New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Where does judicial power come from, how does it develop in the early stages of democratic liberalization, and what political conditions support its expansion? This book answers these questions through an examination of three constitutional courts in Asia: Taiwan, Korea, and Mongolia. In a region that has traditionally viewed law as a tool of authoritarian rulers, constitutional courts in these three societies are becoming a real constraint on government. In contrast with conventional culturalist accounts, this book argues that the design and functioning of constitutional review are largely a function of politics and interests. Judicial review - the power of judges to rule an act of a legislature or national leader unconstitutional - is a solution to the problem of uncertainty in constitutional design. By providing 'insurance' to prospective electoral losers, judicial review can facilitate democracy.

/pdf/judicial-review-in-new-democracies-constitutional-courts-in-221309ao4p.pdf

Judicial Review in New Democracies: Constitutional Courts in Asian Cases

Since the late 1940s, economic considerations relating to the globalisation of world markets have led an ever larger group of Western European countries to unite in the quest for a supra-national legal order which, in time, generated the European Community. Most of these countries' legal orders claim allegiance to what anglophones are fond of labelling the “civli law” tradition,1 although two common law jurisdictions joined the Community in the early 1970s. The European Community's early decision to promote economic integration (and, later, other types of integration) through harmonisation or unification has involved, at both Community and national levels (for the implementation of Community rules in the member States carries the adoption of national rules in all member States), a process of relentless “juridification”; law, in the guise of legislatively or judicially enacted rules, has assumed the role of a “steering medium”.2 This development was foreseeable: once the interaction among European legal systems had acted as a catalyst for the creation of a supra-system,3 the need to achieve reciprocal compatibility between the infra-systems and the supra-system naturally fostered the development of an extended network of interconnections (such as regulations and directives) which eventually raised the question of further legal integration in the form of a common law of Europe.4

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0020589300058656

European Legal Systems are not Converging

The authors of “Legalization and World Politics” (International Organization, 54, 3, summer 2000) define “legalization” as the degree of obligation, precision, and delegation that international institutions possess. We argue that this definition is unnecessarily narrow. Law is a broad social phenomenon that is deeply embedded in the practices, beliefs, and traditions of societies. Understanding its role in politics requires attention to the legitimacy of law, to custom and law's congruence with social practice, to the role of legal rationality, and to adherence to legal processes, including participation in law's construction. We examine three applications of “legalization” offered in the volume and show how a fuller consideration of law's role in politics can produce concepts that are more robust intellectually and more helpful to empirical research.

https://home.gwu.edu/~finnemor/articles/2001_legalization_io.pdf

Alternatives to “Legalization”: Richer Views of Law and Politics

Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines—comparative law, conflict of laws, public international law, and European Union law—have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism—the definition of law, the role of the state, of community, and of space—are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practic...

/pdf/global-legal-pluralism-pqrxcpq4wu.pdf

Global Legal Pluralism

Let's call digital transition the societal process arising from the deployment and uptake of ICTs. Indeed, with the current multiplication of devices, sensors, robots, and applications, and these emerging technologies, we have entered a new phase of the information age, a phase where the hybridization between bits and other forms of reality is so deep that it radically changes the human condition in at least four ways:

The Onlife Manifesto

1. A theory of tradition? The changing presence of the past 2. Between traditions: identity, persuasion and survival 3. A chthonic legal tradition: to recycle the world 4. A talmudic legal tradition: the perfect author 5. A civil law tradition: the centrality of the person 6. An islamic legal tradition: the law of the later revelation 7. A common law tradition: the ethic of adjudication 8. A hindu legal tradition: the law as king, but which law? 9. A confucian legal tradition: make it new (with Marx?) 10. Reconciling legal traditions: sustainable diversity in law

Legal traditions of the world : sustainable diversity in law

This book offers a major new means of conceptualizing law and legal relations across the world. National laws are placed in the broader context of major legal traditions, those of chthonic (or indigenous) law, talmudic law, civil law, Islamic law, common law, Hindu law, and Confucian law. Each tradition is examined in terms of its institutions and substantive law, its founding concepts and methods, its attitude towards the concept of change, and its teaching on relations with other traditions and peoples. Legal traditions are explained in terms of multivalent and non-conflictual forms of logic and thought.

Legal traditions of the world

PART I: COSMOPOLITAN ORIGINS PART II: CLOSURE? PART III: COSMOPOLITANISM SUSTAINED PART IV: THE CONTEMPORARY COSMOPOLITAN STATE

https://law.ku.edu/sites/law.drupal.ku.edu/files/docs/law_review/v61/04-Glenn_Final.pdf

The Cosmopolitan State

Comparative Legal Families and Comparative Legal Traditions

There is a story told in management circles which illustrates the argument I wish to make concerning custom. In the early stages of World War II the British army was using old artillery which fired very slowly. The problem lay not only in the weaponry itself, but in the protocols for firing. In particular, two members of the gun crew would come rigidly to attention three seconds before firing and remain in that position until three seconds after firing, rendering themselves essentially useless in the loading and unloading process. Noone knew why this was done, until films made for a time-and-motion study were shown to an old artillery colonel, who was asked whether there was any explanation for the behavior. "Oh, yes," he is reported as saying, "they are holding the horses."l Why is this story illustrative of western concepts of custom, and particularly of its capture and reconstruction, as a concept, and its ensuing marginalization? It tells us a number of things. First, we judge conduct by its exterior, present manifestation. Second, in doing so, we are unable to penetrate the historical rationality of present conduct. Third, in repetitive action, we see essentially habit and a lack of present rationality. The story survives and is (regularly) told today as a means of indicating how management must struggle against inertia in all forms of human organization. Custom or habit is difficult if not impossible to justify; it must be constantly held up to the rigorous standards of present rationality. This attitude towards repeated social conduct (I will attempt to avoid the expression "custom") is, however, a particular feature of western thought, and even relatively recent western thought. It is not shared by most legal traditions in the world, including those generally described as "customary" by western lawyers. So western attitudes towards our subject are exceptional and particular in the world. How did western legal thought come to capture and reconstruct a

H. Patrick Glenn

Papers

Legal traditions of the world : sustainable diversity in law

Legal traditions of the world

The Cosmopolitan State

Comparative Legal Families and Comparative Legal Traditions

The capture, reconstruction and marginalization of “custom”