Vargas on Mexico's Legal System (Includes: 'Best Mexican Law Websites')

Professor Jorge Vargas (University of San Diego) has posted an 'Introduction to Mexico's Legal System' as a San Diego Legal Studies Paper on SSRN. This is the abstract:

The presence of Mexican law -as the applicable foreign law- continues to grow considerably in American courts. This phenomenon is significant in California and the southwestern states, as well as in Illinois, New York and Washington, D.C. It is unquestionable that deciding cases based on Mexican law poses a challenge especially to judges but also to legal practitioners. As a result of this increasing trend, special attention is being given by American law schools to include in their curricula general courses on Mexican law or specialized seminars addressing specific areas of Mexican law such as contracts, torts or enforcement of judgments (some of them taught in Spanish).

This descriptive article provides the most complete and current introduction to Mexico's legal system. The article is divided into six parts: Part One informs about Mexico as a country and then discusses Mexico's three federal powers: the legislative, the executive and the judicial. Part Two offers a thorough explanation of the "Sources of the Law" in that country, from the Federal Constitution of 1917, to statutes and codes, and others, including the role of Jurisprudencia. Part Three describes the federal and state court systems. The "Americanization" of Mexican law and the intriguing and sui generis "Amparo" are discussed in Parts Four and Five, respectively. Part Six is a most practical addition: it consists of a current list (in the Spanish language) of the "Best Mexican Law Web Sites" available in the Internet, sponsored by that country's federal government and by its 32 federal legal entities, providing free and easy access to some five hundred federal statutes and regulations, including all of the Mexican federal codes, as well as all of the state codes and state legislation. Indeed, this wealth of legal statutes, codes, regulations and international treaties and conventions constitute, in the opinion of this author, "the best Mexican law library in the world."

I've added a permanent link to the paper to ComparativeLawBlog's Sidebar.

Brooks on Cosmopolitan Detachment in Comparative Law Scholarship

Professor Richard Brooks (Vermont Law School) has published 'The Cultivation of Cosmopolitan Detachment in Comparative Law: The Hellenistic Contributions' in the Global Jurist Advances online journal (Bepress). This is the abstract:

This article explores the kind of detachment needed to conduct comparative law scholarship and teaching, as well as implement its application to practical problems. The full and fair comparison of the law requires a cosmopolitan view which embodies some degree of detachment from adherence to the laws of one's ``home". The Enlightenment efforts to build a science of comparative law to achieve this detachment failed. Modern inheritors of the Enlightenment approach have similarly failed. In a series of articles, I argue that we must return to the ancient effort to achieve a new ``objectivity" through Hellenic deliberation, Hellenistic detachment, Roman rhetoric, Christian dialectic and the canonics of the empire's codification process. This article focuses upon the Hellenistic contributions to achievement of cosmopolitan detachment. The Cynic, Skeptic Stoic and Epicurean doctrines and ethical education offer an alternative route to the detachment necessary for a comparative law.

Recommended citation: Brooks, Richard (2007) "The Cultivation of Cosmopolitan Detachment in Comparative Law: The Hellenistic Contributions," Global Jurist: Vol. 7 : Iss. 2 (Advances), Article 6 (available here).

See earlier on this topic: Richard Brooks, The Emergence of the Hellenic Deliberative Ideal: The Classical Humanist Conception of Comparative Law, 30 HASTINGS INTERNATIONAL AND COMPARATIVE LAW REVIEW 43 (2007).

Law & Politics Book Review: 'Transnational Constitutionalism' (Tsagourias, ed.)

Law & Politics Book Review has a review by John E. Finn (Wesleyan University) of 'Transnational Constitutionalism: International and European Perspectives' (N. Tsagourias, ed., Cambridge University Press 2007 ). Here's a blurb:

TRANSNATIONAL CONSTITUTIONALISM, edited by Nicholas Tsagourias, explores constitutionalism and constitutional forms in spaces other than the nation state. This is a fascinating topic (though perhaps not as novel as the book implies). By transnational (or European, though the contributors note that these are not precisely the same thing) and international constitutionalism, the editor refers to “unfolding models of European and international constitutionalism” and seeks to evaluate them by “contextualizing their structural and normative premises and critically reflecting on their constitutional ethos” (p.9). As Tsagourias suggests, continental scholarship on these questions is “thriving,” in part because of the continuing development and constitutionalization of the European Union.

Continue reading at Law & Politics Book Review

Elaine Mak on Judicial Organization between Constitutional and 'Management' Principles (FR/GE/NL)

Another Dutch PhD with a strong comparative component, defended earlier today - and cum laude! - at Rotterdam's Erasmus University by Elaine Mak. The thesis' English title is 'A Balanced Judiciary; the role of checks and balances and of new public management principles with regard to the judicial organisation in the Netherlands, France and Germany'. The book, published (in Dutch) with Wolf Legal Publishers, is a highly interesting study of the many ways in which 'classic' rule of law and separation of powers principles and 'new' ideas on efficiency, transparancy and - in general - 'quality', can, and do, interact. In its selection of materials and ambit of research questions, the book goes far beyond many traditional comparative studies of adjudication. With Elaine's very gracious permission, here is the English language summary from the book.

The exchange of arguments in debates concerning the modernisation of the judicial organisation in the legal systems of the Netherlands, France and Germany is defined by a mixture of two types of arguments. Principles for the regulation of power in the State, which concern the legitimacy of the judicial organisation from the perspective of the classic conception of “checks and balances”, have to be balanced with principles which concern the realisation of an “optimally transparent, effective and efficient” State organisation, and which underlie the recently developed “new public management” perspective on the legitimacy of the social order of “liberal democracies”. The different backgrounds of arguments based on the two types of principles and their implications for the judicial organisation, however, have not been sufficiently acknowledged in the debates in the Netherlands, in France and in Germany. A first step in the clarification of the frame of reference for the debates has been made, in this thesis, by observing the rise of “new public management” principles against the background of the evolution of the conceptions of “checks and balances” and “constitutionalisation” in the legal systems of the Netherlands, France and Germany.

In Chapter 1, the interaction between different types of reference norms for the judicial organisation in the “liberal democracy” has been analysed in the light of the two relevant paradigms for the judicial organisation. A first series of reference norms is expressed in the classic paradigm of “checks and balances”, in which “independence” and “impartiality” feature as basic norms for the judicial organisation. A second series of reference norms has its origins in the “new public management” paradigm, in which the norms of “transparency”, “effectiveness” and “efficiency” of the State organisation take a place next to the classic norms of “checks and balances”. The relations between the paradigms have not yet been the subject of in depth research. It has been established that the “new public management” paradigm has come in and encapsulated the classic “checks and balances” paradigm for the discussion concerning the judicial organisation. The classic “checks and balances” reference norms have retained a place in this new paradigm. However, in the “legal” frame of reference, which is formed by “principles” for the judicial organisation, these reference norms are confronted with a new group of reference norms which have obtained the status of “principles” for the judicial organisation: the “new public management” principles or “quality requirements” for the judicial organisation. In many cases, the types of reference norms seem to complete or to reinforce each other: “independent” and “impartial” dispute resolution through separation of powers and “territorial” distribution of jurisdiction is in harmony with the principles which require a “transparent”, “effective” and “efficient” judicial organisation. In some cases, however, the types of reference norms seem to enter into conflict: new measures concerning the realisation of a more “transparent”, “effective” and “efficient” judicial organisation can cause tensions with regard to the classic principles of “checks and balances”, for example in the case of the realisation of a higher degree of “specialisation” in the judicial organisation. A possibility for balancing the two types of reference norms in the reform debates is brought about through the process of “constitutionalisation”, in the “new public management” paradigm, making the reference norms compatible by defining them as “principles”. The participants in the debates who prefer the optimisation of classic “checks and balances” principles will have to accept that the concretisation of these principles cannot be realised, in the new paradigm, otherwise than through balancing them with “new public management” principles. The participants who prefer the optimisation of “new public management” principles will have to take into account, when concretising these principles, that the “noyau dur” of classic principles of “checks and balances” remains guaranteed. The redefinition and the maximisation of the legitimacy of the judicial organisation which can thus be accomplished, in the legal systems selected for research, are expressed in the “formal Constitution”.

In Chapter 2, this constitutional arrangement of principles for the judicial organisation has been analysed for the legal systems of the Netherlands, France and Germany. Through the consecration in a “Constitution”, “principles” can obtain formal constitutional status. They therewith serve as reference norms for the rule makers for the judicial organisation in the search for solutions for the judicial organisation. The meaning of the constitutional provisions is established through the interpretation of these provisions by the legislator, the executive power and the judge. Several factors have been construed as having implications for the evolution of the formal constitutional frameworks for the judicial organisation in the Netherlands, France and Germany: the “rigidity” of the Constitution; the role of “constitutional review” in a legal system; the role of international law in a legal system. These factors have implications for the modification, the protection and the harmonisation of the constitutional domain of the production of norms concerning the judicial organisation. The legislator’s withdrawal from the domain of normative production, together with the growth of judicial review in the context of the developments of constitutionalisation and internationalisation, has given an impulse to the judge’s role in the procedure of concretisation of principles for the judicial organisation in the positive constitutional law.

The analytical framework for determining the effect of classic “checks and balances” principles and “new public management” principles for the judicial organisation in the Netherlands, in France and in Germany has been marked out in Chapter 3, and it has been translated into an explanatory model with regard to the choice of solutions for the judicial organisation in each of these legal systems. The weight given to the different types of principles for the judicial organisation in the formal constitutional framework of “legal” solutions for the judicial organisation, as well as the evolution of the balance of principles in the underlying material constitutional framework of “legitimate” solutions for the judicial organisation, are dependent on the “rigidity” or “flexibility” of the formal constitutional framework. This “rigidity” or “flexibility” determines to what extent the options for the producers of norms for the judicial organisation concerning the choice of a specific solution are limited by the constitutional balance of formalised principles. The degree of “rigidity” or “flexibility” of the constitutional framework in a legal system is the result of the interaction of the factors distinguished in Chapter 2, which influence the constitutional classification of principles. The analysis in Chapter 3 shows that these factors do not contribute to the same extent to the “rigidity” or “flexibility” of the constitutional framework. The content and the detail of constitutional provisions as well as the possibility of constitutional revision are the most important factors concerning the “rigidity” or “flexibility” of the constitutional framework at the moment of the introduction of the Constitution. In the evolution of legal systems, however, mechanisms of judicial review form more important indications than these two factors for the determination of the place of a legal system on the continuum of “rigidity” and “flexibility” of the constitutional framework. Keeping in mind these observations, the thesis has considered the solutions to dilemmas of judicial organisations in the modern “liberal democracies” of the Netherlands, France and Germany.

Chapter 4 presents a first thematic analysis of solutions for the legitimacy of the judicial organisation, a legitimacy which has to be found in a balance of the principles of “autonomy” and “responsiveness” of the constitutional law regarding the judicial organisation. The main question to be dealt with concerned, first, the demarcation of the judicial activity in the public domain, and, secondly, the demarcation of the judicial activity vis-à-vis the private domain. In other words, it had to be established what role is played by the judicial power vis-à-vis the political powers in the State, and what role is played by judicial dispute resolution vis-à-vis methods of alternative dispute resolution. The research method consisted of a comparative analysis of principles for the judicial organisation in the “liberal democracy” in the historical context and in the present-day context of the three legal systems which were selected for the research. The aim was to determine to what extent the implicating factors on the constitutional framework are decisive for the expression of new notions concerning the judicial organisation in positive law norms regarding this subject. The analysis has revealed a number of principles which reflect the constitutional core of the judicial activity limiting the choice of solutions for the judicial organisation based on the “autonomy” or the “responsiveness” of the law. The constitutional aspects regarding the demarcation of the “judicial domain” can be classified in two groups. In the public domain of the relations between the State powers, the discourse originating in the classic “checks and balances” paradigm links the legitimacy of the judicial power to the promise of political neutrality which forms the essence of judicial “independence”. The discourse originating in the “new public management” paradigm links the legitimacy of the judicial power to the acceptance of the responsibility which is related to the qualification of the judicial activity as an element of the public service provided by the State. Complementing and reinforcing effects of principles come to light in constructions concerning the guarantee of responsibility of the judicial power for the exercise of its function. A collision of principles occurs when “new public management” principles come into conflict with the principle of political neutrality of the judicial activity. The limits set by the classic “checks and balances” paradigm concern the establishment of courts by law; the guarantees regarding the legal status of judges; and the minimum guarantees for a “fair trial”. In the demarcation of the judicial activity vis-à-vis the extra-judicial domain of dispute resolution, the legitimacy based on classic “checks and balances” principles is linked to the status of the judicial activity as a public and regulated method of dispute resolution, which aims at the legal protection of citizens. The “new public management” paradigm offers a basis for the legitimacy of the judicial organisation by accentuating the specific guarantees of judicial dispute resolution compared to alternative methods of dispute resolution. Dispute resolution before a court is thus presented as a “reasonable option” on the spectrum of methods of dispute resolution. Complementing and reinforcing effects of principles are revealed in the positioning of the judicial activity as a “transparent”, “effective” and “efficient” method of dispute resolution which at the same time offers the guarantees of a “fair trial”. The possibilities of concretisation of “new public management” principles on the level of the organisation of dispute resolution find a limitation in the guarantees of classic “checks and balances”, which are especially important in the light of the public character of State organised dispute resolution.

The research presented in Chapter 5 builds further on the analysis in Chapter 4. Not only is it possible to distinguish a constitutional basis for the judicial activity, the organisational structure for the exercise of that function in the “liberal democracy” is also an object of constitutional norms. In the debates which have been conducted in recent years in the legal systems of the Netherlands, France and Germany, historically developed solutions for the “management” of the courts, based explicitly on classic “checks and balances” principles, have been re-evaluated in the context of “new public management” principles. The historically developed practice by which a large number of competences concerning the management of the courts was allocated to the legislator and above all to the executive power has been re-evaluated in favour of the possibility of judicial “self-management”. The organisation of the management of the courts is however not limited to the distribution of competences over organs which are external to the judiciary and over the judiciary itself. The concretisation of this distribution of competences is at least as important with regard to the guarantee of the constitutional and social legitimacy of the judicial organisation. Aspects of the possible structures for the management of the courts, especially the choice of a “flat” or “hierarchical” structure and the possible establishment of a Council for the judiciary as an intermediary between the courts and the executive power, have been evaluated in the light of principles originating in the two paradigms for the judicial organisation. The analysis of the management structure for the judicial organisation in the Netherlands, in France and in Germany has revealed that the confrontation of classic “checks and balances” principles and “new public management” principles in some cases produces complementing or reinforcing effects concerning the legitimacy of the judicial organisation, while in other cases this confrontation results in a collision of principles. On the institutional level of the State, the hierarchisation turns the judicial power into an organ holding a strong position vis-à-vis the executive power and holding an inherent responsibility. On the level of the dispute resolution in individual cases, however, the recent debates in which “bureaucratic” aspects have been put to the fore cause a preoccupation with the principles of “effectiveness” and “efficiency” in spite of the judge’s commitment with regard to the act of settling disputes. The judge is confronted with a large number of actors who try to influence the exercise of the judicial activity. These influences entail positive effects – the promotion of the uniform application of the law is beneficial to the unity of the law, to the equality before the law and to the legal certainty, and in that way to the “effectiveness” and “efficiency” of the judicial system – but they form a limitation of the judge’s individual autonomy. The search for a balance of principles for the judicial organisation takes place in the interaction between constitutional norms, legislative norms and norms of professional conduct. Constitutional norms regarding the management of the courts in this respect concern the guarantee of the judge’s independence within the judicial organisation.

After the external demarcation of the domain of the judicial activity in Chapter 4, Chapter 6 focused on the internal demarcation of domains of competences. The distribution of judicial competences concerns a specific problem of the judicial organisation. Unlike the aspects treated in Chapter 5, which concerned the organisational prerequisites for the exercise of the judicial function, the distribution of judicial competences concerns the organisation of the judicial function itself. The question which has been dealt with in Chapter 6 concerns the “specialisation” in the form of a division of labour or a differentiation within the judicial organisation, i.e. the establishment of specific courts and chambers within courts for the settlement of specific types of cases, and the allocation of judges to courts for the settlement of specific types of cases. Principles originating in the two paradigms for the judicial organisation play a role in the deliberation of the producer of norms and underpin the legitimacy of the distribution of judicial competences in as far as they have been included in the constitutional framework for the judicial organisation. The distribution of cases fluctuates, on the basis of the principles of “territoriality” and “functionality”, between the establishment of “general” courts, which fulfil the classic “checks and balances” condition of “accessibility”, and the establishment of “specialised” courts, which fit into the idea of “new public management” and aim at the optimisation of the effectiveness and efficiency of the judicial system through “specialisation”. In the structure for the distribution of judicial competences which is thus established, it is necessary to find a balance between dispute resolution by “generalist” judges (the principle of classic “checks and balances”) and dispute resolution by “specialised” judges (the exception of “new public management”). The analysis of the legal systems of the Netherlands, France and Germany reveals that the producer of norms for the judicial organisation has to respect certain constitutional prerequisites when choosing “specialisation” in the context of the distribution of judicial competences, and when determining the form of that “specialisation”. Complementing and reinforcing effects of classic “checks and balances” principles and “new public management” principles come to light in the solution of a division of labour as such, and in solutions related to that division of labour, which concern for example the guarantee of the unity of the law and the settlement of conflicts of jurisdiction. Concerning the preservation of the “autonomous” legitimacy of the law regarding the judicial organisation, “specialisation” should not go as far as to cross the boundary set by the principles of “independence” and “impartiality”. This limitation has made it possible to indicate the specific limits to the realisation of “specialisation” in the context of the distribution of cases and in the context of the allocation of judges to courts.

The principles for the judicial organisation in the legal systems of the Netherlands, France and Germany have thus been compiled in a common frame of reference. They can be weighed against each other in debates concerning the modernisation of the judicial organisation, in which a balance is struck between classic “checks and balances” principles and “new public management” principles. The guarantee of fundamental values for the regulation of power in the State is put face to face with the recent attention for “effectiveness” and “efficiency” in modern legal systems. The constitutional framework and the implicating factors regarding the evolution of that framework form the basis for a constant re-evaluation of the balance between principles aiming at legitimising the judicial organisation through the guarantee of “autonomy” of the law and principles aiming at legitimising the judicial organisation through the realisation of “responsiveness” with regard to wishes formulated by politics and by society.

Many thanks - and congratulations - to Elaine!

'Law and the Islamic World': Papers Round-up 2007 (Version 3)

At the start of the new year, here is an overview of some noteworthy papers published on the broad topic of 'Law and the Islamic world' in 2007. The focus is on papers that deal in some way with the specificity (or not) of conceptions of law and legal form in the Islamic world, rather than on those dealing with more 'substance related' issues - for want of a better term - such as family law, fundamental rights, freedom of religion, Islam and democracy etc. All suggestions for further materials are very welcome. Here goes (Version 3: see the updates below):

Muhammad’s Social Justice or Muslim Cant?: Langdellianism and the Failures of Islamic Finance, Haider Ala Hamoudi (Cornell International Law Journal, 2007)

From the Introduction: "Islamic finance has failed to achieve its most basic and central objectives, but the causes of that failure, and whether anything can be done to reconstruct the practice in a manner consistent with commercial reality and its ontology, are matters that, by and large, have gone unexamined. (...) This Article considers two issues. First, it seeks to provide a more precise description of the jurisprudential methodology employed in Islamic finance that has led to its failure. The dominant interpretive approach within contemporary Islamic jurisprudence, and Islamic finance in particular, shares many common features with the jurisprudential theories of Christopher Columbus Langdell. Both approaches are excessively rigid and dependent on formal exercises of logic, allowing the jurist or Second, it seeks to explain how Islamic principles might be used in a more salutary fashion in finance, avoiding unnecessarily the elaborate obfuscations and complications that serve no practical purpose while achieving some modicum of social justice in an Islamic setting. The more extreme forms of Legal Realism are not a workable solution in light of the nature of religious jurisprudence and the deep, historic importance of giving some role to Islamic doctrine and sacred text in developing Islam’s legal rules. Rather than attempt a comprehensive alternative methodology, this Article seeks to outline principles necessary for any credible attempt at reform and will provide specific examples of how such principles might be applied. In so doing, it will become apparent that the changes necessary to develop an interpretive system, which will achieve the objectives of Islamic finance, are not as vast as might be imagined. (...) This Article illustrates its two central themes through an admittedly contentious comparison of the jurisprudential theories of Langdell and Muhammad Ibn Idris al-Shafi’i, the person credited by the dominant contemporary proponents of Islamic finance as responsible for systematizing the Islamic jurisprudence they use."

Islamic finance law as an emergent legal system, Nicholas H. D. Foster (SOAS) (Arab Law Quarterly)

Abstract: The recent growth in Islamic finance has drawn attention to the alleged “uncertainty” of the sharia, highlighted in 2004 by the Beximco case. On the institutional level, various organisations are addressing the issue; there are also “organic” tendencies towards standardisation. These phenomena are combining with others to form a new legal system, albeit one with particular characteristics. This system has matured sufficiently to merit categorisation as a separate field of study and practice: Islamic Finance Law.

Legal Impediments to the Collateralization of Intellectual Property in the Malaysian Dual Banking System, Ida Madieha Azmi (International Islamic University Malaysia), Engku Rabiah Adawiyah Engku Ali (International Islamic University Malaysia) (Asian Journal of Comparative Law)

Abstract: This paper examines the legal impediments facing the acceptability of intellectual property as collateral in Malaysia. As Malaysia practises a dual banking system, conventional and Islamic, both running parallel to each other, the position of intellectual property under the Islamic banking system will also be analysed. This, in turn, requires a deeper elaboration of principles relating to collateral security or rahn in Shari'ah law. The paper also proceeds to explore the suitability, acceptability and practical risks of allowing intellectual property as a form of security in comparison to "physical assets".

Codifying Shari'A: International Norms, Legality & the Freedom to Invent New Forms, Paul H. Robinson and others (University of Pennsylvania Law School) (in the AmJCompL and on SSRN)

Abstract: The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system in present use. On the other hand, the challenges of such a project are greater, due in part to special needs for clarity and simplicity that arise from the relative lack of codification experience and training. But there turned out to be perhaps unexpected advantages to undertaking a comprehensive codification project in the Maldives. While the lack of a codification tradition created difficulties, it also gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history.While it was a concern that any Shari'a-based code could conflict with international norms, in practice it became apparent that the conflict was not as great as many would expect. Opportunities for accommodation were available, sometimes through interesting approaches by which the spirit of the Shari'a rule could be maintained without violating international norms. In the end, this Shari'a-based penal code drafting project yielded a Draft Code that can bring greater justice to Maldivians and also provide a useful starting point for modern penal code drafting in other Muslim countries.However, the code drafting project also may have much to offer penal code reform in non-Muslim countries, for the structure and drafting forms invented here often solve problems that plague most penal codes, even codes of modern format such as those based upon the American Law Institute's Model Penal Code, which served as the model for most American penal codes. The challenges of accessible language and format, troublesome ambiguous acquittals, overlapping offenses, combination offenses, and penal code-integrated sentencing guidelines have all been addressed.

“And amicable settlement is best”: Sulh and dispute resolution in Islamic law, Aida Othman (Arab Law Quarterly)

Abstract: The attention accorded to the institution of qa;dā’ ‘judgeship’ and the adjudicative functions of the qādi has obscured another important method for resolving disputes in Islamic law, namely Sulh ‘amicable settlement’. While many studies on dispute resolution in Muslim societies have portrayed Sulh mainly as a manifestation of customary practice within informal settings, a study of the legal sources reveals that it is not extra-judicial but is rather an integral aspect of an Islamic justice system. Citing authoritative traditions on the potentially disruptive effects of adjudication, jurists instructed disputants and qādis alike to first consider conciliation to solve conflicts. A qādi might opt for Sulh in lieu of proceeding to trial, either steering disputants towards settlement on their own, with the assistance of mediators, or mediate the case himself. At the same time, jurists were also concerned with ascertaining the parameters within which Sulh should operate, especially when they might offend the rules against ribā (usury) and gharar (uncertainty, deception, or unreasonable risk). The legal debates on Sulh during the formative period of Islamic law show how jurists struggled to balance competing ethical and religious ideals: those of conciliation and compromise with those of truth and justice. In some situations, the individual’s right to his full legal entitlements should be upheld, and Sulh should not be given precedence over the formal, truth-seeking procedures of adjudication.

And some book reviews:

Islamic Finance: Law, Economics and Practice, by Mahmoud A. El-Gamal. Reviewed by Rodney Wilson, in the Journal of Islamic Studies.

Crime and Punishment in Islamic Law, by Rudolph Peters, Cambridge: Cambridge University Press, 2006, 220 pp (ISBN 0–521–79670–9). Reviewed by Lubna Alam, in the Michigan Law Review, and by Mona Siddiqui, in the Journal of Islamic Studies.

The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt, by Tamir Moustafa, Cambridge and New York: Cambridge University Press, 2007. Reviewed by Antony T. Sullivan, on Law & Politics Book Review.

Update (2): Chicago Journal of International Law Specials

A bit of an omission in earlier versions of this round-up: the Chicago Journal of International Law devoted two special issues to the topic of Law and the Islamic World in 2007. Papers cannot be downloaded for free, but the content tables are available online. The issues are on Islam and International Law (Summer 2007) and on Islamic Business and Commercial Law (Winter 2007). Well worth a look.

Update (1): Links Collection

Professor Ruud Peters (University of Amsterdam) was kind enough to send in this collection of useful links:

Islamic Legal Studies Programme at Harvard University

Islamic and Middle Eastern Law Materials on the Net (SOAS London)

Islamic Family Law Initiative at Emory University

Islamic Lawbase Collection (International Islamic University of Malaysia)

Middle East & Islamic Studies Collection at Cornell University Library

Women Living Under Muslim Laws Website

'Legal Transplants Transplanted Back' & 'German Legal History Podcasts'

I came across this too-good-to-be-true-but-still annecdote about legal transplants in a 1929 piece by Professor Rudolf Mueller-Erzbach (1874-1959) on the use of 'Interessenjurisprudenz' by the German Reichsgericht (in Otto Schreiber, ed., Festgabe Reichsgericht II, 1929). The article itself is an interesting (if perhaps a bit overly laudatory) overview of the use of 'realist', 'true to life' legal methods by the Reichsgericht in a variety of private law areas, that, in particular, has some great quotes on formalism (try to beat 'definierfreudigkeit').

The story Mueller-Erzbach tells (with reference to a lecture by Nawiasky of 1925) is about Austrian efforts in the late 19th century to revise their cumbersome and outdated system of civil procedure; a project carried out by Franz Klein between 1891 and 1895. At the time, the procedural code in force was the Allgemeine Gerichtsordnung of 1781 (here on the website of Prof. Gerhard Koebler). When Klein and his collaborators went around to look for inspiration in the procedural Codes of other nations, they were struck by Belgium, which appeared to have a well-functioning, modern system of civil procedure. Mueller-Erzbach writes: "When they began to study the historical origins of this exemplary system, they found, to their great surprise, that its source was the very same Gerichtsordnung that had remained in force in Belgium from the time that country had belonged to Austria. This same point of departure had been sufficient for Belgian judges to create a wholly modern law of procedure!". Interestingly enough, the well-known Belgian scholar of procedural law Professor Marcel Storme has written that Klein's 1898 Zivilprozessordnung, in turn, became a model for reform in Germany, Greece, large parts of Central Europe, Scandinavia and elsewhere. The new legislation emphasised the 'social function' of judge and procedure and held that procedural law should take into account 'the general interest' and 'the efficiency of process'.

Does anyone know of a modern parallel to this story? I'd be interested.

In addition: Two of the many useful historical sources online for German and Austrian law, are Professor Professor Gerhard Koebler's website (with extensive who-is-who and who-was-who lists of German jurists and lots of information on legal sources) and this great collection of Legal History Podcasts (in German) from the Law Faculty at the University of Trier.

Derk Venema on Dutch Judges in Wartime (1940-1945)

Derk Venema of Nijmegen's Radboud University in the Netherlands, has just published his phd-thesis on the Dutch judiciary under German occupation in book form with Boom Publishers (The Hague). As Venema said recently in an interview, "surprisingly little" has been published on this topic (an observation that, at least until very recently, was true for Germany itself as well, see our recent post on Ruether's Postscript, in the sidebar). This dearth of research, of course, makes Venema's book all the more valuable. With the author's very kind permission, here is the book's English summary (I've highlighted a few passages that I found particularly interesting):

During the German occupation of the Netherlands (1940-1945) the Dutch judiciary largely remained in office. This book tells the story of the judges’ professional conduct under the five-year national-socialist dictatorship.

In the first chapter, the historiographic problem of writing about National Socialism and the Second World War is addressed. In the Netherlands, the German occupation has become a canonical point of moral reference. This is expressed in the terms, used since the beginning of the occupation, for National Socialists and collaborators on the one hand: ‘bad’, and patriotic democrats on the other hand: ‘good’. National-socialist ideology is therefore still often taken to be an intellectually weak disguise for a malicious will to power. The second chapter shows that this is not necessarily the case, and that there was a serious attempt in the Netherlands to create a coherent national-socialist theory of law. This book aims to explain the way the judges acted under enemy rule, and not to pass moral judgement on the judges’ behaviour. Five main explanatory factors are investigated throughout the book: first, the traditional method judges used to decide cases and the judges’ professional self-image (chapters 1 and 3); second, the role national-socialist ideology played in and towards the judiciary; third, national and international law concerning the positions of judges and occupiers; fourth, the often conflicting interests judges had to take into account in deciding court cases, and in other professional matters such as possible protest or even resignation; and finally, the legal and other measures the occupier took that affected the judiciary.

Chapter 2 offers a brief outline of Dutch national-socialist ideology, and a comprehensive description of Dutch national-socialist jurisprudence. Special attention is given to the role of Hegelian philosophy and Hegelian philosophers who especially in the beginning (1931-1936) had a strong influence on Dutch national-socialist philosophy of law and politics. Some Hegelian philosophers even attained high posts in the government and in the judiciary during the occupation. Main features of Dutch national-socialist jurisprudence were: antiformalism, ethnic solidarity, the leadership principle, upholding public order and morals, and a strong emphasis on intentions rather than actions. I shall expand on this briefly. The presumed traditionally formalist methods of the Dutch judiciary were attacked by the National Socialists. They argued that formalism did not allow judges to arrive at a just outcome. Judges should therefore not be bound to the exact wording of statutory law, but they should be allowed to interpret the law freely, and even, if necessary, decide contrary to statutory law. According to Nazi law theory the ideal judge knows and applies local traditions and national-socialist theory rather than positive law. Anti-Semitism only gradually became a prominent feature of Dutch National Socialism after 1936. Jewish lawyers were given the blame for the formalist tradition of adjudication. A stronger hierarchy was deemed necessary for successful Nazi adjudication: leadership and responsibility in the court should rest on individuals rather than groups. Prioritising the interests of society over individual interests was the leading national-socialist principle, which was expressed, for example, in the cry for higher penalties for minor unlawful actions with selfish motives. Consequently, National Socialists demanded lower penalties or even acquittal for unlawful actions that were conducted with the intent of promoting the (nationalsocialist vision of) interests of society.

Chapter 3 gives a detailed account of the national and international laws of occupation and how they applied to Dutch judges. Central to this chapter is a ruling by the Dutch Supreme Court concerning the right to review the occupier’s ordinances in the light of international law (Annual Digest 1919-1942, case 161). The Court ruled that under the circumstances of the occupation Dutch judges could not review the occupier’s ordinances in the light of international law (the so-called Hague Rules attached to the Hague Convention on the Laws of War on Land from 1907). Article 42 of the Hague Rules states that the occupier:

takes all measures […] to restore and ensure public order and public life, and such, unless absolutely prevented, respecting the laws of the country.

One of the problems with the laws on occupation is that the applicable law is unclear on the question whether Dutch judges have the right or even a duty of judicial review. The Supreme Court decision that Dutch courts did not have this right (let alone duty) has been much debated since 1942. Those who support it, argue that it was a sensible ruling, because it avoided a probable confrontation with the occupier, who would not appreciate his ordinances being reviewed for compliance with the Hague Rules (and possibly deemed unlawful). Supreme Court judges would possibly have been replaced by Nazi’s, as had happened in Norway. Others criticise the ruling for its lack of principle. They regard it as a legal submission to an illegal regime, which damaged patriotic morale and heavily disappointed the resistance. Before the ruling on judicial review was given, Dutch courts had already applied many ordinances without checking their validity in any way. The Supreme Court thus supported this practice and made it law. In the Court’s post-war defence of its 1942 ruling the risk of replacement of all Supreme Court judges by Nazi’s outweighed the anti-Nazi signal that judicial review of the occupier’s ordinances would have given the Dutch people. The people were better served by a non nazified judiciary than by a protesting and subsequently nazified Supreme Court. Elements of an explanation for this attitude, which has been called legalistic as well as pragmatic, include the following. Judges were used to obeying the law-giver, to uphold the law and public order, to keep the justice system working, and not to rebel. Judges strived to make their judgements predictable and to protect the unity of the law. This meant that judges were not inclined to take risks or act heroically. Finally, it is very difficult to establish for certain whether reviewing the occupier’s ordinances would have had more desirable consequences: that would be speculative ‘what-if history’. My estimate is, however, that, ultimately, reviewing the ordinances probably would not have been of more benefit to the Dutch people than not reviewing them.

Chapter 4 deals with the occupier’s policies and measures relevant for the judiciary. During the first year and a half of the occupation, new courts were introduced. German military and civil criminal courts were set up to deal with crimes committed by German soldiers and civilians. These courts were also competent to hear cases involving hostile acts committed by Dutch citizens against Germans, the German army or the German Nazi Party, and cases concerning acts against general interests. The German occupation saw an enormous rise in ‘economic’ criminality, especially with respect to laws that had been issued during the economic depression in the 1930’s, and also increasing black market trade and fraud concerning new distribution rules. To diminish the workload of the regular criminal courts, a Dutch economic criminal court was introduced. Very controversial was the introduction of a so-called ‘justice of the peace’. These judges (hearing cases in 5 of the 19 district courts) were all Nazi’s. They ruled in criminal cases involving ‘political’ motivations, and the main aim of these ‘peace courts’ was to restore and protect the ‘political peace’. The most important reason the Germans allowed the creation of the justice of the peace was a complaint by the Dutch National Socialist Movement (Nationaal-Socialistische Beweging, NSB). According to the NSB, Dutch judges did not punish people severely enough who offended members of the Dutch Nazi-party by calling them ‘traitors to their country’. Justices of the peace gave higher penalties for these offences and acquitted members of the NSB who had reacted to them with physical violence. In order to accomplish this, these judges had to assume a vast discretionary power in order to interpret those assaults as self defence. In many other ways the occupier and the NSB interfered with the administration of justice. Courts and individual judges sometimes protested, but in general they complied with the occupier’s measures in order to keep the justice system functioning, and to keep it in the hand of ‘good’ judges, for the benefit of the Dutch people. In this chapter several new laws are also discussed, as well as the German and NSB influence on legislative procedures. The best known wartime addition to the Criminal Code was a Dutch version of the German law that allowed judges to apply criminal laws analogously, that is, to acts that were not covered by them, but were deemed worthy of punishment according to ‘sound feeling of justice’.

The most successful way the NSB exerted its influence on the justice system was through the personnel policy. This is the subject of chapter 5. NSB members, members of the Rechtsfront (the national-socialist organisation for jurists and policemen) and sympathising lawyers could apply for a court function at one of these organisations or at the Justice Department. In 1943, 13% of all judges were members of the NSB or the Rechtsfront or sympathised with National Socialism. To make room for them, the occupier together with the NSB had several means of dismissing judges. First, all nine Jewish judges were dismissed and a new mandatory retirement age was introduced: 65 instead of 70.

Also, 21 judges resigned and 12 were dismissed for political reasons. This created a total of 63 vacancies. Only a third were filled by ‘bad’ (‘foute’) judges and because not enough National Socialists could be found, many of the other vacancies were filled by ‘good’ (‘goede’) judges, but shortages of judges as well as lower court personnel increased over time. Towards the end of the occupation, a number of national-socialist judges fled to Germany, but some later returned to Holland. All judges, ‘good’ and ‘bad’ appointed during the occupation were dismissed upon the return of the lawful government in 1945. After a process of ‘purification’ of the judiciary, the ‘good’ judges were appointed again and the ‘bad’ ones punished in various ways.

In Chapter 6, six categories of court cases are discussed in which the occupation played a significant role. Cases involving political antagonism before and after the introduction of the justices of the peace are compared. Applications of several of the occupier’s ordinances are presented, and the influence of the Supreme Court’s ruling on judicial review is evaluated. A number of pharmacists filed suits against the national-socialist pharmacists organisation. They had refused to pay their mandatory membership fees to this organisation that was forced upon them, and consequently attachment of their possessions was levied. In court they demanded that the attachments be released. In order to achieve that release, they argued that the national-socialist nature of the organisation presented them with a conflict of conscience, so that they could not be forced to be a member or to pay any membership fees. In one case in September 1944, the judge criticized the Supreme Court’s ruling on judicial review and expressed the opinion that a different Supreme Court chamber might very well rule differently.
In Amsterdam, there were many cases involving Jews who wanted their official status as Jew altered. Persons with two Jewish grandparents were officially regarded as Jews if at the start of the German occupation they were married to a Jew or registered as a member of a synagogue. When the deportations started, many of these persons demanded the court to declare their marriage or their membership of the synagogue legally void. Judges, spouses and synagogues usually complied, if the case seemed legally sound. The last two categories discussed are court decisions that show judicial partiality towards one of the political camps and the treatment of German nationals in the Dutch courts.

In the concluding chapter, the influence of the different factors introduced in the first chapter is evaluated. Traditional judicial method and self-image contributed to a critical but careful stance towards the occupier. National Socialism was rejected by the majority of the judges, and protests against some ideologically motivated ordinances were filed. The judiciary was not ‘nazified’, and the vast majority of court cases had nothing to do with the occupation and the majority of the national-socialist judges did not or could not express their political ideology in the courtroom. National and international laws of occupation assumed that the judiciary in an occupied country would remain in office and that an occupier would uphold the words and spirit of international law. National law demanded that judges remain in office as long as that would serve the people. This contributed to the legally correct and pragmatic attitude most judges showed during the occupation. It was the occupier’s policy to take all politically relevant cases away from the regular courts. This meant that very few 'good’ judges were put in a position where they could make politically relevant decisions. The Supreme Court in the case concerning judicial review was an exception. And even there, the Court decided to exert as little political influence as possible. The interests judges could weigh in making their professional decisions were principles of law on the one hand and the material well-being of the people on the other. Overall, public order and the material well-being of the people weighed heavier in their considerations, which does not mean that principles were discarded altogether. Moreover, both the pragmatic and the principled attitude can be strongly morally motivated: the same legal or moral principles can inspire people to very different courses of action: defying the oppressor or accommodating to the occupational government. It seems difficult to maintain that law is something inherently moral. The legal system can be used by different people for different purposes, and can not guarantee that it will be used only for ‘just’ purposes. It is impossible to predict or to control all the ways in which laws are interpreted and applied. Even specific methods of interpretation cannot guarantee ‘just’ outcomes. In continuing their work in the courts, judges were serving the people, but by upholding public order they also were unavoidably assisting the occupier. The judges’ dilemmas were unsolvable, a certain level of accommodation to the occupier was inevitable. It seems that ultimately not the law itself, but those with enough power to use it for their own purposes determine what is legal and whose concept of justice is served by the law.

Many thanks - and congratulations - to Derk Venema.

For those interested in more information on the Dutch legal community during the Second World War, here are some key publications (in Dutch) by Professor C. Jansen (also of Nijmegen's Radboud University):

Jansen, C.J.H. (2006). Doorgaan of stoppen? Enkele beschouwingen over recht en rechtsbeoefening in Nederland tijdens de Tweede Wereldoorlog. Den Haag: Boom Juridische Uitgevers. (137 p.)

Jansen, C.J.H. (2005). De spagaat van de leden van de Hoge Raad in de Tweede Wereldoorlog. Nederlands Juristenblad, 880-886.

Jansen, C.J.H. (2005). De zes Nederlandse juridische faculteiten en haar hoogleraren in de Tweede Wereldoorlog. Nederlands Juristenblad, 1937-1943.

Thomas Miles and Cass Sunstein (both Chicago Law) have posted The New Legal Realism on SSRN (University of Chicago Law Review, forthcoming). This is a paper that looks set to become standard reference material. Here is the abstract:

The last decade has witnessed the birth of the New Legal Realism - an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same time, many gaps remain. Numerous areas of law remain unstudied; certain characteristics of judges have yet to be investigated; and in some ways, the existing work is theoretically thin. The New Legal Realism has clear jurisprudential implications, bearing as it does on competing accounts of legal reasoning, including Ronald Dworkin's suggestion that such reasoning is a search for integrity. Discussion is devoted to the relationship between the New Legal Realism and some of the perennial normative questions in administrative law.

Siems on the End of Comparative Law

Mathias Siems (Edinburgh/Cambridge) has posted 'The End of Comparative Law' on SSRN (The Journal of Comparative Law 2007, 133-150). This is the abstract:

Following the 1900 congress in Paris, the beginning of the 20th century saw comparative law emerge as a significant discipline. This paper suggests that the early 21st century is seeing the decline, or maybe even the 'end', of comparative law. In contrast to other claims which see the 21st century as the 'era of comparative law', there are at least four trends which give rise to pessimism: 'the disregard', 'the complexity', 'the simplicity', and 'the irrelevance' of comparative law. These phenomena will be explained in the body of this paper; the concluding part considers suggestions as to how to proceed further.

Mathias Siems's personal blog (SiemsLegal) can be found here.