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European Enlargement and Institutional Hypocris y

Elena A. Iankova and Peter J. Katzenstein

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

Provides an account of the status of the enlargement process in the EU, both in the candidate countries and in terms of institutional changes at the EU level. In particular, it argues that European ... More

Provides an account of the status of the enlargement process in the EU, both in the candidate countries and in terms of institutional changes at the EU level. In particular, it argues that European enlargement is a combination of ‘institutional and political hypocrisy’. While political hypocrisy is the result of the purposeful strategy of specific actors that wilfully disobey EU law, institutional hypocrisy results from involuntary non‐compliance due to the lack of capacity or clarity; both have been a systemic feature of legal integration and a major driving force of the European constitutionalization process. However, as the heterogeneity of the EU member states increases, enlargement may well lead to a substantial erosion of the legal and policy coherence of the EU. The first section of the chapter discusses the problem of non‐compliance, the second characterizes the European polity as resulting from the enmeshment of the process of Europe's legal integration with different national legal systems, the third and fourth sections discuss the southern and eastern enlargements of the EU, and the fifth section concludes by pointing to differences in national legal traditions that make institutional and political hypocrisy a systemic outcome of the process of European enlargement.Less

Workforce Diversity Policies

Anthony Ferner, Michael Morley, Michael Muller-Camen, and Lourdes Susaeta

in American Multinationals in Europe: Managing Employment Relations Across National Borders

Workforce diversity is a defining issue of international HR policy transfer in US multinationals. Demographic characteristics, socio-political developments, and the evolution of the legal framework ... More

Workforce diversity is a defining issue of international HR policy transfer in US multinationals. Demographic characteristics, socio-political developments, and the evolution of the legal framework have created a distinctive constellation of diversity agendas in the US. This chapter explores the way in which these agendas were transferred by US companies to their subsidiaries, in host business systems with varying demographic patterns and legal traditions that were not necessarily consonant with American diversity practice. The case studies reveal that there was a frequent lack of fit between the diversity agendas of US multinationals and host-country institutional frameworks, provoking considerable resistance from subsidiaries. However, there was considerable variation in subsidiary responses to diversity, partly explained by structural factors, such as the degree of international integration of operations, and partly by the more contingent strategic and political choices of actors at different levels of the multinational.Less

The Growth of Israel's Legal Tradition

Joseph Blenkinsopp

in Wisdom and Law in the Old Testament: The Ordering of Life in Israel and Early Judaism

This chapter traces the development of Israel's legal tradition. It covers law in early Israel, the Covenant Code, the Decalogue, and Deuteronomy.

Mixed Legal Traditions: The Impact of Custom and Colonialism in India and Kenya

Dana Zartner

in Courts, Codes, and Custom: Legal Tradition and State Policy toward International Human Rights and Environmental Law

Largely due to colonialism, many states today are not guided by a single legal tradition but rather a mixture of legal traditions emerging out of varied, and sometimes conflicting, histories. Using ... More

Largely due to colonialism, many states today are not guided by a single legal tradition but rather a mixture of legal traditions emerging out of varied, and sometimes conflicting, histories. Using India and Kenya as case studies, this chapter considers how the intertwining of multiple legal traditions affects the development of the institutional and cultural characteristics that facilitate or hinder internalization of international law. India has a mixed tradition incorporating the Hindu legal tradition, the Islamic legal tradition, and elements of the common law tradition of the British who ruled India prior to independence. Kenya has a legal tradition which includes customary law, Islamic law, and common law. This chapter examines how policy toward international law is formed when there are multiple legal influences, and how states with multiple traditions reconcile differing cultural perceptions of the role of law and attitudes about appropriate standards of behavior.Less

Constructing the Cornerstone: The Role of Legal Tradition in Shaping State Policy toward International Law

Dana Zartner

in Courts, Codes, and Custom: Legal Tradition and State Policy toward International Human Rights and Environmental Law

Chapter 2 explores in detail the novel cultural-institutional theory developed in this book. After a review of the literature on state compliance with international law in the fields of international ... More

Chapter 2 explores in detail the novel cultural-institutional theory developed in this book. After a review of the literature on state compliance with international law in the fields of international law and international relations, the chapter highlights the omissions in existing studies which either do not consider legal tradition at all or do so primarily in the context of legal institutions. In this book, legal tradition is defined as including both cultural and institutional components which can facilitate or hinder internalization of international law, thereby shaping state policy. Legal tradition also shapes state interests by setting the parameters in which policymakers act. The more closely the cultural and institutional attributes of a legal tradition align with the characteristics and purposes of international law, the more easily international law will be internalized and the more favorable state policy will be towards international law.Less

Shari‘a and the Modern State

Anver M Emon

in Islamic Law and International Human Rights Law

This chapter presents an introduction to Islamic law. Section A begins by discussing the basic themes in Islamic law; it provides an overview of the received narrative of the legal tradition, by ... More

This chapter presents an introduction to Islamic law. Section A begins by discussing the basic themes in Islamic law; it provides an overview of the received narrative of the legal tradition, by which is meant the history of the legal tradition as encapsulated by leading scholarly research in the twentieth and twenty-first centuries. Section B moves beyond the premodern tradition as outlined in Section A and brings the narrative into the modern period. It shows show how the shifts in governance frameworks that came with the era of European colonialism and the modern state system has drastically altered the substance and authority of Islamic law in contemporary legal systems. Section C offers an intervention to the received narrative of Islamic law in the premodern and modern periods by recasting it in a different thematic frame, namely Shari'a as rule of law. Section D concludes by explicating how the proposed systemic approach to Islamic law allows us to appreciate the way in which it (and human rights law) are embedded in different systems of governance, and co-exist with multiple traditions that contribute to the way in which society is governed.Less

The Tosefta and Its Value for Historical Research: Questioning the Historical Reliability of Case Stories

RONEN REICHMAN

in Rabbinic Texts and the History of Late-Roman Palestine

This chapter examines the reliability of using the tosefta for historical research. It explains that the tosefta is a compilation of early rabbinic legal traditions which date from the first to the ... More

This chapter examines the reliability of using the tosefta for historical research. It explains that the tosefta is a compilation of early rabbinic legal traditions which date from the first to the early third century CE. It discusses the different manuscripts, editions and translations of the tosefta. It concludes that the narratives or case stories in the tosefta possess significance for historical research and their relevance ranges from an increased understanding of the daily life of the Jews in Palestine and the activity of the rabbis in society to the more precise determination of their power and position within society.Less

Law and Economy in Traditional China: A “Legal Origin” Perspective on the Great Divergence

Debin Ma (ed.)

in Law and Long-Term Economic Change: A Eurasian Perspective

This chapter examines the recent revisionist literature on Chinese legal tradition and argues that some subtle but fundamental differences between the Western and Chinese legal traditions are crucial ... More

This chapter examines the recent revisionist literature on Chinese legal tradition and argues that some subtle but fundamental differences between the Western and Chinese legal traditions are crucial for understanding the economic divergence in the modern era. It focuses on the comparative status of legal professionals or communities as a historical outcome of important differences in underlying political structures between China and England. It notes that the contrasts in legal regimes as revealed through the differential patterns of legal professions and jurisprudence in China and Western Europe directly impact the nature of these societies' property rights, contract enforcement, and ultimately their long-term growth trajectories.Less

Law and Long-Term Economic Change: An Editorial Introduction

Debin Ma and Jan Luiten van Zanden (eds)

in Law and Long-Term Economic Change: A Eurasian Perspective

This chapter introduces the main themes of this volume, aiming to help in the interpretation of the complex and interactive relationship between law and economic growth. It argues that legal ... More

This chapter introduces the main themes of this volume, aiming to help in the interpretation of the complex and interactive relationship between law and economic growth. It argues that legal traditions in various parts of the world drew on very different cultural concepts about family, property, authority, religion, and property rights, which were filtered or converted by different power structures and social groups into operational legal rules and procedures that had long-lasting consequences on the long-term economic trajectories for different civilizations. It also notes that cultural and historical differences do exist and that these matter for long-term economic change.Less

Introduction

Dana Zartner

in Courts, Codes, and Custom: Legal Tradition and State Policy toward International Human Rights and Environmental Law

Chapter 2 introduces the overall thesis of this book that domestic law and international law are inextricably linked, and a state’s legal tradition shapes policy toward international law. In this ... More

Chapter 2 introduces the overall thesis of this book that domestic law and international law are inextricably linked, and a state’s legal tradition shapes policy toward international law. In this chapter, concepts such as legal tradition and internalization are introduced in the context of a number of examples. Additionally, this chapter provides a brief history of the importance of international law for a comprehensive understanding of state behavior. Finally, Chapter 2 concludes with an overview of the case studies discussed throughout the book, the treaties included, and an outline of subsequent chapters.Less

Ideals, Tradition, and Authority

Fernanda Pirie

in The Anthropology of Law

This chapter discusses the legal traditions of China and ancient Greece, and looks at English common law. It shows that despite claims of embodying rationality and reason, the appeal of tradition is ... More

This chapter discusses the legal traditions of China and ancient Greece, and looks at English common law. It shows that despite claims of embodying rationality and reason, the appeal of tradition is a recurrent theme, even within modern law, along with the invocation of an ancestral law-giver. In such cases the authority of the law transcends that of any known or contemporary law-maker, and presents the author of legal texts as primarily an interpreter of the law, whose task it is to explain or renew an ancient tradition.Less

Conclusion

Dana Zartner

in Courts, Codes, and Custom: Legal Tradition and State Policy toward International Human Rights and Environmental Law

This chapter reviews the overall thesis of this book and highlights the major contributions of this work. A key contribution is that it is not sufficient to assume every state that falls under the ... More

This chapter reviews the overall thesis of this book and highlights the major contributions of this work. A key contribution is that it is not sufficient to assume every state that falls under the umbrella of a legal family will act in the same way. Differences in historical development, institutions, and culture will result in different abilities to internalize international law, which in turn will result in differing state policies. A second major contribution is emphasis on the importance of considering both institutional and cultural factors within the legal tradition of a state. Understanding how legal tradition shapes state policy on international law also provides insight for policymakers on the factors to be considered and the constraints to be addressed in shaping policy, as well as guidance in understanding the policies adopted by other states, perhaps minimizing misunderstandings and facilitating the use of international law to solve global problems.Less

Law as an Intellectual System

Fernanda Pirie

in The Anthropology of Law

This chapter discusses the legal traditions of India, Rome, and the Islamic world. It illustrates the importance of intellectual scholarship and argument in developing forms of law. Case studies ... More

This chapter discusses the legal traditions of India, Rome, and the Islamic world. It illustrates the importance of intellectual scholarship and argument in developing forms of law. Case studies drawn from each system demonstrate what law can be, the forms that it can take, and the roles it might play in a wider social context.Less

Scripture versus Tradition

Aharon Shemesh

in Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis

The new tendency of the Sadducees to appeal to Scripture for practical guidance caused a cultural and religious chain reaction. This chapter deals with the issue of the authority of the holy text ... More

The new tendency of the Sadducees to appeal to Scripture for practical guidance caused a cultural and religious chain reaction. This chapter deals with the issue of the authority of the holy text versus traditional religious norms, delving into the Second Temple period. It explores the disputes and mutual agreements between Pharisaic and Sadducee-priestly halakhic systems in order to enable a detailed description and analysis of the changes that took place from that time onward. It explains the old traditions in accordance with their biblical origins. The exegetical techniques used in these explanations turned into creative tools, and new norms that resulted from the reading of Scripture were introduced, authorized by rewriting the Pentateuch in accordance with them. Due to the fact that any direct evidence for the Pharisees' legal tradition is not available, the inquiry is based on several methodological assumptions and involves some serious difficulties. While the sectarians left a relatively large textual inheritance of their literary creation, all present day knowledge of the Pharisaic halakhah stems from indirect sources. These include the writings of Flavius Josephus and Philo of Alexandria, the references to the Pharisees and their halakhah in the New Testament, rabbinical traditions concerning their forefathers' halakhah, and of course, what the scrolls themselves testify concerning the sectarians' rivals.Less

Negotiating Speech in Islamic Law and Politics: Flipped Traditions of Expression

Intisar A Rabb

in Islamic Law and International Human Rights Law

In the spirit of ‘clearing ground’, this chapter interrogates the Islamic legal tradition by seeking answers to the questions that arise from these new dynamics: What is the ‘old script’, so to ... More

In the spirit of ‘clearing ground’, this chapter interrogates the Islamic legal tradition by seeking answers to the questions that arise from these new dynamics: What is the ‘old script’, so to speak, of speech in classical Islamic law? How wide is the scope of the doctrine, and what are its limits? More importantly, from where do these doctrines emerge and what can the process of unearthing the origins of the Islamic law of speech tell us about the values that such doctrines reflect or impose, then and now? If classical Islamic law is to guide questions of modern legal interpretation and underwrite significant aspects of political legitimacy, even if in the shadow of otherwise secular deliberation and legislation, what are the tensions between the tradition and the accommodation of notions of speech and democracy in the modern day?Less