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BOOK: Comparative Law and International Organisations

Juris Diversitas - Thu, 2014-07-31 06:07
We're pleased to note the publication of Colin Picker, Lukas Heckendorn Urscheler, and Daria Solenik (eds), Comparative Law and International Organisations: Cooperation, Competition and Connections (2014) by Schulthess.


The book was the fruit of a symposium held at the Swiss Institute of Comparative Law in 2010, a spin-off of our Juris Diversitas Conference there in 2009 (resulting in Comparative Law and Hybrid Legal Traditions):

As international organizations consist of member states with different legal orders and are generally active in many different legal systems, it seems obvious that comparative law is of relevance. Furthermore, with the growing importance of international organizations, analyzing the interrelationship between the two is therefore of utmost importance....

The symposium brought together academic scholars, including international organization and comparative law experts, and participants from the European Court of Human Rights, European Commission for the Efficiency of Justice, Hague Conference on Private International Law, ICC Commission on Arbitration, International Criminal Court, and the UND. 

Recommended. SPD
Categories: Comparative Law News

CONFERENCE: "Understanding legal reasoning: a role for history and philosophy in modern private law"(Groningen, 11-12 September 2014)

WHAT: Conference on the theme "Understanding legal reasoning: a role for history and philosophy in modern private law"
WHERE: Congreszaal, Het Kasteel,Melkweg 1, 9718 EP Groningen
WHEN: Thursday 11th September 2014 3:00-5:00 pm; Friday 12th September 2014 9.30 am -4.45 pm
The Groningen Centre for Law and Governance (GCL) and the Department of Private and Notarial Law of the Faculty of Law of the University of Groningen, will organize the conference Understanding Legal Reasoning, A Role for History and Philosophy in Modern Private Law on 11 and 12 September 2014.

all information hereConference themeThe Connection of Private Law with History and PhilosophyThe privileged flow of communication which used to link private lawyers to legal historians and philosophers is nowadays reduced to a trickle. Today, most private lawyers, influenced by a European trend in higher education which encourages specialisation at the expense of foundational subjects, ask themselves why historical and philosophical modules have not yet been removed from the academic curricula in favour of legal subjects perceived as more in line with current developments.Yet, the European legal systems were developed by jurists who were well aware of the historical and theoretical roots of their science. For example, the Pandectists, the forefathers of the influential German civil code, developed German law largely on the basis of Roman law. Even the English common law contains clear examples of the fruitful relationship linking private law to history and philosophy. Thus, William Blackstone, the author of the Commentaries on the Laws of England – arguably the most systematic and certainly the most influential analysis of English law – and the first Vinerian Professor of English Law at Oxford University, was an excellent classical scholar.Whereas the detachment of private law from historical and philosophical investigations has its roots in the eighteenth and nineteenth century, it is during the twentieth century that the fading interest for historical and philosophical studies in Europe becomes an indisputable fact. The demise of Roman law as a system of living law, the expansion of commercial law after the Second World War, the pressure on higher education institutions to produce as many lawyers as possible in the shortest possible time: these are just some of the factors which might have contributed to the decline of the productive cross-fertilisation. For their part, legal historians and philosophers bear their share of responsibility for the present situation: beyond the lively discussion concerning the cultural and legal roots European private law, there have been few attempts to include private lawyers in the modern theoretical and historical debates and to highlight the practical significance of foundational subjects for the enhancement of the legal skills.

Supporting the DialogueThe basic message that this conference aims to convey is that it is not only possible, but also useful for private lawyers from both academia and practice to foster the dialogue with historians and philosophers. Private lawyers from England, The Netherlands, Scotland, and South Africa with an expertise in legal history and philosophy will show through a variety of examples how these subjects can help the private lawyers.The ApproachRather than offering a stage to theorists for a mutual exchange of ideas, this conference will highlight the importance of methodology for the support of legal analysis in private law. Its message is simple and bold: by opening one’s mind to different methodological approaches, one will become a better private lawyer.The proposed methodology enlarges the analytical tools at the operator’s disposal. It will offer to the private lawyer the possibility to examine legal questions from a different perspective. In so doing, it will enable the lawyer to present a more convincing case – whether it be in an academic theatre, in a scientific paper, or in a court of justice. In this sense, understanding legal reasoning is not a self-contained exercise, but an investigation with both practical and theoretical implications.The Groningen CircleThe conference is part of a wider European project. In 2011, a Circle was founded in Groningen by academics from five European higher education institutions and practising lawyers worried for the detachment of contemporary private law from its cultural and historical sources. To counteract these developments, the Circle adopts the concept of ‘Law As an Open System’ (LAOS). The ‘openness’ of law implies the relevance of non-legal principles on the intellectual process through which the lawyer construes and understands legal mechanisms. The methodological considerations that can be evinced from the past offer an important contribution to an all-round cultural formation of the lawyer. The Circle aims to offer a forum for discussion to historians, philosophers and private lawyers to promote the reinstatement of the old connections.
Categories: Comparative Law News

JOURNAL: "Legal History e-journal" (Vol. 18, No. 64: Jul 15, 2014)


Legal History e-journal 
Vol. 18, No. 64: Jul 15, 2014
All articles here
Categories: Comparative Law News

BOOK: C. Puigelier, "The Art of Being a Savant. How Science and Law Were Written in the 18th and 19th Centuries" (Mare et Martin, 2014)


Nomodôs announced the publication of a work at the crossroads of law and the general development of science in the eighteenth century. Interestingly, the work has been published both in French and in English.

More information here.

Présentation éditeur
Les XVIIIe et XIXe siècles ont vu éclore des talents de science et de droit. Les mathématiques, la botanique, la géologie, la physique, la géographie seront des motifs d’évasion vers les secrets du monde ou les armes des hommes. Le droit est l’une de ces armes : l’éprouvette ou le compas vont être posés aux côtés d’arrêts de Cours de justice ou de livres de droit.Il s’agit d’échapper à l’obscurité et à l’irrationalité. L’expérience joue un rôle considérable. Il n’est plus possible de croire sans voir. Il n’est plus possible de dire sans garantir. La garantie passe (également) par des droits. Il n’est plus possible d’expérimenter ou d’opérer sans le respect de la dignité ou de l’individualité.Le parcours n’est pas sans heurts. On se dispute, on se ferraille, on s’empoigne pour accepter ce qui paraît naturel au droit français du XXIe siècle. L’homme ne peut être un outil de la science sans son consentement et le respect d’un ordre (qui va devenir public).Il n’est pas étonnant que la science et le droit s’associent ou qu’ils trouvent des chemins pour s’entretenir. Tous deux sont des causes de remue-ménage. Le cerveau aime se mettre à la disposition des incertitudes. Il est (souvent) prêt à s’installer dans l’ombre des complications.Certains hommes ont pourtant arraché cet organe humain qu’est notre machine à penser des griffes de la bêtise. 
Categories: Comparative Law News

CONFERENCE: Treaty Breaches. The Obligatory Force of Diplomacy and Its Limitations. (Munster, 17-19 September 2014)

HSozUKult announced an interesting conference hosted by Prof. Martin Kintzinger (Münster) on the legal history of medieval and early modern international relations. Program and platform text below:

Welche Brechungen und Verwerfungen bewirken kulturelle, mediale und soziale Grenzen auf dem Feld der vormodernen diplomatischen Interaktion? Welche Bedeutung besitzen sie für deren symbolische Inszenierung? Und welche Rolle spielen diese Grenzen dort, wo diplomatische Verbindlichkeit infragegestellt wird – kurz: Wo Verträge gebrochen werden? Mit diesen Fragen beschäftigt sich das von Prof. Dr. Martin Kintzinger geleitete DFG-Projekt „Symbolische Kommunikation und kulturelle Differenz. Visualisierung interkultureller Diplomatie im westeuropäischen Spätmittelalter“, das vom 17.-19. September 2014 in Münster seine Abschlußtagung veranstaltet. Unser besonderes Interesse gilt der Erzeugung von Verbindlichkeit und den Problemen, die dabei auftreten. Im Rahmen der Abschlußtagung werden wir unterschiedliche Perspektiven auf diesen Problemkreis bündeln, indem wir den „Bruch des Vertrags“ sowie seine Antizipationen und Nachwirkungen in den Blick nehmen. Die Beiträge sind auf drei Feldern angesiedelt: 1. Normative Auseinandersetzung mit Vertragsschlüssen und –brüchen: Explizite und implizite Handlungsnormen; juristische, ethische, philosophische Diskurse zu Vertragsschluß und Vertragsbruch. 2. Phänomenologie des Vertragsbruchs in vormodernen Gesellschaften. 3. Probleme der Verbindlichkeitserzeugung über kulturelle Grenzen hinweg.

Mittwoch, 17.09.2014
Sektion I: Der Bruch des Vertrags – Diplomatischer Alltag und historisches Skandalon?
Moderation: Martin Kintzinger
14.30-15.00
Georg Jostkleigrewe ( Münster): Einführung
15.15-16.00
Stéphane Péquignot (Paris): Zerbrechliche Verträge? Einige Bemerkungen über die diplomatischen Beziehungen der aragonesischen Könige mit den Königen von Frankreich und von Kastilien (13.-15. Jahrhundert)
16.00-16.45
Gesa Wilangowski (Münster): "Il fault que ledict traictie soit parfaict [...] sans ce quil claudique". Perfekter Pakt? Herausforderungen der Diplomatie zur Zeit Maximilians I.
17.15-18.00
Jean-Marie Moeglin (Paris): Pourquoi n’ya-t-il pas eu de paix pendant la guerre de Cent ans ? À propos des traités de Brétigny-Calais (1360) et de Troyes (1420)
18.00-18.45
Gregor Rohmann (Frankfurt): Die Vertragsbrecher sind immer die anderen. Der Frieden von Skanör und Falsterbo (1395) und seine Nachgeschichte im Kontext der zeitgenössischen Diplomatie
Donnerstag, 18.09.2014
Sektion II: Der Bruch des Vertrags als intra- und interkulturelles Problem: Handelsbeziehungen
Moderation: Peter Oestmann
09.00-09.45
Ulla Kypta (Frankfurt): Verhandlungen zwischen der Hanse und Flandern. Wie man den Diskurs über den Vertragsbruch strategisch einsetzt
09.45-10.30
Marc von der Höh (Bochum): Interreligiöse Absicherungsstrategien. Das Beispiel der Verträge der italienischen Seestädte mit muslimischen Herrschern
11.00-11.45
Christina Brauner (Münster): "Only of decorative significance?" Interkulturelle Vertragspraxis an der Gold- und Sklavenküste (17.-18. Jhdt.)
11.45-12.30
Cornelia Neustadt: „vnse viende iegen God, ere vnd recht“: Vor- und Nachspiel einer Kriegserklärung (1423–1435)
Sektion III: Kanonistische Konzepte: Die Verbindlichkeit der Repräsentation
Moderation: Wolfram Drews
14.00-14.45
Noelle Laetitia-Perret (Fribourg): Guillaume Durands Speculum legatorum (XIII. Jhd.) : Zum Entstehungskontext eines Traktats über das Verhältnis zwischen Papst und Legat
Sektion IV: Der Bruch des Vertrags als intra- und interkulturelles Problem: Mittelmeerraum
Moderation: Wolfram Drews
15.00-15.45
Malika Dekkiche (Gent): Dār al-Ḥarb, Dār al-Islām: status, functions and reality in Mamluk Diplomacy
15.45-16.30
David Crispin (Münster/Köln): Auch den Ungläubigen muss man Treue halten. Bündnisse zwischen Lateinern und Muslimen im ersten Jahrhundert der Kreuzzüge
17.00-17.45
Martin Vucetic (Mainz): Das Abkommen zwischen Kaiser Manuel I. Komnenos und Sultan Kilic Arslan II. (1162): Mechanismen zur Absicherung von Verträgen und ihr Scheitern
17.45-18.30
Sebastian Kolditz (Heidelberg): Fides Grecorum. Die Nichterfüllung vertraglicher Bestimmungen als Faktor in den lateinisch-griechischen Beziehungen des 14. und 15. Jahrhundert
Freitag, 19.09.2014
Sektion V: Der Bruch des Vertrags als intra- und interkulturelles Problem: Polen-Litauen und Oberitalien
Moderation: Claudia Garnier
09.00-09.45
Anja Thaller (Marburg): Advocati ecclesiae – zwischen Schutz und Eigennutz. Oder warum die Grafen von Görz die Verträge mit der Aquileier Kirche brachen
09.45-10.30
Gregor Metzig (Berlin): Bündnispolitik und Vertragsbruch im Kontext des Venezianerkriegs Kaiser Maximilians I. (1508-1516)
10.45-11.30
Julia Burkhardt (Heidelberg): Von unversehrten Dokumenten und zerstückelten Verträgen. Thronfolgeabkommen im spätmittelalterlichen Polen
11.30-12.15
Sebastian Kubon (Hamburg): Die Verträge von Sallinwerder (1398) und Raciążek (1404) zwischen dem Deutschen Orden und Großfürst Vytautas von Litauen – Reduzierte Verbindlichkeitserwartung und ihre Kompensation in einem transkulturellen Kontext
Abschluß
12.15-13.00 Round-Table-Gespräch: Die Verbindlichkeit vormoderner Diplomatie und ihre sozialen, medialen und kulturellen Grenzen
Categories: Comparative Law News

JOURNAL: "LAW EDUCATOR: COURSES, MATERIALS & TEACHING eJOURNAL" (Vol. 10, N. 20, July, 2014)


"Law educator: courses, materials & teaching e-journal"
Vol. 10, n. 20, July, 2014

all articles here
Categories: Comparative Law News

SEMINAR: Pluralism, Religious Diversity and Methodology

Juris Diversitas - Wed, 2014-07-30 04:23

In the filed of the Research Projects JPs (Jurisdiction and pluralisms), the University of Trieste organizes an international seminar on "Pluralism, Religious  Diversity and Methodology". The seminar will be held in Trieste (Italy) on Friday, September, 12th, 2014.
Click here for the program of the seminar.
Click here for further information about JPs
Categories: Comparative Law News

BOOK: Birks on The Roman Law of Obligations

*** Exclusive 30% discount from Oxford University Press ***
The Roman Law of ObligationsPeter BirksEdited by Eric DescheemaekerNow: £35.00 (was £50.00)
The Roman Law of Obligations presents a series of lectures delivered by the late Peter Birks as an introductory course in Roman law. Discovered in complete manuscript form following his death, the lectures are published here for the first time.
Customers can claim the discount by visiting our website at www.oup.co.uk/law, adding a book to the shopping basket, and entering the code ALAUTH14 in the promotional code box.
Categories: Comparative Law News

BOOK: Birks on The Roman Law of Obligations

Juris Diversitas - Tue, 2014-07-29 18:29
*** Exclusive 30% discount from Oxford University Press ***
The Roman Law of ObligationsPeter BirksEdited by Eric DescheemaekerNow: £35.00 (was £50.00)
The Roman Law of Obligations presents a series of lectures delivered by the late Peter Birks as an introductory course in Roman law. Discovered in complete manuscript form following his death, the lectures are published here for the first time.
Customers can claim the discount by visiting our website at www.oup.co.uk/law , adding a book to the shopping basket, and entering the code ALAUTH14 in the promotional code box.
Categories: Comparative Law News

BOOK: Halpérin's Five Legal Revolutions Since the 17th Century: An Analysis of a Global Legal History

Jean-Louis Halpérin's Five Legal Revolutions Since the 17th Century: An Analysis of a Global Legal History (Springer) has been published:This book presents an analysis of global legal history in Modern times, questioning the effect of political revolutions since the 17th century on the legal field. Readers will discover a non-linear approach to legal history as this work investigates the ways in which law is created. These chapters look at factors in legal revolution such as the role of agents, the policy of applying and publicising legal norms, codification and the orientations of legal writing, and there is a focus on the publicization of law.The author uses Herbert Hart’s schemes to conceive law as a human artefact or convention, being the union between primary rules of obligations and secondary rules conferring powers. Here we learn about those secondary rules and the legal construction of the Modern state, and we question the extent to which codification and law reporting were likely to revolutionize the legal field.These chapters examine the hypothesis of a legal revolution that could have concerned many countries in modern times. To begin with, the book considers the legal aspect of the construction of Modern States in the 17th and 18th centuries. It goes on to examine the consequences of the codification movement as a legal revolution before looking at the so-called “constitutional” revolution, linked with the extension of judicial review in many countries after World War II. Finally, the book enquires into the construction of an EU legal order and international law.In each of these chapters, the author measures the scope of the change, how the secondary rules are concerned, the role of the professional lawyers and what are the characters of the new configuration of the legal field. This book provokes new debates in legal philosophy about the rule of change and will be of particular interest to researchers in the fields of law, theories of law, legal history, philosophy of law and historians more broadly.​Recommended. - SPD
Categories: Comparative Law News

BOOK: Halpérin's Five Legal Revolutions Since the 17th Century: An Analysis of a Global Legal History

Juris Diversitas - Tue, 2014-07-29 18:18
Jean-Louis Halpérin's Five Legal Revolutions Since the 17th Century: An Analysis of a Global Legal History (Springer) has been published:This book presents an analysis of global legal history in Modern times, questioning the effect of political revolutions since the 17th century on the legal field. Readers will discover a non-linear approach to legal history as this work investigates the ways in which law is created. These chapters look at factors in legal revolution such as the role of agents, the policy of applying and publicising legal norms, codification and the orientations of legal writing, and there is a focus on the publicization of law.The author uses Herbert Hart’s schemes to conceive law as a human artefact or convention, being the union between primary rules of obligations and secondary rules conferring powers. Here we learn about those secondary rules and the legal construction of the Modern state, and we question the extent to which codification and law reporting were likely to revolutionize the legal field.These chapters examine the hypothesis of a legal revolution that could have concerned many countries in modern times. To begin with, the book considers the legal aspect of the construction of Modern States in the 17th and 18th centuries. It goes on to examine the consequences of the codification movement as a legal revolution before looking at the so-called “constitutional” revolution, linked with the extension of judicial review in many countries after World War II. Finally, the book enquires into the construction of an EU legal order and international law.In each of these chapters, the author measures the scope of the change, how the secondary rules are concerned, the role of the professional lawyers and what are the characters of the new configuration of the legal field. This book provokes new debates in legal philosophy about the rule of change and will be of particular interest to researchers in the fields of law, theories of law, legal history, philosophy of law and historians more broadly.​Recommended. - SPD
Categories: Comparative Law News

CONFERENCE: Diversity and the Courts: Judicial Pluralism in India

Juris Diversitas - Tue, 2014-07-29 18:12
The conference will take place at The University of Turin, Italy on September 18th and 19th 2014.
Click here for the program.
Categories: Comparative Law News

BOOK: Common Law Legal English and Grammar

Juris Diversitas - Tue, 2014-07-29 18:07
Alison Riley and Patricia Sours, Common Law Legal English and Grammar: A Contextual Approach (Hart Publishing) has been published:
Lord Denning, an influential but controversial English judge, stated that 'Words are the lawyer's tools of trade'. This course book reflects that conviction as it focuses on words, the language of the law - legal terms, expressions, and grammar - introduced systematically with relevant aspects of the law, and examined in context through analytical reading activities based on original legal texts selected for their interest and importance in different branches of the common law system. This book explores constitutional law, criminal law, tort, and contract; yet includes international legal contexts, with a particular focus on human rights and European law. The presentation of legal concepts and terminology in context in each chapter is graded so that the course progresses, building on the vocabulary and law encountered in earlier chapters. Each chapter, organized thematically, includes a series of activities - tasks - to complete, yet the book does not presuppose previous knowledge of legal English or of the common law: full answer keys and reflective commentary on both legal and linguistic aspects are given and sections marked 'Advanced' offer especially challenging materials. Consolidation sections are designed to test students' global comprehension of the legal texts analysed, including precise usage of legal vocabulary in context, with solutions. Common Law Legal English and Grammar is addressed to the non-native speaker of English, and in particular, intermediate to advanced students who are studying law, or academics with a professional interest in Anglo-American law. Practising lawyers will also find that the book offers valuable analysis of the language of legal documents.
Categories: Comparative Law News

JOURNAL: The Theory and Practice of Legislation

Juris Diversitas - Tue, 2014-07-29 18:01
The latest issue of The Theory and Practice of Legislation (Hart Publishing) is out. It includes:
Introduction: The Legitimacy of EU Secondary LegislationWim Voermans and Josephine M.R. Hartmann
The Quest for Legitimacy in EU Secondary LegislationWim Voermans, Josephine M.R. Hartmann and Michael Kaeding
Abstract: According to classic democratic theory legislative decision-making presupposes some involvement of the people or their representatives. Their involvement is a prerequisite for the legitimacy of enacted legislation. At the same time, however, the lack of public involvement is a weak spot of EU legislative decision-making. This represents a growing problem because the European Union (EU) is built on and predominantly governed by EU law that is enacted in EU-legislation without direct input from the people. In fact more than 75% of EU legislation is currently enacted by the European Commission (EC). This lack of democratic pedigree of so-called ‘EU secondary legislation’ allegedly causes various legitimacy-related problems at the EU level. With the introduction of a new system on delegated and implementing acts by the Treaty of Lisbon, the EU however aims to address the apparent democratic deficit. This contribution takes up this call and against this backdrop answers the question whether the Lisbon ‘arrangements’ have, indeed, changed ‘things for the better’. It presents a legitimacy review of the post-Lisbon regime on delegated and implementing acts of the last four years. We first look into the concept of legitimacy of EU secondary legislation to assess the post-Lisbon developments. After focusing on the question of whether the legitimacy of secondary legislation has increased since the Lisbon Treaty and in what respect we then turn to the Lisbon institutional and procedural empowerment of the European Parliament in the legislative procedure to see whether it has, in reality, increased the Parliament’s influence and control of EU legislation vis à vis the Council and the Commission. Our findings suggest that the high expectations for improving the legitimacy of EU secondary legislation have not (yet) materialized. Furthermore, facts and figures give cause for doubt as to the feasibility of achieving this objective in the near future.
Primacy of the European Legislature? Delegated Rule-Making and the Decline of the “Transmission Belt” TheoryRob van Gestel
Abstract: According to some a primacy of parliament doctrine is emerging at the EU level in the post-Lisbon era strengthening the position of the EP in the legislative process and tightening the grip on delegated rule-making via the new regime of Article 290/291 TFEU. In reality, however, new problems with delegation have come up, which seem to bypass the normative framework of Article 290/291. It is unlikely that the legitimacy of new modes of delegation can be guaranteed through a ‘transmission belt theory’ in which primary EU legislation serves to transfer democratic legitimacy to the executive, to administrative agencies and to other delegated rule-makers, at the same time constraining their actions so that they advance legislative goals. More attention should be paid to public participation, transparency and judicial review of rules outsourced by the primary legislature.
The Irony of Oversight: Delegated Acts and the Political Economy of the European Union’s Legislative Veto under the Treaty of LisbonKevin M. Stack
Abstract: As part of the Treaty of Lisbon, the European Union adopted a legislative veto mechanism which grants the European Parliament and the Council of the European Union independent authority to revoke delegations to the European Commission or to override elements of the Commission’s “delegated acts.” This article provides a functional assessment of this new provision—Article 290 of the Treaty on the Functioning of Europe—as a basis for evaluating the way in which it alters the grounds of the legitimacy of secondary legislation in the EU. The article argues that Article 290 does little to augment the claim that secondary legislation reflects the views of the Parliament or Council, and ironically may increase the capacity of interest groups to shape the content of the Commission’s secondary legislation. Because the costs of collective action to formally override Commission acts are high for Parliament, principles of political economy predict that the members of Parliament will prefer individual negotiation with the Commission for concessions. Decades of experience with a legislative veto in the United States provide support for this theoretical prediction that a legislative veto’s primary impact in a system of separated powers is to augment negotiations between committees and even individual legislators with executive rule-makers. Yet these often non-transparent negotiations do not represent the Parliament as an institution, and thus do little to enhance the “parliamentary” legitimacy of the Commission’s delegated acts. Article 290’s legislative veto also supplants Member States’ prior gatekeeping role in the Commission’s processes for developing secondary legislation. As a result, this article exposes that with the adoption of Article 290, the primary grounds for the legitimacy of secondary legislation in the European Union—and for the project of EU administrative law—are technocratic and procedural.
The Adoption of Secondary Legislation through Comitology in the EU: Some Reflections on the Regulation (EU) 182/2011 in Comparison with the Pre-Lisbon ReformDaniela Corona
Abstract: The Lisbon Treaty reform provided an important innovation in the EU regulatory activity by differentiating between the legislative delegation (art. 290 TFEU) and the executive delegation (art. 291 TFEU). In so doing, the central role of the European Commission in the Comitology procedures as well as the power of the European Parliament and the Council to control its executive powers have been modified. The new 2011 Comitology Regulation aimed at creating a more intelligible and transparent committees’ system where the EC is expected to act in a stricter framework. The paper argues that the new Regulation preserves the efficiency of the Comitology system; at the same time, however, it does not really improve the level of transparency and clarity in the way in which the committees’ procedures works. Moreover, as the practice clearly shows, the EC continues to enjoy a broad discretion in the adoption of implementing acts.
Categories: Comparative Law News

JOURNAL: Transnational Legal Theory

Juris Diversitas - Tue, 2014-07-29 17:54
The latest issue of Transnational Legal Theory (Hart Publishing) is out.It includes:
Transnational Human Rights Litigation and Territorialised Knowledge: Kiobel and the ‘Politics of Space’Philip Liste
Abstract: In Kiobel v Royal Dutch Petroleum, Dutch and British private corporations were accused of having aided and abetted the violation of the human rights of individuals in Nigeria. A lawsuit, however, was brought in the United States, relying on the Alien Tort Statute—part of a Judiciary Act from 1789. In its final decision on the case, the US Supreme Court focused strongly on ‘territory’. This use of a spatial category calls for closer scrutiny of how the making of legal arguments presupposes ‘spatial knowledge’, especially in the field of transnational human rights litigation. Space is hardly a neutral category. What is at stake is normativity on a global scale with the domestic courtroom turned into a site of spatial contestation. This paper explores the construction of ‘the transnational’ as space, which implicates a ‘politics of space’ at work underneath the exposed surface of legal argumentation. The ‘Kiobel situation’ is addressed as a case belonging to a broader picture, including the following contested elements of space: a particular spatial condition of modern nation-state territoriality; the production of ‘counter-space’, eventually undermining the spatial regime of inter-state society; and the state not accepting its withering away. How are normative boundaries between the involved jurisdictional spaces drawn? How does the ‘politics of space’ work underneath or beyond the plain moments of judicial decision-making? How territorialised is the legal knowledge at work and how does territoriality work in legal arguments?

Private Legal Transplant: Multinational Enterprises as Proxies of Legal HomogenisationTomaso Ferrando
Abstract: Recent decades have been characterised by a surge in foreign direct investments and the expansion of global production networks as a new model of production. However, while hundreds of studies have been produced, little attention has been paid to the legal transformations that are taking place whenever transnational enterprises (TNEs) physically or contractually occupy space within national legal orders. In this article, I expand the scope of the traditional theory of legal transplant to look at foreign direct investments and codes of conduct, and conclude that they create special legal zones—separate sub-regimes where TNEs exercise their de facto jurisdiction. Thus, looking at the micro-mechanisms of legal reproduction we discover the limitedness of traditional theories of legal transplant and that, while critics of legal transplant stand in front of their houses to fight against the hegemony of legal and cultural homogenisation, their enemy is entering by the back door.
The Global Regime of Investor Rights: Return to the Standards of Civilised Justice?David Schneiderman
Abstract: The capital-exporting states of the North Atlantic long insisted that the standards of civilised justice mandated that capital-importing states respect the property rights of their nationals engaged in commercial enterprise abroad. Only a single North Atlantic conception of civilisation worked to provide content for this purported international standard, even as that content was contested by capital-importing states from Latin America and elsewhere. It is said that the construction of a new global legal regime for the promotion and protection of foreign investment, made up of some of some 2,800 bilateral and regional investment treaties, has rendered that debate redundant. The meaning to be attributed to the standards of protection contained in these treaties, however, remains hotly contested by states from the global South. In an attempt to resolve these disputes, scholars are resorting to the law of economically powerful states of the global North, employing methodologies reminiscent of those prevalent in the era of civilised justice
Transnational Legal Assemblages and Global Security Law: Topologies and Temporalities of the ListGavin Sullivan
Abstract: This article examines the UN 1267 Al-Qaida sanctions regime as a technique of global security listing and form of transnational law with distinct legal ordering processes. Conventional literatures frame these sanctions in formalist terms, flattening their complexity. Understanding their qualities and effects demands a dynamic approach capable of grasping how global law unfolds in each of its constitutive dimensions—normative, temporal and spatial. To that end, this paper develops an analytical framework of transnational legal assemblage and deploys it to examine (i) the proposed changes to EU court rules to enable the handling of secret intelligence and (ii) the fortification of exceptional space for pre-emptive security action. Situating this regime within a contested and emergent field of transnational legal assemblage renders it more variegated and contingent than ordinarily thought, opening up different ways of framing the accountability problems, authority claims, normative conflicts and governance practices of global security law.
Establishing the Argumentative DNA of International Law: A Cubistic View on the Rule of Treaty Interpretation and its Underlying Legal Culture(s)Christian Djeffal
Abstract: There is an increasing tendency to frame international legal discourse in terms of regional designations. We speak, for example, of European or American approaches or of Latin American international law. This development could seriously impact the perception of international law. The present article attempts to deepen the understanding of what happens when we think about international law and international legal theory in national or regional terms. The article looks at different approaches to treaty interpretation which have been framed as European and American, to see how this impacts on international legal discourse. In a first step, the two approaches at the Vienna Conference on the Law of Treaties will be explained. Secondly, two narratives will be developed to describe what happened in Vienna in turn as European/American or as international legal discourse. The third part reflects on the consequences of framing concepts and theories in this way, with particular reference to the rules of treaty interpretation.
Categories: Comparative Law News

ARTICLE: Mootz on Hermeneutics and Law

Juris Diversitas - Tue, 2014-07-29 17:32
Francis Joseph Mootz's 'Hermeneutics and Law', to be included in N Keane and C Lawn (eds), The Blackwell Companion to Hermeneutics is available on SSRN:This chapter will appear in a forthcoming book on hermeneutics. After providing a hermeneutical phenomenology of legal practice that locates legal interpretation at the center of the rule of law, the chapter considers three important hermeneutical themes:

(1) the critical distinction between a legal historian writing aboout a law in the past and a judge deciding a case according to the law;

(2) the reinvigoration of the natural law tradition against the reductive characteristics of legal positivism by consturing human nature as hermeneutical; and

(3) the role of philosophical hermeneutics in grounding critical legal theory rather than serving as a quiescent acceptance of the status quo, as elaborated by reconsidering the famous exchanges between Gadamer, Ricoeur and Habermas.

I argue that these three important themes are sufficient to underwrite Gadamer's famous assertion that legal practice has exemplary status for hermeneutical theory. 
Categories: Comparative Law News

JOURNAL: Jurisprudence: An International Journal of Legal and Political Thought (Hart Publishing)

Juris Diversitas - Tue, 2014-07-29 17:00
The latest issue of Jurisprudence: An International Journal of Legal and Political Thought (Hart Publishing) is available. 
Its articles include:
The Jurisprudence Annual Lecture 2014—Law and the Normativity of ObligationThomas Pink
Abstract: The paper examines the natural law tradition in ethics and legal theory. This tradition is shown to address two questions. The first question is to do with the nature of law, and the kind of human capacity that is subject to legal direction. Is law directive of the voluntary—of what is subject to the will, or what can be done or refrained from on the basis of a decision so to do? Or is law directive of some other kind of capacity? The second question is about the nature of ethical normativity, and the relation within normativity of its directive and appraisive aspects. Is direction primary, and appraisal to be explained in terms of a theory of direction; or must a theory of ethical direction be based on a theory of ethical appraisal? Both issues are introduced by reference to Hume’s ethical theory, which raises them in a particularly sharp form. The natural law tradition, in the form it reached by the early modern period, is shown to combine giving a primacy to the appraisive in normative theory, with, in legal theory, a detachment of law from any exclusive tie to the direction of the voluntary. At the heart of the theory of natural law is the idea of law as a distinctive form of normativity directive of a capacity not for voluntariness, but for self-determination. Combined with a view of the state not just as a coordinative authority but as a coercive teacher, this led to a distinctive and highly controversial view of the scope of positive law. The paper ends with Hobbes’s sharp opposition to this view of positive law—an opposition that focused, in particular, on the coercive legal direction of belief.
Chewing Cud: Revisiting Hart and JurisprudenceAllan C Hutchinson
Abstract: The recent publication of a lost essay by Herbert Hart is important for an historical appreciation of his work, but its likely celebration is a sad testament to the poverty and lethargy of contemporary legal thought. I use this occasion to review the state and condition of contemporary legal theorising. After positioning Hart’s essay in the prevailing jurisprudential milieu, I highlight the thrust and the failings of the three main traditional approaches to contemporary legal theorising (ie, positivism, naturalism and formalism) in regard to the nature and operation of ‘judicial discretion’. Then, I suggest an alternative approach to legal theorising that recommends a more satisfying way of proceeding.
Why Jurisprudence Is Not Legal PhilosophyRoger Cotterrell
Abstract: The aim of this article is to describe and defend jurisprudence as an enterprise of theorising about law that is distinct from what is now understood as legal philosophy in the Anglophone world. Jurisprudence must draw on legal philosophy but also from many other resources. It should be an open quest for juristically (rather than philosophically) significant insights about law. Its purpose is to inform and guide the juristic task of making organised social regulation a valuable practice, rooted and effective in the specific contexts and historical conditions in which it exists but also aimed at serving demands for justice and security through regulation, as these perennial values are understood in their time and place, and as they might be further clarified and reconciled as legal ideals.
Hobbesian Sovereigns and the Question of Supra-State AuthoritySylvie Loriaux
Abstract: Thomas Hobbes has often been portrayed as supporting a ‘realist’ view of international relations—a view in which everything is permitted among states, in which the insecurity of the international sphere justifies states in unrestrainedly pursuing the national interest. Yet, as this paper aims to show, this interpretation is not without difficulties. It overshadows both the advantages that Hobbes believes can be gained from interstate cooperation and the fundamental role he attributes to a superior common authority in making cooperative ventures stable and lasting. More specifically, this paper brings into relief the important limitations that Hobbes’s natural law theory places on sovereigns’ freedom of action. It also argues that the most frequently advanced disanalogies between the Hobbesian interpersonal and interstate states of nature fail to explain why it would be irrational for Hobbesian sovereigns to submit to a supra-state authority; the main obstacle is instead to be found in Hobbes’s (questionable) absolutist conception of sovereignty.
Categories: Comparative Law News

JOB: Tenure-track Assistant Professor of Criminology and Law Studies at Marquette University

Juris Diversitas - Tue, 2014-07-29 16:47
Tenure-track Assistant Professor of Criminology and Law Studies at Marquette University

Marquette University (Milwaukee, Wisconsin) is searching for a tenure-track Assistant Professor of Criminology and Law Studies. A doctorate in criminology, criminal justice, sociology or a related field is required. The position announcement is attached. Queries can be addressed to department chair, Jane Peterson by email at jane.peterson@marquette.edu.

Review of candidates will begin on October 1, 2014.
Categories: Comparative Law News

JOB: Tenure-track position in Public Law/Law & Society

Juris Diversitas - Tue, 2014-07-29 16:43
Tenure-track position in Public Law/Law & Society at the Division of Politics, Administration and Justice at the California State University, Fullerton
The Division of Politics, Administration and Justice at the California State University, Fullerton (CSUF) is seeking a tenure-track colleague in Public Law/Law & Society. We welcome applications from candidates from all areas of specialization within Public Law/Law & Society. Thematically, we are particularly interested in reviewing application materials from individuals whose teaching and research speak to: gender, race, law, inequality, and subordinated identities; culture, ancestry & political status; and international perspectives (e.g. global human rights); religion, sexual and gender identity. We welcome applications from all methodological traditions but prefer candidates who are experienced and open to a mix of quantitative, qualitative, and interdisciplinary methodologies.
More information at http://diversity.fullerton.edu/jobs/ft/public_law.asp

Deadline for applications is October 1, 2014.
Categories: Comparative Law News

ARTICLE: De-Gioia Carabellese on Diachronic and Comparative Reflections in the Matter of the Concept of the Arrha

Juris Diversitas - Tue, 2014-07-29 16:33
The curiously titled 'Diachronic and Comparative Reflections in the Matter of the Concept of the Arrha: A Roman Law Notion Lost in the Modern Scottish System and the Renowned (But Probably Not Totally Demonstrated) 'Binding' Nature of the Missives', by Pierre De-Gioia Carabellese, is on SSRN.


The abstract reads:

A jurisdiction such as the Scottish one, reputedly with solid Roman roots, is practically bereft of the fundamental concept of a deposit in the concluding passage of the missives. Alternatively, the relevant "ancestor" (Roman law) has been profoundly permeated, throughout the course of its history, by the notion of an arrha (the earnest) in the conclusion of a contract annexed to the transfer of heritable properties. Moreover, in contemporary times and outwith Scotland, a Continental jurisdiction (the Italian one) is resolutely lingering on the Roman caparra penitenziale while, ironically, the English system (comprehensively "un-Roman" in its formation) has expressly adopted the "deposit" as part of the closing particulars. 

These asymmetries and crossovers, brim-full with inviting legal ingredients, seem, in the present work, to conjure up an intriguing and captivating plot worthy of an Indiana Jones' film, where the lost treasure can be deemed replaceable, for the distracted reader, by the ancient Roman notion of an arrha, so evidently not inherited by the contemporary Scottish jurisprudence. Ultimately, the contribution engenders the usual unsettling query: in the light of the phenomenology of the arrha so neglected in Scotland in contemporary times, is Scottish law still a mixed legal system or, conversely, a jurisdiction progressively getting closer to the English common law counterpart?!!! 
Categories: Comparative Law News