BOOK: Kyritsis on Courts and Legislatures in Legal Theory

Shared Authority

Courts and Legislatures in Legal Theory                  

Dimitrios Kyritsis                     

This new book advances a fresh philosophical account of the relationship between the legislature and courts, opposing the common conception of law, in which it is legislatures that primarily create the law, and courts that primarily apply it. This conception has eclectic affinities with legal positivism, and although it may have been a helpful intellectual tool in the past, it now increasingly generates more problems than it solves. For this reason, the author argues, legal philosophers are better off abandoning it. At the same time they are asked to dismantle the philosophical and doctrinal infrastructure that has been based on it and which has been hitherto largely unquestioned. The book offers an alternative framework for understanding the role of courts and the legislature; a framework which is distinctly anti-positivist and which builds on Ronald Dworkin's interpretive theory of law. But, contrary to Dworkin, it insists that legal duty is sensitive to the position one occupies in the project of governing; legal interpretation is not the solitary task of one super-judge, but a collaborative task structured by principles of institutional morality such as separation of powers which impose a moral duty on participants to respect each other's contributions. Moreover this collaborative task will often involve citizens taking an active role in their interaction with the law.

THE AUTHOR

Dimitrios Kyritsis is an Associate Professor at the University of Reading.

BOOK DETAILS

January 2015   9781849463898   195pp   Hbk   RSP: £50 / US$100

Discount Price: £40 / US$80

LL.M. in Comparative Law at Louisiana State University

The LSU Law Center welcomes applications for the Master of Laws (LL.M.) in Comparative Law program for the 2015-2016 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 around the world. 

Download the brochure. 

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

Also visit the LSU Law Worldwide blog at: http://sites.law.lsu.edu/worldwide/blog/ and ‘like’ the CCLS on Facebook.

CALL FOR PAPERS: British Association of Comparative Law Postgraduate Research Workshop

Deadline 19th March.

The University of East Anglia will host the 2015 BACL Postgraduate Workshop on Comparative Law on 28^th - 29^th April 2015.

The BACL Postgraduate Workshop on Comparative Law is designed for doctoral students working on dissertations in the field of comparative legal studies and related subjects. In a round-table setting, the 2-day workshop will address both the benefits and methodological problems of postgraduate research in comparative law.

Participants will be provided with an opportunity to present their own work and thus gain useful feedback from their peers, as well academics in the field, including Dr Audrey Guinchard (Essex) and Dr Stathis Banakas (UEA).

The workshop will take place on the UEA campus, beginning lunchtime Tuesday, 28^th April. The workshop will include plenary sessions, but the emphasis is on student presentations and group discussion. Students interested in participating in the workshop should submit an abstract of no more than 400 words and a short biographical note using the attached form by 19 March 2015.

BACL is subsidising the costs of this event, which is also sponsored by Intersentia, but a student contribution will be required. The contribution will be £30 for students from BACL member institutions* and £40 for students from non-member institutions (payable at the event in cash or by cheque to the British Association of Comparative Law). This includes participation in the workshop, lunch and refreshments as well as evening dinner on the 28^th April. (Your institution may be able to assist with the costs.)

Students will also be expected to pay for and organise their own transport to Norwich, as well as their overnight campus accommodation (£54.00 B&B per night payable upon advance booking).

Applications should be sent to Claudina Richards (c.richards@uea.ac.uk), School of Law, University of East Anglia, Norwich, NR4 7TJ.

CLICK HERE for further information and to download the application form.

CONFERENCE:The Unitary Patent and the Unified Patent Court: a private international law perspective

Bournemouth University 

Speaker: Paul Torremans (University of Nottingham)

Venue:   Executive Business Centre, Bournemouth 

Date:  Thursday 19 February, from 6 pm in EB306

The introduction of the unitary patent will leave the European patent in place and will in any case not apply to Italy, Spain and, probably, Poland. And the courts in those countries, and those in all other Member States during the transition period, will share competence over patent cases with the Unified Patent Court. This gives rise to issues of private international law and the Brussels I Regulation was hastily amended to deal with the matter. The talk will consider the Unitary Patent and the Unified Patent Court from a private international law perspective in order to analyse whether adequate solutions are now in place that will make the system predictable and transparent, or even efficient.

Click here for further information.

ARTICLE ANNOUNCEMENT: A Contextual Defense of ‘Comparative Constitutional Common Law’

By Han-Ru Zhou,

on

 

(2014) 12 International Journal of Constitutional Law 1034 

The relevance of comparative constitutional law, especially in the judicial forum, has been a longstanding source of debate. Even between jurisdictions sharing the same legal tradition, the judicial use of comparative law has been repeatedly criticized on grounds related to the widely differing characteristics of the jurisdictions being compared. This article seeks to challenge these objections when the comparison concerns the constitutional law of Commonwealth countries, with a legal system based on the common law tradition. More specifically, in these common-law-based systems, the use of such a comparative analysis is rooted in a shared legal history and tradition and can be coherently explained by the nature of common law. Historically, the beginnings of modern “comparative common law” can be traced back to the British colonization and the reception of English law in the new British territories. Over time, the practice in the colonies of referring to English and other Commonwealth authorities had become well established to such an extent that it continued even after the political and legal ties between the former colonies and the UK had been severed. One major reason for this ongoing practice is the fact that the independence of almost all of the former colonies had been formalized through the adoption of a constitution on the “Westminster model,” and was thus founded on the general principles of English constitutional law. Altogether, these channels of reception of the common law tradition, and of many of its fundamental rules and principles, have contributed to creating a unique legal context allowing for the development of comparative constitutional common law.

Click here to download this article

ARTICLE ANNOUNCEMENT: Irish Jurors: Passive Observers or Active Participants?

by Niamh Howlin, on (2014) 35(2) Journal of Legal History 143-171
What was the role played by jurors in civil and criminal trials from the late eighteenth to the late nineteenth century? This article establishes that during this period, juries in Ireland played a relatively active role. It examines individual reports of civil and criminal trials and considers the nature of juror participation during this period, establishing that jurors frequently questioned witnesses, berated counsel, interrupted judges, demanded better treatment and added their own observations to the proceedings. This article compares the nature and level interaction from different categories of jury – civil and criminal, common and special. It asks why Irish jurors continued to be active participants until late in the nineteenth century, and how the bench and bar received their input. It also suggests that English jurors may also have played a more active role during this period than previously thought. Finally, the article considers some possible reasons for the silencing of Irish jurors by the late nineteenth century.

Click here to download this paper

CALL FOR PAPERS: Normative Interfaces of Globalization and High-Tech Capitalism: Legal Pluralism and the Neo-Liberal Turn

International Conference of the Commission on Legal Pluralism in collaboration with the Department of Humanities and Social Sciences, Indian Institute of Technology Bombay 

Theme: Normative Interfaces of Globalization and High-Tech Capitalism: Legal Pluralism and the Neo-Liberal Turn 

Location: Indian Institute of Technology (IIT), Bombay, India 

Dates: 14-16 December 2015

The 2015 international conference will pay particular attention to emerging areas that have gained in momentum due to processes of globalization, the emergence of ‘knowledge economies’, and the evolution of high-tech capitalism. Not surprisingly, debates and evolving policies on information technology, biotechnology, genetic engineering and intellectual property rights are forced to deal with issues of legal pluralism, perceiving a risk in high-technology regimes, which further exacerbate socioeconomic inequalities and marginalize the already disadvantaged, especially in developing societies and ‘emerging economies’. 

The conference will also address established themes that continue to cause significant concern, such as conflicts and contestations over property, land and natural resources; governance; religion, culture, custom and ethnicity; state and non-state laws; gender; kinship; patriarchy; human rights; development aid and cooperation; as well as migration; mobility; and transnationalism, while exploring how emerging and ‘old’ themes in the field of legal pluralism relate to each other in theory and practice. 

The neoliberal turn in contemporary patterns of economic transformation and globalization has generated new debates regarding norms, the capacity to evolve, deploy and resist normative regimes, and new forms of normative interfaces. Attention to these areas brings legal pluralism research into the hitherto neglected territorial domain of urban nodes of capital and knowledge flows. New forms of regulation, surveillance, and the ironic and contradictory implications of transparency, accountability and participation all interact with existing social structures to offer interesting problems for scholars of legal pluralism. The use of social media in recent social and political movements around the world also offers rich scope for understanding such linkages and interactions. At the same time, the increasing ‘noise’ around indigenous, alternative, or southern perspectives in social sciences and humanities has generated new approaches in theory and practice to themes such as law, ethics, norms and values, governance and ideas of order. These have found wide resonance in debates and struggles on issues related to development visions, resource expropriation, economic growth, and technological models. 

Scholars and practitioners are invited to present contemporary work on the above and following related themes to the 2015 Conference: 

1. Theoretical and Methodological Approaches to Legal Pluralism 

2. Governance and Politics: Juridification, Neo-liberalism and Political Aspirations 

3. Natural Resources, Land and Property: Old and New Forms of Legal Pluralism 

4. Human Rights and Development: Emerging Discourses 

5. Religion and Culture: Social and Legal Transformations 

6. Science, Technology, and Law 

A more detailed description of the above themes and the panels linked to each theme is provided in the attachments to this call for papers. You are also welcome to send papers that may not appear to be directly or indirectly linked to the listed panels. It is hoped that this event will offer a dynamic and vibrant space for further expansion of perspectives in debating issues and challenges relating to legal pluralism. 

Please send your paper proposals to lpconfmumbai@gmail.com (for the attention of Prof. Waheeda Amien and Prof. D. Parthasarathy) by no later than April 15, 2015.

CALL FOR PAPRES: Islamic Law and Minorities: Past and Present

Oriente Moderno 2016

Editors

Carlo De Angelo (University of Naples “L’Orientale”)

Serena Tolino (University of Zurich)

In 1945 the American sociologist Louis Wirth defined a minority as “a group of people who, because of their physical or cultural characteristics, are singled out from the others in the society in which they live for differential and unequal treatment and who therefore regard themselves as objects of collective discrimination”. However, Wirth focused not so much on relational numbers, but more on the different possibilities for minorities to have access to power. Since then, research has proceeded in several directions and minority studies became an independent field of study, especially with regard to ethnic minorities. Nevertheless, as both scholars and activists demonstrated the differentiation between a dominant group and a minority can be based not only on race and ethnicity, but also on other characteristics, like for example gender, religion, language, sexual orientation, wealth and health. At the same time, “minority” and “minorities” proved to be fruitful concepts also when used as analytical categories, in order to look at subaltern groups.

It is exactly the concept of “minorities” which is at the core of this special issue of Oriente Moderno, to be published in 2016. The main aim of the issue is to explore the relationship between Islamic Law and Minorities in different directions. We propose four directions of enquiry, but we are also open to other proposals:

Jurisprudence for Muslim minorities.

We hope to attract papers that engage with the fiqh al aqalliyyāt. It is a new branch of Islamic law, which provide guidance for Muslims living as minorities in non-Muslim countries (especially in the West)to live in accordance with the sharīʻa. Topics could include (but are not limited to):

·      The history of fiqh al aqalliyyāt

·      The concept of Muslim minority as developed by fuqahāʼ

·      The analysis of the fatwas issued by some jurists or by some Islamic juridical councils (located in the West or in Islamic territories) concerning different topics (political participation, citizenship, military service, relations with non-Muslims, mixed marriage, clothing, etc.)

·      Comparison between different schools of thought regarding the fiqh al aqalliyyāt

·      Analysis of the discourse of those jurists who are against the development of fiqh al aqalliyyāt

The status of the dhimmī and the other religious minorities.

According to Human Rights Watch, ISIS is killing and threatening religious minorities (particularly Yazidis and Christians) in the territories that it has occupied, for example Mosul. The Islamic State has claimed that their actions are justified by Islamic Law. In light of this, we call for papers dealing with the juridical framework of the Muslim treatment of non-Muslims in Islamic territories, both People of the Book (extended to Zoroastrians, Mandeans and Sikhs) and others (polytheists and renegades).

Sexual minorities in Islamic Law.

We hope to attract papers that deal with those categories that could be categorized under the acronym “LGBTQI”. Even though we are aware that a discussion on the applicability of these categories should be opened, we are here using the LGBTQI acronym not as an analytical category per se, but more as an “orientation map”. Therefore, we call for papers dealing with “non-normative sexualities” and “sexual acts” in Islamic Law, using both historical concepts (e.g. the status of the hermaphrodite, the eunuch, the muḫannath, liwāṭ, siḥāq etc.), and modern concepts, like intersexuality, homosexuality, transsexuality and so on.                                                                                                   

Minorities as legal actors.

We are not only interested in exploring how Islamic Law deals with minorities as “subjects of law”, butalso in approaching minorities as “productive” legal actors. In this sense, we aim to attract papers dealing with the legal production of minority madhāhib or groups, like, for example, ismā‘īlis, ẓāhiris, ibāḍis or zaydis.

Please send your paper proposal relating to one or more of the above themes as a word document, along with a short CV (max 1 page) to Carlo De Angelo (cdeangelo@unior.it) and Serena Tolino (serena.tolino@uzh.ch). Proposals should include the following: title of the paper, name, surname, institutional affiliation of the contributor, author’s email contact, abstract of max 500 words, 3 keywords. The abstract should include a short description of the topic and the sources which will be analysed. Abstracts and papers should be written in English.

We are keen to publish only articles dealing with Islamic Law, both classical and contemporary, and notwith positive law of Islamic countries (i.e. How minorities are treated in the national law of a given country). Previously published papers may not be submitted.

Feel free to contact the editors for informal inquiries before the submission of your proposal.

The deadline for the submission of abstracts is the 15th of March 2015. Notification of acceptance will be sent before the end of March. The deadline for submitting the articles (8000-10000 words) is 15th September 2015. 

Acceptance of abstract does not automatically imply the publication of the paper, which will go throughthe double-blind review process before final acceptance.

Oriente Moderno was founded in 1921 by Carlo Alfonso Nallino and is currently directed by Prof. ClaudioLo Jacono, Director of the “Istituto per l’Oriente C.A. Nallino”, Rome. The Editorial and the Scientific Committee include university professors and researchers from different Italian and International Universities. The journal publishes scientific and original articles on all aspects of political, social, literary, and cultural aspects of the modern and contemporary Middle East, together with translated documents, news on Islamic and Arabic research in Italy and reviews of books. Oriente Moderno is currently published by Brill and indexed, between the others, by Index Islamicus, MLA International Bibliography and Dietrich’s Index Philosophicus.

ARTICLE ANNOUNCEMENT: Researching Chinese Law Using Legal Periodicals in English and Chinese: A Critical Overview

By Evelyn L. Ma and Xiaomeng Zhang,  on Legal Reference Services Quarterly, 34:1-24, 2015
With a goal to provide a framework for legal scholars and practitioners to effectively utilize Chinese legal journal literature, this bibliographic essay critically examines Chinese legal periodicals in English and the vernacular, followed by a brief survey of the prevailing trends of legal research and legal periodicals publishing in China.

Click here to download this article

ARTICLE ANNOUNCEMENT: Law, Religion, and Feeling Included/Excluded: Case Studies in Canadian Religious Freedom Litigation

By Howard Kislowicz, published on Canadian Journal of Law and Society (Forthcoming 2015) 
Based on a small qualitative study of three religious freedom cases, this article uses litigant narratives as springboards for reflection on the theme of inclusion in the Canadian political community. The article attends to the affective dimension of inclusion, focusing on whether participants felt included or excluded. Successful litigants told narratives of Canada as a country in which they could be included in public life without forgoing their religious practices. The narratives of unsuccessful litigants were more complex. These particular litigants did not have a desire to participate in public practices and institutions. Rather, these narratives understood religious freedom on a contractual basis, portraying their loss in court as a breach of covenant. Moreover, though these narratives contained themes of rejection and exclusion, participants said that they had faith enough in their eventual success that they would stay in Canada rather than emigrate.

Click here to download this article

LECTURE: Esin Örücü, ‘One Into Three: Spreading the Word – Three Into One: Creating a Civil Law System’

I’m delighted to announce that Professor Esin Örücü, of the University of Glasgow and our illustrious Advisory Council, will deliver the 38th Tucker Lecture next month. Not only does this fall on St Patrick’s Day (17 March 2015), but it also takes place at my alma mater, the Paul M Hebert Law Center of Louisiana State University.

In addition, this marks the fiftieth anniversary of the Center of Civil Law Studies, directed by our own Vice President Olivier Moréteau. The Center has been, and remains, very important to the different traditions that make up Louisiana law (and the law of many other jurisdictions).

Professor Örücü’s presentation is entitled ‘One Into Three: Spreading the Word – Three Into One: Creating a Civil Law System’. The LSU Law Worldwide Blog describes it in the following manner:

This lecture will consider “one into three”, since the now monolingual Louisiana Civil Code is being translated into French and Spanish, defining this as ‘spreading the word’. The Louisiana Civil Code Translation Project Conference in 2014 called this expansion, ‘enhancing visibility’. A well-known instance of this kind is also the monolingual Dutch Code being converted, by translation, into a trilingual Code (Dutch, French and English), that is another “one into three”. There is also the instance of the translation of the bilingual Quebec Code (originally in French and English) into Spanish, thus creating yet another trilingual Code, rivalling the Louisiana one, this time “two into three”. Then there is the Fisher’s translation of the Civil Code of Philippines from Spanish into English, “one into two”.

The lecture will start by looking at some general concerns such as language, culture, transpositions, neologisms, equivalence, mistranslations and then move onto illustrating these issues through the experience of Turkey with her process of total and global modernization, westernization, secularization, democratization and constitutionalism.

In this way, before considering the Louisiana case, the lecture will deal with the translation into Turkish from the already trilingual Swiss Civil Code, seemingly a “three into one” case, though only the French version was used by the Turkish translators. This is defined as ‘creating a civil law system’, converting within the span of five years, via five Codes, the efforts of reform resting solely on import and translation from major continental Codes both as to form and content, creating a civilian legal system out of a mixed one.

Finally, a crucial question related to all translated codes will be posed: why translate a code? Aims and reasons which vary will be analysed bringing the lecture to a close.

ARTICLE ANNOUNCEMENT: Emerging African Jurisprudence Suggesting the Desirability of the Abolition of Capital Punishment

Emerging African Jurisprudence Suggesting the Desirability of the Abolition of Capital Punishment from the African Journal of International and Comparative Law by C. Anyangwe.
Click here for further information and to download the article.

BOOK ANNOUNCEMENT: The Law of Divorce and Dissolution of Life Partnerships in South Africa

The Law of Divorce and Dissolution of Life Partnerships in South Africa provides a detailed exposition and analysis of the law relating to the termination of civil unions, civil marriages, customary marriages, Muslim marriages and Hindu marriages by divorce. The publication also offers an in-depth discussion and analysis of the law relating to the dissolution of life (domestic) partnerships. Written by a team of subject specialists, it provides a rich source of expertise. 

The book is divided into five parts. Part 1 focuses on the dissolution of civil marriages and civil unions by divorce. This part deals with the grounds for divorce, the personal and financial consequences of divorce, and the position of minor and dependent children of divorced or divorcing spouses or civil union partners. Part 2 focuses on all aspects of divorce in customary marriages, while Part 3 concerns divorce in Muslim marriages and Hindu marriages. Part 4 addresses all aspects relating to the dissolution of a life partnership. The final part of the book — Part 5 — considers issues that are of general application to divorce and the dissolution of life partnerships. These issues are domestic violence; jurisdiction, procedure, and costs; mediation and other forms of alternative dispute resolution; and conflict of laws. 

Click here to download the brochure of this publication. 

CALL FOR APPLICATIONS: 3 Visiting Fellowships (2016) – Institute for European Global Studies, University of Basel

The Institute for European Global Studies, University of Basel, Switzerland welcomes applications for 3 Visiting Fellowships (three months in the academic year 2016) within European Global Studies with focus on “Scaling Regions“.

The Institute for European Global Studies is an interdisciplinary research Institute at Switzerland’s oldest university, the University of Basel. With an established study program on the MA level and a doctoral program in the planning stage, the Institute develops new concepts and methodologies designed to reveal the close interconnectedness between Europe, Asia and Africa across cultural, geographic, and linguistic borders and the consequences of such entanglements on the global and the local level.

The Institute particularly welcomes applications from researchers who are interested in investigating agencies and actors in global contexts as well as in adopting a conceptual approach beyond the nation state. Projects should fit the general research perspective of the Institute and at the same time engage with the topic of Scaling Regions which covers transterritorial concepts and border-crossing methodologies.

The deadline for application is May 15, 2015.

For more information, please see the call for applications at https://europa.unibas.ch/en/institute/career-opportunities/ .