Legal education in Nigeria: an evaluation of the recruitment practice for the teaching of law as a career

This article makes a critical assessment of legal education in Nigeria, focusing on the standard of hiring for the teaching of law as a career in the country. Legal academics are hired based upon an accreditation standard that requires a vocational qualification determined through a call to the Nigerian Bar. The article argues that making a vocational qualification a criterion for academic appointment – apart from other achievements demonstrated through higher law degrees – inhibits innovation in teaching and learning and needs to change. This change is premised on three reasons: the growth of interdisciplinary legal scholarship; the trend in the legal marketplace; and the correlation between a law faculty and a department of religion. And it concludes with some proposals to think about for a more scholarly approach towards the teaching of law within Nigerian academia. The aim of this article is to inform the essential dichotomy between legal scholarship and practice, and the transnational aspirations of legal academics, for those involved in the development of law teaching and study, as well as those concerned with educational policy and administration around the world.     

论法律传统的功能

法律传统并不意味着是过去的东西,而是同人们的现实法律生活须臾不可分离,发挥着较显著的功能。这些功能具体可包括以下方面:提供法律文明不断进步的基础、预示法律文明发展的基本方向、进行社会整合与社会控制、为法制创新提供借鉴、指引与评价人们的法律行为以及满足人们的精神需求等。了解法律传统的这些功能,对于我们明确实现法律传统的现代性创新与发展是我国社会主义法治建设基本路向的认识具有十分积极的意义。     

UNBUNDLING THE ETHICAL ISSUES OF PRO BONO ADVOCACY: ARTICULATING THE GOALS OF LIMITED‐SCOPE PRO BONO ADVOCACY FOR LIMITED LEGAL SERVICES PROGRAMS

This article seeks to articulate the practical goal of unbundled legal services for the pro bono family law sector as it applies to limited legal services programs (also known as brief advice clinics), through the use of a goal spectrum, derived from the theoretical goal of access to justice. This article briefly discusses the status of the Indiana Rules of Professional Conduct, as they pertain to the ethics of unbundling. This article then focuses extensively on some practical considerations within the ethical issues of both the scope of representation and attorney competence in order to articulate an appropriate goal for unbundled legal services. Finally, the article concludes that service providers in limited legal services programs should explicitly identify and then perform an essential, discrete service that the client needs to have performed in order to help the client meet his or her ultimate objectives. The service provider and the client could then gauge the success of the limited scope representation based on whether and how well the specific service has been provided.     

Sustaining the State: Legal Consciousness and the Construction of Legality in Competing Abortion Activists' Narratives

This article investigates how activists involved in both sides of the street politics of abortion simultaneously create, are constrained by, and use law when recounting a period of conflict that resulted in litigation. The activists‐turned‐litigants' construction of legality is explored by identifying and analyzing patterns of inclusion, absence, amendment, and type of law (i.e., state or extrastate) in and across the stories they tell. It is found that even though there are multiple reasons to expect all of these activists to resist or amend the state's conception of law, their narratives ultimately reproduce state law's legitimacy and power. The activists' stories also illustrate that legal consciousness is contextually and experientially based and is therefore subject to change. This finding has implications for legal mobilization as well as for the nature of legal consciousness.     

Law,the State,and Public Order: Regulating Religion in Contemporary Egypt

A substantial scholarship has studied the extent to which states across the political and geographic spectrums rely on legal, bureaucratic, and judicial institutions to govern religion. However, a deeper inquiry into the mechanisms through which regulation occurs has yet been achieved. This article foregrounds conversion, understood as mobility between social groups in which belief and sincerity may figure but is not reducible to either, to observe these dynamics. Through an analysis of Egyptian jurisprudence on the right to change religion as well as interviews with complainants and litigators, the article challenges widespread assumptions about who and what constitute the regulatory field. It also shows how religious difference is produced in the legal‐bureaucratic encounter. By accounting for institutions that are not typically considered part of the regulatory field nor thought to be bound by the strictures of legal positivism, this article further occasions a rethinking of the public–private distinction within critiques of secularism.     

试论加强我国宏观调控法制建设

我国国民经济的持续、稳定、协调增长 ,有赖于科学合理且完备的法律制度体系加以保障。考察我国的宏观调控法律制度 ,无论是理论上还是实践上都十分薄弱。因此 ,加强我国的宏观调控法制建设显得尤为迫切。本文从多角度分析了我国宏观调控法制建设的现状、成因 ,并进一步提出了对策。     

Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand

This study analyzes the transformation of legal consciousness associated with the process of globalization. It examines changing conceptions of injury and compensation in northern Thailand, where global economic and cultural flows have had a dramatic impact over the past twenty years. In their "injury narratives," ordinary Thai people describe the harm they have suffered, the causes they identify, the issues of responsibility with which they struggle, the obligations and remedy systems they consider relevant, and the role of law as they perceive it. These accounts, as well as litigation records from the Chiangmai Provincial Court, suggest that a transformation of Thai legal consciousness has indeed occurred, but not in the direction one might have expected. Rather than embracing liberal legalism or conceptualizing their grievances in terms of rights, injury victims in post-globalization Thailand are now less inclined to perceive their experiences in legal terms and more inclined to rely on a new form of religious discourse in which Buddhist precepts justify the injured person's decision to refrain from the pursuit of compensation. This article offers an explanation of why globalization appears to have pushed legal consciousness in the direction of religiosity rather than rights.     

Strict Compliance versus Commercial Reality: The Practical Application of EC Public Procurement Law to the UK's Private Finance Initiative

Abstract: The Private Finance Initiative (PFI) has been described as the largest cultural change for decades in the way the public sector operates in the United Kingdom. Most of these projects have to be delivered within the framework of public procurement law. This article investigates whether the divergence between the legal framework and the commercial requirements of PFI has resulted in the development of a ‘PFI procurement practice’. If so, it is aimed to examine the reasons for developing the practice and whether it deviated from procurement law. The results of the qualitative empirical study, on which the article is based, are not limited to PFI procurement, but have wider implications for EC procurement law and the general debate over whether it is suitable for modern procurement practice. The findings are also of interest to legal sociologists and European Union lawyers as they describe circumstances under which addressees of the law deviate from supra‐national rules.     

Relational legal consciousness in the one-child nation

This article draws from a qualitative study of people's responses to China's population control policies to analyze the relational formation of legal consciousness within and across different types of relationships. It demonstrates that our expectations of others and theirs of us regarding how to respond to law change significantly when we situate ourselves in different types of relationships. The fluid boundaries of relationships in Chinese society also make it essential to think and plan relationally and holistically across different types of relationships to come up with strategies to resist or comply with the law. During this process of relational formation of legal consciousness, law interacts with and reshapes social norms to determine the (un)availability of alternative mechanisms based on the individual's social and financial status.     

Power,National Security and Transparency: Judicial Decision Making and Social Architecture in the Federal Courts

Even in a democratic society, the need for transparency must be balanced with an important countervailing interest: the occasional, legitimate need for government secrecy. This article, based on an examination of opinions in federal cases dealing with national security and transparency, explores how judges identified the main legal issues presented by a case and the legal factors or mode of legal interpretation used to reach or justify their conclusions. The article concludes that many of these opinions are as much about judges’ attempts to balance the judicial branch's power with the powers of the executive and legislative branches as they are about national security and transparency. Furthermore, the article contends these opinions have created an “architecture of power” that determines how national security information is controlled. The final section also suggests that judges should be mindful of the original architecture of power established by the Constitution and the First Amendment when writing their opinions.     

Progress, Challenges and Suggestions on Legislative Efforts of Combating Sexual Violence against Children in the Mainland China

This article provides a brief overview of Chinese legislative progresses in combating child sexual abuse. It also examines flaws of the current legislation based on findings in legal practice and by comparing to UN conventions. While picking up the flaws, the article also gives recommendations for future reform.     

Legal Steps Outside the Climate Convention: Litigation as a Tool to Address Climate Change

This article examines the recent academic interest in litigation as a tool to address climate change, as well as the surge of legal actions worldwide to bring the problem to the attention of judiciaries. This new interest reveals the frustration of legal scholars and activists at the slow rate at which policy makers are addressing the climate change problem. This article shows the slow build-up of academic interest in litigation, before moving on to analyse the kinds of legal causes of action that are being used in different parts of the world. Most of these cases have not been fully resolved, and it is more than likely that the judgments may not always be favourable to the plaintiffs, but at least a first step has been made to involve yet another forum for addressing the climate change problem.     

Potential legal protection problems in the use of compulsory commitment in mental health care in Norway

Compulsory commitment in mental health care represents a dramatic infringement on an individual's life. In Norway, this deprivation of liberty is based on a professional medical assessment that does not require a court verdict. This article presents possible changes that may increase legal protection for the mentally ill. The concept of legal protection has at least two definitions: the state's protection of the individual's legal rights (including the right to health care) and the protection afforded to citizens from abuse and arbitrary actions by the state. Infringements on personal liberty without consent require such legal authority as is found in the Human Rights Conventions. These Conventions have precedence over national laws. Norwegian legislation is based on confidence in psychiatry as a profession. This confidence allows professionals to treat patients against their will. In some countries, initial court action is necessary before compulsory mental health care can be implemented. This should also be possible in Norway in most cases, with the exception of life-threatening situations.     

The Legal Profession as Gatekeeper to the Judiciary: Design Faults in Measures to Enhance Diversity

The gate‐keeping role played by the legal profession in the judicial appointments process gives rise to the translation of entrenched group‐based identity hierarchies from legal practice into the judiciary. The relationship between the composition of the legal profession and the judiciary has been almost completely unaffected by recent reforms designed to increase diversity in the composition of the judiciary. This article identifies legal and institutional defects which help to explain the failure to disrupt the reproduction of these patterns of appointment. We identify two particular defects which we call ‘soft target radicalism’ and ‘regulatory bind’ as important factors inhibiting change. We conclude that if the legal profession is to retain its gate‐keeping role, equality law which directly regulates legal practice should be strengthened and the regulatory binds in which the Judicial Appointments Commission and other public entities are caught should be loosened.     

Psychology and legal change

From its inception, research in “law and psychology” has had an explicitly applied focus. In large part, psychologists have studied legal issues and participated as experts in the legal process in order to improve law and enhance the quality of its justice. This article examines whether and how this can be done. A taxonomy of relationships between the two disciplines is presented which characterizes law and psychology research in terms of its potential for legal change. The use of psychology of effect legal change requires a bringing together of both psychological and legal paradigms. But important differences exist between the styles and methods of reasoning, proff, and justfication in psychology and law. The implications of those differences for the use of psychological data in legal change efforts are developed, as are other aspects of “legalism” that may hinder or impede the effectiveness of psychologically oriented law reform. Finally, limitations of a “factual jurisprudence” that derived from the nature of psychological data are examined.     

中国法治的热望和阻滞——全球化与乡土化

在全球化的整体背景下,法律领域掀起了全球法治化与法律全球化的热潮,本文认为:对于提出并贯彻“依法治国”的当代中国,加入这种全球化运动的渴望和实践是法律在这片土地上实施、运作的动力之一。然而,由中国社会的历史原因和现实原因所造成的“乡土化”法治障碍却成为对抗“法治全球化”的一股暗流。要调和这种矛盾,焕发法律的生命力,最佳选择正是构建强调“和谐”的现代化法治社会。“和”的哲学思维和方法论既是中国传统价值理念在当代的回归,也为处理好全球化和乡土化的关系提供了方向和途径。     

正确的与合理的

英美刑法对含糊的、但具解释力的“合理性”的依赖促成了平面式法律推理,而大陆刑法则基于对“正确的”这一概念的独特理解而形成了构建式的法律思维模式。虽然无论是“合理的”还是“正确的”都体现了一种使刑法规范超越实定法的努力,但“正确的”代表着一种一元性的法律秩序,意味每一法律争议只存在唯一正确答案,而“合理的”则驱使法律秩序走向多元。在某种程度上,这也正是哈特和德沃金关于自由裁量权问题的争论的症结所在。     

论司法和谐的困境与前景：从法社会学角度

本文从司法和谐的基本内容入手,论述了在当代我国经济、政治、社会全面发展的背景下,实现司法和谐的现实困境,即＂特权文化＂心理促使人们追求逃避法规的特权,泛行政化的权力结构不利于实现司法公正,社会利益冲突加剧使司法和谐变得困难,社会价值多元化让司法活动受到更多拷问,从法社会学角度展望了我国＂司法和谐＂的前景。     

物权公示原则的多重视角

物权变动的公示问题是物权法的一个重要问题和重要制度,各国对此采取了不同的立法例,学界也多有争议。本文认为,物权公示作为一项原则,我们对其理解和把握,不能仅仅停留在直接效力层面,它还具有安全功能、伦理基础和证据意义,并且在物权法中居于基础地位。是一项有着深厚制度底蕴和法律技术支撑的重要原则。     

The Structures of Monetary Nominalism in the Pre-Modern Common Law

This article considers the legal structures of the pre-modern common law which ensured that money generally passed at nominal rates in payment transactions. The English sovereign changed the monetary standard many times during the fourteenth to sixteenth centuries so that the purchasing power of the English currency changed markedly at identifiable stages. These changes seem to have left very little trace in the contemporaneous law reports. The article considers why changes in the monetary standard rarely presented a legal issue for common law judges. It argues that English law had a well-defined set of legal structures which ensured that money passed at nominal rates despite a change in the monetary standard. Given the way that payment clauses in common forms of transaction were formulated and actions in debt were pleaded, it would be difficult for a party to raise the change in the monetary standard as an issue for argument in a common law court.