NOTICE: Ashgate Library of Essays in Contemporary Legal Theory

Ashgate has announced an excellent new three-volume Library of Essays in Contemporary Legal Theory:

Series Editors: William Twining, University College London, UK, Wil Waluchow, McMaster University, Canada, Michael Giudice, York University, Canada and Maksymilian Del Mar, Edinburgh University, UK

The discipline of legal theory has flourished over the last thirty years, as shown by the proliferation of methodological debates and controversies. These debates are not only relevant to how legal theory understands its own enterprise: its problems, aims and issues of scope. They are also relevant to many other aspects of the practice of legal theory, for example its role vis-à-vis the practice of law and the practice of other related activities, such as legal scholarship and legal education. As the ambitions of legal theory grow, so do questions concerning its relations with other disciplines, such as comparative law, but also, much more broadly, the social sciences.

This three volume series on contemporary legal theory brings together a selection of previously published articles from leading legal theorists which are key papers in the discussion of the above controversies and challenges. Each volume opens with a substantial introduction to the papers and their context and ends with a selective bibliography for further reading.

NOTICE: Colonies and Postcolonies of Law Conference (18 March 2011)

I just received information on the following:

COLONIES AND POSTCOLONIES OF LAW
History Department, Princeton University Friday, March 18th 2011

The conference addresses the centrality of law in the construction of colonial rule. We aim to examine how colonial law emerged as colonialists interacted with diverse populations in the colonies. The study of the relationship between law and colonialism has taken two broad trajectories.

 

On one hand, scholars have highlighted how law provided the instruments for the creation of the colonial state, allowing it to exercise a vast amount of power in restructuring the colony. Conversely, law opened up avenues of resistance for colonized populations. This conference aims to go beyond this dichotomy by focusing on law as a site of constant negotiation which produced new forms of bureaucracy and documentation practices. As colonial legal systems cast long shadows and formed the bedrock of the national legal systems today, this conference will also examine how these colonial legal regimes influence postcolonial nations. The last few years has seen a growth of interest in colonial legal history to which this conference hopes to contribute by bringing junior scholars together in conversation.

NYU Professor of History Lauren Benton will deliver a keynote address at the conference.

Sub themes

Defining Legality: Criminals, Outlaws and Rebels - New categories of legality emerged during the colonial period such that criminals and rebels became interchangeable notions. What makes a ‘rebel’ and a ‘criminal’? What counts as evidence of a crime? How were penal regimes created? How did colonial regimes contribute to the construction of the international laws of war and human rights?

Competing Legitimacies: Religious Law and Colonial Authority - The colonial state grappled with existing legal systems in the colony. Some systems were delegitimized while others were bolstered under the purview of colonial rule. By privileging certain forms of legitimacy, colonial states challenged traditional norms and institutions such as customary rights and religious laws. Why were certain legal systems granted legitimacy under the colonial rule? How did certain religious texts and figures emerge as more authoritative than others? How did the process of translation change understandings of key religious concepts? What forms of tensions were created between traditional authorities and the emerging modern legal profession in the colony?

Private Lives and Public Law - The modern colonial state crafted new boundaries between the public and private. For example, colonial projects of social reform transformed marital and kinship relations. How did the colonial legal regime come to delineate the private and the public sphere? How did colonized populations engage with this process of delineation? How did the changing legal order affect colonial subjects, in particular women, who often emerged as the sites for legal reform? Did postcolonial nations adopt colonial legal conceptions of the private and public spheres?

Constructing Borders - Colonial law demanded certainty of boundaries and jurisdiction, yet it operated within a plural legal order and had limited capacity to police frontiers. How were legal borders fixed? How did colonial populations choose between competing forums granted by neighboring jurisdictions? How did the emergence of the postcolonial nations complicate colonial mapping and jurisdictional jostling?

Law and Capital - The centrality of trade and capital to the colonial project is increasingly overshadowed by cultural and social histories. Law, in the form of land revenue, forest laws and mercantile regulations, was in fact, central to the economic project of the colonial state. Can law be used to bring economic histories in conversation with the social and cultural? What economic practices came to be legitimized with the colonial reordering of the economy? How did colonial law engage with older kinship based mercantile networks such as those of the Arabs, Chinese, Parsis and Marwaris?

Paper proposals should include a title, a 350-word abstract, institutional affiliation and contact information. Please submit proposals to coloniesoflaw@gmail.com by December 15th 2010.

Organizers: Nurfadzilah Yahaya and Rohit De, History Department, Princeton University

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.