Showing papers on "Comparative law published in 1993"

Introduction to comparative law

Abstract: Part I A General considerations: the concept of comparative law the functions and aims of comparative law the method of comparative law the history of comparative law. Part I B The legal families of the world: the style of legal families - the romanistic legal family, the history of French law, the spirit and essential features of the code civil, the reception of the code civil courts and lawyers in France and Italy the Germanic legal family - the history of German law, the German civil code, the general civil code of Austria, the Swiss civil code the Anglo-American legal family - the development of the English common law, courts and lawyers in England, the spread of the common law throughout the world, the law of the United States of America, law-finding and procedure in common law and civil law the Nordic legal family - Scandinavian law, past and present law in the Far East Chinese law Japanese Law religious legal systems Islamic law Hindu law. Part II A Contract: the formation of contracts - juristic act, contract, and general conditions of business, contractual capacity, offer and acceptance, illegality and immorality, indicia of seriousness, the construction of contracts, mistake, deceit, and duress, representation, assignment, contracts for the benefit of third parties the performance of contracts - claims to performance and their enforcement, breach of contract, the effect of supervening events. Part II B Unjustified enrichment: unjustified enrichment in general unjustified enrichment specific topics. Part II C Tort: tort in general liability for others strict liability invasions of the right of personality.

Explorations in Law and Society: Toward A Constitutive Theory of Law

Abstract: In "Explorations in Law and Society", Alan Hunt seeks to transform the relationship between law and the other social sciences. One of the foremost theorists of the sociology of law, Hunt has been at the forefront of the "Law and Society" and "Critical Legal Studies" movements. In this work, he directs his arguments against the illusion of law as a self-sufficient discipline which involves a lack of intellectual vitality and leads to a narrowly technical legal education. The addition of a measure of social science or philosophy is not enough to compensate for the deficiencies of orthodox legal studies. Much of the sociological work on law has put forth an image of law as the passive reflection of social, economic and political forces. This view of the legal process stands in direct opposition to the legal orthodoxy that law is an autonomous force able to check economic and political power. Hunt provides the approach needed to avoid these polarities. He draws on a range of intellectual resources, including the sociology of law, liberal jurisprudence, Marxism and Foucauldian social theory.

International Humanitarian Law and Human Rights Law

Abstract: International humanitarian law is increasingly perceived as part of human rights law applicable in armed conflict. This trend can be traced back to the United Nations Human Rights Conference held in Tehran in 1968 which not only encouraged the development of humanitarian law itself, but also marked the beginning of a growing use by the United Nations of humanitarian law during its examination of the human rights situation in certain countries or during its thematic studies. The greater awareness of the relevance of humanitarian law to the protection of people in armed conflict, coupled with the increasing use of human rights law in international affairs, means that both these areas of law now have a much greater international profile and are regularly being used together in the work of both international and non-governmental organizations.

Law, Labor, and Ideology in the Early American Republic

Abstract: Law, Labor, and Ideology in the Early American Republic is a fundamental reinterpretation of law and politics in America between 1790 and 1850, the crucial period of the Republic's early growth and its movement toward industrialism. The book is the most detailed study yet available of the intellectual and institutional processes that created the foundation categories framing all the basic legal relationships involving working people at work. But it also brings out the political and social significance of those categories, and of law's role in their creation. Tomlins argues that it is impossible to understand outcomes in the interaction between law and labor during the early Republic unless one also understands the pre-eminence that legal discourse was assuming at the time in American society as a whole, and the particular social and political reasons for that pre-eminence. Because of the breadth and novelty of its interpretation this is a book not just for those interested in the history of law or the history of labor, but for anyone interested in the broadstream of American political and social history.

The Legalistic Organization: Definitions, Dimensions, and Dilemmas

Abstract: The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed. Grant Gilmore (The Ages of American Law 1977, p. 111)

The Globalization of Law

Abstract: By globalization of law, we might refer to the degree to which the whole world lives under a single set of legal rules. Such a single set of rules might be imposed by a single coercive actor, adopted by global consensus, or arrived at by parallel development in all parts of the globe. Although the end of bipolarity and the cold war brings some comfort, surely we have not moved very far toward a regime of international law either through the establishment of a single global law giver and enforcer or through a strong nation-state consensus. If we had, we would be speaking of international law, not the globalization of law. Nor can we even confidently claim that law has become global or universal in the sense that everyone on the planet can be sure that wherever he or she goes on the planet, human relationships will be governed by some law, even if not by a law that is everywhere the same. Indeed, unless we move very far toward an anthropological merging of law and custom, we would probably conclude that a smaller proportion of the world's population enjoys legally defined relationships today than it did one hundred years ago. This retreat would have occurred on the basis of one great historical fact alone: the enormous population of China has moved from a regime of Imperial however thin and corrupted, to a Leninist regime of non-law. Moreover, in much of the post-colonial third world, the legal regimes of the colonial occupiers have been thrown out, but it has been impossible to replace them with new legal regimes or restore the pre-colonial legal regimes that the European imperialists disrupted. Indeed, if the Indian sub continent and Indonesia could not be counted as having maintained some kind of rule of law, we would confront a world in which the relative number of persons living under regimes of law had declined so precipitously as to render talk of the globalization of law entirely misleading. When we speak of the globalization of law, we must be conscious that we are speaking of an extremely narrow, limited, and specialized set of legal phenomena set into a globe in which it is not at all clear whether the total quantum of human relationships governed by law has increased or decreased over the

Book Review - Enterprise and American Law, 1836-1937

Abstract: Preface Introduction: Classicism, Democracy, and the Rule of Law Part I: The Classical Corporation and State Policy I. Classical Political Economy and the Business Corporation 2. Vested Corporate Rights 3. Politics and Public Goods 4. The Corporate Personality 5. Limited Liability 6. Corporate Power and Its Abuse Part Ii: The Economic Constitution 7. A Moral Theory of Political Economy 8. The Classical Theory of Federalism 9. An Economic Interpretation of the Constitution Part Iii: The Rise of Regulated Industry 10. Market Failure and Constitutional Classicism: The Slaughter-House Cases 11. Regulation and Incorporation 12. The Railroads and the Development of Regulatory Policy 13. Federalism and Rate Discrimination Part Iv: The Political Economy of Substantive Due Process 14. Historical Explanation and Substantive Due Process 15. The American School of Political Economy 16. The Wages Fund 17. Market Failure and the Constitution Part V: The Labor Combination In American Law 18. Classical Theory and the Labor Cartel 19. Coercion and Its Meaning: Antitrust and the Labor Injunction Part Vi: The Antitrust Movement and the Theory of the Firm 20. American Merger Policy and the Failure of Corporate Law 21. The Classical Theory of Competition 22. The Rise of Industrial Organization 23. The Fixed-Cost Controversy 24. Potential Competition 25. Vertical Integration and Resale Price Maintenance Epilogue: Classical Enterprise in Decline Notes Index

Relative Normativity in International Law

Abstract: This chapter demonstrates that relative normativity of international law appearing within the theory correlates with such relative normativity to be found on the basis of other theories of law. It focuses on the coexistence of different theories gives rise to a further relativization of the normativity of international legal norms. Colloquial languages, upon which the technical language of international law is based, constitute universal communication systems. A problem inherent in the 'constitution' of international law is that of the hierarchical structure of the legal order. Legal positivism would only be able to maintain its approach if it were possible to draw unambiguous legal propositions from this factual substratum. Legal positivism identifies law with legal propositions, that is the wording of positive rules, which corne about as the product of a legislative or other law-creating process.

Marriage on trial : a study of Islamic family law : Iran and Morocco compared

Abstract: With the resurgence of Islam as a social and political force, debates over family law reveal the struggle between the forces of traditionalism and modernism. The disparate tendencies within so-called Islamic "fundamentalism" have in commmon the desire to re-institute Shari'a law, which they regard as the last bastion of the Islamic ideal of social relations. Yet very little is known of the ways in which the Shari'a actually operates in today's Muslim societies. Mir-Hosseini focuses on the dynamics of marriage and its breakdown, as well as the way in which litigants manipulate the law in order to resolve marital disputes and child custody cases. Taking an inter-disciplinaryand approach which straddles law, anthropology, sociology and women's studies, Mir-Hosseini shows how women may turn even the most patriarchal elements of Islamic law to their advantage and achieve their personal marital aims.

Law, language and legal determinacy

Abstract: Book review of Law, Language and Legal Determinacy by Brian Bix and published by Clarendon Press (Oxford), 1993. (221 pp.)

Law's Violence

Abstract: "In bringing together accomplished and thoughtful scholars of different disciplines, with a command of literature ranging from the legal to the literary, and in relating the works to the central arguments of the late Professor Robert Cover, Sarat and Kearns have created a first-rate up-to-date exposition of this important and complicated issue, namely, how to understand better the violence implicit and explicit in law."--Legal Studies ForumThe relationship between law and violence is made familiar to us in vivid pictures of police beating suspects, the large and growing prison population, and the tenacious attachment to capital punishment in the United States. Yet the link between law and violence and the ways that law manages to impose pain and death while remaining aloof and unstained are an unexplored mystery. Each essay in this volume considers the question of how violence done by and in the name of the law differs from illegal or extralegal violence--or, indeed, if they differ at all.Each author draws on a distinctive disciplinary tradition-- literature, history, anthropology, philosophy, political science, or law. Yet each reminds us that law, constituted in response to the metaphorical violence of the state of nature, is itself a doer of literal violence.Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Chair of the Program in Law, Jurisprudence, and Social Thought, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy, Amherst College.

The Renewal of Islamic Law: Muhammad Baqer as-Sadr, Najaf and the Shi'i International

Abstract: This is the first comprehensive study of the life and works of Muhammad Baqer as-Sadr - an Iraqi scholar who made an important contribution to the renewal of Islamic law and politics in the contemporary Middle East. Executed in 1980, Sadr was the most articulate thinker and a major political actor in the revival of Shi'i learning, which placed Najaf in Southern Iraq at its centre. Dr Chibli Mallat examines the intellectual development of Sadr and his companions who included Ruhullah al-Khumaini and assesses Sadr's innovative approaches to the study of law, economics and banking. The author convincingly demonstrates how Sadr's ideas and activities were influential in the rise of political Islam across the Middle East and played an important part in the Iranian revolution of 1979.

Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism

Abstract: The book makes a fresh appraisal of the main principles of constitutional law, seeking to stimulate renewed debate about the fundamentals of British constitutionalism. Rejecting a purely fromal concept of the rule of law, Allan argues that public law should more fully and openly reflect the principles of liberty and justice which constitute the underlying point and substance of the rule of law. The connection between law and justice is ultimately secured by the primary role of the individual conscience in making judgements about what the law requires. And just as no court is ever an infallible arbiter of legal obligation - the individual may sometimes have to stand by his own conscientious reading of the law - Parliament cannot be accorded unqualified authority to change the law. The sovreignty of Parliament is necessarily limited by residual principles of leberal constitutionalism; any other view would contradict the rule of law. Standard comparisons between written and unwritten constitutions, and traditional accounts of the separarion of powers, ovscure more than they reveal. The interpretation and application of statutes must always be a matter of judicial deliberation and judgement, just as the application of government policies and administrative orders is ultimately subject to the requirements of justice in particular cases.

Therapeutic jurisprudence and changing conceptions of legal scholarship

Abstract: This article traces changes in the nature of legal scholarship and illustrates how therapeutic jurisprudence reflects changing conceptions of the law and legal scholarship. It argues that therapeutic jurisprudence may be regarded as a mental health law counterpart to „New Public Law,” and shows that questions asked by therapeutic jurisprudence scholars parallel closely those asked by public law scholars.

Modern Law: The Law Transmission System and Equal Employment Opportunity

Abstract: In the past 25 years, settlement of nearly 25,000 complaints of employment discrimination has vastly advanced opportunities for minorities and women. In "Modern Law", Alfred W. Blumrosen traces the operation of the law transmission system - the process by which the general principles of equal opportunity written into the 1964 Civil Rights Act were translated into improved conditions for minority and female workers today. This route takes the reader through the passage of the law; the responses of workers, employers and the government; the interplay between courts, agencies and the legislature; and, finally, the enactment of the 1991 Civil Rights Act, perhaps hastened by the Anita Hill/Clarence Thomas controversy. The interactions between the law and the social and economic forces it seeks to influence make up the components of the law transmission system. Blumtosen argues, however, that the equal employmnt laws are no longer sufficient for improving the lot of many Americans. National demographic changes and shifts in global economic patterns have limited the laws' effects. Blumrosen asserts that employment discrimination law has become increasingly more technical and less influential, while activists, lawmakers and others concerned with equal opportunity have not adequately focused their energies on the larger issues of urban problems, economic organisation and international transfer of employment. "Modern Law" should be valuable for those who study law, those who practice it, and for those working to develop and implement various kinds of legislation.

Custom in Present International Law

Abstract: The elements of international custom formation of international custom kinds of customary rules in international law customary rules and other rules of international law ascertaining customary rules of international law the basis of the binding force of customary rules of international law. Appendix: drafts of subparagraph 1(b) of Art 38 of the Status of the International Court of Justice.

The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy.

Abstract: When the first volume of Morton Horwitz's monumental history of American law appeared in 1977, it was universally acclaimed as one of the most significant works ever published in American legal history. The New Republic called it an "extremely valuable book." Library Journal praised it as "brilliant" and "convincing." And Eric Foner, in The New York Review of Books, wrote that "the issues it raises are indispensable for understanding nineteenth-century America." It won the coveted Bancroft Prize in American History and has since become the standard source on American law for the period between 1780 and 1860. Now, Horwitz presents The Transformation of American Law, 1870 to 1960, the long-awaited sequel that brings his sweeping history to completion. In his pathbreaking first volume, Horwitz showed how economic conflicts helped transform law in antebellum America. Here, Horwitz picks up where he left off, tracing the struggle in American law between the entrenched legal orthodoxy and the Progressive movement, which arose in response to ever-increasing social and economic inequality. Horwitz introduces us to the people and events that fuelled this contest between the Old Order and the New. We sit in on Lochner v. New York in 1905-where the new thinkers sought to undermine orthodox claims for the autonomy of law-and watch as Progressive thought first crystallized. We meet Oliver Wendell Holmes, Jr. and recognize the influence of his incisive ideas on the transformation of law in America. We witness the culmination of the Progressive challenge to orthodoxy with the emergence of Legal Realism in the 1920s and '30s, a movement closely allied with other intellectual trends of the day. And as postwar events unfold-the rise of totalitarianism abroad, the McCarthyism rampant in our own country, the astonishingly hostile academic reaction to Brown v. Board of Education-we come to understand that, rather than self-destructing as some historians have asserted, the Progressive movement was alive and well and forming the roots of the legal debates that still confront us today. The Progressive legacy that this volume brings to life is an enduring one, one which continues to speak to us eloquently across nearly a century of American life. In telling its story, Horwitz strikes a balance between a traditional interpretation of history on the one hand, and an approach informed by the latest historical theory on the other. Indeed, Horwitz's rich view of American history-as seen from a variety of perspectives-is undertaken in the same spirit as the Progressive attacks on an orthodoxy that believed law an objective, neutral entity. The Transformation of American Law is a book certain to revise past thinking on the origins and evolution of law in our country. For anyone hoping to understand the structure of American law-or of America itself-this volume is indispensable.

Religion and international law

Abstract: Preface C.G. Weeramantry. Introduction M.W. Janis. Notes on the Authors. 1. Religion and the Sources of International Law in Antiquity D.J. Bederman. 2. The Confucian View of World Order F. Tse-shyang Chen. 3. International Law in Ancient Hindu India V.P. Nanda. 4. The Influence of Judaism on the Development of International Law: An Assessment S. Rosenne. 5. A Survey of Islamic International Law G.M. Badr. 6. Francisco Suarez on The Law of Nations J.P. Doyle. 7. Religion and the Literature of International Law: Some Standard Texts M.W. Janis. 8. Images of Religion in International Legal Theory D. Kennedy. 9. The Functions of Religion in the International Legal System J.A.R. Nafziger. 10. Natural Law, Religion and the Development of International Law H. McCoubrey. 11. Protestants, Progress, and Peace: Enthusiasm for an International Court in Early Nineteenth-Century America M.W. Janis. 12. American Versions of the International Law of Christendom: Kent, Wheaton and the Grotian Tradition M.W. Janis. 13. Christianity and Theories of International Law in Nineteenth-Century Britain J.E. Noyes. 14. Spiritual Energy and Secular Power W. W. Park. 15. Losing Faith in the Secular: Law, Religion, and the Culture of International Governance D. Kennedy. 16. The Global Resurgence of Religion, International Law and International Society S. Thomas. 17. British Quakers, the Peace Tax and International Law N. Grief. 18. Islamic Fundamentalism and its Impact on International Law and Politics M.H.A. Reisman. 19. Religious Freedoms in European Human Rights Law: The Search for a Guiding Conception C. Evans. 20. The Challenges of Human Rights Law for Religious Traditions H. Charlesworth. 21. Universal Rights Talk/Plurality of Voices: A Philosophical-Theological Hearing M. Ritter. 22. Looking for a Global Ethic? Try International Law W.P. George. Index

International Law and the Role of Domestic Legal Systems

Abstract: Table of Cases. Foreword. I. International Law and 'Domestic Legal Operators'. II. International Law-Making. A. Customary Law. B. Treaties. C. Law-Making by International Organisations. D. The Hierarchy of International Norms. III. The Content of International Law. IV. The Violation of International Law and its Consequences. Index.

Above the law.

Abstract: We have all heard it said that “ no one is above the law ” – but is that statement true? This article will examine the various types of legal immunity, who is immune to the (legal) consequences of their action s, a d will expose why some people who are granted this im munity are the worst criminals among us. I examine the reasons why these forms of immunity should be immed iat ly rescinded because they violate the very conc ept of “justice under the law”, and in fact, are violation s of the United States Constitution, and of human r ights in a civilized society in general.

Are We Being Propelled Towards a People-Centered Transnational Legal Order?

Abstract: Sovereignty is the fundamental concept around which international law is presently organized. This principle holds that "except as limited by international law or treaty, each state is the master of its own territory." Consistent with this conception of absolute sovereignty, international law has traditionally been concerned with the relations between co-equal sovereign states. Each sovereign state can only be legally bound by those commitments it willingly makes to other sovereign states, and by those few principles which are viewed as binding on all states. Those issues that arise from the relationship between the state and its citizens, and between those citizens inter se, are viewed as part of the domestic affairs of each sovereign state and thus outside the scope of international law.

Politics or Rule of Law: Deconstruction and Legitimacy in International Law *

Abstract: Recent scholarship,1 which has undertaken to 'deconstruct' 2 international legal argumentation, has suggested that the ideal of an international rule of law is based on contradictory premises and is therefore incapable of providing a useful approach to structuring international society. Therefore, given that 'social conflict must still be solved by political means'3 - a 'turn away from general principles and formal rules'4 is advocated. Such an attitude to international law, although developed on the basis of a new and intellectually fascinating analysis which reveals much of the internal contradiction in international law,5 is not entirely novel. It is reminiscent of and similar to the attitude taken by the school of political realism within the discipline of international relations which perceives the role of international law as instrumental and subordinated to politics. If, as is claimed, international law is not independent from international politics and, having no substance of its own, must 'rely on essentially contested political - principles', 6 then, of course, it would be meaningless to assert the need for establishing the primacy of international law over international politics.

Law and politics

Abstract: Aquinas's political and legal theory is important for three reasons. First, it reasserts the value of politics by drawing on Aristotle to argue that politics and political life are morally positive activities that are in accordance with the intention of God for man. Second, it combines traditional hierarchical and feudal views of the structure of society and politics with emerging community-oriented and incipiently egalitarian views of the proper ordering of society. Third, it develops an integrated and logically coherent theory of natural law that continues to be an important source of legal, political, and moral norms. These accomplishments have become part of the intellectual patrimony of the West, and have inspired political and legal philosophers and religious and social movements down to the present day.

Is General International Law Customary Law Only

Abstract: Is general international law customary law only? At first glance this problem seems to be of purely academic interest However this is not so. It is gratifying that the twentieth century has seen enormous leaps forward in international law. However, these gains far from satisfy the needs of the international community for legal regulation. The decade of international law proclaimed by the United Nations General Assembly testifies that die international community is aware of an urgent need for further progressive development of international law, and that measures need to be taken to ensure its effectiveness. This means first of all the further development of general international law, which is die foundation of the whole system of international law. The problem is whether we should rely on the development of general international law by custom only, or if it may also be achieved by multilateral treaties. The second important problem is whether, in attempting to create a new world order based on the rule of law, we should exclude the possibility of an international treaty becoming a kind of constitution of the international community. It is hoped that these two questions suffice to illustrate that the problem I am going to discuss is also of great practical political importance.

Property law : rules, policies, and practices

Abstract: Outstanding features of Property Law: Rules, Policies, and Practices, written by Professor Joseph William Singer, a highly regarded authority in the field, include: well-written notes with clear explanations of the law so students can learn complicated rules easilystrong coverage of civil rights law (fair housing and public accommodations law) strong coverage of statutes, regulations, and statutory interpretation problem-oriented approach, applying concepts, rules, and doctrines to new situations one might find in practice, with problems updated to be currentrecent cases and interesting fact situationsMeticulously and thoughtfully updated and refined, the Fifth Edition offers: reorganized chapter sequence Part I, renamed "Property in a Free and Democratic Society" links the estates system to the anti-feudal policy and to the current consumer

Russian Constitutional Crisis: Law and Politics Under Yel'tsin

Abstract: (1993). Russian Constitutional Crisis: Law and Politics Under Yel'tsin. Post-Soviet Affairs: Vol. 9, No. 4, pp. 314-336.