Showing papers on "Common law published in 2010"

The International Criminal Court: A Commentary on the Rome Statute

Abstract: The International Criminal Court has been operational since mid-2003, following the entry into force of the Rome Statute of the International Criminal Court on 1 July 2002 The Rome Statute is among the most complex international treaties, a combination of public international law, international humanitarian law and criminal law, both international and domestic The Commentary provides an article-by-article analysis of the Statute Each of the 128 articles is presented accompanied by a bibliography of academic literature relevant to that provision, an overview of the drafting history of the provision and an analysis of the text The analytical portion of each chapter draws upon relevant case law from the Court itself, as well as from other international and national criminal tribunals, academic commentary, and the related instruments such as the Elements of Crimes, the Rules of Procedure and Evidence and the Relationship Agreement with the United Nations Written by a single author, the Commentary avoids duplication and inconsistency, providing a comprehensive presentation to assist those who must understand, interpret and apply the complex provisions of the Rome Statute

Private Parties and the Annulment Procedure: Can the Gap in the European System of Judicial Protection Be Closed?

Abstract: The restrictions imposed on the possibility for an individual to challenge European law measures and the restrictive interpretation of the notion of ‘individual concern’ given by the European Court of Justice have been highly criticised by legal scholars and members of the European judiciary as being against the principle of effective judicial protection. This paper shows how the restrictive interpretation of the notion of ‘individual concern’ developed in the case law of the European Court of Justice. Furthermore, the paper discusses possible improvements to the current system of judicial protection, such as the possibility to introduce a fundamental rights complaint procedure and the obligation of Member States to provide for effective judicial remedies before national courts. Finally, the impact of the modifications made by the Lisbon Treaty to the annulment procedure is assessed.

The European Court of Justice and the Judicialization of EU Governance

Abstract: This Living Reviews article evaluates the most important strains of social science research on the impact of the European Court of Justice (ECJ) on integration, EU-level policymaking, and national legal orders. Section 1 defines the concepts of judicialization and governance, and discusses how they are related. As the article demonstrates, the “constitutionalization of the EU,” and its effect on EU governance, is one of the most complex and dramatic examples of judicialization in world history. Section 2 discusses the institutional determinants of judicial authority in the EU in light of delegation theory. The European Court, a Trustee of the Treaty system rather than a simple Agent of the Member States, operates in an unusually broad zone of discretion, a situation the Court has exploited in its efforts to enhance the effectiveness of EU law. Section 3 focuses on the extraordinary impact of the European Court of Justice, and of the legal system it manages, on the overall course of market and political integration. Section 4 provides an overview of the process through which the ECJ’s case law – its jurisprudence – influences the decision-making of non-judicial EU organs and officials. Section 5 considers the role of the ECJ and the national courts in monitoring and enforcing Member State compliance with EU law, a task that has provoked a steady Europeanization of national law and policymaking. Published on-line in the Living Reviews in EU Governance Series, Articles in the Living Reviews in EU Governance series provide critical surveys of the development of knowledge in specific fields of research. Living Reviews are peer-reviewed, up-dated on a regular basis, and fully digitalized. This article has been published at: http://europeangovernance.livingreviews.org/Articles/lreg-2010-2/

International Soft Law

Abstract: Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of in ternational agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range of state behavior than has been previously explained. First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of a focal point is enough to generate compliance. Second, under what we term the loss avoidance theory, moving from soft law to hard law generates higher sanctions that both deter more violations and, because sanctions in the international system are negative sum, increase the net loss to the parties. States will choose soft law when the marginal costs in terms of the expected loss from violations exceed the marginal benefits in terms of deterred violations. Third, under the delegation theory, states choose soft law when they are uncertain about whether the rules they adopt today will be desirable tomorrow and when it is advantageous to allow a particular state or group of states to adjust expectations in the event of changed circumstances. Moving from hard law to soft law makes it easier for such states to renounce existing rules or interpretations of rules and drive the evolution of soft law rules in a way that may be more efficient than formal renegotiation. Fourth, we introduce the concept of international common law (ICL), which we define as a nonbinding gloss that international institutions, such as international tribunals, put on binding legal rules. The theory of ICL is based on the observation that, except occasionally with respect to the facts and parties to the dispute before it, the decisions of international tribunals are nonbinding interpretations of binding legal rules. States grant institutions the authority to make ICL as a way around the requirement that states must consent in order to be bound by legal rules. ICL affects all states subject to the underlying rule, regardless of whether

Evaluation of the 2006 family law reforms

Abstract: In 2006 the Attorney-General's Department and the Department of Families, Housing, Community Services and Indigenous Affairs commissioned AIFS to conduct an evaluation of the 2006 changes to the Australian family law system. The evaluation has involved the collection of data from some 28,000 people involved or potentially involved in the family law system—including parents, grandparents, family relationship service staff, clients of family relationship services, lawyers, court professionals and judicial officers—and the analysis of administrative data and court files. This evaluation provides a more extensive evidence base about the use and operation of the family law system in Australia (and arguably internationally) than has previously been available. The report was released in January 2010. Authors: Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team. Image: publik16 / flickr

Dispute causation: identification of pathogenic influences in construction

Abstract: Purpose – While a considerable amount of knowledge has been accumulated about dispute causation, disputes continue to prevail and disharmonise the process of construction with considerable cost. This paper seeks to identify the underlying pathogens that clients and contractors perceive to contribute to disputes in construction projects. The identification of pathogens can provide an ameliorated understanding of the origin of disputes and therefore enable their prevention.Design/methodology/approach – Case law and focus groups with a client and contracting organisation from Western Australia are used to determine the pathogens of disputes.Findings – Analysis of the case law findings revealed that the underlying issues that were brought to litigation were to do with points of law, namely “civil procedure”. A significant number of disputes are thus settled using alternative dispute resolution methods such as adjudication, arbitration and mediation. For clients the underlying latent conditions that resulted i...

The Law of International Responsibility

Abstract: The law of international responsibility plays a fundamental role in the modern system of international law, surpassed by none and paralleled only by the law of treaties. The volume seeks to cover the entirety of the field of international responsibility, with a particular focus on the work of the International Law Commission. It provides detailed discussion and analysis of the historically predominant topics of State responsibility, on which the ILC completed its work in 2001, and the specific sub-topic of diplomatic protection, work on which was completed by the ILC in 2006. However, it also covers both the topic of responsibility of international organizations, on which the ILC's work is ongoing (a set of draft Articles having been adopted on first reading in 2009), and that of liability for harmful activities not prohibited under international law on which the ILC adopted drafts in 2001 and 2006.

Criminal law I

Abstract: 1. (C) is the correct answer, because it is a form of recklessness, but one which requires proof of recklessness under circumstances manifesting an extreme indifference to the value of human life. 2. (D) is the correct answer, because 2(b) requires either purpose or knowledge, and thus knowledge is the minimum culpability required. 3. (A) is incorrect, because it imposes a requirement that his conduct not be negligent. The minimum culpability for either 2(a) or (2b) is recklessness. If the jury found he was negligent, but not reckless, they should acquit. (B) is the correct answer, because he wouldn't be guilty under either 2(a) or 2(b) unless he was at least reckless. (C) is incorrect, because it assumes a fact that is debatable. (D) is incorrect, because it fails to address the mens rea requirement. 4. (A) is incorrect, because it assumes too low a culpability (negligence), whereas 2(b) requires at least knowledge. (B) is incorrect, for the same reason. (C) is incorrect because D might be reckless in pointing the gun in V's direction, but the statute requires at least knowledge of causing bodily injury. Thus, (D) is the correct answer. 5. (A) is incorrect, because willful is not a term used in the MPC to determine culpability. (B) is incorrect, because she had a duty based upon having caused the accident. (C) is incorrect, because she has no status relationship with the victim. (D) is incorrect, because a Good Samaritan statute creates a duty of care for one who has no relationship to the victim, but a Good Samaritan statute in this case is unnecessary because Julie already owes a duty of care. Thus, (E) is the correct answer.

Facultad latinoamericana de ciencias sociales

Abstract: The research herein presented explores the relationship between political pluralism as a constitutional principle and the possibility, if such, of making such pluralism effective by the Mexican judiciary, specifically by the Mexican Supreme Court, per the constitutional powers that were given to parliamentary minorities and partisan minorities to challenge before it in “Accion de Inconstitucionalidad” (unconstitutional law challenges). It explores the influence that the different understandings of democracy have taken in these matters, from democracy as majority, democracy as pluralism and deliberative democracy. Approaching judicial behavior and case law observed by the Supreme Court in these filings, we seek to shape the judicial protection or enforcement of political minorities.

National and constitutional identity before and after Lisbon

Abstract: This essay seeks to reflect on how the conscious political effort to overcome the divisiveness caused by Member States' idiosyncracies has matured into the constitutional recognition of Member State identities as essential to the European project. Central findings concern the particular twist from 'national identity' to 'constitutional identity' in the Lisbon Treaty. This can be considered a codification of the case law of some of the Member State constitutional courts. This implies that, whereas the Lisbon Treaty failed to incorporate a 'supremacy clause' on the priority of EU law over conflicting Member State law, it has indeed formulated a legally binding rule on the priority of certain Member State constitutional law over EU law. The more precise contours of this priority have already become the object of controversial ECJ case law. This essay explains why this European controversy must necessarily remain open-ended, based as it is on tolerance, the acceptance of otherness and trust.

Fifteen Years with the Norma Research Programme

Abstract: The Norma Research Programme started out fifteen years ago – in 1996 – at the Law Faculty of Lund University with funding from the Bank of Sweden Tercentenary Foundation. The programme was initiated by Professor Ann Numhauser-Henning and a former colleague, Professor Anna Christensen, who sadly passed away in March 2001. Norma is short for ‘Normative Development within the Social Dimension, Studies on the Normative Patterns and Their Development in the Legal Regulation of Employment, Housing, Family and Social Security from a European Integration Perspective’. The purpose of the programme was to create a research environment where basic normative patterns and their development and relationship to the ongoing changes in society within the area of the Social Dimension in Europe could be studied in depth and from a long-term perspective. The research is conducted within a multi-disciplinary legal science framework, including a labour law, social security law, family law, competition law, Union law and comparative law approach, also encompassing legal theory. Furthermore, the programme draws upon a common body of economic and sociological research. As regards current research within the programme, focus can now be said to be on the interaction between changing labour market conditions, ‘sustainable’ social security schemes and new – more flexible – family patterns.

National and Constitutional Identity Before and After Lisbon

Abstract: This essay seeks to reflect on how the conscious political effort to overcome the divisiveness caused by Member States' idiosyncracies has matured into the constitutional recognition of Member State identities as essential to the European project. Central findings concern the particular twist from 'national identity' to 'constitutional identity' in the Lisbon Treaty. This can be considered a codification of the case law of some of the Member State constitutional courts. This implies that, whereas the Lisbon Treaty failed to incorporate a 'supremacy clause' on the priority of EU law over conflicting Member State law, it has indeed formulated a legally binding rule on the priority of certain Member State constitutional law over EU law. The more precise contours of this priority have already become the object of controversial ECJ case law. This essay explains why this European controversy must necessarily remain open-ended, based as it is on tolerance, the acceptance of otherness and trust.

The European Court of Justice and the judicialization of EU governance

Abstract: This Living Reviews article evaluates the most important strains of social science research on the impact of the European Court of Justice (ECJ) on integration, EU-level policymaking, and national legal orders. Section 2 defines the concepts of judicialization and governance, and discusses how they are related. As the article demonstrates, the “constitutionalization of the EU,” and its effect on EU governance, is one of the most complex and dramatic examples of judicialization in world history. Section 3 discusses the institutional determinants of judicial authority in the EU in light of delegation theory. The European Court, a Trustee of the Treaty system rather than a simple Agent of the Member States, operates in an unusually broad zone of discretion, a situation the Court has exploited in its efforts to enhance the effectiveness of EU law. Section 4 focuses on the extraordinary impact of the European Court of Justice, and of the legal system it manages, on the overall course of market and political integration. Section 5 provides an overview of the process through which the ECJ’s case law – its jurisprudence – influences the decision-making of non-judicial EU organs and officials. Section 6 considers the role of the ECJ and the national courts in monitoring and enforcing Member State compliance with EU law, a task that has provoked a steady Europeanization of national law and policymaking.

The Concept of Non-International Armed Conflict in International Humanitarian Law

Abstract: Anthony Cullen advances an argument for a particular approach to the interpretation of non-international armed conflict in international humanitarian law. The first part examines the origins of the 'armed conflict' concept and its development as the lower threshold for the application of international humanitarian law. Here the meaning of the term is traced from its use in the Hague Regulations of 1899 until the present day. The second part focuses on a number of contemporary developments which have affected the scope of non-international armed conflict. The case law of the International Criminal Tribunals for the former Yugoslavia has been especially influential and the definition of non-international armed conflict provided by this institution is examined in detail. It is argued that this concept represents the most authoritative definition of the threshold and that, despite differences in interpretation, there exist reasons to interpret an identical threshold of application in the Rome Statute.

‘The Body Evidencing the Crime’: Rape on Trial in Colonial India, 1860–1947

Abstract: The history of rape on trial in colonial India sheds new light on the colonial civilising mission and the claims made by white men about saving brown women from brown men. Through an analysis of almost a century of case law this article concludes that the modernisation of law and the development of a new medico-legal understanding of rape introduced evidentiary standards that placed a heavy burden on Indian women seeking judicial remedy in colonial courts. The fear imported from Britain of false charges combined with colonial views about Indian culture to make native female complainants doubly dubious. The colonial jurisprudence has survived to devastating effect in postcolonial India and Pakistan in ways that are explored and explained by the author.

Adaptive Management in the Courts

Abstract: Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending “adaptive” in front of “management” somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question, with mixed reviews. Their evaluations, however, have rested on theory, program-specific surveys, and isolated case studies. This article provides the first comprehensive review of adaptive management from the perspective that likely matters most to the natural resource agencies practicing adaptive management - how is it faring in the courts?Part I of the Article examines the theory, policy, and practice of adaptive management, focusing on the experience of the federal resource management agencies. The end product in practice is something we call “a m-lite,” a watered down version of the theory that resembles ad hoc contingency planning more than it does planned “learning while doing.” This gap between theory and practice leads to profound disparities between how agencies justify decisions and how adaptive management in practice arrives at the courthouse doorsteps. In Part II we review how these disparities have played out in courts considering claims that agency practice of adaptive management has not lived up to its theoretical promise or to the legal demands of substantive and procedural environmental law. We extract three key themes from the body of case law in this respect. Part III extends from the existing case law to draw lessons for agencies and Congress about the future practice of adaptive management. Our ultimate message to agencies is that a m-lite can be an effective decision method - and one that survives judicial scrutiny - but agencies must be more disciplined about its design and implementation. This includes resisting the temptation to employ adaptive management to dodge burdensome procedural requirements, substantive management criteria, and contentious stakeholder participation. If faithfully followed and enforced, this model, despite its flaws, could serve as an important component of natural resources policy to confront problems of the future as daunting as climate change.

The Notion of Market Access: A Concept or a Slogan?

Abstract: The internal market case law of the European Court of Justice often invokes the term market access, and recently the notion has been given a key role in defining the reach of the four freedoms of the TFE – free movement of goods, persons, services, and capital. Unfortunately the precise content of the term remains elusive. The use of the notion in (European Union) competition law and WTO law does not provide reliable guidance, due to the fundamentally different contexts. Further, it is not clear what the normative justification for distinguishing formally between access and exercise or direct and indirect effects is. The case law also lacks coherence. In some decisions the Court indicates that the impact on market access is the decisive criterion for the application of free movement provisions, but in others it is prepared to find a restriction or dismiss a case without even mentioning the term. In its most recent rulings the Court has focused on the magnitude of the effects of national measures (which erect barriers to entry), yet it has consistently rejected arguments based on the minor or slight impact of national rules. The article argues that, when pressed, the notion of market access collapses into economic freedom or anti-protectionism, and obscures the need to choose between the competing paradigms of free movement law.

Public Law after the Human Rights Act

Abstract: Acknowledgements Introduction 1. The HRA and the Common law 2. Constitutional Theories and Constitutional Dialogue 3. Public law standards 4. Weight and deference 5. Proportionality 6. Reasonableness 7. Process review 8. The Structure of Public Law after the Human Rights Act 9. Emergencies, derogation and detention 10. The right to a court

Toward the differentiation of high‐conflict families: an analysis of social science research and canadian case law

Abstract: Social science research and the courts have begun to recognize the special challenges posed by “high-conflict” separations for children and the justice system. The use of “high conflict” terminology by social science researchers and the courts has increased dramatically over the past decade. This is an important development, but the term is often used vaguely and to characterize very different types of cases. An analysis of Canadian case law reveals that some judges are starting to differentiate between various degrees and types of high conflict. Often this judicial differentiation is implicit and occurs without full articulation of the factors that are taken into account in applying different remedies. There is a need for the development of more refined, explicit analytical concepts for the identification and differentiation of various types of high conflict cases. Empirically driven social science research can assist mental health professionals, lawyers and the courts in better understanding these cases and providing the most appropriate interventions. As a tentative scheme for differentiating cases, we propose distinguishing between high conflict cases where there is: (1) poor communication; (2) domestic violence; and (3) alienation. Further, there must be a differentiation between cases where one parent is a primary instigator for the conflict or abuse, and those where both parents bear significant responsibility.

Promoting solidarity in the European Union

Abstract: 1. Promoting European Solidarity - Between Rhetoric and Reality? 2. Solidarity - A New Constitutional Paradigm for the EU? 3. Mission Impossible? Limits and Perils of Institutionalizing Post-National Social Policy 4. Solidarity and the Commission's 'Renewed Social Agenda' 5. The Price of Letting Courts Value Solidarity: The Judicial Role in Liberalizing Welfare 6. When Patients Exit, What Happens to Solidarity? 7. EU Environmental Solidarity and the Ecological Consumer: Towards a Republican Citizenship 8. Irregular Migrants: Beyond the Limits of Solidarity? 9. A Certain Degree of Solidarity? Free Movement of Persons and Access to Social Protection in the Case Law of the European Court of Justice 10. Age Discrimination in Law and Policy: How the Equal Treatment Directive Affects National Welfare States 11. Promoting the Multi-Pillar Model? The EU and the Development of Funded Pension Schemes 12. How to Govern for Solidarity? An Introduction to Policy Learning in the Context of Open Methods of Coordinating Education Policies in the European Union 13. Relating Territorial Cohesion, Solidarity, and Spatial Justice

Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism

Abstract: This is an Introduction to a Special Issue of the American Journal of Comparative Law, edited by Janet Halley. The central theme of the Special Issue is "family law exceptionalism": the myriad ways in which the family and its law are deemed, either descriptively or normatively, to be special. We argue that the nineteenth century emergence of Family Law as a distinct legal topic, influenced inter alia by Friedrich Carl von Savigny and carried around the world as part of the influence of German legal thought, was an intrinsic element of the rise of contract as the law of the market. Our comparative approach to this phenomenon in this volume is twofold. First, we think that colonial expansion brought with it the idea of the family/market, family-law/contract-law distinction, and that legal orders around the world emerged in which this distinction played some important role. This is the Genealogical Project, and it occupies essays collected here by Duncan Kennedy, Isabel Sierra Jaramillo, Philomila Tsoukala, and Lama Abu Odeh. Second, we suspend Family Law Exceptionalism in order to study the Economic Family. Historically and in the present context of globalized labor, we emphasize international, regional, and local law as transplanted, intersecting or nested background rule systems in which households form and provide social security, consume, and produce material and other goods. Tsoukala, Abu Odeh, Hila Shamir, Chantal Thomas, and Kerry Rittich provide essays exemplifying this research. The Special Issue begins with an essay by Fernanda Nicola mapping the comparative family law tradition and situating this volume on its critical branch.

International Soft Law

Abstract: Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether "soft law" is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range state behavior than has been previously explained. First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of a focal point is enough to generate compliance.Second, under what we term the "loss avoidance" theory, moving from soft law to hard generates higher sanctions which both deter more violations and, because sanctions in the international system are negative sum, increase the net loss to the parties. States will choose soft law when the marginal costs in terms of the expected loss from violations exceed the marginal benefits in terms of deterred violations. Third, under the "delegation theory," states choose soft law when they are uncertain about whether the rules they adopt today will be desirable tomorrow and when it is advantageous to allow a particular state or groups of states to adjust expectations in the event of changed circumstances. Moving from hard law to soft law makes it easier for such states to renounce existing rules or interpretations of rules and drive the evolution of soft law rules in a way that may be more efficient than formal renegotiation. Fourth, we introduce the concept of international common law ("ICL"), which we define as a non-binding gloss that international institutions, such as international tribunals, put on binding legal rules. The theory of ICL is based on the observation that, except occasionally with respect to the facts and parties to the dispute before it, the decisions of international tribunals are non-binding interpretations of binding legal rules. States grant institutions the authority to make ICL as a way around the requirement that states must consent in order to be bound by legal rules. ICL affects all states subject to the underlying rule, regardless of whether they have consented to the creation of the ICL. As such, ICL provides cooperation-minded states with the opportunity to deepen cooperation in exchange for surrendering some measure of control over legal rules. These four explanations of soft law, and in particular the theory of ICL, provide a firm justification for the coherence of soft law as an analytic category. They demonstrate that there are a range of non-binding international instruments from which legal consequences flow, just as in the domestic setting non-binding documents such as legislative committee reports often have legal consequences when, for example, used to interpret binding rules. Moreover, the theories offered in this paper explain the circumstances under which this quasi-legal characteristic of soft law will be attractive to states.

The Preamble in Constitutional Interpretation

Abstract: From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy-making. Through a qualitative analysis of the legal status of preambles in different common law and civil law countries, the Article highlights a recent trend in comparative constitutional law: the growing use of preambles in constitutional adjudication and constitutional design.The Article explores the theory of preambles and their functions. It examines the legal status of the U.S. Preamble. It shows how the U.S. Preamble remains the most neglected section in American constitutional theory. The Article then presents a typology for determining the legal status of preambles: a symbolic preamble, an interpretive preamble, and a substantive preamble. While focusing on Macedonia, the State of Israel, Australia, and the Treaty of Lisbon, the Article discusses the sociological function of preambles in top-down and bottom-up constitutional designs.

Rethinking Rape Law : International and Comparative Perspectives

Abstract: Rethinking Rape Law provides a comprehensive and critical analysis of contemporary rape laws, across a range of jurisdictions. In a context in which there has been considerable legal reform of sexual offences, Rethinking Rape Law engages with developments spanning national, regional and international frameworks. It is only when we fully understand the differences between the law of rape in times of war and in times of peace, between common law and continental jurisdictions, between societies in transition and societies long inured to feminist activism, that we are able to understand and evaluate current practices, with a view to change and a better future for victims of sexual crimes. Written by leading authors from across the world, this is the first authoritative text on rape law that crosses jurisdictions, examines its conceptual and theoretical foundations, and sets the law in its policy context. It is destined to become the primary source for scholarly work and debate on sexual offences laws.

Uncertainty in International Law: A Kelsenian Perspective

Abstract: 1. Introduction 2. Self-Defence under the United Nations Charter 3. Customary International Law 4. Interpretation and Modification 5. Conflict of Norms in International Law 6. A Constitution for International Law 7. The Inevitable Grundnorm

Transformative Constitutionalism and the Common and Customary Law

Abstract: A basic assumption of the Constitution, which finds expression in its ‘development clauses’ (ss 8(3) & 39(2)), is that South Africa cannot progress toward a society based on human dignity, equality...

Fractional Freedoms: Slavery, Legal Activism and Ecclesiastical Courts in Colonial Lima, 1593-1689

Abstract: This article examines the ways in which enslaved litigants engaged with the ecclesiastical courts in 17th century colonial Lima. The article analyzes a sample of the types of litigation instigated by Peruvian slaves to assert their conjugal rights, to effect transfers of ownership, and to enforce oral promises of manumission. It also deals with complaints of domestic violence, abandonment, destitution, and infidelity brought by enslaved women. The article uses accusations of concubinage and adultery, and “crimes against public morality” to explore the role of church courts in policing the boundaries of inter-ethnic relationships. This article should interest scholars of slavery working at the intersections of race, gender, and sexuality, particularly with regard to distinctions between the civil and common law systems of slavery. It should also interest historians of comparative family law and the canon law’s treatment of marriage, illegitimacy and concubinage. How does a comparative perspective add to our understanding of the way that sexuality, race and gender influence family law, and vice versa? How does recourse to the court either influence hegemonic norms of marriage or contest these? Finally, the article should also interest those using legal records as narratives to “write history from below” through the optics of legal anthropology and critical legal studies.

Resisting the march towards 50/50 shared residence: rights, welfare and equality in post-separation families

Abstract: In recent years, a normative model of equal shared parenting post-separation has become firmly entrenched in the minds of some policy makers and legal practitioners. This has been due, in no small part, to the high-profile campaign of fathers' rights groups. In attacking what they perceive as the gender bias inherent within the family justice system, fathers' rights groups have argued vociferously for a presumption in favour of shared residence post-separation, with the child's time being split on a roughly equal 50/50 basis between the mother and the father unless the child's welfare dictates otherwise. Although the Labour government resisted calls to introduce such a presumption into the Children Act 1989, the recent case law of the Court of Appeal on the use of shared residence orders risks pushing us towards a position in which 50/50 shared residence will indeed become entrenched as the normative model for organizing post-separation family life. This article warns strongly against any such shift in po...

Muslim Marriage in Western Courts: Lost in Transplantation

Abstract: This book describes and analyses the notion of Mahr, the Muslim custom whereby the groom has to give a gift to the bride in consideration of the marriage. It explores how Western courts, specifically in Canada, the United States, France, and Germany, have approached and interpreted Mahr. Although the outcomes of the cases provide an illustrative framework for the book, the focus is broader than simply the adjudicative endeavours. The work explores the concept of liberalism, which purportedly champions individuals and individual choice concurrently with freedom and equality. Tensions between and among these concepts, however, inevitably arise. The acknowledgment and exploration of these intertwined tensions forms an important underpinning for the book. Through the analysis of case law from these four countries, this study suggests that transplanting Mahr from Islamic law into a Western courtroom cannot be undone: it immediately becomes rooted in the countries' legal, historical, political, and social backgrounds and flourishes (or fails) in diverse and unexpected ways. Rather than being the concept described by classical Islamic jurists, Mahr is interpreted according to wildly varied legal constructs and concepts such as multiculturalism, fairness, public policy, and gender equality. Moreover, Islamic law travels with a multiplicity of voices, and it is this complex hybridity (a fragmented and disjointed Mahr) which will be mediated through Western law. Returning to the overarching concept of liberalism, the book proposes that distributive consequences rather than recognition occupy central place in the evaluation of the legal options available to Muslim women upon divorce.