Law as a Social System
TL;DR: In this paper, the authors propose a method to solve the problem of homonymity of homophily in the context of homomorphic data, and no abstracts are available.
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TL;DR: In this paper, the authors discuss how legal pluralism engages with legal globalization and how legal globalization utilizes legal plurality, and provide an outlook on the future of global legal plurality as theory and practice.
Abstract: 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...
287 citations
Cites background from "Law as a Social System"
...Luhmann (2004) and Teubner (1993, 1996) define law as the discourse characterized by the binary code legal/illegal; for Günther (2008), use of the word law by various groups enables a universal code of legality that in turn defines the very object of intercommunity debate....
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Posted Content•
TL;DR: A growing body of literature in organization studies draws on the idea that communication constitutes organization, often abbreviated to CCO as discussed by the authors and introduces Luhmann's theory of social systems as a prominent example of CCO thinking.
Abstract: A growing body of literature in organization studies draws on the idea that communication constitutes organization, often abbreviated to CCO This paper introduces Luhmann’s theory of social systems as a prominent example of CCO thinking I argue that Luhmann’s perspective contributes to current conceptual debates on how communication constitutes organization The theory of social systems highlights that organizations are fundamentally grounded in paradox because they are built on communicative events that are contingent by nature Consequently, organizations are driven by the continuous need to deparadoxify their inherent contingency In that respect, Luhmann’s approach fruitfully combines a processual, communicative conceptualization of organization with the notion of boundary and self-referentiality Notwithstanding the merits of Luhmann’s approach, its accessibility tends to be limited due to the hermetic terminology that it employs and the fact that it neglects the role of material agency in the communicative construction of organizations
114 citations
Posted Content•
TL;DR: The concept of transnational legal pluralism as mentioned in this paper has been proposed to understand the evolution of law in relation and response to the development of "world society" in the context of regulatory governance.
Abstract: This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns with the fragmentation of law outside of the nation state. Within the nation-state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, of the alleged unity of the legal order and of the hierarchy of norms against the background of a consistently advancing process of constitutionalization. This research heightened regulators’ sensitivity to blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm-creation in various societal areas. Much of this is mirrored by today’s quest for a just, democratic and equitable global legal order, for example in the debate about ‘fragmentation of international law’ or ‘global administrative law’. But, while the legal pluralism debate largely unfolded in the context (and contestation) of relatively mature legal orders and institutions, such institutional frameworks and safeguards are largely absent on the international plane. As a result, the emergence of numerous norm-setting agencies, specialized courts and tribunals and regulatory networks are perceived as obstacles or impediments to the creation of a sound legal order on a global scale, rather than as inherent traits of an evolving legal order.In order to grasp the increasingly transterritorial nature of regulatory governance it is necessary to revisit the arguments in support of legal pluralism and, in particular, the legal pluralist critique of the association of law with the state. On that basis, it becomes possible to read the currently dominant narrative of the ‘end of law’ in an era of globalisation in a different light. Rather than describing the advent of globalisation as an end-point of legal development, the transnational perspective seeks to deconstruct the various law-state associations by understanding the evolution of law in relation and response to the development of ‘world society’. The currently lamented lack of democratic accountability, say, in international economic governance, can then be perceived as a further consequence in a highly differentiated and de-territorialized society. The paper thus rejects the attempts by lawyers to re-align transnational governance actors with traditional concepts of the state or of civil society and, instead, contrasts them with various advances in sociology and anthropology with regard to the evolution of ‘social norms’ and ‘spaces’ of governance and regulation. These perspectives effectively challenge present attempts to conceptualize a hierarchically structured global legal order. This article’s proposed concept of ‘transnational legal pluralism’ [TLP] goes beyond Philip Jessup’s 1956 idea of ‘transnational law’, through which he sought to both complement and challenge Public and Private International Law. TLP brings together insights from legal sociology and legal theory with research on global justice, ethics and regulatory governance to illustrate the transnational nature of law and regulation, always pushing against the various claims to legal unity and hierarchy made over time.
81 citations
TL;DR: In this paper, the authors present a perspective on the interaction between formal and informal institutions in spatial planning in which they transform each other continuously, in processes that can be described and analyzed as ongoing reinterpretations.
Abstract: In this article, we present a perspective on the interaction between formal and informal institutions in spatial planning in which they transform each other continuously, in processes that can be described and analyzed as ongoing reinterpretations. The effects of configurations and dialectics are often ambiguous, only partially observable, different in different domains and at different times. By means of analyses of key concepts in planning theory and practice, this perspective is illustrated and developed. Finally, we analyze transformation options in planning systems, emphasizing the limits of formal institutions in transforming formal/informal configurations, and stressing the importance of judgment and conflict.
79 citations
Cites background from "Law as a Social System"
...Moreover, if formalization entails integration in political structures and absorption of tradition into law, it is very well possible that the formalization undermines the coordinative function of the original institutions, as various studies have shown (Gallina, 2008; Luhmann, 2008; Sievers, 2002)....
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...Simultaneously, the broken promises of modernism have inspired a cynicism with formal institutions (Lindell, 2010), with the power of laws, policies, and plans to create a better world (e.g., Luhmann, 1990, 2008; Pressman & Wildavsky, 1973; Scott, 1998)....
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...In modern political theory, the rule of law emerged as both a precondition and a result of stable political institutions (Acemoglu & Robinson, 2012; Commons, 1924; Easterly, 2006; Luhmann, 2008)....
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TL;DR: A review of the preceding scholarly work and attempts to contextualize it in debates around global governance and global constitutionalism can be found in this paper, where the authors suggest that we ought to revisit legal sociological insights into the emergence of legal pluralism.
Abstract: Transnational law, since its iteration by Philip Jessup in the 1950s, has inspired a league of scholars to investigate into the scope, doctrine, sources and practice of border-crossing legal regulation. This paper reviews much of this preceding scholarly work and attempts to contextualize it in debates around global governance and global constitutionalism. These debates are no longer confined to international lawyers or political scientists. Together with anthropologists, sociologists, geographers and legal philosophers and legal theorists, these scholars have been significantly widening the scope of their investigation. The current, multi - and interdisciplinary research into the prospects of political sovereignty, democratic governance and legal regulation on a global scale suggests a further continuation of such intellectual bricolage and collaboration. The here presented paper builds on a larger research project into the methodology of transnational law and suggests that we ought to revisit legal sociological insights into the emergence of legal pluralism to make sense of today’s co-evolution of ‘formal’ and ‘informal’, ‘public’ and ‘private’ laws – and social norms.
65 citations
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DOI•
01 Jan 2014TL;DR: In this article, the authors present a case study of the Delgamuukw Dam case and the Zirahuén Dam case in the British Columbia Court of Appeal in Canada.
Abstract: ......................................................................................................................................... ii Preface........................................................................................................................................... iii Table of Contents ......................................................................................................................... iv List of Abbreviations ................................................................................................................... vi Acknowledgements ..................................................................................................................... vii Dedication ................................................................................................................................... viii Chapter 1: Introduction ...............................................................................................................1 Chapter 2: Methodology and Law ..............................................................................................9 2.1 Case studies...................................................................................................................... 14 2.2 Interviews and visits ........................................................................................................ 21 2.3 Literature review and other sources................................................................................. 25 2.4 About the researcher/author............................................................................................. 29 Part I: The Three Cases in Context............................................................................................32 Chapter 3: The Delgamuukw Case ............................................................................................37 3.1.1 Context of the Delgamuukw case.............................................................................. 39 3.1.1.1 Indigenous peoples............................................................................................. 40 3.1.1.2 Aboriginal title in Canada and British Columbia ............................................. 42 3.1.1.3 Judicial decision-making on the matter of Aboriginal title and rights in BC.... 44 3.1.1.4 The Gitksan and the Wet’suwet’en peoples ....................................................... 55 3.1.2 The claims at trial...................................................................................................... 63 3.1.2.1 Study of evidence................................................................................................ 70 3.1.2.2 The trial decision ............................................................................................... 76 3.1.2.3 The British Columbia Court of Appeal’s decision............................................. 78 3.1.2.4 The Supreme Court of Canada’s decision ......................................................... 83 Chapter 4: The Nibutani Dam Case ..........................................................................................91 4.1.1 Context of the Nibutani Dam case ............................................................................ 94 4.1.1.1 Ainu people and Japan....................................................................................... 96 4.1.1.2 The Nibutani area and the dam ....................................................................... 108 4.1.1.3 The plaintiffs .................................................................................................... 114 4.1.2 The claims in the Nibutani Dam case ..................................................................... 116 4.1.3 The Sapporo District Court’s decision.................................................................... 119 Chapter 5: The Zirahuén Case ................................................................................................128 5.1.1 Context of the Zirahuén case .................................................................................. 130 5.1.1.1 The Zirahuén Community ................................................................................ 136 5.1.1.1.1 The Zapatista Movement, the San Andrés Accords, and the constitutional reform of August 14, 2001.......................................................................................... 146 5.1.2 The claims............................................................................................................... 153 5.1.3 The decisions rendered in the case.......................................................................... 155 5.1.3.1 The Federal District Court’s decision ............................................................. 156 5.1.3.2 The Second Chamber of the Supreme Court of Justice’s decision .................. 157 Part II: Uncertainty, Misunderstanding and Subordination.................................................161 Chapter 6: Examining the Issues of Procedure in the Three Cases .....................................169 6.1 The paucity of suitable causes of action ........................................................................ 169 v 6.2 The issue of proof .......................................................................................................... 177 6.3 The lack of suitable remedies ........................................................................................ 193 6.4 The contested meaning of Indigenous peoples’ rights and uncertainty in the law ........ 202 6.5 Conclusions.................................................................................................................... 209 Chapter 7: The Rationale Behind the Law in Delgamuukw, Nibutani Dam, and Zirahuén217 7.1 ‘Reason’ ......................................................................................................................... 218 7.2 Individualism ................................................................................................................. 223 7.3 Law as an Autonomous discipline ................................................................................. 226 7.4 Autonomy and the decision in Delgamuukw ................................................................. 229 7.5 Individualism and the Nibutani Dam case ..................................................................... 233 7.6 The presumptions of the court in Zirahuén.................................................................... 234 7.7 Conclusions.................................................................................................................... 235 Chapter 8: The Principles That Guided the Decisions in Delgamuukw, Nibutani Dam, and Zirahuén ......................................................................................................................................240 8.1 The notion of sovereignty .............................................................................................. 241 8.2 The decisions in Delgamuukw, Nibutani Dam, and Zirahuén and ‘sovereignty’.......... 243 8.3 Conclusions.................................................................................................................... 258 Chapter 9: Conclusions ............................................................................................................263 Bibliography ...............................................................................................................................276 Appendices..................................................................................................................................307 Appendix A List of Individuals Interviewed .......................................................................... 307
29 citations
TL;DR: In this article, the authors analyse the problem of split ownership in the context of EU primary and secondary legislation and jurisprudence, focusing on three countries: Germany, France and the UK, other jurisdictions being also considered.
Abstract: Due to a variety of factors, Intellectual Property rights are expanding and, as a result, overlapping more than ever before. This phenomenon poses a wide array of problems and challenges to a system which was initially devised as comprising a set of isolated compartments, each with its defined purpose, object, and specific set of rules. As no careful thought on the interaction of these rights in cases of overlapping protection seems to have been given by the legislators yet, the solutions to the arising questions are far from obvious or established.Among the diverging rules between IPRs the ones concerning ownership and entitlement can easily lead to situations where different rights on the same object are owned by different persons. Thus the question emerges: what happens when two (or more) different people own different rights whose object is the same? How to solve the situation where objective cumulation is not mirrored by subjective cumulation? If a professor creates an original database and is accordingly entitled to copyright and, her employer, the University has put substantial investment in its creation, owning the sui generis right therein, how can exploitation occur? What rules regulate the conflict between the creator of a logo and the company that registers and uses it as a trade mark? These questions are analysed under European law, focusing on the existing corpus of EU primary and secondary legislation and jurisprudence. When the EU body of law provides no guidance or a national example is required, that analysis focuses on three countries: Germany, France and the UK, other jurisdictions being also considered.The book starts by describing the occurrence of overlaps and the dangers deriving from split ownership. A study of the diverging rules of copyright ownership is necessary in order to define some operative concepts. The issue is then considered in five specific cases of overlapping protection: trade marks and designs, trade marks and copyright, designs and copyright, database sui generis right and copyright and, finally, copyright and patents in the field of computer programs.From the analysis of these cases some conclusion are drawn regarding the way legal rules answer to the split ownership problem and to what extent the existing approach is commendable.The book ponders and suggests some solutions to the problem, namely the convergence of ownership rules, the avoidance of overlaps tout court, the prevalence of the closest regime, abuse of rights, implied licences, and expanding copyright solutions by analogy. It is suggested that the latter is the best approach even though a combination of some of the mechanisms described is to be expected. It concludes by considering possible legislative intervention and the form it might take.
29 citations
TL;DR: In this paper, the Roman conception of law as object offers an engaging counterpart to the anthropological take on law as a specific set of tools or, technicalities, or as a particular art of making relations.
Abstract: Anthropological scholarship after Marilyn Strathern does something that might surprise lawyers schooled in the tradition of ‘law and society’, or ‘law in context’. Instead of construing law as an instrument of social forces, or as an expression of processes by which society maintains and reproduces itself, a new mode of anthropological enquiry focuses sharply on ‘law itself’, on what Annelise Riles calls the ‘technicalities’ of law. How might the legal scholar be inspired by this approach? In this article, I explore one possible way of approaching law after anthropology, which is to find within law’s own archive a set of resources for an analogous representation of law itself. Drawing on the historical scholarship of Yan Thomas, I suggest that the Roman conception of law as object offers an engaging counterpart to the anthropological take on law as a specific set of tools or, technicalities, or as a particular art of making relations.
27 citations
TL;DR: In this paper, the authors describe how to expect the unexpected and to celebrate the future of the future in public managerial technologies of change (e.g., change management technologies) of change.
Abstract: Contemporary discourses of management are full of encouragements to ‘expect the unexpected’ and to celebrate ‘the future of the future’. Many new public managerial technologies of change – such as ...
27 citations
Dissertation•
01 Jan 2014
TL;DR: This thesis was submitted for the degree of Doctor of Philosophy and awaarded by Brunel University as mentioned in this paper, London, United Kingdom, UK and was submitted as part of a research project.
Abstract: This thesis was submitted for the degree of Doctor of Philosophy and awaarded by Brunel University
26 citations