Showing papers on "Comparative law published in 1983"

Constitution of the People's Republic of China

Abstract: China is one of the countries with the longest histories in the world. The people of all nationalities in China have jointly created a splendid culture and have a glorious revolutionary tradition. Feudal China was gradually reduced after 1840 to a semi-colonial and semi-feudal country. The Chinese people waged wave upon wave of heroic struggles for national independence and liberation and for democracy and freedom. Great and earth-shaking historical changes have taken place in China in the 20th century. The Revolution of 1911, led by Dr Sun Yat-sen, abolished the feudal monarchy and gave birth to the Republic of China. But the Chinese people had yet to fulfil their historical task of overthrowing imperialism and feudalism. After waging hard, protracted and tortuous struggles, armed and otherwise, the Chinese people of all nationalities led by the Communist Party of China with Chairman Mao Zedong as its leader ultimately, in 1949, overthrew the rule of imperialism, feudalism and bureaucrat capitalism, won the great victory of the new-democratic revolution and founded the People's Republic of China. Thereupon the Chinese people took state power into their own hands and became masters of the country.

Law, Morality, and the Relations of States

Abstract: PrefaceMy aim in this book is to consider the ideas of law, morality,nand society as they pertain to the relations of states. Thesenideas are central and not, as many hold, peripheral to thenstudy of international relations. I want to defend the viewnthat the practices of international law and international moralitynconstitute the indispensable foundation of all durable internationaln association. To the extent that the relations of statesnachieve a significant degree of permanence, rising above thenlevel of mere episodes in the separate histories of isolatednpolitical communities, they must be understood as taking placenon the basis of common, authoritative practices and rules.nAnd this, I shall argue, means that they must be understoodnas occurring within a world of legal and moral ideas.Two topics often treated by theorists of international relationsnare also considered here. One is whether legal and moralnorder can exist at all in an international system lacking centralizedninstitutions for making and applying law and characterizednby deep cultural and ideological differences. The othernis the tension between what might be labeled qstate-centricqnand qcosmopolitanq conceptions of international society, law,nand morality -- an old topic recently revived in controversiesnover human rights and international distributive justice. Butnmy main concern is with an argument that has not been adequatelynconsidered in connection with international relations,nand this is that morality and law are best understoodnas authoritative practices constraining the pursuit of differentnpurposes rather than as instruments for the joint pursuit ofnshared purposes. International morality and international lawnare authoritative practices that have evolved in the course ofnrelations among separate political communities, practices bynwhich international conduct is to be guided and judged. It isnin terms of these practices that those who have different values,ninterests, and beliefs, and who may be engaged in thenpursuit of different and sometimes incompatible purposes, canncoexist with one another. It seems to me that the distinctionnbetween what I have chosen to identify as the qpracticalq andnqpurposiveq conceptions of international society is at least asnilluminating and important as any of the more familiar distinctionsnthat have occupied the attention of theorists of internationalnrelations. This book is largely an exploration ofnthat distinction and its implications.The main distinction is developed in the introductory chapter.nPart One is concerned with the idea of international society,nand in particular with the gradual emergence of thenidea of the society of states as a kind of practical association.nIt considers how the view that international law is an institutionnspecific to the society of states developed from an earliernunderstanding of the law of nations as a branch of naturalnlaw, and explores the historical fortunes of the practical conceptionnof international law in the unfolding of nineteenth andntwentieth-century international politics. Part Two containsnan analysis of the authoritative common practices andnrules of international society, where these are understood asncomprising a system of positive law. And Part Three examinesnthese practices and rules in their moral aspect, that is, as anset of ideas handed down within an independent moral traditionnor traditions. I also attempt to trace some of the implicationsnof the practice/purpose distinction for the topics ofninternational justice, human rights, and the just war. Thenquestion whether the view of international law and internationalnmorality I defend has any relevance to an ideologicallynand culturally diverse world is considered in the concludingnchapter.n n

A Modern Introduction to International Law

Abstract: Is international law really law? Historical and political factors Sources of international laws International law and municipal law States and government International organisations, individuals and companies Treatment of allies Jurisdiction Immunity from jurisdiction Treaties Acquisition of territory Legal consequences of changes of sovereignty over territory (state succession) The law of the sea Air space and outer space The United Nations Peaceful settlement of disputes between states International laws Civil wars Self-determination Table of contents Index

Ethics and the rule of law

Abstract: An introduction to the philosophy of law, which offers a modern and critical appraisal of all the main issues and problems. This has become a very active area in the last ten years, and one on which philosophers, legal practitioners and theorists and social scientists have tended to converge. The more abstract questions about the nature of law and its relationship to social norms and moral standards are now seen to be directly relevant to more practical and indeed pressing questions about the justification of punishment, civil disobedience, the enforcement of morality, and problems about justice, rights, welfare, and freedom. David Lyons is a shrewd, clear and systematic guide through this tangled area. The book presupposes no formal training in law or philosophy and is intended to serve as a textbook in a range of introductory courses.

Durkheim and the Law

Abstract: List of Sources.- Preface.- Acknowledgements.- Editors' Introduction.- 1. The Durkheimian View of Morality and Law.- 2. Law as an Index of Social Solidarity.- 3. From Repressive to Restitutive Law.- 4. The Evolution of Punishment.- 5. Crime and Punishment.- 6. The Legal Prohibition of Suicide.- 7. The Moral Foundations of Modern Law: Individualism.- 8. The Origins of Law.- 9. The Basis and Evolution of Contract.- References and sources.- Index.

Marxist Perspectives in the Sociology of Law

Abstract: This review considers the problems and prospects associated with the development of Marxist perspectives in the sociology of law. Taking as its starting point the efforts to construct a Marxist understanding of law through the traditional approach of legal economism, a number of directions and themes in the development of a new Marxist vision of law are explored. Alternatives to “legal nihilism” are examined in conjunction with a survey of the movement of Marxist theory toward a “looser” and “flatter” conception of the relationship between law and society. The role of politics, ideology, and history in the reconstruction of Marxist legal theory are then considered with special attention to the virtues and limits of “imbricationist” and “constitutive” accounts. The analysis ends with a reexamination of the points of convergence and divergence among Marxism, sociology, law, and socialism.

The formation of the Western legal tradition

Abstract: Introduction Law and History Law and Revolution The Crisis of the Western Legal Tradition Toward a Social Theory of Law PART I: THE PAPAL REVOLUTION AND THE CANON LAW 1. The Background of the Western Legal Tradition: The Folklaw Tribal Law Dynamic Elements in Germanic Law: Christianity and Kingship Penitential Law and Its Relation to the Folklaw 2. The Origin of the Western Legal Tradition in the Papal Revolution Church and Empire: The Cluniac Reform The Dictates of the Pope The Revolutionary Character of the Papal Revolution Social-Psychological Causes and Consequences of the Papal Revolution The Rise of the Modern State The Rise of Modern Legal Systems 3.

The regulation of nationality in international law

Abstract: The significance of this book, one of the essential works to examine the concept of "nationality" in international law, has been renewed by the emerging debate on the concept of citizenship in the context of the global human rights regime. Professor Donner starts from the basic rule that it is the right of each sovereign independent state to determine who are its nationals, as evidenced in their nationality legislation (the reserved domain) and in the practice of diplomatic protection. She proceeds with an analysis of any possible standards or rules set by public international law. This is a valuable study of one of the most fundamental issues in the law of nations.

An introduction to the legal system of the United States

Abstract: In this classic text, translated into over a dozen languages, constitutional scholar and Columbia Law School professor E. Allan Farnsworth provides a clear explanation of the structure and function of the U.S. legal system, analysing the legislative and judicial systems on both the federal and state levels. For decades, students of American law have relied on this lucid text as an invaluable guide to basic case law and as a means of interpreting statutes, differences between civil and criminal procedure, and the distinction between private and public law.

Law and Modern Society

Abstract: The law in a modern society is an extremely bulky and complex instrument, with a distracting tendency to become less fixed, less rule-oriented, and more discretionary. An institution made by men for the government of men, the law today can all too readily confuse and dismay us. How and why is so much new law made? By what right does a judge order that a man be sent to gaol? Why is so much law so bad, and why should we, the people, accept the laws made by those who claim the right to govern us? In this lucid, stimulating and completely updated survey, which presupposes no specialist knowledge of the subject, P S Atiyah introduces the reader to a number of fundamental issues about the law, the legal profession, and the adjudicative process. This new edition gives greater emphasis to the effect of membership of the European Community on English law, and gives an expanded account of the European convention on Human Rights with its subsequent effects on English law. Atiyah also looks at the recent controversy over the independence of the judiciary, problems arising from the cost of legal services and legal aid, and the many appalling miscarriages of justice which have disfigured the legal system in the past decade.

How to Find the Law

Abstract: Characteristics of American Law and Legal Resources; Court Reports; Shepard's Citations; Online Updating Tools; West Key-Number Digests; ALR Annotations; Federal Statutory Research; State Statutory Research; Local Law Sources; Constitutional Law; Legislative History; Administrative Regulations and Decisions; Court Rules; Practice Materials; Looseleaf Services; Legal Periodicals; Periodical Indexes; Legal Encyclopedias; Restatements; Texts; Legal Dictionaries; Directories; Formbooks; Nonlegal Research Sources; Treaties; International Law; International Organizations; English Legal Research; Canadian Legal Research; Foreign and Comparative Law; Research Strategies.

Legal duality: conflict or concord in Botswana?

Abstract: This paper is concerned with the relationship that exists between Customary and Common law in Botswana. Does it promote conflict or concord? This will be explored with reference to the general relationship between the two systems and in the particular context of marriage, divorce and division of property. One may argue for the conflict approach if one views the systems as ppositional or one may argue that there is concord by acquiescence, given the subordinate position occupied by Customary law within the national legal system of Botswana. The aim of this paper is to do neither, but rather, to show that “duality” with its implications of separateness is inappropriate, that the two systems are linked and have a symbiotic relationship, one which involves a process of mutual adaptation. The aim of this paper is to show that any conflict or concord that exists should not be defined in terms of systems viewed as independent isolated units or in terms of labels such as “Common” or “Customary” law but rather in terms of values which relate to mode of life and attach themselves to certain kinds of property. Within the national legal system of Botswana Customary and Common law co-exist. Customary law is defined as being “in relation to any particular tribe or tribal community the customary law of that tribe or tribal community so far s it is not incompatible with the provisions of any written law or contrary tomorality, humanity or natural justice”.

The Criminal Law

Abstract: Had he written nothing else on the law, Fitzjames Stephen would have been assured a place of prominence among English legal writers by his General View of the Criminal Law of England. Published in 1863, it was the first survey of the growth of the English criminal law which successfully combined the analytical and the historical methods of jurisprudence. We know from his brother that Fitzjames conceived the work at least as early as 1858,1 as an amplification of a germinal essay he had contributed to the Cambridge Essays the year before, ‘The Characteristics of English Criminal Law’.2 In 1861 he was diligently preparing his brief on behalf of Rowland Williams, who was on trial for heresy. Nevertheless, the successful completion of his labours for the Education Commission during that year, and the temporary rift among the staffof the Saturday Review, afforded Stephen the leisure to complete an extensive work on the criminal law.

Resistance to innovation in the sociology of law: a response to greenberg

Abstract: The conventional understanding of law in everyday life gives a central place to legal rules. In this view-held by most lawyers as well as laypersons-legal cases come into being because someone's conduct has apparently run afoul of one or more legal rules, and cases are solved when the correct rules have been applied. The conventional approach also makes much of human motives, those of offenders, other citizens, and legal officials. These elements of conventional thought about law-rules, conduct, and psychology-have characterized much of the sociology of law as well. Because of their tendency to accept what are essentially folk conceptions of law, sociologists for many years failed to generate their own theory of the legal process. The critique of Donald Black's innovative theory of law in the present issue of this journal, written by sociologist David Greenberg, dramatically illustrates conventional thought and its pitfalls. While his theory is not the only alternative to the conventional view of law, Donald Black has developed the most systematic sociological approach now available. Black does not use legal rules to explain behavior but treats these rules as among the problems to be explained. Nor does Black invoke an eclectic melange of common-sense variables, such as legal rules, individual psychology, and the conduct of offenders, to explain the nature and application of the law. Instead, he has created a distinctively sociological theory of law in which variation in legal life is related to its location and direction in social space. Black's theory does not conceive of law as a phenomenon sui generis but orders, predicts, and explains law as an instance of social behavior. Furthermore, Black states his * I am grateful to M.P. Baumgartner, Donald Black, Mark Cooney, and Calvin Morrill for providing me with numerous helpful suggestions for revisions in an earlier draft of this paper.