After reading Seán’s post (5 November) on William Twining’s recent book, I keep thinking about the former’s last few lines noting a few authors (de Sousa Santos, Glenn, Menski, Örücü, and Twining) that are, in his opinion, must-read authors for comparative lawyers.
Obviously others may have different lists. Just as obviously, if the comparative community conducted a survey, some authors or books would appear in many or most individual lists. Seán’s list might well have included, in my opinion, Raoul C van Caenegem and Rodolfo Sacco.
Another book that I’d include is the Portuguese legal philosopher Paulo Ferreira da Cunha’s Natureza & Arte do Direito (the nature and the art of law), published in Coimbra in 1999 by Almedina publishing house. I found the work profound and enlightening. While certainly not a mainstream book among comparatists—it’s not even a comparative law book in the strict sense—it is still very exciting food for thought for anyone speculating about the law as a social phenomenon. Cunha explores the artistic or aesthetic dimension of law. In so doing, he takes a position different, indeed the very opposite, from the usual Western modern stance, where the law is seen as a mostly technical or even ‘scientific’ human product. In contrasting art with technique, theory with aesthetic perception, reason with instinct, he sheds light on a substantial element of the law that is too often forgotten by western lawyers.
Which legal books would you take with you on a remote island – in addition of course to more mundane sports, music, and/or other more or less frivolous reading material?
Which author or authors woul you invite for dinner?
Past or present, canonical or niche figures, it’ll be interesting to discover which authors and books are part of the current (or common) core of comparative knowledge.
The floor is open …
30 November 2009
27 November 2009
Schlesinger's Comparative Law
The latest edition (the seventh) of Rudolph Schlesinger's Comparative law was released a few months back. It's edited by Ugo Mattei, Teemu Ruskola, and Antonio Gidi. The work:
enlarges the perspective of comparative law to include the experiences of the non-Western world, which increasingly occupies the center stage in a global approach to the law. Accordingly, the book incorporates diverse legal materials from Asia, Africa, and Latin America. In addition, it includes a greatly enhanced methodological discussion that brings the book up-to-date with the latest debates in the field.
enlarges the perspective of comparative law to include the experiences of the non-Western world, which increasingly occupies the center stage in a global approach to the law. Accordingly, the book incorporates diverse legal materials from Asia, Africa, and Latin America. In addition, it includes a greatly enhanced methodological discussion that brings the book up-to-date with the latest debates in the field.
25 November 2009
CALL FOR PAPERS: Comparative Perspectives on Constitutions
The Institute of Advanced Legal Studies (The School of Advanced Study, University of London) has issued a Call for Papers for the WG Hart Legal Workshop 2010 on Comparative Perspectives on Constitutions: Theory and Practice (29 June- 01 July 2010). The Workshop:
will explore theoretical and empirical aspects of national constitutions (including instruments such as Basic Laws and ‘constitutional statutes’), regional constitutional instruments, and international instruments of a ‘constitutional’ nature. Particular emphasis will be placed on questions concerning the purposes of constitutions, the extent to which such conceptualisations are given expression in the drafting of constitutional texts, and the means by which methods, techniques and institutional innovations are traded across jurisdictions.
Proposals for papers or panels that fall within the framework of these themes are welcomed.The committee especially welcomes contributions from early career researchers and papers of a cross-disciplinary nature.
All papers will be posted on the workshop website. Subsequently, the organising committee intends to seek publication of a selection of these papers in more permanent form.
The themes include:
1. Conceptualisations of the purposes of constitutions
2. Transplants, Irritations, Migrations, Harmonization
3. Constructing Constitutions
will explore theoretical and empirical aspects of national constitutions (including instruments such as Basic Laws and ‘constitutional statutes’), regional constitutional instruments, and international instruments of a ‘constitutional’ nature. Particular emphasis will be placed on questions concerning the purposes of constitutions, the extent to which such conceptualisations are given expression in the drafting of constitutional texts, and the means by which methods, techniques and institutional innovations are traded across jurisdictions.
Proposals for papers or panels that fall within the framework of these themes are welcomed.The committee especially welcomes contributions from early career researchers and papers of a cross-disciplinary nature.
All papers will be posted on the workshop website. Subsequently, the organising committee intends to seek publication of a selection of these papers in more permanent form.
The themes include:
1. Conceptualisations of the purposes of constitutions
2. Transplants, Irritations, Migrations, Harmonization
3. Constructing Constitutions
24 November 2009
The latest Journal of Civil Law Studies
A new volume of the Journal of Civil Law Studies has been issued. The journal was launched last year:
to promote a multidisciplinary and pluralistic approach, and to focus on the following themes:
to promote a multidisciplinary and pluralistic approach, and to focus on the following themes:
- The evolution of the law in mixed jurisdictions, chiefly Louisiana
- The evolution of the civil law in an English speaking environment
- The impact of globalization on the evolution of the civil law and the common law
- The impact of the civil law and the common law outside the western world and their interrelation with other legal traditions
- Bridging the divide between civil law and common law in the American hemisphere and in the European area
- The combination of the civil law and common law traditions in the harmonization and unification processes, with a focus on linguistic issues.
The contents of the current volume include:
ARTICLES
- Jacques Vanderlinden, ‘Aux origines de la culture juridique française en Amérique du Nord’
- Olivier Moréteau, ‘The Future of Civil Codes in France and Louisiana’
- Andrea Borroni & Charles Tabor, ‘Caveat Emptor’s Current Role in Louisiana and Islamic Law: Worlds Apart yet Surprisingly Close’
- Catherine Piché, ‘The Cultural Analysis of Class Action Law’
- Georges A Cavalier & Thomas Straub, ‘Mergers and Acquisitions Comparative Economic Analysis of Laws: France vs USA’
BOOK REVIEW
- Agustín Parise on Gustavus Schmidt, The Civil Law of Spain and Mexico (2008 [1851])
GENERAL INFORMATION
- Olivier Moréteau & Agustín Parise, ‘The Bicentennial of the Louisiana Civil Code (1808-2008)’
The XVIIIth International Congress of the International Academy of Comparative Law
The XVIIIth International Congress of the International Academy of Comparative Law is fast approaching (as is the deadline for early and slightly cheaper registration). The Congress is hosted by American University's Washington College of Law, the George Washington University Law School, and the Georgetown University Law Center. It takes place in Washington DC from 25 July to 1 August 2010.
Delmas-Marty on pluralism
Hart Publishing recently published Mireille Delmas-Marty, Ordering pluralism: a conceptual framework for understanding the transnational legal world (2009), translated by Naomi Norberg. The book is described as follows:
From the viewpoint of the constitutional crisis in Europe, slow UN reforms, difficulties implementing the Kyoto Protocol and the International Criminal Court, and tensions between human rights and trade, Mireille Delmas-Marty's 'journey through the legal landscape' of the early years of the 21st century shows it to be dominated by imprecision, uncertainty and instability. The early 21st century appears to be the era of great disorder: in the silence of the market and the fracas of arms, a world overly fragmented by anarchical globalisation is being unified too quickly through hegemonic integration. How, she asks, can we move beyond the relative and the universal to build order without imposing it, to accept pluralism without giving up on a common law?
Neither utopian fusion nor illusory autonomy, Ordering Pluralism is her answer: both an epistemological revolution and an art, it means creating a common legal area by progressive adjustments that preserve diversity. Since an immutable world order is impossible, the imaginative forces of law must be called upon to invent a flexible process of harmonisation that leaves room for believing we can agree on - and protect - common values.
From the viewpoint of the constitutional crisis in Europe, slow UN reforms, difficulties implementing the Kyoto Protocol and the International Criminal Court, and tensions between human rights and trade, Mireille Delmas-Marty's 'journey through the legal landscape' of the early years of the 21st century shows it to be dominated by imprecision, uncertainty and instability. The early 21st century appears to be the era of great disorder: in the silence of the market and the fracas of arms, a world overly fragmented by anarchical globalisation is being unified too quickly through hegemonic integration. How, she asks, can we move beyond the relative and the universal to build order without imposing it, to accept pluralism without giving up on a common law?
Neither utopian fusion nor illusory autonomy, Ordering Pluralism is her answer: both an epistemological revolution and an art, it means creating a common legal area by progressive adjustments that preserve diversity. Since an immutable world order is impossible, the imaginative forces of law must be called upon to invent a flexible process of harmonisation that leaves room for believing we can agree on - and protect - common values.
Call for submissions: Transnational Legal Theory
Hart Publishing has recently announced the following:
Article submissions are now being accepted for Transnational Legal Theory, a new quarterly journal. The journal publishes articles of (optimally) 10,000-15,000 words and book reviews of 1000-2500 words. Also considered for publication are “review essays”. The journal is refereed and employs a double-blind peer review procedure.
The objective of Transnational Legal Theory is to publish high-quality theoretical scholarship that addresses transnational dimensions of law and legal dimensions of transnational fields and activity. Central to Transnational Legal Theory’s mandate is publication of work that explores whether and how transnational contexts, forces and ideations affect debates within existing traditions or schools of legal thought. Similarly, the journal aspires to encourage scholars debating general theories about law to consider the relevance of transnational contexts and dimensions for their work. With respect to particular jurisprudence, the journal welcomes not only submissions that involve theoretical explorations of fields commonly constructed as transnational in nature (such as commercial law, maritime law, or cyberlaw) but also explorations of transnational aspects of fields less commonly understood in this way (for example, criminal law, family law, company law, tort law, evidence law, and so on). Submissions of work exploring process-oriented approaches to law as transnational (from transjurisdictional litigation to delocalized arbitration to multi-level governance) are also encouraged.
Equally central to Transnational Legal Theory’s mandate is theoretical work that explores fresh (or revived) understandings of international law and comparative law ‘beyond the state’ (and the interstate). The journal has a special interest in submissions that explore the interfaces, intersections, and mutual embeddedness of public international law, private international law, and comparative law, notably in terms of whether such inter-relationships are reshaping these sub-disciplines in directions that are, in important respects, transnational in nature. Other areas of interest for the journal include the interaction of systems or orders along such axes as the following examples: constitutional law theory on the reception of various forms of external law by states’ legal orders; jurisdictional theory on the external projection of states’ legal orders; public law theory on the evolution of regional legal orders; panstate religious normativity; and the theorization of law as “global” in preference or contradistinction to law as either international or transnational.
Legal theory is understood broadly to encompass a variety of inter- and subdisciplinary theoretical approaches to law or to law-like normativity, including, to name only some, philosophy of law, legal sociology, legal history, law and economics, and international relations theory.
If you wish to contribute a paper or discuss ideas for future articles, please contact tlteditorial@hartpub.co.uk or to submit a book review tltbookreviews@hartpub.co.uk. Full guidelines for contributors are available here.
Article submissions are now being accepted for Transnational Legal Theory, a new quarterly journal. The journal publishes articles of (optimally) 10,000-15,000 words and book reviews of 1000-2500 words. Also considered for publication are “review essays”. The journal is refereed and employs a double-blind peer review procedure.
The objective of Transnational Legal Theory is to publish high-quality theoretical scholarship that addresses transnational dimensions of law and legal dimensions of transnational fields and activity. Central to Transnational Legal Theory’s mandate is publication of work that explores whether and how transnational contexts, forces and ideations affect debates within existing traditions or schools of legal thought. Similarly, the journal aspires to encourage scholars debating general theories about law to consider the relevance of transnational contexts and dimensions for their work. With respect to particular jurisprudence, the journal welcomes not only submissions that involve theoretical explorations of fields commonly constructed as transnational in nature (such as commercial law, maritime law, or cyberlaw) but also explorations of transnational aspects of fields less commonly understood in this way (for example, criminal law, family law, company law, tort law, evidence law, and so on). Submissions of work exploring process-oriented approaches to law as transnational (from transjurisdictional litigation to delocalized arbitration to multi-level governance) are also encouraged.
Equally central to Transnational Legal Theory’s mandate is theoretical work that explores fresh (or revived) understandings of international law and comparative law ‘beyond the state’ (and the interstate). The journal has a special interest in submissions that explore the interfaces, intersections, and mutual embeddedness of public international law, private international law, and comparative law, notably in terms of whether such inter-relationships are reshaping these sub-disciplines in directions that are, in important respects, transnational in nature. Other areas of interest for the journal include the interaction of systems or orders along such axes as the following examples: constitutional law theory on the reception of various forms of external law by states’ legal orders; jurisdictional theory on the external projection of states’ legal orders; public law theory on the evolution of regional legal orders; panstate religious normativity; and the theorization of law as “global” in preference or contradistinction to law as either international or transnational.
Legal theory is understood broadly to encompass a variety of inter- and subdisciplinary theoretical approaches to law or to law-like normativity, including, to name only some, philosophy of law, legal sociology, legal history, law and economics, and international relations theory.
If you wish to contribute a paper or discuss ideas for future articles, please contact tlteditorial@hartpub.co.uk or to submit a book review tltbookreviews@hartpub.co.uk. Full guidelines for contributors are available here.
23 November 2009
Stigall on comparative law and counterterrorism
Earlier this year, Cambria Press published Dan Stigall, Counterterrorism and the comparative law of investigative detention (2009). The book's description is as follows:
The years since the devastating attacks of September 11, 2001, have seen dramatic developments in the recognized challenges to U.S. national security and in the ways the United States reacts to terrorist threats. Those reactions have demonstrated both the flexibility and limitations of U.S. criminal law in its ability to adapt to terrorism. A focus on the perceived limitations of U.S. criminal law in this regard has led to calls from key players within the U.S. national security apparatus for an improved regime of investigative detention, such as those currently in place in the United Kingdom and France.
In response to the ongoing threat of domestic and international terrorism, governments across the globe have enacted counterterrorism legislation designed to facilitate the capture and interrogation of terrorist suspects. In that regard, key figures in the national security apparatus of the United States have specifically lamented the lack of an “investigative detention” mechanism, such as those that exist in France and the United Kingdom. This book, accordingly, details the investigative detention laws of the United States, the United Kingdom, and France in order to fully comprehend what an investigative regime does and how it functions. This book explicates the powers and limitations of investigative detention in each country and looks to see what aspects of the European investigative detention regimes might be exportable to the United States. Finally, this book offers a series of legislative proposals which would serve to enhance the investigative detention powers of law enforcement in the United States––particularly in the context of counterterrorism operations.
This book is the first focused look at the concept of investigative detention and counterterrorism. It is also the first book to analyze in detail the comparative law of investigative detention in the United States, the United Kingdom, and France––laying out exactly how each investigative detention regime works, what the extent of each country’s powers are, and examining their use in counterterrorism. As such, it is one of only a handful of “practical comparative law” books on the market––a book which not only illuminates the legal landscape of various countries, but also seeks to inform counterterrorism policy through a comparative analysis.
Counterterrorism and the Comparative Law of Investigative Detention is an important book for all those who study comparative law, national security, and counterterrorism. It is also an ideal book for policymakers and those seeking solutions to complex problems involving detention of terrorist suspects.
Rarely is a book so timely.
The years since the devastating attacks of September 11, 2001, have seen dramatic developments in the recognized challenges to U.S. national security and in the ways the United States reacts to terrorist threats. Those reactions have demonstrated both the flexibility and limitations of U.S. criminal law in its ability to adapt to terrorism. A focus on the perceived limitations of U.S. criminal law in this regard has led to calls from key players within the U.S. national security apparatus for an improved regime of investigative detention, such as those currently in place in the United Kingdom and France.
In response to the ongoing threat of domestic and international terrorism, governments across the globe have enacted counterterrorism legislation designed to facilitate the capture and interrogation of terrorist suspects. In that regard, key figures in the national security apparatus of the United States have specifically lamented the lack of an “investigative detention” mechanism, such as those that exist in France and the United Kingdom. This book, accordingly, details the investigative detention laws of the United States, the United Kingdom, and France in order to fully comprehend what an investigative regime does and how it functions. This book explicates the powers and limitations of investigative detention in each country and looks to see what aspects of the European investigative detention regimes might be exportable to the United States. Finally, this book offers a series of legislative proposals which would serve to enhance the investigative detention powers of law enforcement in the United States––particularly in the context of counterterrorism operations.
This book is the first focused look at the concept of investigative detention and counterterrorism. It is also the first book to analyze in detail the comparative law of investigative detention in the United States, the United Kingdom, and France––laying out exactly how each investigative detention regime works, what the extent of each country’s powers are, and examining their use in counterterrorism. As such, it is one of only a handful of “practical comparative law” books on the market––a book which not only illuminates the legal landscape of various countries, but also seeks to inform counterterrorism policy through a comparative analysis.
Counterterrorism and the Comparative Law of Investigative Detention is an important book for all those who study comparative law, national security, and counterterrorism. It is also an ideal book for policymakers and those seeking solutions to complex problems involving detention of terrorist suspects.
Rarely is a book so timely.
20 November 2009
Theorising the Global Legal Order
Hart Publishing has recently published Andrew Halpin and Volker Roeben (eds), Theorising the Global Legal Order (2009). As they explain:
This book aims to capture an exploratory approach to theorising the global legal order. Avoiding any brand loyalty to a particular academic perspective, it brings together scholars who contribute a variety of insights covering quite different topics and viewpoints. It sets itself the target of producing a distinctively legal theory of global phenomena, which is capable of illuminating the path of law as an academic discipline, as it confronts a bewildering array of novel situations and innovative ways of thinking about law. The broad base of perspectives found among the contributors, combined with a helpful commentary from the editors, makes the book an ideal Reader to introduce a subject that is becoming of increasing importance for academics, students and practitioners, in law and related fields.
The book's contents include:
This book aims to capture an exploratory approach to theorising the global legal order. Avoiding any brand loyalty to a particular academic perspective, it brings together scholars who contribute a variety of insights covering quite different topics and viewpoints. It sets itself the target of producing a distinctively legal theory of global phenomena, which is capable of illuminating the path of law as an academic discipline, as it confronts a bewildering array of novel situations and innovative ways of thinking about law. The broad base of perspectives found among the contributors, combined with a helpful commentary from the editors, makes the book an ideal Reader to introduce a subject that is becoming of increasing importance for academics, students and practitioners, in law and related fields.
The book's contents include:
- Andrew Halpin and Volker Roeben, ‘Introduction’
- H Patrick Glenn, ‘Cosmopolitan Legal Orders’
- William Twining, ‘Implications of “Globalisation” for Law as a Discipline’
- Stefan Oeter, ‘Theorising the Global Legal Order - An Institutionalist Perspective’
- Ko Hasegawa, ‘Incorporating Foreign Legal Ideas through Translation’
- Catherine Dupré, ‘Globalisation and Judicial Reasoning: Building Blocks for a Method of Interpretation’
- Ari Afilalo and Dennis Patterson, ‘Statecraft, Trade and Strategy: Toward a New Global Order’
- Oxana Golynker, ‘European Union as a Single Working-Living Space: EU Law and New Forms of Intra-Community Migration’
- Déirdre Dwyer, ‘The Domestic Enforcement of Supranational Rules: The Role of Evidence in EC Competition Law’
- Stephen Allen, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards a Global Legal Order on Indigenous Rights?’
- John Gillespie, ‘Developing a Framework for Understanding the Localisation of Global Scripts in East Asia’
- Nicholas Dorn, ‘Governance Through Corruption: Cosmopolitan Complicity’
- Christian Walter, ‘Decentralised Constitutionalisation in National and International Courts: Reflections on Comparative Law as an Approach to Public Law’
- Andrew Halpin and Volker Roeben, ‘Concluding Reflections’
19 November 2009
The latest Global Jurist
The Global Jurist has posted the following new articles:
Frontiers
Elisabetta Grande, 'Dances of Justice: Tango and Rumba in Comparative Criminal Procedure'
Advances
Andrea Zanoni, 'Hedge Funds' Empty Voting in Mergers and Acquisitions: A Fiduciary Duties Perspective'
Topics
Julie De Coninck, 'Overcoming the Mere Heuristic Aspirations of (Functional) Comparative Legal Research? An Exploration into the Possibilities and Limits of Behavioral Economics'
Federico Picinali, 'Is "Proof Beyond a Reasonable Doubt" a Self-Evident Concept? Considering the U.S. and the Italian Legal Cultures towards the Understanding of the Standard of Persuasion in Criminal Cases'
Featured Article
Maria Rosaria Ferrarese, 'When National Actors Become Transnational: Transjudicial Dialogue between Democracy and Constitutionalism' (examines how constitutional dialogue works, and addresses the different kinds of legitimation the courts' refer to, democracy and constitutionalism)
About the journal
Global Jurist offers a forum for scholarly cyber-debate on issues of comparative law, law and economics, international law, law and development, and legal anthropology. Mindful of globalization and respectful of cultural differences, linguistic and cultural barriers are overcome and legal issues are finally discussed outside of the narrow limits imposed by positivism, parochialism, ethnocentrism, imperialism and chauvinism in the law.
Frontiers
Elisabetta Grande, 'Dances of Justice: Tango and Rumba in Comparative Criminal Procedure'
Advances
Andrea Zanoni, 'Hedge Funds' Empty Voting in Mergers and Acquisitions: A Fiduciary Duties Perspective'
Topics
Julie De Coninck, 'Overcoming the Mere Heuristic Aspirations of (Functional) Comparative Legal Research? An Exploration into the Possibilities and Limits of Behavioral Economics'
Federico Picinali, 'Is "Proof Beyond a Reasonable Doubt" a Self-Evident Concept? Considering the U.S. and the Italian Legal Cultures towards the Understanding of the Standard of Persuasion in Criminal Cases'
Featured Article
Maria Rosaria Ferrarese, 'When National Actors Become Transnational: Transjudicial Dialogue between Democracy and Constitutionalism' (examines how constitutional dialogue works, and addresses the different kinds of legitimation the courts' refer to, democracy and constitutionalism)
About the journal
Global Jurist offers a forum for scholarly cyber-debate on issues of comparative law, law and economics, international law, law and development, and legal anthropology. Mindful of globalization and respectful of cultural differences, linguistic and cultural barriers are overcome and legal issues are finally discussed outside of the narrow limits imposed by positivism, parochialism, ethnocentrism, imperialism and chauvinism in the law.
13 November 2009
The transnationalization of legal cultures
The German Law Journal has posted the contributions to a 10th Anniversary Symposium on the ‘transnationalization of legal cultures’. The articles include:
Festakt Remarks
Europe as Transnational Law
Festakt Remarks
- Brun-Otto Bryde, ‘In Praise of Transnationalism’
- Armin von Bogdandy, ‘Positioning German Scholarship in the Global Arena: The Transformative Project of the German Law Journal’
- Robert A Pollard, ‘Remarks from the U.S. Embassy in Berlin’
- Heribert Hirte, ‘Remarks from the German-American Lawyers’ Association (DAJV)’
- Axel C Filges, ‘Remarks from the German Federal Bar (BRAK)’
- Russell A Miller, ‘The German Law Journal as “Lived” Comparative Law’
Theorizing Transnational Law
- Susanne Baer, ‘Observations on a Birthday’
- Matthias Mahlmann, ‘Varieties of Transnational Law and the Universalistic Stance’
- Ingrid Wuerth, ‘Transnationalizing Public Law’
- Gralf-Peter Calliess & Moritz Renner, ‘The Public and the Private Dimensions of Transnational Commercial Law’
Europe as Transnational Law
- Karl-Heinz Ladeur, ‘Europe Has to Be Conceived as an Heterarchical Network and Not as a Superstate!’
- Christian Calliess, ‘The Transnationalization of Values by European Law’
- Christoph JM Safferling, ‘A Criminal Law for Europe: Between National Heritage and Transnational Necessities’
- Kaitlin Abplanalp & Ronald Bruckmann, ‘Conference Report — The Transnationalization of Legal Cultures’
Holbrook on ‘Legal hybridity’
Justin Holbrook recently posted ‘Legal hybridity in the Philippines: lessons in legal pluralism from Mindanao and the Sulu Archipelago’ in SSRN. This is the abstract:
From Kurds in Afghanistan to Muslims in the Philippines, we live in a world in which normative obligations do not always follow political boundaries. For a variety of political, economic, and social reasons, people sometimes find themselves residents of a state they neither helped create nor voluntarily joined. What allegiance do such people owe to the legal systems of the states to which they belong? Should they be permitted to adopt and follow proprietary legal codes that conform to cultural norms but exist distinct from national jurisprudential schemes? As nations throughout the world struggle to find plural solutions to normative conflict, these questions are of vital importance to subnational and supranational legal regimes.
In this Article, I explore these issues by drawing on legal pluralism as a methodology to analyze subnational normative conflict. I do so by engaging in a case study of the Philippines, a country which has been a hotbed of conflict for more than 400 years. I first address the mechanisms employed by Spanish and American colonizers in responding to normative conflict in Mindanao and the Sulu Archipelago. I then proceed to a discussion of the steps taken by the Philippine government to formally recognize Muslim normative obligations, including the adoption of Presidential Decree 1083, the Muslim Code of Personal Laws. Finally, I review the Philippine government’s approach to legal hybridity in the context of four practices identified by Paul Schiff Berman in Global Legal Pluralism: dialectical discourse, margins of appreciation, jurisdictional redundancy, and limited autonomy regimes. I conclude by suggesting that the Philippine government’s approach, though less than fully realized, models the possible benefits of pluralism in a normatively complex and contentious hybrid society.
From Kurds in Afghanistan to Muslims in the Philippines, we live in a world in which normative obligations do not always follow political boundaries. For a variety of political, economic, and social reasons, people sometimes find themselves residents of a state they neither helped create nor voluntarily joined. What allegiance do such people owe to the legal systems of the states to which they belong? Should they be permitted to adopt and follow proprietary legal codes that conform to cultural norms but exist distinct from national jurisprudential schemes? As nations throughout the world struggle to find plural solutions to normative conflict, these questions are of vital importance to subnational and supranational legal regimes.
In this Article, I explore these issues by drawing on legal pluralism as a methodology to analyze subnational normative conflict. I do so by engaging in a case study of the Philippines, a country which has been a hotbed of conflict for more than 400 years. I first address the mechanisms employed by Spanish and American colonizers in responding to normative conflict in Mindanao and the Sulu Archipelago. I then proceed to a discussion of the steps taken by the Philippine government to formally recognize Muslim normative obligations, including the adoption of Presidential Decree 1083, the Muslim Code of Personal Laws. Finally, I review the Philippine government’s approach to legal hybridity in the context of four practices identified by Paul Schiff Berman in Global Legal Pluralism: dialectical discourse, margins of appreciation, jurisdictional redundancy, and limited autonomy regimes. I conclude by suggesting that the Philippine government’s approach, though less than fully realized, models the possible benefits of pluralism in a normatively complex and contentious hybrid society.
05 November 2009
Twining on 'general jurisprudence'
Back in the Spring, William Twining (University College London) published General jurisprudence: understanding law from a global perspective (2009). As the Cambridge University Press explains:
With the works of Boaventura de Sousa Santos, Patrick Glenn, Werner Menski, and Esin Örücü (among others), it's also essential reading for all students (and teachers) of comparative law.
This book explores how globalisation influences the understanding of law. Adopting a broad concept of law and a global perspective, it critically reviews mainstream Western traditions of academic law and legal theory. Its central thesis is that most processes of so-called ‘globalisation’ take place at sub-global levels and that a healthy cosmopolitan discipline of law should encompass all levels of social relations and the legal ordering of these relations. It illustrates how the mainstream Western canon of jurisprudence needs to be critically reviewed and extended to take account of other legal traditions and cultures. Written by the one of the foremost scholars in the field, this important work presents an exciting alternative vision of jurisprudence. It challenges the traditional canon of legal theorists and guides the reader through a field undergoing seismic changes in the era of globalisation. This is essential reading for all students of jurisprudence and legal theory.
With the works of Boaventura de Sousa Santos, Patrick Glenn, Werner Menski, and Esin Örücü (among others), it's also essential reading for all students (and teachers) of comparative law.
Lecture and Call for Papers
The Irish Society of Comparative Law (ISCL) will hold (i) its inaugural Autumn Lecture on 26 November 2009 at Trinity College Dublin, Ireland and (ii) its Annual General Meeting and Conference on 5-6 March 2010 at Queen’s University Belfast, Northern Ireland.
The ISCL Autumn Lecture will be delivered by Professor Esin Örücü (School of Law, University of Glasgow). Her paper is entitled ‘A Comparatist’s Analysis of the Convergence of Legal Systems’. The lecture will be delivered from 5.00pm – 6.30pm in Room 11 of the first floor of the Law School, 39 New Square, Trinity College Dublin. Admission is free and a light refreshment will be available after the lecture.
A Call for Papers has also been issued for the ISCL Annual General Meeting & Conference. Papers placing Irish law in comparative perspective are especially encouraged, but any topic in comparative law or legal systems may be proposed: private or public law, criminal law and criminal justice, legal education, legal history, etc. Papers on European or international law will also be considered. Proposals should be short (250 words) and sent to b.dickson@qub.ac.uk. The deadline for receipt of proposals is 8 January 2010. You do not have to be a member of the Association to propose a paper. Proposals will be responded to within a week of being received.
The Annual General Meeting and plenary address will take place on Friday 5 March. Conference sessions and the conference dinner will take place on Saturday 6 March. Registration forms and additional information will be available shortly.
The Irish Society of Comparative Law is open to those interested in Irish and comparative law. Queries should be directed to the Secretary of the Society: Ms Bénédicte Sage, Faculty of Law, University College Cork: b.sage@ucc.ie.
The ISCL Autumn Lecture will be delivered by Professor Esin Örücü (School of Law, University of Glasgow). Her paper is entitled ‘A Comparatist’s Analysis of the Convergence of Legal Systems’. The lecture will be delivered from 5.00pm – 6.30pm in Room 11 of the first floor of the Law School, 39 New Square, Trinity College Dublin. Admission is free and a light refreshment will be available after the lecture.
A Call for Papers has also been issued for the ISCL Annual General Meeting & Conference. Papers placing Irish law in comparative perspective are especially encouraged, but any topic in comparative law or legal systems may be proposed: private or public law, criminal law and criminal justice, legal education, legal history, etc. Papers on European or international law will also be considered. Proposals should be short (250 words) and sent to b.dickson@qub.ac.uk. The deadline for receipt of proposals is 8 January 2010. You do not have to be a member of the Association to propose a paper. Proposals will be responded to within a week of being received.
The Annual General Meeting and plenary address will take place on Friday 5 March. Conference sessions and the conference dinner will take place on Saturday 6 March. Registration forms and additional information will be available shortly.
The Irish Society of Comparative Law is open to those interested in Irish and comparative law. Queries should be directed to the Secretary of the Society: Ms Bénédicte Sage, Faculty of Law, University College Cork: b.sage@ucc.ie.
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