NOTICE: Annual Review of Law and Social Science

The latest (2010) 6 Annual Review of Law and Social Science is now available online. The list of articles is extensive, but includes the following:

• Richard L. Abel, Law and Society: Project and Practice
• Lee Epstein and Tonja Jacobi, The Strategic Analysis of Judicial Decisions
• Alejandro de la Fuente and Ariela Gross, Comparative Studies of Law, Slavery, and Race in the Americas
• Mark C. Suchman and Elizabeth Mertz, Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism
• Shari Seidman Diamond and Pam Mueller, Empirical Legal Scholarship in Law Reviews
• Lauren B. Edelman, Gwendolyn Leachman, and Doug McAdam, On Law, Organizations, and Social Movements

NOTICE: Pimentel on legal pluralism in post-colonial Africa

David Pimentel's ‘Legal pluralism in post-colonial Africa: linking statutory and customary adjudication in Mozambique’ is now available on SSRN. The abstract reads:

Legal pluralism is a contemporary reality and a challenge in most post-colonial African states, as they grapple with how to preserve the cultural heritage reflected in their customary law and institutions, while attempting to function as modern constitutional regimes. Few of them have found structural solutions for linkages between and mutual co-existence of multiple legal regimes within the same state.

The policy that will drive the establishment of proper linkages must be approached with an eye to what the purpose of preserving a legally pluralistic regime, distinguishing the motivations of many - colonists in the past, and political opportunists today - who have exploited pluralistic systems for their own self-interest. It is also necessary to recognize and preserve the virtues inherent in customary systems - systems historically undervalued as “primitive,” and still under attack by those who see them as threats to the protection of human rights.

There are no easy answers for how to correlate and link pluralistic adjudication in post-colonial African states, and Mozambique may present a particularly troublesome case. Although the precise mechanisms cannot be articulated with specificity, perhaps, the core underlying principles can. Those principles should respect traditional systems and values, affording them dignity as independent systems. To make them subservient to the state institutions, allowed to exist as long as they serve the state institutions on the state’s terms, would be nothing more than a repackaging and relabeling of tried-and-failed colonial approaches.

Instead, the pluralistic regime should operate on the principle of “maximizing” the role and impact of indigenous law, and giving equal dignity to the institutions that apply such law. This will require state courts to defer to community-based adjudication, even declining to exercise jurisdiction when the case can be appropriately resolved in the latter forum. It will grant concurrent jurisdiction wherever possible, supplementing it with consent jurisdiction for those who could not otherwise be subject to the authority of the traditional forum.

The most troubling aspects of traditional law, the oft-cited human rights violations, cannot be ignored. A mechanism can and must be developed for guarding against those, doing as little violence as possible to the autonomy and dignity of traditional fora. A system of collateral review - giving statutory courts limited jurisdiction to review a traditional forum’s decision for compliance with constitutional human rights standards - can serve that function. It is calculated to tamper with traditional dispute resolution systems as little as possible, and to respect the community forum as much as possible. Most importantly, it allows customary law to respond in its own way to the human rights requirements, not threatening customary law with restrictions, but strengthening customary law by fostering its legitimacy and relevance. Most importantly, it will allow the customary law, and its application, to remain solely the province of traditional authorities, where it can continue to function as a vital and highly adaptive foundation in rural society.

Operational solutions - for Mozambique as well as other pluralistic societies that face similar challenges - will require ongoing attention, but the central values of legal pluralism can be maintained as long as the implementation does not stray from these core principles: maximization of indigenous law, and equal dignity for the traditional forum.

NOTICE: TAMANAHA ON EHRLICH

Brian Z Tamanaha (Washington University School of Law) has posted an upcoming article, 'A Vision of Social-Legal Change: Rescuing Ehrlich from "Living Law"' on SSRN. The paper will appear in Law and Social Inquiry. The abstract reads

Prominent American jurists in the early twentieth century immediately recognized the genius of Eugen Ehrlich. Oliver Wendell Holmes told English jurist Frederick Pollock that he considered Ehrlich’s Fundamental Principles “the best book on legal subjects by any living continental jurist.” Roscoe Pound wrote in 1915 to John Chipman Gray, “I think it is the best thing that has been written lately.” Karl Llewellyn lamented that when he found Ehrlich, he was “somewhat crushed in spirit, because [Ehrlich] had seen so much.” Llewellyn identified Ehrlich as an early realist in law.

Following this initial burst of enthusiasm, Ehrlich was soon forgotten in America. He is rarely mentioned in legal theory circles today. Legal sociologists frequently give Ehrlich an honorific nod as a pioneer in their field, but his work is seldom engaged. After a long period of neglect, signs of a revival of interest in Ehrlich have begun to appear, especially among European theorists of legal pluralism.

This essay explains why US jurists were excited about Ehrlich, and also why he quickly faded. His famous notion of “living law” has a conceptual flaw that cannot be overcome. Legal pluralists who resort to Ehrlich for their concept of law will come up against the same flaw. Ehrlich's more enduring contribution lies not in the notion of “living law” but in his vivid account of social-legal change. Ehrlich wrote in a period of rapid economic, political, social and technological change. He describes how law responds to alterations in society — especially through the daily work of lawyers and the decisions of judges. He shows how law is alive and constantly moving. This vision is what attracted US jurists to Ehrlich then, and it is why he is relevant today, for society is again undergoing sweeping transformations.

This is worth a read.

REMINDER: Mediterranean Hybridity Project (Catania - 25 October 2010)

An interdisciplinary roundtable on the legal and normative hybridity of the Mediterranean region will be held in Catania on Monday, 25 October 2010. Organised with Juris Diversitas and hosted at the University of Catania, the event is part of the Mediterranean Hybridity Project launched in Malta in June 2010.

The Project is creating a collaborative interdisciplinary network of experts to study both (i) the state laws that are the domain of lawyers and (ii) the wider normative orders typically studied by social scientists. It marries conceptual and empirical models from the legal and social sciences, especially earlier analyses of ‘mixed legal systems’ and legal/normative pluralism.

Our intention is to create multidisciplinary jurisdictional reports, resulting in a published collection, and a database on the laws and non-state norms of the region. The roundtable will allow the project leaders to select the participants involved over the course of the project, to finalise the questions to be posed, and to consider our options for collaboration and funding.

Note, too, that while the language of the coming roundtable will be English, our intention is to allow the use of either English or French for the final reports. 

For those attending the roundtable, it’ll take place in the Faculty of Political Science of the University of Catania (via Vittorio Emanuele II, 49). Our simplified and flexible schedule is as follows:

1000 Coffee

1030 Project Overview

11-1230 Discussion

1230-1 Working Break

1-130 Discussion

130-3 Lunch

3-4 Discussion and conclusion

4 Possible walking tour of Catania

8 Dinner

Note that the Hotel Novecento is very near the meeting site and has offered a conference rate at:

€80 Double room (single use) with buffet breakfast

€90 Double room with buffet breakfast

€110 Triple room with buffet breakfast

The hotel’s at via Monsignor Ventimiglia, 37. Its phone number is 0039-095310488 and the email address is infobooking@hotelnovecentocatania.it.

Feel free, of course, to inform others of our work. We're especially interested in attracting additional individuals with training in the social sciences as well as participants from the Balkans, North Africa, and the Levant. Individuals or institutions interested in participating or sponsoring our work should also contact us.

Anyone interested in attending should contact Dr Seán Patrick Donlan (sean.donlan@ul.ie) or Dr Biagio Andò (bando@lex.unict.it). While the organisers are not able to fund expenses, there is no cost to attend.

NOTICE: The Stellenbosch Papers in the Tulane European & Civil Law Forum

The Tulane European & Civil Law Forum has published articles generated from a colloquium on 'Mixed Jurisdictions as Models?' The colloquium was held in May 2009 and sponsored by the World Society of Mixed Jurisdiction Jurists and the International Association of Legal Science. The introduction by Vernon Palmer, President of the World Society of Mixed Jurisdiction Jurists reads:

Readers of past issues of the Forum are aware of the growing interest in comparative law circles for the mixed jurisdictions and other mixed systems of the world. These pluralist legal orders often internalize common law, civil law, and various personal and religious laws reflecting the diversity of its people and the complexity of its past. It has been asserted that mixed legal systems are the most prevalent type of legal system in the world today. In many respects they may be considered the wave of the future, given the trends toward globalization and international harmonization of laws. On the conviction that Tulane and the Forum should help promote an understanding of these systems, of which Louisiana and South Africa are examples, the Forum is pleased to present the collected papers of the international Colloquium that took place at the University of Stellenbosch in South Africa on May 14-15, 2009.

This Colloquium was jointly sponsored by the World Society of Mixed Jurisdiction Jurists and the International Association of Legal Science and its stated theme was "Mixed Jurisdictions as Models? Perspectives from Southern Africa and Beyond". Our generous hosts were Professors Jacques du Plessis, Marius de Waal, and Dean Gerhard Lubbe of the Stellenbosch Faculty of Law, who provided gracious hospitality, excellent arrangements and an ideal venue for discussion of this subject. This conference led to an exceptional exchange of ideas about the challenges faced by mixed legal systems in Africa and beyond. It brought together thirty four scholars from twelve countries. The papers now presented look at mixed systems from angles and viewpoints that tend to illuminate their particular experience. They discuss such themes as the divergent and convergent trends of mixed systems in Southern Africa, the effect that the compartmentalization of personal laws has on everyday life, the challenges confronted in harmonizing business laws into effective instruments (bridging languages and the formal/informal sector of the economy), and the need to harmonize conflicting procedural laws in the courts and the arbitral tribunals. Another subject is the significance of European Union harmonization projects, notably the Draft Common Frame of Reference, on systems outside Europe, with particular reference to Africa. Further topics are the impact and role of national constitutions in reshaping these mixed systems, for example in the quest to integrate customary law and English common law into a single Common Law or in restructuring state liability in South Africa.

The essays close with the personal reflections of a distinguished comparatist, based on a lifetime of experience with African law, concerning the encounter between traditional law and modem law in the mixed systems of French-speaking Africa.

The Editor extends warm thanks to our hosts in Stellenbosch, to the sponsoring organizations, and to the individual authors for their cooperation in making this issue a success.

The articles include:

• Charles Manga Fombad, 'Mixed Systems in Southern Africa: Divergences and Convergences'
• Chuma Himonga, 'State and Individual Perspectives of a Mixed Legal System in Southern African Contexts with Special Reference to Personal Law'
• ES Nwauche, 'The Constitutional Challenge of the Integration and Interaction of Customary and the Received English Common Law in Nigeria and Ghana'
• Christa Roodt, 'Conflicts of Procedure Between Courts and Arbitral Tribunals in Africa: An Argument for Harmonization'
• Claire Moore Dickerson, 'OHADA on the Ground: Harmonizing Business Laws in Three Dimensions'
• Martha Simo Tumnde, 'Harmonization of Business Law in Cameroon: Issues, Challenges and Prospects'
• Francois Du Bois, 'State Liability in South Africa: A Constitutional Remix'
• Hector L MacQueen, 'The Common Frame of Reference in Europe'
• Xavier Blanc-Jouvan, 'The Encounter Between Traditional Law and Modern Law in French-Speaking Africa: A Personal Reflection'

NOTICE: Hatzimihail on Bartolus and the Conflict of Laws

The Legal History Blog just posted the following on one of our own:

'Bartolus and the Conflict of Laws' is a recent article by Nikitas Hatzimihail, University of Cyprus - Department of Law; Université Libre de Bruxelles (ULB). It was published in the Revue Hellenique de Droit International (2007). The abstract ends in mid-sentence, unfortunately, but I am posting as is. For more, please download the article:

The treatment of issues pertaining to the personal and territorial reach of local statutes by Italian jurist Bartolus of Sassoferrato (1314-1357) has been widely regarded as foundational to the conflict of laws. This article presents a detailed examination of the Bartolan text and places it in historical and political context. It also establishes a working text and improves on previous English translations.

The article approaches Bartolan thought from two angles. It considers the principal notions in modern doctrinal literature regarding Bartolan and medieval conflict of laws (was Bartolus a unilateralist? did he think in terms of territoriality or personality, form/substance, party autonomy or decisional harmony?). Bartolan doctrine is also examined in terms of structure, systematicity. The legal and political environment of his time: the role of the ius commune and the quest for...

NOTICE: William Twining and the Irish Jurisprudence Society

Professor William Twining will speak at the annual public lecture of the Irish Jurisprudence Society to be held at Dublin's Griffith College (the Griffith Conference Centre, Griffith College Campus, South Circular Road, Dublin 8) on Thursday, 14 October 2010.

The title of his lecture is 'Globalisation and Legal Scholarship'.

Registration is at 6:30pm; the formal address begins at 7pm.

Those wishing to attend should contact Maria Oleynik at law@gcd.ie or 00-353-1-4163372.

NOTICE: Italian National Reports on the Cardozo Electronic Law Bulletin

The Italian National Reports from the 2010 IACL Congress are now available on the Cardozo Electronic Law Bulletin.

The Bulletin is also now listed on our blog links.

WANTED: Assistant Professor of Legal Anthropology (McGill)

I just received the following notice:

McGill University, Department of Anthropology seeks a full-time tenure-track assistant professor in legal anthropology with a strong research and publication record based on ethnographic field research. The appointment is to begin August 1, 2011. The Department is especially interested in applicants with research backgrounds in the following: human rights, development, humanitarian intervention, and other transnational normative structures; legal pluralism; emergent and contested identities; conflict and social control; and the shaping of public opinion and public policy. The successful candidate will have a Ph.D. in hand, will be expected to develop a competitive, externally-funded research program involving graduate students, and contribute actively to teaching and service. Area of specialization is open, though some preference will be given to those candidates working in Asia (particularly South Asia, East Asia, and Southeast Asia) and Africa (particularly West and South Africa).

Applicants should send one copy of each of the following: C.V.; letter describing research and teaching experience; one writing sample (in electronic format) such as an offprint, article in press, or thesis chapter; and names of 3 referees (with phone, fax, and e-mail addresses). Applications should be sent before November 15 to Prof. Ronald Niezen, Chair, Department of Anthropology, McGill University, 855 Sherbrooke Street West, Montreal, Quebec, Canada H3A 2T7. Fluency in French is an asset. For further information, e-mail ronald.niezen@mcgill.ca

All qualified applicants are encouraged to apply; however, Canadians and permanent residents will be given priority. McGill University is committed to equity in employment and diversity. It welcomes applications from indigenous peoples, visible minorities, ethnic minorities, persons with disabilities, women, persons of minority sexual orientations and gender identities and others who may contribute to further diversification.

NOTICE: Esin Örücü, Mixed Legal Systems, and New Frontiers

Somehow I neglected announcing the publication of Esin Örücü (ed), Mixed Legal Systems at New Frontiers (May 2010) by Wildy, Simmonds and Hill Publishing. Part of the JCL [Journal of Comparative Law] Studies in Comparative Law Series,

 

The aim of this volume is to provide the reader with original views on and insight into mixed legal systems in general, and some mixed legal systems and ongoing mixes in particular.

 

The hope is that the analyses to be found in the eleven contributions will be helpful for scholars, students and practitioners who have a general interest in comparative law and a special interest in mixed legal systems, and provide inspiration to pursue further inquiries.

 

The contributions are a selection of papers presented at the 2007 Second World Congress of the World Society of Mixed Jurisdiction Jurists, 'The Boundaries of Unity: Mixed Systems in Action'. As can he gleaned from the title of the Congress, the emphasis has shifted from the closed family of 'mixed jurisdictions' towards a wider embrace, considering 'mixed systems', in addition to the classical 'mixed jurisdictions".

 

Following the introduction, the first two pieces inform the reader of the multiplicity of approaches to mixed legal systems and widen the horizon, offering expansion, though retaining exclusivity. Then follow chapters throwing new light on Commonwealth Caribbean, United States Novojo law, Turkey, South Africa, Sri Lanka, England and Ireland, the European Union, and Public International Law and International Trade Law; all showing that we are entering an era of legal studies involving looking at all legal systems anew.

 

The contributions are

• Esin Örücü, 'General introduction: mixed legal systems at new frontiers'
• Vernon Valentin Palmer, 'Two rival theories of mixed legal systems'
• Esin Örücü, 'What is a mixed legal system: exclusion or expansion?'
• Jane Matthews Glenn, 'Mixed jurisdictions in the Commonwealth Caribbean: mixing, unmixing, remixing'
• Dale Beck Furnish, 'The law of the Navajo Nation: a three-ingredent mix of consensual (indigeous) and adversary (common law) systems'
• Esin Örücü, 'Turkey's synthetic legal system and her indigenous socio-cuture(s) in a "covert" mix'
• Marissa Herbst and Willemien Du Plessis, 'Customary law v common law marriages: a hybrid approach in South Africa'
• Christa Rauterbach, 'Mixing South African common law and customary law of intestate succession: "Potjiekos" in the making' 
• Anton Cooray, 'Oriental and occidental laws in harmony: the case of trusts in Sri Lanka'
• Seán Patrick Donlan, '"All this together make up our Common law": legal hybridity in England and Ieland, 1704-1804'
• Jan M Smits, 'Mixed jurisdictons: lessons for European harmonisation'
• Colin B Picker, 'Beyond the usual suspects: application of the mixed jurisdiction methodology to public international law and international trade law'

I'm biased as a contributor, but this really is a must read for anyone interested in our themes. It shows the strength of both a productive focus on the 'classical' mixed jurisdictions and the promise of expanding research to more exotic hybrid legal traditions.