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Law, Politics, and Society in Europe

Rachel A. Cichowski and Tanja A. Börzel

in The State of the European Union, 6: Law, Politics, and Society

Provides an introduction to the book, giving a general overview of the evolution of EU law and politics with emphasis on the growing intersection between these two disciplines. The first section ... More

Provides an introduction to the book, giving a general overview of the evolution of EU law and politics with emphasis on the growing intersection between these two disciplines. The first section describes the approach taken (use of the dynamic interaction between law, politics, and society as a starting point to think critically about recent developments and future innovations in European integration and EU studies), and the objectives. These are: to provide an overview of key events of 2000–2002 in the EU, while illuminating how these institutional (formal legal) developments are linked to an ongoing interaction between law, politics, and society; to illuminate why the key events since 2000 are also distinct from previous trends; and to provide a unique and interdisciplinary approach to studying the EU by bringing together both legal scholars and political scientists. The second section looks at law, politics, and society as a process of institutional change, and outlines the varying approaches taken in the different chapters. The last section provides an overview of the book by part and chapter.Less

Property Rights Enforcement by Other Means: The Role of Nongovernmental Organizations

Sandra F. Joireman

in Where There is No Government: Enforcing Property Rights in Common Law Africa

It has long been accepted that nongovernmental organizations have taken over the role of the government in spheres of health and education in Africa. Using field research from Uganda, this chapter ... More

It has long been accepted that nongovernmental organizations have taken over the role of the government in spheres of health and education in Africa. Using field research from Uganda, this chapter presents examples of NGOs that have been active in the enforcement of property rights where the state has chosen not to enforce certain rights or where it is not strong enough to do so. Ideologically motivated NGOs have acted to educate lawyers, judges, and citizens and, in some extreme cases, to equip and train police so as to enable the defense of legal rights to property. The implications of this new role for NGOs in terms of local and national authority are discussed. The evidence suggests a completely different model for understanding legal NGOs from that which has been previously suggested; they neither feed into the legal process nor exist completely separate from it, but are intertwined with the state in surprising ways.Less

Financial and Legal Development: The Role of Private Enterprises in Growth

Linda Yueh

in China's Growth: The Making of an Economic Superpower

The rapid rise of the entrepreneurial private sector in China is one of the key reasons for the success of its transition from a centrally planned economy toward becoming a market-oriented one since ... More

The rapid rise of the entrepreneurial private sector in China is one of the key reasons for the success of its transition from a centrally planned economy toward becoming a market-oriented one since the late 1970s, which was explored in part in the last chapter. At the same time, China is a country known for its incomplete legal system, which includes the lack of an independent judiciary, and adjudication is not free from interference from the executive branch. In addition, there is evidence of financial repression whereby legal and institutional constraints impede the development of financial intermediaries, thereby retarding the development of the financial sector. In China, this is manifested insofar as the rules favour state-owned enterprises (SOEs) despite three decades of reform. SOEs still dominate credit allocation, such that the majority of private small- and medium-sized enterprises (SMEs) obtain no bank financing even in 2006 (Lin 2007). This chapter investigates the impact of lagging financial and legal systems on private sector development and complements the previous one.Less

The Development of Legal Reasoning

Tom R. Tyler and Rick Trinkner

in Why Children Follow Rules: Legal Socialization and the Development of Legitimacy

The cognitive developmental model of legal socialization is discussed in chapter 5. This approach emphasizes the development of legal reasoning and focuses on how such thinking shapes legal judgments ... More

The cognitive developmental model of legal socialization is discussed in chapter 5. This approach emphasizes the development of legal reasoning and focuses on how such thinking shapes legal judgments about the purpose of laws, how legal authority should be used, and whether people should feel obligated to obey legal institutions. Basically, legal reasoning provides a framework to understand the nature of society and the requirements of social order, leading to judgments about the legitimacy of the law. Building on Kohlberg’s work in moral development, the legal reasoning perspective argues that people develop increasingly abstract and sophisticated models of the relationship between society and the law with respect to the position and duties of the law and the responsibilities and obligations of citizens. This provides a basis for understanding when to follow appropriate laws and when to violate laws viewed as unjust or unprincipled.Less

Conceptualizing Climate Change-Related Movement

Jane Mcadam

in Climate Change, Forced Migration, and International Law

There is now a considerable amount of literature about how the phenomenon of the climate change-related movement should be ‘conceptualized’ — that is, how it should be understood as an area of ... More

There is now a considerable amount of literature about how the phenomenon of the climate change-related movement should be ‘conceptualized’ — that is, how it should be understood as an area of academic inquiry and a subject of legal and policy development. This chapter does not rehearse the debates on this issue, but rather synthesizes contemporary approaches and explain why the ‘lens’ through which the phenomenon is viewed can dramatically change the way it is perceived and regulated. Conceptualization is therefore key to presenting the ‘issue’ to be tackled, and devising appropriate policy responses to address it. The chapter draws on fieldwork undertaken in three countries which have become synonymous with the notion of climate change-related displacement in Kiribati, Tuvalu, and Bangladesh.Less

The ICJ as a ‘Law-Formative Agency’: Summary and Synthesis

Christian J Tams

in The Development of International Law by the International Court of Justice

This chapter summarizes and synthesizes the main findings of the preceding chapters and spells out a number of propositions about the ICJ's role in the process of legal development. The broader ... More

This chapter summarizes and synthesizes the main findings of the preceding chapters and spells out a number of propositions about the ICJ's role in the process of legal development. The broader argument emerging from the discussion is that the Court's role as a law-formative agency depends less on factors internal to its jurisprudence than on external variables: whether or not it wants to, the Court is influential where it is being provided with an opportunity regularly to pronounce on a particular area of law, where its pronouncements concern areas of law open to judicial development, and where it faces little or no competition by other agencies of legal development.Less

The History of Mexican Law

Stephen Zamora, José RamlÓN CossÍO, Lenone Pereznieto, José Roldá n-Xopa, and David Lopez

in Mexican Law

This chapter provides an overview of Mexican history, emphasizing the ways in which historical events have influenced the development of Mexican law. It begins with an examination of the indigenous ... More

This chapter provides an overview of Mexican history, emphasizing the ways in which historical events have influenced the development of Mexican law. It begins with an examination of the indigenous cultures that preceded Spanish rule. It then describes the legacy of Spanish colonial rule on Mexican law and legal institutions. Finally, it discusses Mexican independence, which was dominated by certain themes that influenced the political and legal development of Mexico, and which were carried forward into the 20th century.Less

Normative Authority and the Adherence to Precedent by the Court

Gleider I Hernández

in The International Court of Justice and the Judicial Function

Using as a starting-point the series of cases involving Yugoslavia throughout the 1990s–2000s, this Chapter examines the Court's public declaration that it will adhere to a relatively strict rule of ... More

Using as a starting-point the series of cases involving Yugoslavia throughout the 1990s–2000s, this Chapter examines the Court's public declaration that it will adhere to a relatively strict rule of precedent. Examining critically the role and function of a rule of precedent within an organized legal system, this Chapter argues that adherence to its previous judgments by the Court represents both a claim to normative authority by the Court, in that its decisions are viewed as persuasive and rational statements of the law, and a systemic claim to safeguard the coherence of international law. The latter question is of particularly heightened importance in relation to the development of the international legal order.Less

Safeguard Measures

Gregory Messenger

in The Development of World Trade Organization Law: Examining Change in International Law

This chapter examines the development of the law on safeguard measures at the WTO. It presents a multi-causal account of how the law has developed—identifying the plurality of actors involved. The ... More

This chapter examines the development of the law on safeguard measures at the WTO. It presents a multi-causal account of how the law has developed—identifying the plurality of actors involved. The chapter first introduces safeguard measures and identifies the values that underpin their use and regulation. By drawing attention to the underlying contestations in safeguards law it examines the way in which US debates over safeguards have shaped their formulation at the international level. The chapter then traces the development of a specific requirement under safeguards law, the ‘unforeseen developments’ clause, and examines how its application has changed over the years, across jurisdictional boundaries. Taking a wider view of how safeguards are regulated, the chapter concludes by identifying certain recent trends in safeguards practice and questioning their importance for how we understand WTO law.Less

Introduction

in Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States

The idea of providing rights to same-sex couples in general, and the prospect of opening up the institution of marriage to gay men and lesbians in particular, have instigated intense public debate in ... More

The idea of providing rights to same-sex couples in general, and the prospect of opening up the institution of marriage to gay men and lesbians in particular, have instigated intense public debate in many Western countries. National courts and legislatures, as well as some international organizations, have been faced with the demands of gays for equality in terms of the rights, benefits, and protections that flow from marriage. The current progress in these directions is among the most interesting and significant legal developments in recent times. Beyond that, this process has highly significant implications for social change: it raises issues of equality between the sexes and reflects on common conceptions of gender roles. A comparative examination of the different models for the recognition of same-sex partnerships has not been conducted to date. This book thus sheds new light on the current same-sex-marriage debate in the United States and Europe.Less

Introduction

Gregory Messenger

in The Development of World Trade Organization Law: Examining Change in International Law

This chapter questions what it means for international law to develop and what challenges arise from this question. It identifies the problematic underlying concepts of change and their fraught ... More

This chapter questions what it means for international law to develop and what challenges arise from this question. It identifies the problematic underlying concepts of change and their fraught relationship with conceptions of international law’s development. It introduces the principal concerns that frame the analysis of the book, drawing attention to the importance of conceptualizing change in international law over time. In raising these questions, the chapter then turns to the World Trade Organization, claiming that by virtue of the normative and institutional advances at the WTO it acts as a bellwether for international law, offering a number of opportunities to examine how international law develops. It concludes by setting out the structure of the rest of the book.Less

Reproducing the Millet System

Arskal Salim

in Challenging the Secular State: The Islamization of Law in Modern Indonesia

This chapter describes how the Ottoman millet system was reintroduced in an Indonesian context. It contends that the Ministry of Religious Affairs (MORA) in Indonesia appears to be a replica of this ... More

This chapter describes how the Ottoman millet system was reintroduced in an Indonesian context. It contends that the Ministry of Religious Affairs (MORA) in Indonesia appears to be a replica of this system. The MORA has not only helped reinforce national legal development by eliminating the remnants of the Dutch colonial legal structure that was based mostly on racial or ethnic groups, but has actually initiated attempts to develop a new legal system that differentiates citizens based on their religions. Extracting some functions related to Islam from other departments, such as the religious courts, education, and information services, the MORA rode the paradigm of nation-state to transform the Ottoman millet system into its new Indonesian version.Less

Closing Arguments and Taking Stock: Fifty Years of Justice

James M. Denham

in Fifty Years of Justice: A History of the U.S. District Court for the Middle District of Florida

Beginning with a summary of the dark economic picture that confronted the presidential election of 2008, this chapter covers the election of Barack Obama and its relevance to the Middle District of ... More

Beginning with a summary of the dark economic picture that confronted the presidential election of 2008, this chapter covers the election of Barack Obama and its relevance to the Middle District of Florida. The Obama Justice Department and the selection of new justices and magistrates as well as their backgrounds are covered. Middle Florida district judges, magistrate judges, and bankruptcy judges often joined other American jurists who participated in international symposiums and conferences sharing elements of American jurisprudence with those attempting to establish the rule of law in former totalitarian countries. The highlights of these activities are covered. In the early 2000s the Middle District developed and implemented historical and other important initiatives, such as developing courthouse exhibits and understood the publication of an historical book. These initiatives are chronicled in this final chapter.Less