JURIS DIVERSITAS: PRESIDENT'S MESSAGE 2013

All, 

I hope this finds each of you well.

I write on behalf of the Juris Diversitas Committee with an update on our activities, including next year’s annual conference, and links to additional information.

It’s been another busy year.

Membership has expanded and we’ve made it reasonably easy to pay fees.

A new Committee was also elected for 2014-2017. We’ve already asked Professor Christa Rautenbach (North-West University (South Africa)) to join the Committee as Outreach Officer, ie to help us expand still further and to create formal links to associated individuals, groups, institutes, etc. The new Committee will also be reviewing and updating the membership of our Advisory Board.

In addition to our Blog and Facebook page, we now have a Twitter account to help spread our message. For those who haven’t already done so, I urge you to sign up for our notices at one of these sites. And while we’re grateful to have three new bloggers (Paola Aurucci, Erin Branigan, and Irina Moutaye), we’re still looking for volunteers. A satellite blog—I just made that up—is also being developed with our Maltese members to focus on Mediterranean laws and norms.

We held a workshop in Turin last January (on ‘Visions of the Economy in the Islamic and Western Legal Traditions’), as well as our first international, interdisciplinary Annual Conference (on the ‘diffusion’ of laws and norms) with our good friends at the Swiss Institute of Comparative Law. We hope to have two or three events in 2014. This includes our annual conference, to be held at Aix-Marseille University (France) in July 2014. Events on microjurisdictions and on ‘Mediterranean hybridities’ (with comparatists and anthropologists) are also being planned.

Finally, we’ve a half-dozen or so books (on the concept of law, indigenous law, mixed systems, and ‘stateless law’) being prepared for our Book Series with Ashgate Publishing. Several should be published in 2014, including our Concepts of law collection which will be given free to members paid in 2013. A separate volume will be provided free for members in 2014.

To continue this work, it’s very important that we receive your support, both through your membership fees and your help in spreading the word about our activities. And, as always, we welcome your thoughts. There’s so much more to be done.

We hope to see many of you soon. Best wishes to all for the holidays and the new year.

Best wishes.

Seán

JOURNAL: Rechtsgeschichte - Legal History (the journal of the Max Planck Institute for European Legal History)

As you may know, Rechtsgeschichte - Legal History, the journal of the Max Planck Institute for European Legal History (MPI-ELH), is available now both in print and online. This is part of a wholesale revision of the journal with the last issue. 

In the latest issue, Thomas Duve, Director of the MPI-ELH, also contributes an Editorial and a short article introducing a discussion of Harold Berman's Law and Revolution.

Highly recommended.

JOURNAL - NEW!: European Journal of Comparative Law and Governance

Through an unusual arrangement with the World Society of Mixed Jurisdiction Jurists (WSMJJ), the new European Journal of Comparative Law and Governance has brought together some two dozen articles generated by the WSMJJ Congress in the summer of 2011.

As I write in my introduction to this collection, the Congress

reflected a thriving Society consolidating its core scholarship on classical mixed jurisdictions (Israel, Louisiana, the Philippines, Puerto Rico, Quebec, Scotland, and South Africa) while reaching to new horizons (including Cyprus, Hong Kong and Macau, Malta, Nepal, etc). The collection reflects the complexity of contemporary scholarship on mixed and plural legal systems.  

The articles are available here. They were originally published in several law journals across Europe, the United States, and Africa. Another five articles will be made available soon.

In future, the journal will publish print versions of its volumes. The journal

publishes top-level academic contributions in English that explore the phenomena of law and governance from a comparative perspective. It includes comparative studies from different fields of law and regulation as well as multi-disciplinary studies on societal governance issues. Comparative studies involving non-European countries are welcome when they deal with topics relevant also for European science and society. All contributions will be subject to double-blind peer review.

Have a look. 

-SPD

SYMPOSIUM: The Unbounded Level of the Mind: Rod Macdonald's Legal Imagination

Save the date! The Unbounded Level of the Mind: Rod Macdonald's Legal Imagination Symposium, February 7-8, 2014

The Faculty of Law of McGill University invites you to a Symposium entitled "The Unbounded Level of the Mind: Rod Macdonald's Legal Imagination," held in honour of Professor Roderick A. Macdonald, OC, F.R. Scott Chair of Constitutional and Public Law.

The event, which will take place at the Faculty of Law on Friday, February 7, and Saturday, February 8, 2014, will allow us to delve into Professor Rod Macdonald's rich scholarship and its implications for future research.

The Symposium is organized around six themes: Kaleidoscopic Federalism, Producing Fairness, Pluralizing the Subject, The Priority of Distributive Justice, Contextualizing Governance, and Producing Virtue. Among invited speakers are Harry Arthurs, Nathalie Desrosiers, Alison Harvison Young, Nicholas Kasirer, Yves-Marie Morissette, and John Whyte.

Andrée Lajoie's forthcoming book, Un trajet engagé et engageant: La vie intellectuelle de Rod Macdonald (Éditions Thémis), will also be launched during the Symposium.

A website will be launched shortly where it will be possible to register and contribute short reflections on our six themes for posting.

For further information, please contact Olivier Jarda, the conference coordinator, a tolivier.jarda@mail.mcgill.ca.

HIGHEST RECOMMENDATION!!! - SPD

CALL FOR APPLICATIONS: LL.M in Comparative Law at Louisiana State University!!

LL.M. in Comparative law at Louisiana State University

The LSU Law Center is now accepting applications for the Master of Laws (LL.M.) in Comparative Law program for the 2014-2015 academic year. The LSU Law Center’s distinctive curriculum, with fully-developed civil and common law programs, provides an exceptional and intense legal education. In addition to a full coverage of United States laws and legal methodology, the LL.M. at LSU Law features unique advantages, such as the opportunity to study the civil law in English, access to one of the best comparative law libraries in the world, and competitive tuition rates combined with an affordable cost-of-living.  For over 70 years, LSU Law has provided an LL.M. education of the highest caliber, while maintaining affordability; alumni of the LL.M. Program have gone on to positions at some of the top universities and law firms in the world.

LSU is located in historic Baton Rouge, the capital of Louisiana, along the banks of the Mississippi River. It is the second largest city in Louisiana, one hour and a half away from New Orleans. The Baton Rouge Metro Airport is just two flights away from most major cities in the world.

Contact and Information:

More information is available on the LL.M. webpage, or contactus by email at llmadmission@law.lsu.edu or by telephone at 225-578-7831 for more information about this unique opportunity.

JOURNAL: Comparative Legal History (the official journal of the European Society for Comparative Legal History)

The latest issue of Comparative Legal History (CLH), the official publication of the European Society for Comparative Legal History (ESCLH), has been published.

In addition to book reviews, the issue includes the following articles:

• Mediating Foreign Norms and Local Imperatives: Intellectual Property 'Law' between the East and the West, from Imperial China to 'Modern' Times - Hinchliffe, Sarah A
• Producing 'Lack as Tradition': A Feminist Critique of Legal Orientalism in Colonial Taiwan - Chen, Chao-ju
• The Kandyan Convention 1815: Consolidating the British Empire in Colonial Ceylon - Godden, Lee; Casinader, Niranjan
• 'Not a Question of Theology'? Religions, Religious Institutions, and the Courts in India - Heehs, Peter

Members of the ESCLH receive a free subscription to CLH! Spread the word!!

- Seán Patrick Donlan, Editor

FILM: Christmas Movies and the Law

FILM: Christmas Movies and Law' from @LawLibCongress at http://t.co/YyCR8t6hjb pic.twitter.com/dieqJpSCzS
— ComparativeLaw (@JurisDiversitas) December 18, 2013

JOURNAL: Legal Scholarship Network: Legal Studies Research Paper Series

The latest issue of Legal Scholarship Network: Legal Studies Research Paper Series. University of Australia Faculty of Law, Vol. 2, No. 5: Dec 13, 2013,  is available on SSRN.

Contents include:

Articles

"The 'Glorious Revolution' Down Under: Parliamentary Privilege and the Bill of Rights 1689 (UK) -- Its Application in Criminal Proceedings Against Members of Parliament: England and Australia Compared" 

Paper delivered to Australian Association of Constitutional Law, WA branch, at the Constitution Centre, West Perth, 4 September 2013.

PETER JOHNSTON, University of Western Australia - Faculty of Law

Email: peter.johnston@uwa.edu.au

One of the enduring constitutional legacies of the Glorious Revolution in 1688 whereby the English Parliamentary forces under William of Orange defeated largely French royalist troops under James II, thereby ending the Stuart monarchies’ use of arbitrary prerogative power, was the Bill of Rights 1689 (UK). Article 7 guaranteed the freedom of speech and immunity from court proceedings in relation to matters connected with "Parliamentary proceedings". In 2011, the United Kingdom Supreme Court was asked to rule on whether article 7 or the exclusive inherent jurisdiction of the UK Houses of Parliament prevented prosecution of Members for offences relating to misuse of parliamentary allowances. The Supreme Court concluded that while the allowances were ostensibly provided to allow members to carry out their electoral duties that was not a sufficient basis for denying the jurisdiction of the courts in relation to ordinary criminal offences. The prosecutions were therefore able to proceed.

The paper argues that the Supreme Court's decision resolved the possible clash of jurisdictions sensibly and pragmatically, but the Court’s reasoning is far from logically compelling or persuasive. It then notes that currently, similar prosecutions of Members of Parliament have been instituted in Australia. This prompts the question whether Chaytor is relevant in the Australian parliamentary context. Is the privilege and contempt "jurisdiction" of the Houses of Australian Parliaments necessarily exclusive in such matters? The paper concludes that no easy answer can be given as to whether Chaytor, or, at least, its reasoning, would be followed by Australian courts. Certainly, where an Australian House of Parliament declines to deal with a Member who has misused electoral funds privilege ought not to preclude a criminal prosecution. However, if the House were to institute its own contempt proceedings in relation to the Member, the situation may be far from certain.

"The Incorporation of Human Rights Standards into Australian Extradition Law" 

Paper delivered at the Australian Institute of Administrative Law annual conference, Canberra, 19 July 2013

UWA Faculty of Law Research Paper No. 2013-30

PETER JOHNSTON, University of Western Australia - Faculty of Law

Email: peter.johnston@uwa.edu.au

This paper in Part I explores the extent to which the Extradition Act 1988 (Cth) incorporates international human rights standards such as the fair trial standards under the International Covenant on Civil and Political Rights 1966 (ICCPR). It argues that that modification of the Act to accommodate conditions in bilateral treaties between Australia and other countries authorising the Attorney General to refuse to surrender a requested person where it would be 'unjust, oppressive or incompatible with humanitarian standards' imports into extradition decisions the fair trial standards in Article 14 of the ICCPR. Further, satisfaction of those fair trial standards arguably amount to a relevant consideration in determining the issue. 

Part II by way of qualification questions the capacity of Australian courts to effectively exercise judicial review in respect of an extradition decision even if the foreign trial is likely to be inconsistent with Australian and international standards of fairness. The article concludes that due to limitations on and practical difficulties with the reviewability of the decision to surrender, regard for 'fair trial' standards may be rendered irrelevant due to a lack of any statutory or constitutional requirement for the Attorney to explain and justify a surrender decision. In the absence of any obligation to reveal the basis of the decision a person who faces extradition to a country that is unlikely to afford a fair trial will find it practically impossible to advance any objection founded on that possibility.

"The Revival of Comparative Criminology in a Globalised World: Local Variances and Indigenous Over‐Representation" 

(2013) 2(3) International Journal for Crime, Justice and Social Democracy 55

UWA Faculty of Law Research Paper No. 2013-31

HILDE TUBEX, University of Western Australia - Faculty of Law

Email: hilde.tubex@uwa.edu.au

In this article, I first examine the viability of comparative criminological research in a globalised world. Further, I test the validity of some global explanatory models against the local situation in countries that appear to resist the dominant trend, such as the Netherlands and Canada. I then zoom in even further to the intra‐national differences in some federal nations, such as Canada and Australia, where this situation is often linked to the overrepresentation of Indigenous people and the consequences of colonialism. Finally, I discuss the future of comparative criminological research.

BOOK: Mak on Judicial Decision-Making in a Globalised World

"Judicial Decision-Making in a Globalised World

A Comparative Analysis of the Changing Practices of Western Highest Courts" is the new book by Elaine Mak.

Abstract:

Why do judges study legal sources that originated outside their own national legal system, and how do they use arguments from these sources in deciding domestic cases? Based on interviews with judges, this book presents the inside story of how judges engage with international and comparative law in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands. A comparative analysis of the views and experiences of the judges clarifies how the decision-making of these Western courts has developed in light of the internationalisation of law and the increased opportunities for transnational judicial communication. While the qualitative analysis reveals the motives that judges claim for using foreign law and the influence of 'globalist' and 'localist' approaches to judging, the author also finds suggestions of a convergence of practices between the courts that are the subject of this study. This empirical analysis is complemented by a constitutional-theoretical inquiry into the procedural and substantive factors of legal evolution, which enable or constrain the development and possible convergence of highest courts' practices. The two strands of the analysis are connected in a final contextual reflection on the future development of the role of Western highest courts.

Author:

Elaine Mak is an Associate Professor of Jurisprudence at the Erasmus University Rotterdam.

BOOK: Wu on Competition Laws, Globalization and Legal Pluralism

"Competition Laws, Globalization and Legal Pluralism

China's Experience" (Hart Publishing) is the new book of Qianlan Wu

Abstract:

Building upon a theoretical framework and empirical research, this book provides a thought-provoking analysis of the interests, strategies and challenges that China has faced in developing its Anti-Monopoly Law (AML) in the context of economic globalization.

 The book comprises three main parts: Part I reviews the directions of convergence of global competition law; Part II provides a contextual analysis of China's market governance and its strategic interests; and Part III examines the latest enforcement of the Anti-Monopoly Law by focusing on the interactions between global actors and China, the relationships between Chinese competition and sectoral regulators, and the enforcement of global competition law norms in the Chinese context. This book is one of the first to provide a critical understanding of China's experience as a new competition regulator, set against the background of the plural sources of global competition laws.

Author:

Qianlan Wu is a Lecturer in Law and Senior Fellow of the China Policy Institute in the School of Contemporary Chinese Studies, University of Nottingham, UK. Dr Wu holds a PhD in Law from London School of Economics and Political Science and an LLM from the University of Edinburgh, UK.

BOOK: "Constitutional Review in Europe. A Comparative Analysis" by Maartje de Visser

A new book for  Maartje de Visser : "Constitutional Review in Europe. A Comparative Analysis" (Hart Publishing) 

Abstract: 

Constitutions serve to delineate state powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of who (should) uphold(s) the Constitution and how constitutional review is organised. These two questions are the subject of this book by Maartje de Visser, which offers a comprehensive, comparative analysis of how 11 representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavours to identify Europe's common and diverse constitutional traditions of constitutional review. The raison d'être, jurisdiction and composition of constitutional courts are explored and so too are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay amongst constitutional courts and other actors at the national and European level. The Member States featured are: Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the United Kingdom.

This book is intended for practitioners, academics and students with an interest in (European) constitutional law.

Author: 

Maartje de Visser is an Assistant Professor of Law at the Singapore Management University. Prior to this, she held appointments at Maastricht University and Tilburg Law School in the Netherlands. This book is the culmination of research carried out between 2008 and 2013 when Maartje was a member of the European and National Constitutional Law (EuNaCon) Project, funded by the European Research Council (ERC).

BOOK: The Privilege Against Self-Incrimination and Criminal Justice by Andrew Choo

Andrew Choo is Professor of Law at City University London and a barrister at Matrix Chambers. The Privilege Against Self-Incrimination and Criminal Justice (Hart publishing) is his new book.

Abstract:

The privilege against self-incrimination is often represented in the case law of England and Wales as a principle of fundamental importance in the law of criminal procedure and evidence. A logical implication of recognising a privilege against self-incrimination should be that a person is not compellable, on pain of a criminal sanction, to provide information that could reasonably lead to, or increase the likelihood of, her or his prosecution for a criminal offence. Yet there are statutory provisions in England and Wales making it a criminal offence not to provide particular information that, if provided, could be used in a subsequent prosecution of the person providing it. This book examines the operation of the privilege against self-incrimination in criminal proceedings in England and Wales, paying particular attention to the influence of the European Convention on Human Rights and the Human Rights Act 1998. Among the questions addressed are how the privilege might be justified, and whether its scope is clarified sufficiently in the relevant case law (does the privilege apply, for example, to pre-existing material?). Consideration is given where appropriate to the treatment of aspects of the privilege in Australia, Canada, India, New Zealand, the USA and elsewhere.

CALL FOR PAPERS: 3rd Global Conference: Sins, Vices and Virtues, Mansfield College

We are pleased to inform You about the 3rd Global Conference: Sins, Vices and Virtues that will take place on Friday 25th July - Sunday 27th July 2014 Mansfield College, Oxford, United Kingdom Aim: This interdisciplinary conference seeks a new, provocative, intercultural perspective on virtues and vices, sins and transgressions. Do we need a new list of moral commandments in the globalised, multicultural 21st century? Should they be religious or secular in nature? Who should they be aimed at? And, finally, is it possible, reaching back to the origins of humanity, to find common denominators between religious/spiritual definitions of vices and virtues of all belief systems? We are inviting scholars, theologians, anthropologists, artists, teachers, psychologists, therapists, philosophers, teachers of ethics, etc. to present papers, reports, works of art, work-in-progress, workshops and pre-formed panels on issues related but not limited to the following themes:

ARTICLE: Tomlins on Rejection and Recuperation of the Socio-Legal Enterprise

On SSNR the new article of Professor Christopher L. Tomlins from University of California, Irvine School of Law, "Law ‘And’, Law ‘In’, Law ‘As’: The Definition, Rejection and Recuperation of the Socio-Legal Enterprise"

The Abstract:

The critical moment in socio-legal studies that flowered in the United States and elsewhere between the mid-1970s and the early 1990s coincided with the maturation of the Legal Studies Department at Melbourne’s La Trobe University. During its two-decade span (1972-1994) La Trobe Legal Studies developed multidisciplinary critical and theoretical perspectives on law – as substance, as professional practice, as field of academic inquiry – to an extent and depth unrivalled in Australia or, with just a few exceptions, internationally. This essay charts the particular trajectory followed by one of those perspectives, legal history, both at La Trobe and in the wider world. Simultaneously, it offers a short history of the Department itself: of its growth during the 1970s and 1980s; of its transformation into a law school during the 1990s; and of the struggles to maintain a place for the social in the legal that occurred during that transformation.