Showing papers on "Sources of law published in 2005"

Human Rights and Gender Violence: Translating International Law into Local Justice

Abstract: Human rights law and the legal protection of women from violence are still fairly new concepts. As a result, substantial discrepancies exist between what is decided in the halls of the United Nations and what women experience on a daily basis in their communities. "Human Rights and Gender Violence" is an ambitious study that investigates the tensions between global law and local justice. As an observer of UN diplomatic negotiations as well as the workings of grassroots feminist organizations in several countries, Sally Engle Merry offers an insider's perspective on how human rights law holds authorities accountable for the protection of citizens even while reinforcing and expanding state power. Providing legal and anthropological perspectives, Merry contends that human rights law must be framed in local terms to be accepted and thus effective in altering existing social hierarchies. Gender violence in particular, she argues, is rooted in deep cultural and religious beliefs, so change is often vehemently resisted by the communities perpetrating the acts of aggression. A much-needed exploration of how local cultures appropriate and enact international human rights law, this book will be of enormous value to students of gender studies and anthropology alike.

Imperialism, sovereignty, and the making of international law

Abstract: Acknowledgements Table of cases Table of treaties Introduction 1. Francisco de Vitoria and the colonial origins of international law (i) Introduction (ii) Vitoria and the problem of universal law (iii) War, sovereignty and the transformation of the Indian (iv) Conclusion 2. Finding the peripheries: colonialism in nineteenth-century international law (i) Introduction (ii) Elements of positivist jurisprudence (iii) Defining and excluding the uncivilized (iv) Native personality and managing the colonial encounter (v) Reconceptualizing sovereignty 3. Colonialism and the birth of international institutions: the mandate of the League of Nations (i) Introduction (ii) Creation of the mandate system (iii) The league of nations and the new international law (iv) The mandate system and colonial problems (v) The mandate system and the construction of the non-European state (vi) Government, sovereignty, and economy (vii) The mandate and the discussion of sovereignty (viii) The legacies of the mandate system: toward the present (ix) Conclusion 4. Sovereignty and the post-colonial state (i) Introduction (ii) Decolonization and the universality of international law (iii) Development, nationalism and the post-colonial state (iv) Development and the reform of international law (v) Permanent sovereignty over natural resource and the new international economic order (vi) The 1962 resolution on PSNR (vii) The 1974 charter of rights and duties among states (viii) Colonialism and the emergence of transnational law (ix) Sources of law and international contracts (x) Overview and conclusions 5. Governance and globalization, civilization and commerce (i) Introduction (ii) Good governance and the third world (iii) Governance, human rights and the universal (iv) International financial institutions, human rights and good governance (v) International financial institutions and the mandate system (vi) Conclusions and overview 6. On making war on the terrorists: imperialism as self-defense (i) Introduction (ii) The war against terrorism (WAT) (iii) The United States and imperial democracy (iv) Historical origins: war, conquest and self-defense (v) Terrorism and the United Nations: a Victorian moment (vi) Terrorism, self-defense and third world sovereignty Conclusion.

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. …

A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya

Abstract: The cases on Chechnya recently decided by the European Court of Human Rights force us to re-evaluate the relationship between human rights law and humanitarian law. Since the International Court of Justice held that humanitarian law is lex specialis to human rights law in 1996 - if not since the Tehran Conference of 1968 - it has been widely accepted that 'human rights in armed conflict' refers to humanitarian law. The ECtHR has directly applied human rights law to the conduct of hostilities in internal armed conflicts. The rules it has applied may prove controversial, but humanitarian law's limited substantive scope and poor record of achieving compliance in internal armed conflicts suggest the importance of this new approach.

Challenges in Applying Human Rights Law to Armed Conflict

Abstract: The debates over the relationship between International Humanitarian Law and International Human Rights Law, have often focused on the question of whether human rights law continues to apply during armed conflict, and if so, on how these two bodies of law can complement each other. This article takes the continuing applicability of human rights law as an accepted and welcome starting point, and proceeds to lay out some of the challenges and obstacles encountered during the joint application of IHL and Human Rights Law, that still need to be addressed. These include extra-territorial applicability of human rights law; the mandate and expertise of human rights bodies; terminological and conceptual differences between the bodies of law; particular difficulties raised in non-international armed conflicts; and the question of economic, social and cultural rights during armed conflict.

Legal Ground Rules in Coordinated and Liberal Market Economies

Abstract: Two parallel literatures have explored differences across legal and economic systems,noting that countries can be loosely grouped into liberal vs. coordinated market economies on the one hand, and common law vs. civil law countries on the other. These two groups largely overlap. Liberal market economies (LMEs) tend to have a common law tradition, while coordinated market economies (CMEs) belong to the civil law family (French or German). This paper argues that this overlap is not coincidental. The link between legal and economic systems are social preferences reffected in basic norms, or ground rules, found in substantive and procedural laws of different countries. These ground rules are more pervasive than their specific incarnation, such as codetermination in Germany, or shareholder primacy in the United States. The paper develops a typology of ground rules, distinguishing between substantive ground rules that allocate decision making rights to either individuals or to the state/collective; and procedural ground rules that determine whether the individual or a collective (or the state) have the primary or exclusive power to seek judicial remedies. The paper uses examples from contract and corporate law to illustrate these ground rules focusing on German law, as an example for the civil law family and a CME, and the US as an example for a common law jurisdiction and LME. An important implication of this analysis is that each system is highly path dependent and that, therefore, marginal changes of specific incarnations of social preferences are unlikely to fundamentally alter the nature of each system.

American Civil Law Origins: Implications for State Constitutions

Abstract: We examine the effect of initial legal traditions on constitutional stability in the American states. Ten states were initially settled by France, Spain, or Mexico and had developed civil law legal systems at the time of American acquisition. Although Louisiana retained civil law, the remaining nine adopted common law. Controlling for contemporaneous and initial conditions, civil law states have substantially higher levels of constitutional instability at the end of the twentieth century. We speculate that this effect is attributable to instability in property rights caused by the change in national governments and to the legacy of the civil law system. Copyright 2005, Oxford University Press.

Law and anthropology : a reader

Abstract: Contents.Acknowledgments.General Introduction.Part I: Early Themes That Reappear in New Forms.1 Plato, Augustine, Aquinas, and Others Asking What is Morally Right: Essays on Natural Law, Ideal Law, and Human Law.The International Bill of Rights, Louis Henkin.Culture and Rights, Jane K. Cowan, Marie Benedicte Dembour, and Richard Wilson.2 Charles-Louis Montesquieu: Law as an Expression of a Particular Cultural Complex.The Spirit of the Law, Charles-Louis Montesquieu.Local Knowledge, Clifford Geertz.3 Henry Maine: The Contrast between Archaic Law and Modern Law.Criticism of Maine's Theory, Norbert Rouland.4 Lewis Henry Morgan: Evolutionist, Ethnographer, Lawyer.The Historical Place of Property, Lewis Henry Morgan.5 Karl Marx: The Mode of Production at the Base - Law as Part of the Superstructure.Selected Writings, Karl Marx.Law and Economic Organization, Katherine Newman.6 Emile Durkheim: Collective Consciousnesses and Law.On Law, Emile Durkheim.Disciplinary Power and Subjection, Michael Foucault.Law and Society in Modern India, Marc Galanter.Modernity and Self Identity, Anthony Giddens.7 Max Weber: The Evolution from Irrationality to Rationality in Law.The Economy and Social Norms, Max Weber.The Theory of Communicative Action, Jurgen Habermas.Law and Social Science, Richard Lempert and Joseph Sanders.Equity and Discretion in a Modern Islamic Legal System, Lawrence Rosen.Part II: The Early Classics of Legal Ethnography: the Real Thing - Field work on Law, Rules, Cases, and Disputes.Introduction to the Early Classics of legal Ethnology.8 Crime and Custom in Savage Society.Bronislaw Malinokwski.9 A Handbook of Tswana Law and Custom.Iassac Schapera.The Judicial Process Among the Barotse of Northern Rhodesia.Max Gluckman.Justice and Judgement Among the Tiv.Paul Bohannan.Kapaupu Papuans and Their Law.Leopold Pospisil.Conclusion.Part III Present Thematic Approaches.A. Struggles over Property.13 Objects of Property and Subjects of Politics.Rosemary Coombe.14 Where it Hurts:Indian Material for an Ethics of Organ Transplantation.Lawrence Cohen.15 Disputing over Livestock in Sardinia.Julio Ruffino.16 Consensus and Suspicion: Judicial Reasoning and Social Change in an Indonesian Society 1960-1994.John R. Bowen.B. Identity and its Legal Significance.17 Identity in Mashpee.James Clifford.18 Locating a Reinvigorated Kentish Identity.Darian Smith.19 Academic Narratives: Models and Methods in the Search for Meanings.Anne M. O. Griffiths.20 Human rights and Nation Building.Richard A Wilson.C. Creating Enforceable Rules, Inside and Outside the Formal Law.21 Rights, Religion and Community: Approaches to Violence Aginst Women in the Context of Globalization.Sally Engle Merry.22 Regional Practices and the Marginalization of Law: Informal Financial Practices of Small Businesses in Taiwan" Jane Kaufman Winn.23 Enacting Law through Social Practice: Sanctuary as a Form of Resistance.Susan Coutin.24 Deciding Who Gets In: Decision-Making by Immigration Inspectors.Janet A. Gilboy.D. The Large Scale: Pluralism, Globalism and the Negotiation of International Disputes.25 Multiculturalism, Individualism and Human Rights: Romanticism, The Enlightenment and Lessons from Mauritius.Thomas Hylland Eriksen.26 Governing Economic Globalization: Global Legal Pluralism and European Union Law.Francis Snyder.27 Civilization and its Negotiations.Laura Nader.E. Law and the Future.28 Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949-1999.Sally Falk Moore

Law at Work: The Endogenous Construction of Civil Rights

Abstract: This chapter extends extant theory on organizational response to law by proposing a theory of law as endogenous—that is, as generated within the social realm that it seeks to regulate. As organizations respond to legal ideals by themselves becoming legalized, they shape social understandings of law and of the meaning of compliance. Courts, as actors within the same broad social environments—or organizational fields—as organizations, tend to incorporate ideas about law that have arisen and become institutionalized within these fields. Thus, as law becomes progressively institutionalized in organizational fields, it is simultaneously transformed by the very organizational institutions that it is designed to control.

Legal Systems as Frameworks for Market Exchanges

Abstract: Recent changes in the former communist countries have demonstrated the importance of a legal system for economic progress. A legal system defines property rights, allows for exchange of property rights, and protects property rights. Countries with a rule of law and well established property rights are more prosperous and grow more quickly than countries lacking such a system. An important function of the rule of law is to protect property rights from governments. Rules also facilitate private exchange through contract. There are theoretical arguments for the greater efficiency of a common law system than a code system. These have to do with protection of rights from the government and also with mechanisms for efficient evolution of the law, including mechanisms for competition between court systems. Legal systems that provide greater protection from government seem to be more efficient than others. Arbitration is an efficient alternative to state enforced law. Some issues identified here, such as the role of competing courts, are fruitful areas for further research. The evidence here also indicates that countries should adopt a rule of law, protect property rights from government predation, and rely on court competition and evolutionary forces to obtain efficient law. Of course, these suggestions are difficult to implement because they may be opposed by powerful interests.

Resolving Treaty Conflicts

Abstract: INTRODUCTION Should the rules of the World Trade Organization trump international environmental agreements? How are treaties between the United States and its European partners affected by the construction of the European Union? What can be done to avert conflict among Russia, Iran, and certain central Asian states over the control of the oil beneath the Caspian Sea? Although seemingly disparate topics, all of these dilemmas are, in part, disputes over whether certain treaties should be given preference over other treaties. These conflicts are fueled by many different political and economic concerns. Regardless of the source of concern, however, as a matter of international law, the question remains the same: Is there a principled method by which sovereign states in the international system can resolve conflicting obligations between treaties? Due to treaty proliferation in recent years, this question is more important than ever. The viability of international law, as a legal system, rests largely on the viability of treaties as a source of law. In the second half of the twentieth century, the international state system was supported by the development of treaties.1 States focused the majority of their regime-building efforts on three sets of concerns: restraining interstate conflict, securing human rights, and managing the economic system. States used treaties as the primary tool in the construction of these international institutions and in the codification of these norms.2 Moreover, treaties shift issues from the political arena into a juridical, rule-based, forum. As of 2005, there were approximately 50,000 treaties on file in the U.N. Treaty System.3 The very success of treaties as a policy tool has caused a new dilemma: a surfeit of treaties that often overlap and, with increasing frequency, conflict with one another. For the treaty partners of states that have adopted conflicting treaties, this results in a lack of certainty as to which-if either-treaty would be honored.4 After the successes of the last fifty years, international law may become increasingly dysfunctional in the first decades of the twenty-first century due to the sheer number of these treaties and the lack of useful, principled, methods to resolve conflicts between them. The International Law Commission (ILC) has turned its attention to the problem of treaty conflicts and the potential fragmentation of international law more broadly with the organization of the Study Group on Fragmentation of International Law (Fragmentation Study Group) in 2002.5 The Fragmentation Study Group will consider fragmentation as a consequence of the expansion and diversification of international law.6 Its initial view is that while fragmentation in and of itself is not new, it is increasing.7 This increase in fragmentation underlies recent concerns about friction between trade law, on one side, and environmental law and human rights law, on the other,8 as well as the overlapping and competing jurisdictions of international tribunals,9 and the general coherence of the international legal system. This Article addresses a particular cause of fragmentationunresolved conflicts between treaties-and considers how lawyers and policymakers may respond to the challenges posed by treaty proliferation and conflict. I argue that treaty conflicts are a key underlying cause of fragmentation and that the current rules are inadequate to provide clear, systematic solutions to treaty conflicts. An initial problem is that there is no generally accepted definition of what constitutes a conflict between treaties.10 A conflict in the strict sense occurs when a party to two treaties cannot simultaneously honor its obligations under both. A divergence between treaties, however, need not always be a conflict.11 Consider the following: State A forms a treaty (Treaty I) with State B promising that B will have access to A's markets at terms no worse than any other state. …

Balancing security and liberty within the European human rights framework. A critical reading of the Court’s case law in the light of surveillance and criminal law enforcement strategies after 9/11

Abstract: Literature concerning human rights protection by the European Court on Human Rights after 9/11 is very often coloured by optimism. Some authors hold that judicial control by the European Court on national anti-terrorism measures is very strict, especially compared to U.S. judicial review. Others suggest the existence of a strict privacy test developed by the European Court as a bulwark again anti-terrorism measures that give too much discretion to law enforcement authorities. In this paper we discuss the ‘classical’ European framework with regard to ‘hard’ anti-terrorism measures and the privacy framework that is relevant for new, ‘softer’ anti-terrorism measures. it is argued that this optimistic reading of the European human rights framework in the area of security especially with regard to the latter is flawed and based on a misunderstanding of the case law of the European Court. This analysis leaves little room for optimism about judicial review of the legislator in Europe and urges for an attitude of self-restraint.

Shareholder Protection in the USA and Germany - On the Fallacy of LLSV

Abstract: : In this article we introduce the law matters thesis of LaPorta et al. and highlight its importance in economic as well as legal literature. The results of their Law and Finance article highlight the much better shareholder protection of Common Law compared to Civil Law countries. We reconsider their antidirector rights index for Germany and the United States, two typical representatives of their respective legal family. By having a close look at the legal provisions of the two countries we illustrate the weaknesses and pitfalls of the index. We find that Germany would score much better if one bothers analyzing the Law. Moreover, we point out inconsistencies in the judgment of the USA. Therefore we conclude that the difference between Common and Civil Law in terms of shareholder protection is far less significant than LaPorta et al. propose, if at all. The blindfold citation of this article can implicate wrong political-economic measures and should therefore be avoided. The Author

The law and the right : a reappraisal of the reality that ought to be

Abstract: A Note on the Author and the Contributors.- Editor's Preface.- Assistant Editor's Preface.- Part One - The Reality That Ought to Be: Problems and Critical Issues.- Chapter 1 - A First Glance.- Chapter 2 - Dualism and Interaction between the Reality That Ought to Be and the Reality That Is: Validity as a Pineal Gland.- Chapter 3 - Taking a Dive into the Sources of Law.- Chapter 4 - The Problem of the Matrix.- Part Two - The Reality That Ought to Be: A Monistic Perspective. Norms as Beliefs and as Motives of Behaviour.- Chapter 5 - The Motives of Human Behaviour.- Chapter 6 - Norms as Beliefs.- Chapter 7 - How Norms Proliferate in Human Brains.- Part Three - Family Portraits. Law as Interference in the Motives of Behaviour.- Chapter 8 - No Law without Norms.- Chapter 9 - But Norms Are Not Enough. The Interaction between Language and Motives of Behaviour.- Chapter 10 - The Law in Force: An Ambiguous Intertwining.- Chapter 11 - The Reality That Ought to Be as Fate.- Chapter 12 - What Is Right in Homeric Epic.- Chapter 13 - What Is Right, What Is Just, Ratio as Type: Sanctus Thoma Docet.- Chapter 14 - The Law and What Is Right. Hans Kelsen under Suspicion.- Chapter 15 - Nature and Culture.- Appendix - Elements for a Formalisation of the Theory of Norms Developed in This Volume (by Alberto Artosi, Antonino Rotolo, Giovanni Sartor, and Silvia Vida).- Bibliography (Compiled by Antonino Rotolo).- Index of Subjects.- Index of Names.

On the Sources of International Criminal Law

Abstract: In their efforts to establish a quite original system of procedural and material rules of international criminal law, by means of the so-called ''judge-made law'', the two ad hoc Tribunals for the Former Yugoslavia and Rwanda hold a peculiar approach to the sources of that law. The most controversial of all is their concept of ''customary law''. This paper is an attempt to clarify the meaning and scope of these sources mainly from some aspects of the respective rules adopted in the 1998 Rome Statute. It is also a continuance in this author's research on the sources of public international law.

Federal elements in the community judicial system: building coherence in the community legal order

Abstract: A shortened and adjusted version of the paper "Creating a Quasi-Federal Judicial System of the European Communities", which has been published in the Common Market Law Review.

Against Foreign Law

Abstract: In recent years, several Supreme Court Justices have looked to the decisions of foreign and international courts for guidance in interpreting the U.S. Constitution. This practice has occurred in several controversial, high-profile cases. Roper v. Simmons' outlawed application of the death penalty to offenders who were under eighteen when their crimes were committed. Lawrence v. Texas2 struck down a state law that criminalized homosexual sodomy. Atkins v. Virginia' held against the execution of mentally retarded capital defendants. All three cite foreign and international precedents. In Roper, the Court, per Justice Kennedy, found it \"proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty .... The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.\" 4 The Court relied on a provision of the United Nations Convention on the Rights of the Child-a treaty the United States has not ratified-and on amicus briefs by the European Union and interested foreign observers. In Lawrence, Justice Kennedy's majority opinion cited decisions of the European Court of Human Rights to conclude that prohibiting homosexual sodomy is at odds with the current norms of

Europäische Grundrechte und Grundfreiheiten

Abstract: [European fundamental rights] European law is increasingly superseding and displacing national law. The previous presentations of European Community Law are for the most part oriented towards the institutions. The citizens and their legal positions come off worse. With the textbook published in 2002 a representation has been presented for the first time, which treats the essential problems of European fundamental rights and fundamental freedoms according to a uniform didactic concept. The completely revised new edition takes into consideration all changes, and generally includes the new additional protocols of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as (above all) the treaty pertaining to a constitution for Europe and thus at the same time the charter of the basic rights of the Union. The addressee's of the textbook are primarily students and judicial interns, but moreover also the courts, regulatory authorities and associations as well as all other parties interested in European Community Law.

Towards a European Unfair Competition Law: A Clash Between Legal Families

Abstract: The main aim of this book is to discuss the state of unfair competition law in the European Union.

Who's in Charge of Who I Am? Identity and Law Online

Abstract: As we enter this new century, identity online seems full of opportunity. Someday virtual world identities will be just as important as real identities - just as ecommerce has become indistinguishable from commerce. Control over online avatar identities will have many real-world consequences, because these clouds of bits may include our credit records, our buddy lists, our job records, personal references and other reputational information, medical histories, certifications, and academic transcripts. As soon as something is valuable and persistent, we seek to associate rights and duties with it. What will be the law of online identity to which those rights apply? And what will those rights be? I suggest a set of preliminary responses to these questions about law, rights, and destruction in this essay. First, online identities are emergent. Second, just as we are getting comfortable with the idea of these contextual, group-shaped, customized online avatar identities, it is disturbing to learn that online intermediaries have ownership of online identities, together with hooks allowing them to remove identities they don't like. Third, it does not look as if traditional sources of law will assist in rationalizing this state of affairs. Groups, or guilds, may provide some help when it comes to deciding what to do about identity questions.

The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation

Abstract: This Article provides a contemporary and comparative examination of the sources of law and the value of precedent in Louisiana, a state whose judicial system resembles those of common law judicial systems of the United States, but whose private civil law is rooted in the civil law traditions of France and Spain, which were prevalent in the territory of Louisiana in the late eighteenth century and early nineteenth century. The Article examines the doctrines of "stare decisis" and "jurisprudence constante" and the value of precedent in select common law and civil law jurisdictions, then focuses on Louisiana as an example of a jurisdiction which, like many jurisdictions worldwide, has valued precedent in such a way that it is extremely influential, but not always binding on the courts. The Article refers to this practice as "systemic respect for jurisprudence" because the value of a precedent is directly related to the status in the legal system of the court deciding the prior case. An empirical study of the Louisiana judiciary on the sources of law and the value of precedent in Louisiana complements a discussion of these issues based on scholarly works on Louisiana law and Louisiana judicial opinions. The author concludes that many jurisdictions, both common law- and civil law-based, are gravitating to "systemic respect for jurisprudence" and away from strict use of the traditional stare decisis and jurisprudence constante doctrines. The Article then proposes law to codify the principle of systemic respect for jurisprudence.

The Impact of the European Company (SE) on Legal Culture

Abstract: After 30 years of debate, the law on the European Company (Societas Europaea, SE) has now come into force. Yet, its success could be doubted, because the Regulation and the Directive on the SE provide only some basic provisions and refer frequently to the law of the Member States. In this article, I will, however, propose that the SE can cause a major shift towards a European spirit in company law. By fostering communication, competition and coalition, it will indeed have a substantial impact on European legal culture.

European Criminal Law and General Principles of Union Law. Research Papers in Law, 5/2005

Abstract: From the Introduction. The European Court of Justice, partly followed in this by the European legislator, has regulated Community law and policy through a set of general principles of law. For the Community legal order in the first pillar, general legal principles have developed from functional policy areas such as the internal market, the customs union, the monetary union, the common agricultural policy, the European competition policy, etc., which are of great importance for the quality and legitimacy of Community law. The principles in question are not so much general legal principles of an institutional character, such as the priority of Community law, direct effect or Community loyalty, but rather principles of law which shape the fundamental rights and basic rights of the citizen. I refer to the principle of legality, of nulla poena, the inviolability of the home, the nemo tenetur principle, due process, the rights of the defence, etc. Many of these legal principles have been elevated to primary Community law status by the European Court of Justice, often as a result of preliminary questions. Nevertheless, a considerable number of them have also been elaborated in the context of contentious proceedings before the Court of Justice, such as in the framework of European competition law and European public servants law.