On the dynamics of legal convergence

In this paper, we study the dynamics of legal rules in a model with two nation-states playing a non cooperative game. For each country, changing the legal system is a costly process. At the same time, the existence of different legal systems is also costly for all nation-states. We show that despite the non cooperative behavior of countries, a process of legal convergence is achieved in the long run through small step by step changes. This result depends neither on the number of players in the game, nor on the time horizon of policy makers. Complete legal convergence can be obtained in a finite time. Coordinated efforts to achieve legal convergence are then unnecessary. We show that they might even be counterproductive, in the sense that the welfare of nation-states is higher under legal competition, compared to cooperative legal unification.     

Lavascape: legal spectacle at Kīlauea

ABSTRACT

In considering the theme “Exploring Legal Discourse: A Sociosemiotic (Re)Construction,” this paper examines the symbolic relationship between law and chaos in the changing landscape of Kīlauea Volcano on Hawai’i Island. The socio-legal dimensions of this relationship provide insight into law’s project of governance in the dynamic natural environment. Most recently, in the summer of 2018, lava spouted and then flowed from Kīlauea in over twenty-four fissures which opened up within two heavily populated residential subdivisions. Law's response to the ensuing chaos provides keen insight into the epistemological positionality of law toward nature. In an attempt to tame this enlivened lavascape of persons and lava, law asserts authority over the spectacle in the areas of sightseeing, access, and mapping. In other words, the legal spectacle of lava eruption is an attempt to jurisdictionally frame the legal imagination of human risk in this dynamic landscape through legal semiotics, legal materiality, and legal topology. However, as this paper will explore, the source of chaos is actually law itself. Attempts to manage chaos are actually attempts to manage human nature as visitation to the erupting volcanic environment is ultimately beyond law's complete control. In a larger sense, this study of Kīlauea's lavascape as a constructed legal spectacle illustrates the phenomenological framing of law's incomplete jurisdiction over kinetic environments.     

Anarchy,self-governance,and legal titling

Scholars and policymakers prescribe legal titling to improve prospects for economic development and political order. However, a public choice literature exists that has long recognized that self-governance often works well and that the state may not be able to improve upon local economic institutions at reasonable cost. Although the implication that legal titling should proceed with caution is seemingly straightforward, the literature on legal titling does not take anarchy seriously as a policy option. In addition, there is a public choice literature that presumes the state is the most important source of property rights. This essay fills this gap in the property rights literature by applying the concept of “efficient anarchy” to legal titling in Afghanistan. Original fieldwork evidence from rural Afghanistan suggests that anarchy of land governance is a better option than legal titling. The essay concludes by opening up the black box of state building by explaining why it often makes sense to sequence improvements in political capacity and political constraints prior to investing in legal titling.     

Adaptive Justice in the Chinese Context: Law versus Commonsense

Under certain circumstances, law may come into conflict with commonsense, which by definition refers to “popular conceptions of right and wrong”, a conflict to which rescue comes a mechanism I conceptualise as “adaptive justice”, as it aims to adapt the law, in balance with other non-positive, but equally universal rules, to the circumstances at hand. It follows two propositions: (1) When law encounters or engenders difficulty during its legislation, application or interpretation, certain non-positive, universal rules will have to be introduced in order to make flexible the rigidity of written law; (2) the solution is an adaptive application of legal rules, rather than adherence to a literal reading of legal texts. In the context of the libertarian-communitarian debate on justice, this notion of adaptive justice may offer us a new angle, as it has an in-built focus on “methodological relationalism”, which by definition uses interpersonal relationship as the basic unit of analysis to decode human behaviour and values.     

Litigation and the Evolution of Legal Remedies: A Dynamic Model

In this paper we build uponexisting literature on the evolution of thecommon law. We consider a model of legalevolution in which judges have varyingideologies and propensities to extend thedomain of legal remedies and causes ofaction. Parties have symmetric stakes andare rational. Plaintiffs bring a case tocourt if the expected net return from thecase is positive. The net expected value ofthe case depends on the objective merits ofthe case, the state of the law, and theideological propensity of the judge.Plaintiffs have full control over whetherto bring a case to court. In our model, thecombined presence of differences in judges'ideology and plaintiff's case selectiongenerate a monotonic upward trend in theevolution of legal rules and remedies. This may explain the stylized fact underwhich certain areas of the law have beengranting increasing levels of remedialprotection and recognition of plaintiffs'actions.     

Private association and public brand: the dualistic conception of political parties in the common law world

This paper examines the legal conception of political parties. It does so by unearthing the history and ontology of the common law relating to political parties in international perspective. The flexibility of the unincorporated association, in which parties are understood through the private law of contract as networks of internal rules or agreements, rather than as legal entities, has proven to be a mask. In the common law’s imagination, the ideal party is a ground-up organization animated by its membership. But the law mandates no such thing, and in its statutory and constitutional conception intra-party democracy may be sublimated as parties need be no more than an electoral persona or brand.     

Jurisgenerative role of auditors in transnational labor governance

This article builds on the model of regulatory intermediaries by incorporating insights from the field of legal hermeneutics about the process through which the meaning of a legal rule emerges. It describes how intermediaries can take on a jurisgenerative role in the development of legal rules through their interpretation of legal rules. This role is demonstrated through an analysis of social audits from Chinese and Vietnamese factories involved in the Fair Labor Association (FLA). The analysis illustrates how the integration of fundamental labor rights into the FLA's private Code of Conduct requires auditors to develop new interpretations of the Freedom of Association as a result of uncertainties and contradictions between legal requirements at various levels, as well as with the FLA's own rules. Through this empirical analysis, the article contributes to the literature by identifying regulatory intermediaries’ jurisgenerative capacities when they monitor fundamental labor rights referenced by private governance instruments. It further highlights why legal and regulatory governance scholars need to consider the transformative effects that transnational private labor governance may have on international labor law.     

Time and technique: the legal lives of the 26-week qualifying period

This paper aims to bring an appreciation of legal form, technicalities, and legislative drafting to growing interdisciplinary literatures on time and governance. Scholarship across politics, geography, science studies and anthropology continues to trace the productive force and specific qualities of diverse temporal horizons. At the same time socio-legal scholars increasingly focus on the work of making and negotiating law, engaging with the dogged, everyday work of legal experts and bureaucrats. Yet little attention has been paid, to date, to the work of legislative drafters. This paper follows the ‘legal lives’ of qualifying periods on family-friendly employment rights. As examples of legal technicalities that work with time, qualifying periods form an important part of the regulatory structure that separates precarious workers from ‘regular’ employees in UK law. Drawing on documentary research and interviews with policy experts, union activists and legislative drafters, this paper focuses on the formal qualities of qualifying periods, arguing that these legal technicalities conjure time and legal form as inextricable. Whenever law becomes relevant to conversations about time and governance, we could usefully pay attention to the idiosyncrasies and controversies occupying legal form and legislative drafting.     

打捞海底沉没物的行为是否构成犯罪的法理分析及思考

打捞海底沉没物从行为方式上分析,在刑法规范的技术运用上具有无法克服的障碍。从法理角度分析,一种行为构成犯罪,往往具有二次性违法的特征。在行为能够通过民法或其他法规制约的时候。不应直接运用刑法作跳跃式的分析认定。     

Litigation and legal evolution: does procedure matter?

Gordon Tullock’s critique of the common law runs against much of the conventional wisdom in the law and economics literature. In this paper we revisit one of the most controversial aspects of Tullock’s critique. By applying Tullock’s own model of rent-seeking to litigation, we study the effect of alternative procedural rules on civil litigation. Our results provide support for Tullock’s controversial critique of the common law, revealing an evolutionary bias in the production of legal rules by courts. We extend the standard litigation model to study the effects of alternative procedural systems on the evolution of the common law.     

Reconciling legal positivism and human rights: Hans Kelsen's argument from relativism

This article examines the conceptual relationship between legal positivism and human rights, challenging the common idea that the two are in tension or that there exists, at most, a contingent relationship between them, whereby legal positivists can only recognize the normative validity of human rights if they happen to be inscribed in positive law. To do this, I focus on the thought and writings of one of the “founding fathers” of modern legal positivism: the Austrian legal theorist and political philosopher Hans Kelsen. In the first part, I show that Kelsen's conception of legal positivism is inextricably tied to — and, indeed, logically stems from — his moral relativism. In the second, I show that this form of relativism is also the philosophical foundation for Kelsen's commitment to democracy and human rights. Finally, in the third part, I examine the specific conception of human rights that results from this relativistic foundation, contrasting it with the “natural law” version that legal positivism excludes.     

The legal environment of planned urban growth

The part that law as a skill and as a discipline can and should play in urban development and in the work of an urban development agency is discussed on the basis of recent experience in three countries. Emphasis is given to the importance of involving lawyers from the start of any programme for planned urban growth, and the disadvantage of bringing lawyers in only for specific legal jobs is stressed. The article surveys the range of work in which a lawyer is necessarily involved where planned urban development proceeds within a framework of law.     

Globalization and legal change: The “Americanization” of European law?

Intensified global economic competition, economic liberalization, and the rise of EU governance have led some observers to argue that there has been a trend toward the “Americanization” of the European “way of law.” This article addresses that contention, focusing on legal change in European member states. It first describes ways in which the American legal tradition has differed most sharply from the national legal systems of Western Europe (including Great Britain) and the political and economic factors that account for this “American legal distinctiveness.” Similar political and economic factors currently are at work in Europe, the article acknowledges, creating incentives for legal convergence. But it also argues that European legal culture and the political organization of European national states generate path‐dependent forces that impede European movement toward American ways of law, and it discusses six important differences between European and American law that remain entrenched and are unlikely to disappear.     

The paradox of legal harmonization

The legal landscape is changing, adapting to the global market. Differences between legal systems hinder transnational commerce. Countries reduce legal differences through non-cooperative and cooperative adaptation processes that alternatively lead to legal transplantation or harmonization. Switching costs render unification difficult. Cooperation reduces differences to a greater extent but rarely leads to legal unification. In this paper we unveil a paradox of legal harmonization. When switching costs are endogenous, countries engaging in cooperative harmonization may end up with less harmonization than those pursuing non-cooperative strategies.     

Issues management,systems, and rhetoric: exploring the distinction between ethical and legal guidelines at Enron

• Many corporations use legal rather than ethical standards for decision making in issues management. The Enron collapse provides a case example of why legal standards should never be used as a substitute for ethical principles. As we illustrate in this discussion of Enron, seeking loopholes in the law can lead to ethical violations that are ultimately more severe than legal infractions. We use systems theory and rhetorical rationales to discuss the issues management function as the proper location in an organization for ethical decision making and corporate responsibility. Both systems theory and rhetoric support the argument that an organization must be good internally and make decisions from an outside‐in perspective; management at Enron heeded neither idea. This research recommends a deontological approach, based on Kantian norms of moral autonomy and good intention as a basis for ethical issues management, and uses the Enron case for illustration of these principles. We conclude this discussion by offering a matrix simplifying the principles of both ethical and legal decision making based on systems theory and rhetorical approaches to public policy.

Copyright © 2005 John Wiley & Sons, Ltd.     

The international rule of law

ABSTRACT

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights.     

Former Nazi's extradition from Canada raises interesting legal issues

The Appeal Court of the Ontario Supreme Court adopted a far‐reaching interpretation of the customary rules governing the application of the laws of extradition in international law.     

The mechanical and psychological effects of legal thresholds

In this paper, we estimate the effect of the legal threshold on the number of parties and decompose it into a mechanical and a psychological effect. We study the case of Morocco, whose local elections afford a rare opportunity to uncover the causal effect of the legal threshold, using a differences-in-differences approach. Our results show a large effect of the legal threshold on the number of parties. We find a large psychological effect in absolute terms: a 3% increase in the legal threshold leaves almost one effective party out of the council for purely strategic reasons. We conjecture that this large effect is due to the lack of institutionalization and programmaticness of most Moroccan parties.     

对当前铁路公安民警维权工作的思考

当前,我国仍处于"人民内部矛盾凸显期、刑事犯罪高发期和对敌斗争复杂期",由于执法环境恶化、法律法规对民警执法权益保护力度不够、维权保障机制不健全等,民警在执法中遭受不法侵害的情况突出,主要表现在暴力抗法、诬告错告、辱骂威胁等方面。督察部门有维权的法定职责,应从营造正面舆论环境、提高执法工作质量和标准、提高民警执法水平和防范能力、丰富创新维权手段等方面入手,建立健全公安维权工作机制,确保公安机关执法工作的正常开展。     

Sovereignty, Augusto Pinochet, and legal positivism

The imperativist strand of positivism derives law from an actual person or set of persons wielding a monopoly of force. The rule-based positivism of H.L.A. Hart has more sublty identified a matter-of-fact rule of recognition in place of such a sovereign one or many. But sovereignty is not a matter-of-fact of any kind; rather it is partly the product of what I call qua arguments. I reconstruct the reasoning, in the extradition case of Augusto Pinochet in the British House of Lords, providing a focus for an account of the limits of legal positivism in the application of the principle par in parem non habet imperium. Sovereign power is interpreted through reasoning that is at its margin more moral than technically legal.