneously contributing to a number of related research agendas, including authoritarian durability and regime transition, human rights, transitional justice, law and development, and rule-of-law promotion. Moreover, this research offers important insights into the erosion of rights and liberties in “consolidated democracies.”
Law and Society in Brazil at the Crossroads: A Review
This article presents a general overview of Brazilian sociolegal studies. After presenting a short historical narrative of the field in Brazil, we argue that the early years of intense teaching of legal sociology had a politically committed approach, which gave rise to growing criticism of Brazilian legal scholarship that in turn affected the self-image of law professors. Different theoretical strands appeared in the years that followed, and some specific fields of research gained importance, particularly those concerning a sociology of the legal profession, the administration of courts, and law schools. However, we contend that as time went by, many sociolegal scholars began to neglect the critical approach to law, and today most of them fail to confront critical aspects of the gap between law on the books and law in action, especially when that gap affects lower classes or stigmatized populations.
Social science research offers critical race theory (CRT) scholars a useful methodology to advance core CRT claims. Among other things, social science can provide CRT with data and theoretical frameworks to support key empirical claims. Social psychology and sociology in particular can help to explain how race constructs key aspects of social experience - for example, the role of race in suspicion of African Americans as potentially criminal and the use of excessive force by law enforcement. At the same time, a collaboration between CRT and social science risks undermining CRT critiques of objectivity and neutrality and potentially limits the theory's ability to combat structural forms of racial inequality. CRT scholars can mitigate these risks by choosing social science methods carefully and by recognizing that social science is only one among several modes of knowledge production.
Hart Publishing has just published a new issue, volume 2, no. 2, of The Theory and Practice of Legislation. Click here to visit the Journal's homepage. The Theory and Practice of Legislation aims to offer an international and interdisciplinary forum for the examination of legislation. The focus of the journal, which succeeds the former title Legisprudence, remains with legislation in its broadest sense. Legislation is seen as both process and product, reflection of theoretical assumptions and a skill. The journal addresses formal legislation, and its alternatives (such as covenants, regulation by non-state actors etc.). The editors welcome articles on systematic (as opposed to historical) issues, including drafting techniques, the introduction of open standards, evidence-based drafting, pre- and post-legislative scrutiny for effectiveness and efficiency, the utility and necessity of codification, IT in legislation, the legitimacy of legislation in view of fundamental principles and rights, law and language, and the link between legislator and judge. Comparative and interdisciplinary approaches are encouraged. But dogmatic descriptions of positive law are outside the scope of the journal. The journal offers a combination of themed issues and general issues. All articles are submitted to double blind review.
Judicial Lawmaking and the Influence of Comparative Law
Edited by John O. Haley, Affiliate Professor of Law, University of Washington, Professor of Law, Vanderbilt University and William R. Orthwein Distinguished Professor of Law Emeritus, Washington University in St. Louis., US and Toshiko Takenaka, Washington Research Foundation/W. Hunter Simpson Professor of Technology Law, University of Washington School of Law, US
'Armed mainly with tremendous scholarly energy, the University of Washington has developed into the premier center of Asian legal studies in North America. This volume is a tribute to the breadth and depth of activity at the Asian Law Center over its first five decades, and a treasure trove of substantive insights into comparative law in Asia. As Asian law continues to attract more attention around the world, we must all be grateful for the contributions of the innovators who built the field.' – Tom Ginsburg, University of Chicago Law School, US
‘Professors Haley and Takenaka have put together a wonderfully eclectic collection of essays to commemorate the founding of the Asian Law Center at the University of Washington School of Law in 1964. Written by leaders in their respective fields, the essays, which explore legal developments, innovations and transplants in Japan and its neighbours, will appeal to scholars and students of Japanese law, as well as comparative lawyers with an interest in Asian law.’ – Jean Ho, National University of Singapore
‘For fifty years now, the University of Washington's Asian Law Center has stood at the center of American scholarship on Japanese law. Its scholars have consistently produced the very best work in the field, and men and women associated with it have increasingly turned their attention to other legal systems in Asia as well. In this broad-ranging volume, the contributors explore the intriguing connections among the many legal systems at stake. They have produced a tantalizing blend of analytical depth and geographical breadth.’ – J. Mark Ramseyer, Harvard Law School, US
Legal Innovations in Asia explores how law in Asia has developed over time as a result of judicial interpretation and innovations drawn from the legal systems of foreign countries.
Expert scholars from around the world offer a history of law in the region while also providing a wider context for present-day Asian law. The contributors share insightful perspectives on comparative law, the role of courts, legal transplants, intellectual property, Islamic law and other issues as they relate to the practice and study of law in Japan, China, Taiwan, Korea and Southeast Asia.
Students and scholars of Asian law will find this a timely and fascinating read, as will legal practitioners and colleagues of the Asian Law Center.
Laboratoire CERC - Jeudi 27 novembre 2014 Campus de Toulon Porte d’Italie
« Il faut bien attendre que le sucre fonde »
Dans l’œuvre de Bergson la durée est cette conscience qui, par le biais de l’intuition, appréhende le temps à partir d’une prise de conscience immédiate. Pour que certaine choses se fassent il faut du temps, certes, mais pas uniquement ce temps extérieur de la science il est aussi nécessaire que cette chose se diffère en qualité. En ce sens, la durée intérieure est une durée qualitative et un progrès… La durée est ainsi ce progrès continu du passé qui ronge l’avenir et qui gonfle en avançant. Cette durée qui fait boule de neige dans notre perception du temps permet ainsi d’associer, d’une part, la matière qui se déroule du passé vers le futur sous une forme déterministe et d’autre part, la vie qui quant à elle est indétermination et ouvre le présent à l’avenir. On le comprend cette question de la durée ouvre à l’égard du droit un champ complexe d’interrogations : le droit privilégie t-il la durée ou l’évènement ? Comment le droit s’inscrit-il dans la vie d’une société ? Comment parvient-il également à s’inscrire dans une conscience sous une forme intuitive ?
Cette question inhérente à la relation entre droit et durée est elle différente selon les systèmes juridiques ? Par ailleurs cette relation est-elle nécessaire à la construction d’une ontologie du droit ?
The editorial Board of BioLaw Journal - Rivista di BioDiritto has just launched a new call for papers in occasion of the third issue of the Journal. The title of the call is: Freedom of Scientific Research and Drug Testing
The deadline for submissions is January 7th , 2015.
Women's Rights to Social Security and Social Protection
Edited by Beth Goldblatt and Lucie Lamarche
This collection examines the human rights to social security and social protection from a women’s rights perspective. The contributors stress the need to address women’s poverty and exclusion within a human rights’ framework that takes account of gender. The chapters unpack the rights to social security and protection and their relationship to human rights principles such as gender equality, participation and dignity. Alongside conceptual insights across the field of women’s social security rights, the collection analyses recent developments in international law and in a range of national settings. It considers the ILO’s Social Protection Floors Recommendation and the work of UN treaty bodies. It explores the different approaches to expansion of social protection in developing countries (China, Chile and Bolivia). It also discusses conditionality in cash transfer programmes, a central debate in social policy and development, through a gender lens. Contributors consider the position of poor women, particularly single mothers, in developed countries (Australia, Canada, the United States, Ireland and Spain) facing the damaging consequences of welfare cuts. The collection engages with shifts in global discourse on the role of social policy and the way in which ideas of crisis and austerity have been used to undermine rights with harsh impacts on women.
Beth Goldblatt is Associate Professor in the Faculty of Law at the University of Technology, Sydney.
Lucie Lamarche is Professor in the Faculty of Political Science and Law at the University of Quebec in Montreal.
This book constitutes the first thorough academic analysis of legislative drafting. By placing the study of legislation and its principles within the paradigm of Flyvberg’s phronetic social sciences, it offers a novel approach which breaks the tradition of unimaginative past descriptive reiterations of drafting conventions. Instead of prescribing rules for legislation, it sets out to identify efficacy as the main aim of the actors in the policy, legislative and drafting processes, and effectiveness as the main goal in the drafting of legislation. Through the prism of effectiveness as synonymous with legislative quality, the book explores the stages of the drafting process; guides the reader through structure and sections in their logical sequence, and introduces rules for drafting preliminary, substantive and final provisions. Special provisions, comparative legislative drafting and training for drafters complete this thorough analysis of the drafting of legislation as a tool for regulation. Instead of teaching the reader which drafting rules prevail, the book explores the reasons why drafting rules have come about, thus encouraging readers to understand what is pursued by each rule and how each rule applies. The book is aimed at academics and practitioners who draft or use statutory law in the common or civil law traditions.
Helen Xanthaki is Professor of Law and Legislative Drafting and Director of Research Studies at the Institute of Advanced Legal Studies of the University of London, and the Academic Director of the Sir William Dale Centre for Legislative Studies there.
October 2014 9781849464284 392pp Hardback RSP: £50
A new issue of Law and Humanities has just been published.
The full list of articles follows.
Warring Sovereigns and Mimetic Rivals: On Scapegoats and Political Crisis in William Golding’s Lord of the Flies
Abstract: My paper argues for the relevance of the French literary critic Rene Girard to contemporary critical legal theory. In order to prove my thesis, I undertake a ‘dual’ reading of a foundational text from the field of Law and Literature—William Golding’s Lord of the Flies—by subjecting it to both a Hobbesian and Girardian interpretation. The relevance of Thomas Hobbes to the novel is obvious—the ‘constitutional crisis’ faced by the Boys is an allegorical re-enactment of Hobbes’ famous division between the Commonwealth-by-Institution (represented by Ralph and Piggy) and the Commonwealth-by-Acquisition (represented by Jack and Roger). What is less obvious is the manner in which the struggle over the political order of the island strictly parallels a sub-textual mimetic rivalry between the two boy-sovereigns, Ralph and Jack. Employing Girard’s as a supplementary reading to Hobbes’, a much more challenging interpretation of the novel may be offered: the mimetic rivalry between the two Boys replicates the mimetic dynamic between the competing forms government that they symbolize, subverting any absolute distinction between liberal and dictatorial forms of the State. The narrative core of the novel is a ‘double story arc’: the movement from the representational theory of language (Hobbes) to the anti-representational theory of substitution (Girard) and the movement from Social Contract (the conch) to the sacrificial mechanism (the scapegoat).
Abstract: On the 60th anniversary of the publication of William Golding’s Lord of The Flies, Gary Watt reads the novel in terms of the natures of dress and law as near neighbours (perhaps even structurally identical partners) in the scheme of social norms. Instead of reading the boys’ story in terms of descent from clothing to nakedness, Watt reads it in terms of the constancy of dress. The form of the dress changes from clothes to painted masks, but the fundamental fact of dress remains. The boys’ relationship to rules can be read in a similar way. Instead of reading their story in terms of descent from law and order to lawlessness and disorder, it is read in terms of the ongoing presence of rules of some sort. Watt argues that, through the enduring presence and performative power of dress and law in the novel, Golding is warning us that we should suspect all external indicators of civilisation of being hollow; that we should be cynical about all systems of norms established by society and look, instead, to be saved by individual insight and self-sacrifice.
The Shaping and Misshaping of Identity through Legal Practice and Process: (Re)discovering Mr Kernott
Abstract: The focus of this paper is the construction of identity within the context of English legal practice and process. Its subject matter is the protracted civil litigation that extended from a brief County Court hearing in 2007 to the Supreme Court judgment of Jones v Kernott  UKSC 53. Taking as its theoretical basis recent work by Hilde Lindemann, Holding and Letting Go: The Social Practice of Personal identities (Oxford University Press, 2014)the author analyses the reported judgments of the appellate courts, as well as a recently recorded first hand narrative account of Mr Kernott, as a means to examining how far long-established legal practices and customs can operate to construct, hold and let go of personal identity.
Law, Narrative, and Politics in a Jewish Key: Hannah Arendt and Robert M Cover in Comparative Perspective
Abstract: From a pluralistic perspective, Hannah Arendt and Robert Cover developed sharp critiques of sovereign-centred legal-political orders. This essay argues that their critiques and pluralistic counter-models reflect not only the Jewish experience of diaspora, exile and genocide, but also the different vantage points from which they perceived this experience. The essay compares their interpretive approaches to courts, law, narrative, politics, and tradition to assess the important ways they converged with and diverged from one another.
Abstract: Music, and especially singing, plays a central role in African cultures. Songs and rhythm have been described as ‘a truly African way of communication’ and it is therefore not surprising that music has played, and continues to play, an important role in African politics. This article will consider the important role that struggle music - also known as freedom songs – played in South Africa during the apartheid years and the struggle for liberation, and how it continues to play an important role in contemporary South African politics. First, the genre of struggle music will be circumscribed and differentiated from other politically motivated music. Then the discussion will turn to the struggle music of South Africa during the apartheid years, and how it is still being utilised in politics today. With regard to the contemporary use of struggle music in South African politics, the discussion will focus on the controversial struggle song Dubulu’ iBhunu and the decision of the South African Equality Court in Afriforum & another v Malema and another (Vereniging van Regslui vir Afrikaans as Amicus Curiae) 2011 (12) BCLR 1289 (EQC) prohibiting the singing of the song in public and declaring its lyrics to be hate speech.
Abstract: Knowing how to identify someone’s murderer, how to distinguish a credible witness, whether one is being betrayed, or try to avoid being exposed, are questions that compel the main characters in Hamlet. This essay explains The Murder of Gonzago and the duel scene having in mind formal judicial procedures with which a criminal’s guilt is uncovered. It argues that Hamlet’s dumb show may be compared to a technical truth test such as that effected by the presentation of torture objects before the procedure takes place. The duel scene should also be read having in mind judicial methods such as the medieval ordeal. Though Hamlet’s mousetrap and the duel may be perceived as symmetrical revenge plots, the swordfight has a cryptic nature. The duel seems, thus, to serve the purpose of describing contradictory views on justice and on divine providence, purposefully failing to provide the audience to an answer for the question: “Who’s there?” (I, I, 1).
Humanity beyond Rights: Proximity as a Normative Principle
Abstract: The question of human rights lies beyond formal rules and official political structures. It is also a question of mentality and awareness; it depends on how seriously civil society takes the humanity of every person. To capture these implications, it is not sufficient to invoke ‘hard’ institutional frameworks, such as the constitutional order, administration and economy. We need to pay attention to ‘soft’ human factors: trust, loyalties, interpersonal bonds, cultural codes affecting human conduct. This is why cinema offers an interesting point of view to address the question. Focusing on The Death of Mr. Lazarescu (2005) a film by Romanian director Cristi Puiu, this paper interprets it and its literary sources through the philosophical category of ‘neighbour’. The aim is to look for what this concept can tell us, in both a moral and legal sense, about human beings and their dignity, beyond the limits of rights discourse.