Common law

About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.

Does Law Matter for Economic Development? Evidence From East Asia

Abstract: Katharina Pistor and Philip A. Wellons, The Role of Law and Legal Institutions in Asian Economic Development, 1960-1995. New York: Oxford University Press, 1999. Pp. xi + 294 pages. $39.95 cloth. Kanishka jayasuriya, ed., Law, Capitalism, and Power in Asia: The Rule of Law and Legal Institutions. New York: Routledge, 1999. Pp. xiii + 345 pages. $99.99 cloth; $32.99 paper. Robert S. Brown and Alan Gutterman, Asian Economic and Legal Development. Uncertainty, Risk, and Legal Efficiency. Boston: Kluwer Law International, 1998. Pp. xv + 477 pages. $148.00 cloth. The relationship between law and economic development has been a central concern of modern social theory, providing a focal point for the analyses of Marx, Durkheim, and Weber. In the 1970s, law and society scholars drew on these traditions to inform international development policy in what was then called the "Law and Development Movement." These scholars, who focused primarily on Latin America and who were informed by an activist vision of law as a tool for social change, sought to export U.S. models of law and legal education, suggesting the possibility of a theoretically informed development policy focused on law (Tamanaha 1995). The Law and Development Movement ultimately fizzled (Gardner 1980; Trubek and Galanter 1974), and with it went the budgets for legal policy reform in developing countries. Donors turned their attention elsewhere. However, new theoretical developments, as well as the lingering importance of the underlying questions, have given momentum to a new wave of law and development activities on a far larger scale than ever before (deLisle 1999). Today, the relationship of law and economic development is again at the very forefront of development policymaking, as government agencies, international organizations, and the non-profit sector advocate the need for strengthening the rule of law in developing countries. Although it is probably a mischaracterization to assert that the new activity is institutionally and intellectually cohesive enough to form a "movement," it is clear that legal institutions occupy a central place in development assistance again (deLisle 1999:212-15). The resurgence of law and development corresponds with renewed interest in the rapid postwar growth of economies in East and Southeast Asia. By most accounts, law has not played a major role in Asian economic growth. Scholars have placed more emphasis on particular policies, institutions, and cultural underpinnings rather than on law per se (Upham 1994). For example, in its monumental study, The East Asian Miracle, the World Bank (1993) does not discuss the legal system. Preliminary evidence from Chinese economic reforms indicates that, for the most part, increased reliance on legal ordering has not displaced a system of economic organization based on connections, or guanxi (Lubman 1996; Jones 1994). Having drawn on evidence from Asia, some have claimed that the rule of law is dispensable in the pursuit of economic growth (see Davis 1998:304). There is clearly a tension between the centrality of law in theories of development and existing evidence from Asia. There are at least two possible resolutions of this tension, one empirical and the other theoretical. One possibility is that existing evidence is insufficient and that a more detailed study of Asian legal institutions would elucidate their central importance in Asian growth. The other possibility is that theoretical assumptions of donors and scholars about the universal importance of legal institutions are mistaken and that there is a need to adjust conceptual frameworks accordingly. At the broadest level, then, the questions of whether and how law matters for economic growth in Asia are of great importance for both theory and practice. Three recent studies address these questions in different ways. Together, they expand the empirical base for the study of Asian economic law and suggest new directions for policymakers concerned with the role of law in development. …

Foreign Law and the Modern Ius Gentium

Abstract: I. INTRODUCTION Is it ever appropriate for American courts to cite or defer to foreign law? The question arose last Term in a bitter dispute among the Justices of the U.S. Supreme Court in Roper v. Simmons, (1) the juvenile death penalty case. (2) One of the frustrating things about Roper, however, is that no one on the Court bothered to articulate a general theory of the citation and authority of foreign law. (3) Writing for the Court, Justice Kennedy said that it was "proper" to take foreign law into account and that referring to the laws of other countries could be "instructive" for the Court's interpretation of the Eighth Amendment. (4) But he did not explain the jurisprudence behind this view. (5) Nor did the Roper dissenters articulate a theory of citation to foreign law that they could squarely refute; they simply denounced the practice. The theory that is called for is not necessarily a complete jurisprudence. But it has to be complicated enough to answer a host of questions raised by the practice: about the authority accorded foreign law (persuasive versus conclusive), about the areas in which foreign law should and should not be cited (private law, for example, compared to constitutional law), and about which foreign legal systems should be cited (only democracies, for example, or tyrannies as well). The theory has to be broad enough to explain the use of foreign law in all appropriate cases: too many scholars call for a theory that will explain the citation of foreign law only in constitutional cases. (6) The theory has to be persuasive enough to dispel the serious misgivings that many Americans have about this practice: why should American courts cite anything other than American law? Above all, it has to be a theory of law. The argument cannot just be that good diplomacy requires us to ingratiate ourselves with the Europeans. (7) It must explain why American courts are legally permitted (or obliged) to cite to non-American sources and how that practice connects with the status of courts as legal institutions. An example may help get at the sort of theory I have in mind. When courts cite their own precedents, they do so on the basis of the theory of stare decisis, which provides a platform on which judges can articulate and defend their deference to precedent. It explains why deference is appropriate even for cases in which justice or policy seems to require a different result. It explains why precedent is more important in some cases than in others. And it explains its relation to various sources of law (the difference between stare decisis in common law and in constitutional interpretation, for instance). No doubt the details of stare decisis are controversial. (8) But even if one disagrees with a judge's conception, it is surely better that he should articulate such a theory than that he simply give the impression that he thinks deferring to precedent is a good idea. We should require nothing less for the citation of foreign law. In his dissent in Roper, Justice Scalia said that the Court's citation of foreign law was unprincipled and opportunistic. (9) Even this observation, however, does not mean that there cannot be a good theory to support the practice. Using my analogy again, Justice Scalia has sometimes argued that the Court's following and departing from precedent in cases involving individual rights is unprincipled and opportunistic. (10) But it does not follow that he rejects stare decisis or that he thinks it is not worth developing a theory of precedent. Similarly, we should not reject the idea of a theory of the citation of foreign law simply because we see foreign law being cited opportunistically; we should reject it only if we think inconsistent and unprincipled citation is inevitable under the auspices of such a theory. Though it appears from his dissent in Roper that Justice Scalia's denunciation of the citation of foreign law proceeds without any appreciation that such citation should be based on a theory, dicta from his recent concurrence in Sosa v. …

How to Turn a Beggar into a Bus Stop: Law, Traffic and the 'Function of the Place':

Abstract: A review of recent Canadian case law on the constitutionality of legal controls on begging reveals the importance of an unacknowledged view of space and behaviour that I call the traffic code. The ...

Law and administration

Abstract: This definitive textbook explores the field of law which allows government and its agencies to practically apply its laws. The subject, affected by policy and political factors, can challenge even the more advanced student. In response, this title looks at both the law and the factors informing it, laying down the foundations of the subject. This contextualised approach also allows the student to develop the broadest possible perspective. Case law and legislation are set out and discussed, and the authors have built in a range of case studies to give a practical emphasis to the study. It is, however, the distinctive theoretical framework for administrative law that the authors develop that distinguishes this title from others and allows for real understanding of the subject. This updated edition will cement the title's seminal status.

Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts

Abstract: It wasn't so long ago that the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. These courts conformed to a policy of avoiding any application of foreign sources of law that would clash with the position of their domestic governments. But as this Article demonstrates, in recent years courts in several democracies have begun to show a change of heart, often engaging quite seriously in the interpretation and application of international law and heeding the constitutional jurisprudence of other national courts. The Article explains this emerging jurisprudence as part of a reaction to the forces of globalization that are placing increasing pressure on governments, legislatures and courts to conform to global standards. The courts seek to expand the space for domestic deliberation and to strengthen the ability of national governments to withstand the pressure brought to bear by interest groups and powerful foreign governments. For this strategy to succeed, courts need to forge a united judicial front. This entails coordinating their policies with equally positioned courts in other countries, through the common language of international law and comparative constitutional law. The analysis also explains why the U.S. Supreme Court, which so far was not required to protect domestic political process from external pressures, is still not a part of this collective effort. Finally, and based on this insight into the driving force behind reliance on foreign law, the Article asserts that recourse to these sources is perfectly legitimate from a democratic theory perspective, as it aims to reclaim democracy from the debilitating grip of globalization.