BOOK: Solinas on Legal Evolution and Hybridisation

I'm pleased to note the publication of Matteo Solinas, Legal evolution and hybridisation: The law of shares transfer in England (2014).

While I confess that I still have to read the book, it appears to closely parallel my work, and that of others in Juris Diversitas, over the last few years on hybridity, diffusion, colonialism, etc:

This is a book on comparative law and legal change. With a focus on corporate law and the law of personal property, it reviews the current state of the comparative debate on the evolution of law and seeks to establish new perspectives to explain the mechanism of legal reception. It finds the comparative discussions centred on the appropriateness of describing the movement of law from one country to another in terms of ‘legal transplants’ perplexing and lacking in a convincing inquiry into the reception process. In an attempt to fill that gap, this study contends that certain recent contributions on culture contact and culture change provide an interesting explanation for the circulation of juridical models across national boundaries. More precisely, this study argues that the notion of hybridity, as originated in postcolonial theory, offers a formidable conceptual means to examine the intricacies of legal evolution, to refine and to give content to the observation of the reception of law.

But as its table of contents indicates, Legal evolution and hybridisation:

does not rest exclusively on theoretical grounds. The complexities of the themes involved are explored and tested by focusing on a case study. This is the legal mechanism by which shares in companies are transferred in England under the direct and indirect holding systems.

Note, too, that Intersentia now offers readers of the Juris Diversitas Blog a 20% discount on its books. More information is available here.

DISCOUNT: Intersentia

We're happy to announce that Intersentia is now offering readers of the Juris Diversitas Blog a 20% discount on its books.

To receive this discount, please order via mail (mail@intersentia.be) and quote the discount code 'JDB- ITS' .

This offer will be added to our other discounts.

BOOKS: Intersentia - Lokin, Milo and Smits (eds), Tradition, Codification and Unification / Uzelac and van Rhee (eds), Nobody's Perfect: Comparative Essays on Appeals and other Means of Recourse against Judicial Decisions in Civil Matters

Intersentia has published the following:

• Jan Lokin, Michaël Milo and Jan Smits (eds), Tradition, Codification and Unification:

200 years ago many civil law jurisdictions adhered to exclusive national codifications of private law, and abandoned the old Ius Commune. Other jurisdictions in the civilian tradition did not engage in codifying private law, and continued along lines of authoritative opinions, case law and fragmented legislation. In our contemporary days the shades of national law slowly melt away, and we imagine a future where new common laws will continue to take shape. This book deals with this mirror image and explores the law in its everlasting tension between tradition and change. Historic and comparative analyses from European, Latin- American and South-African jurisdictions provide us with perspectives on the role of substance, methodology, institutions as well as individuals in developments of law towards the future.

• Alan Uzelac and CH van Rhee (eds), Nobody's Perfect: Comparative Essays on Appeals andother Means of Recourse against Judicial Decisions in Civil Matters:

BOOK: The Effects of Judicial Decisions in Time

Intersentia has published Patricia Popelier, Sarah Verstraelen, Dirk Vanheule and Beatrix Vanlerberghe (eds.), The Effects of Judicial Decisions in Time:

Constitutional review is a hot topic in contemporary constitutional debate and design. However, the legal force of judicial decisions, and in particular their effect in time, is an under-studied issue in the literature. This is remarkable, considering the substantial impact of these decisions on the parties or the wider society, in particular in the case of abstract review, and considering that the choice of retroactive, immediate or future effects may have at stake legal certainty, the right to effective judicial protection, or the rule of law. This edited volume fills the gap by offering a comparative analysis of legislative choices and jurisprudential developments regarding the effect in time of legal decisions and its implications in both civil law and common law systems, in abstract and concrete review. Both national and European courts are discussed. Country reports are preceded by milestone judgments so as to give insight into what, concretely, is at stake, thereby addressing both scholars and practitioners.

BOOK: National Constitutional Identity and European Integration

Intersentia has published Alejandro Saiz Arnaiz and Carina Alcoberro Llivina (eds), National Constitutional Identity and European Integration:

‘National constitutional identity’ has become the new ‘buzz word’ in European constitutionalism over the past few years. Much has been written about the concept involving the Member States’ national constitutional identities: it has been welcomed for (finally) accommodating constitutional particularities in EU law, demonised for potentially disintegrating the EU, and wielded as a ‘sword’ by certain constitutional courts. Scholars, judges and advocates general have rendered the concept currently so fashionable and yet so ambivalent that an in-depth analysis putting some order into the intense debate over constitutional identity is warranted.

This collection brings together a series of contributions from the perspective of both scholars and judges in order to shed some light into the dark corners of constitutional identity. To this end a threefold approach has been followed: a conceptual or philosophical approach, an approach based on EU law, and an analysis of the case-law of several European courts.

First the book explores what constitutional identity means and who decides on it. The next contributions analyse (and at times unveil) the areas that might collide or at least interact with constitutional identity. Among other issues the authors touch upon EU law primacy, Article 53 of the Charter of Fundamental Rights, EU criminal law and the essential functions of the State, and the existence of an EU ‘constitutional core’ enjoyable and enforceable through EU citizenship.

Finally, the chapters dealing with the case-law of European courts on national constitutional identity include the perspective of various national constitutional courts, such as those of Eastern and Central European Member States, the Court of Justice of the European Union, and the much less analysed European Court of Human Rights.

BOOK: Heringa on Legal Education

Intersentia has published Aalt Willem Heringa, Legal Education: Reflections and Recommendations (2013):

This book on legal education was written based upon many of the author’s experiences as a professor and dean. The author noted that there is relatively little literature and research about legal education and felt it was necessary to discuss the present state of legal education. The book focuses on many issues such as teaching itself, employability, the mission and focus of law schools, the future of law schools in this age of internationalisation, student intake, the link with the labour markets, as well as many other issues. One of the conclusions drawn is that law schools will have to seek their own position and niche and that they will have different roles. This book also focuses on the need for law school deans and leaders to set clear mission statements and strategies and work towards education that provides all the necessary skills and knowledge that students can take with them into their future careers. No teaching as we did for many years, but analysing what lies ahead and what is needed for future careers. 

BOOK: Sumalla on Historical Memory and Criminal Justice in Spain

Intersentia has published Josep M Tamarit Sumalla’s Historical Memory and Criminal Justice in Spain: A Case of Late Transitional Justice. The abstract reads:

The Spanish transition from the Franco regime to democracy has not been a very popular subject amongst researchers examining transitional justice at the international level. However, Spain presents certain peculiarities that make it an interesting case in which to explore comparative law and sociology. It has sometimes been seen as a model of peaceful transition, but has also been labelled as an example of an “amnesic” transition to a democratic system in which victims’ rights, justice and truth were forgotten. In contrast to other transitions, demands of justice were not expressed during what was the purely transitional period, but they have been on the increase since then. That is why, in this case, we can speak of “post-transitional justice” or, more properly, of “late transitional justice”.

This book analyses, above all, the laws, policies and judicial decisions adopted in Spain that were related to the construction of the past and could therefore be understood as measures of transitional justice. By comparing this experience with transitional decisions adopted in other countries, the book highlights the main features of the Spanish case and the lessons that can be learned from it. Measures adopted during the transitional period, such as the amnesty and subsequent decisions aimed at giving some kind of partial reparation to the victims of the repression, are here studied. Demands for reviewing the past, the 2007 Historical Memory Act, and the controversial use of criminal justice are also considered. Criminal Law is hardly applicable to the facts of the past, but the purely amnesic option can no longer be defended. Therefore, the author proposes a plan of action including different measures, such as the creation of a commission of memory, which would be in charge of investigating not only violent crimes or torture, but also other related crimes, including child abduction and politically motivated unlawful adoptions and those perpetrated in a systematic way during the Dictatorship. A victim-centred approach requires ensuring that each victim has the right to be considered on the basis of his or her own suffering, needs and rights and not as a member of a large group. 

BOOK: Ramaekers on European Union Property Law

Intersentia has published Eveline Ramaekers’ European Union Property Law: From Fragments to a System. 

Its abstract reads:

The European acquis communautaire in the field of property law is to a large extent still unexplored. This study has aimed to shine a light on EU property law. It provides an overview of the existing acquis communautaire in property law, and presents a proposal for the future development of this field of law. It deals with the influence of the EU’s four freedoms - of goods, persons, services and capital - on national property law and discusses whether or not the EU would have the competence to actively create property law, and the extent to which it has already done so. By conducting an extensive search on the basis of some thirty key property law terms, the author has been able to uncover not just the handful of Directives and Regulations that touch upon property law and are relatively well known, but also hundreds of EU legislative measures that make use of property law concepts, but leave them mostly undefined.

The resulting picture of EU property law is a fragmented one. In order to develop this field of law more consistently and coherently, the author has proposed a framework for future EU property law, focusing on both form and content. The essence of this framework is the development of three European-autonomous property rights, functioning within a European set of property law rules.

The contents are available here.

BOOK: Eliantonio, Backes, van Rhee, Spronken and Berlee on Legal Standing (Locus Standi) before the EU and Member States' Courts

Intersentia has published Mariolina Eliantonio, Chris Backes, C.H. van Rhee, Taru Spronken and Anna Berlee (eds), Standing up for Your Right(s) in Europe:A Comparative Study on Legal Standing (Locus Standi) before the EU and MemberStates' Courts:

This book is based on a report submitted to the European Parliament, whose aim was to provide a comparative analysis of legal provisions, doctrine and case-law on locus standi before civil, administrative and criminal courts of some selected legal systems and before the EU courts. Apart from the EU legal system, the study focuses on the legal systems of nine Member States of the European Union (Belgium; England and Wales; France; Germany; Hungary; Italy; the Netherlands; Poland; Sweden) and the legal system of one non-EU Member State (Turkey). On the basis of the findings, a conclusive chapter stresses the congruities and differences between the legal standing criteria in the Member States, on the one hand, and before the EU Courts, on the other. Moreover, the findings with regard to the different fields of law in the Member States are compared. On the basis of a thorough analysis of the status quo in the EU and Member States’ legal systems, recommendations have also been developed, including suggestions on the possible improvements to the standing requirements in the EU and national legal systems.

BOOK: Fineman and Zinsstag on Feminist Perspectives on Transitional Justice:

Intersentia has published Martha Albertson Fineman and Estelle Zinsstag (eds), Feminist Perspectives on Transitional Justice: From International and Criminal to Alternative Forms of Justice:

Truth-seeking mechanisms, international criminal law developments, and other forms of transitional justice have become ubiquitous in societies emerging from long years of conflict, instability and oppression and moving into a post-conflict, more peaceful era.

In practice, both top-down and bottom-up approaches to transitional justice are being formally and informally developed in places such as South Africa, Liberia, Peru, Chile, the Democratic Republic of Congo, Sierra Leone, Rwanda, the former Yugoslavia, and Northern Ireland. Many studies, conferences and debates have taken place addressing these developments and providing elaboration of theories relating to transition justice generally.

However, rarely have these processes been examined and critiqued through a feminist lens. The position of women, particularly their specific victimisation, typically has not been taken into account in any systematic manner. Seldom do commentators specifically consider whether the recently developed mechanisms for promoting peace and reconciliation will actually help the position of women in a society moving out of repression or conflict. This is unfortunate, since women’s issues are often overlooked and post-conflict societies, because they must rebuild, are ideally poised to introduce standards that would enable and ensure the active participation of the entire population, including women, in rebuilding a more stable, fair and democratic polity.

This book offers some insights into women’s perspectives and feminist views on the topic of transitional justice or ‘justice in transition’. Bringing feminism into the conversation allows us to expand the possibilities for a transformative justice approach after a period of conflict or insecurity, not by replacing it with feminist theory, but by broadening the scope and vision of the potential responses.

BOOK: Actus Reus and Participation in European Criminal Law

Intersentia has published Johannes Keiler, Actus Reus and Participation in European CriminalLaw:

 

With the coming into force of the Treaty of Lisbon the competences of the European Union in the realm of criminal law have greatly expanded. The Union, in a multitude of legislative instruments, requires its Member States to criminalize a wide variety of harmful conducts. However, the criminal law legislation of the European Union has so far almost exclusively focused on specific criminal offences and has failed to develop and define general principles of criminal law. The Union frequently refers to conduct, attempt and participation in its legislation but fails to determine what these concepts should denote to. As a result the scope of European criminal law may differ among European countries as Member States will apply their national doctrines to European legislation.

 

This book aims to step in this lacuna by establishing what actus reus and rules on participation should look like in European criminal law. In addition it investigates inchoate offences and corporate criminal liability. How should the doctrines of conduct, omission and causation be defined? How to attribute liability in the event that several people cooperate to bring about a criminal result? What should preparing and attempting a crime refer to in European criminal law and how can corporations best be held responsible for the harm they have caused? To answer these questions this book distills common general principles on actus reus, participation, and inchoate and corporate liability from the national criminal justice systems of the Member States as well as from European Union law. These results are subsequently merged into coherent principles of European criminal law.