Economic and Sociological Approaches To Institutions: Economy, Society And Law

Examined in this paper are some important paradigmatic differences between novel economic institutionalism as espoused by the new institutional economics and sociological institutionalism as advanced by economic sociology. Just as the old and the new institutional economics, economic institutionalism and sociological institutionalism display important differences in their assumptions, domains and methodologies. The paper also takes a look at the possibility for multidisciplinary integration, in a multiple-paradigm approach, of economic and sociological institutionalism, particularly law and economics (economic analysis of law) and law and society (sociology of law) literatures, in these times of interdisciplinary social analysis. Since in the current literature comparative analyses of economic and sociological institutionalism in general, and economic and sociological approaches to legal institutions in particular, are relatively rare, the paper attempts to fill in a gap in this respect.     

“Staatswirtschaftslehre”—A Component of “Staatswissenschaften” Today and Tomorrow

The paper starts from problems of reorganization of the Welfare State. The second paragraph contains definitions and materials. The third paragraph turns to the development of Staatswissenschaften, especially to cameralistic views, public choice and deregulation. The fourth section deals with present Staatswirtschaftslehre as a component of Staatswissenschaften. The fifth paragraph is focussed on deregulation and reorganization of the state.The paper demonstrates: Staatswissenschaften and Staatswirtschaftslehre will be important academic disciplines also tomorrow, though the State will be reorganized by privatization, non-government-organizations and rearrangements of private and public sector activities under the conditions of new technologies and open markets.     

Christian Wolff and the classics of“scientific socialis”

The paper analyses the reception of Christian Wolff in the work of the founders of scientific socialism. It is discussed how Marx, Engels and Lenin thought about a leading representative of German Enlightenment. The author argues that the classics of scientific socialism knew about Wolff in an off-handed and secondary way. As the case of Wolff shows their studies regarding philosophical, legal, sociological and economic theories and those who represented them were strongly influenced by thinking with the logic and in the categories of class antagonism and struggle. The Wolff treatment by Marx, Engels and Lenin determined his reception in the philosophy and economics of the state socialism.     

Sex @ the End of the Twentieth Century: Some Re-marks on a Minor Jurisprudence

This article offers a re-reading of Goodrichs essay, Law in the Courts of Love. My contention here is that the idiom of love that Goodrich provides us with in this essay cannot address the complexity of sexuality and sexual politics that inhabit our contemporary technoscientific culture. In so doing, I will juxtapose his essay with Laven Berlant and Michael Warners essay, Public Sex. This article will be divided into three sections. In the first section, I will evaluate and review Goodrichs genealogical approach to law and the image of justice that arises out of his approach. The second section will be a re-reading of Goodrichs Law in the Courts of Love through feminist and technoscientific discourses. Its aim is to problematise and re-think not only the idiom of feminine justice that Goodrich offers, but also to question the presuppositions upon which his work is based, primary presuppositions surrounding issues of privacy, sexuality and sexuated rights. Finally, in the third section I will conclude by suggesting that the re-figuration of justice necessitates a re-figuration of the relationship that law has with time and space.     

Structural Reform Policy: Privatisation and Beyond—The Case of Greece

Privatisation, coupled with liberalisation and competition, constitutes one of the most popular policy options to improve the performance of state-owned enterprises. However, in Greece, it was only after 1991 that privatisation started to gain ground in the political and economic agendas of governments. Drawing upon the theoretical underpinnings of privatisation, the paper overviews and critically analyses the new legal framework on denationalisation in Greece. The paper argues that, though the modernisation of the legal regime is welcomed, the Greek government has failed to treat privatisation as part of wider structural reforms aiming at enhancing competition and foreign investment. The paper concludes that wider structural reforms, including regulatory reform and liberalisation, as well as combating corruption and bureaucracy and promoting transparent capital markets, are absolutely necessary in order to create a competitive environment, which would both complement and support privatisation efforts.     

Rendition/Eviction – A Post-Apartheid Reflection

The article analyzes the internal logic of the conceptual and structural hierarchies involved in slavery and apartheid land law. The rendition or recovery of fugitive slaves and the eviction of squatters from land during apartheid both involve the use of legal procedures and institutions to protect property interests. However, in the period following the emancipation of slaves and the abolition of apartheid, this logic was not abandoned – liberty was acquired at the price of economic subjugation. The new forms of slavery will continue unless the abolition of slavery and the termination of apartheid are explicitly celebrated as political acts that replace the urge to dominate and possess with a measure of public-spiritedness and non-possessiveness. Politics can be kept alive only when the compelling logic of domination and hierarchy is resisted through a different, public-spirited rendition of eviction.Paper read at the Critical Legal Conference 2003, entitled Transition and Transformation; Resistances and Reconciliation; Communities Within and Beyond Law, Johannesburg, 5–7 September 2003. Thanks to Gerhard du Toit and Maartje Eefting for research assistance. Peter Fitzpatrick (No Higher Duty: Mabo and the Failure of Legal Foundation, Law & Critique, 13 (2002), 233–252) and Frank I. Michelman (The Bill of Rights, the Common Law, and the Freedom-Friendly State, paper read at the University of Miami, 21–22 March 2003, published version forthcoming) inspired some of the ideas worked out here. Thanks to Frank Michelman for permission to refer to his unpublished article, and for helpful comments on a draft of this article.     

Mandatory Full-Cost Pricing in Public Services: The Case of the ‘Fantask’ Sentence

The sentence issued by the Court of Justice in the Fantask Case defined what sort of policies can be adopted by the Member States in connection with the fees for company registration without contravening the stipulations of Community legislation on raising capital. This article analyses how to set prices that comply with the sentence and at the same time generate efficient incentives. It first reviews to what extent the sentence meets the aims on which it is based. Second, it provides a guide for subsequent development of related jurisprudence. Third, it throws some light on how public authorities can set pricing policies.     

Allocative or Distributive Aims of Income Taxation?

Relations of income tax legislation and economic development are traditional subjects of German public finance. Reginald Hansen's book (1996) on practical consequences of the “Methodenstreit” for income taxation is considered under three aspects: history of economic thought, tax-systems and aims of income taxation. The introduction is followed by four paragraphs: 1. Long-term views of income taxation, 2. Reginald Hansen's comments on income taxation in Germany, 3. From Schmoller and Wagner to the modern German type of income taxation, 4. “Ability to pay,” “Pay as you use” or what else? The article demonstrates progressive and restrictive results of the long-term view focusing on the evaluation of income taxation principles.     

Efficient Contract Remedies And the European Unification

This paper applies theoretical results that are derived from financial-economic principles to the issue of efficient contract remedies in view of the European Unification. Common Law favors the expectation damages remedy, according to which a party who is aggrieved by a breach of contract expects an ex-post damages award, while this paper demonstrates that if the subject of the contract is traded continuously with observable values, an alternative remedy is equally efficient and just. The alternative remedy is rationalized on an ex-ante basis, and thus, courts intervention in the event of a breach of contract may not be essential. The EU aims to establish a uniform commercial code superior to all national law. This goal reflects current cultural differences and lacks of homogeneity, such as expectations and risk preferences across EU Member States. Lacks of homogeneity, can not, however, invalidate the above conclusion, as long as prices are continuously traded and a single price regime prevails. Accordingly, this paper predicts that since price differentials across Member States are likely to disappear faster than other non-homogeneous factors, the Court of Justice will show a tendency to rule, utilizing the rationale underlying the ex-ante regime, and perhaps, to overturn country-specific rulings by National Courts, which favor the expectation damages regime.     

Law,fact and legal language

This paper discusses the difference between the factual and the legal, both as to terms and as to statements, on the analogy of the methodologists' distinction of the observational and the theoretical. No absolute distinction exists, and pure brute facts do not exist in law because of the socialisation of physical world and juridification of the social world.; also, the effect of evidentiary constraints. Law/fact distinction depends on applicability rules. The problem of mixed terms is partly a matter of judicial pragmatics, partly to do with the character of applicability rules, and their extensiveness. Semantic realism versus semantic instrumentalism in respect of legal terms -- the latter preferred. Tendency to abstract terms in advanced legal orders.     

Corporate crime: State-owned enterprises in China

Conclusion A decade ago, the Chinese leadership frankly acknowledged that the model of a fully planned economy, with its system of state-owned and state-run enterprises, was what Lenin had called a bureaucratic dream. 86 Today, state-owned enterprises are enjoying far more freedom to operate, and the state is trying to control them with more law and fewer plans. The use of criminal law to confront corporate crime is part of the effort to import advanced management methods from the West. Nonetheless, in the context of state ownership and Party leadership, the appropriateness of this approach is questionable.The Company Law is a new instrument to bring about fundamental changes in China's system of business organizations. These changes will help determine the scope and limits of criminal law, as applied to corporate enterprises, in the next decade. In this context, I would suggest replacing the concept ofdanwei crime with the concept of corporate or company (gongsi) crime; distinguishing thosefaren that can independently bear criminal liability from those that cannot; and clearly defining the elements of corporate offenses. Corporate criminal liability is a concept applicable when the corporation not only commits the crime but also has the legal capacity to be liable in its own right. Individual liability is still the sole principle applicable to a government agency, even if the crime is collectively committed.Given the historic context of China's socioeconomic reform, criminal law reform can advance only gradually. To insure that Western concepts fit the Chinese setting, lawmakers must make certain that every new criminal statute or regulation is enforceable even where enterprises remain closely interconnected with the state and decision-makers in publicly owned enterprises are mainly appointees of the state.I gratefully acknowledge the invitation of Daniel Prefontaine, Director of the International Centre for Criminal Law Reform and Criminal Justice Policy, Vancouver, British Columbia, Canada; and of the Hon. Josiah Wood of the British Columbia Court of Appeal, to present an earlier version of this essay at the eighth international conference of the Society for the Reform of Criminal Law, Hong Kong, December 4–8, 1994. Thanks are also due to Madeleine Sann, Director of Publication,Criminal Law Forum, for her excellent editorial comments.Postgraduate Diploma of Legal Studies, ECIPSL 1984, LL.M., Shanghai Academy of Social Science 1985; Ph.D. candidate, Simon Fraser University.     

The system's rigged — or is it?

From the beginning of the Seventies until almost the end of the Eighties, the Public Prosecution Service in the Netherlands concentrated a major part of its resources on combatting white collar and corporate crime. This effort climaxes in a number of spectacular fraud trials, involving in one case the directors of a large commercial bank, in another high-ranking public officials. Almost all were acquitted. As dramatically as interest in white collar and corporate crime had increased, so too did it decline at the end of the Eighties, until by now public interest in fraud is primarily concerned with social security frauds at one end of the scale, and money laundering by organised crime at the other. This article examines the rise and fall of the fraud-issue in Holland, the parts played by the Public Prosecution Service and the media, and the structural (economic and social) limitations to the criminalisation of white collar and corporate behaviour.     

Private Policing in Context

This article considers the development, growth and significance of private policing in a wider context. Section one suggests that the rebirth of private policing is associated with - and, in effect, demands - a change in the conceptual framework with which policing is analysed. While section one addresses the conceptual context of private policing, section two examines its theoretical context by considering various explanations for the post-war growth of commercial security. Moving from specific to general accounts, it is suggested that two explanations - one based upon sociological accounts of the development of modern societies, the other on genealogical accounts of developing mentalities - provide a crucial context for understanding contemporary changes in policing and governance. In the next section, two of these changes - the growing influence of risk-based policing and the increasing significance of diverse patterns of governance - are considered in the context of the fragmented forms of security provision (commercial, municipal, civil and state policing) which are prevalent today. A short concluding section offers some final thoughts on how these arguments impact on the governance of policing. One of the implications contained in this article is that the re-emergence of private policing needs to be considered not only as a problem, but also as an opportunity to identify and address critical questions of contemporary governance.     

Enemies Everywhere: Terrorism, Moral Panic, and US Civil Society

Since the attacks of September 11th, 2001, terrorism has experienced a prominence in discourse across the U.S. The representations of terrorists and terrorism by the news media and politi have contributed to the edifice of terrorism as a moral panic. This treatise examines the social effects that have or may occur due to the social construction of a moral panic of terrorism. The thematic frame is situated within Cohens stages of a moral panic. We offer an analysis of the medias depiction and coverage of acts of terrorism, and legislative, political and legal responses in the form of social and cultural changes occurring from the creation of a moral panic. In addition, we offer an analysis of the states vested interest in the social construction of this panic, leading to increased levels of fear, targeted at the general publics consciousness. This article concludes that the presentation of terrorism and terrorists by the media and politi have contributed to unnecessary levels of panic and fear, misguided public consciousness, and the development of legislation creating negative social ramifications yet be seen.     

Community Crime Prevention and the ‘Partnership Approach’: A Safe Community for Everyone?

If creating a safer community is merely reduced to controlling and disciplining the most vulnerable groups, their opportunities for participation and emancipation are blocked. Installing such a crime prevention model leads to the further exclusion of these groups. Starting from research that focuses on the interagency relationships within community crime prevention, this article offers a model of creating some possibilities to create a safer community on the one hand and that holds back the dynamics of social exclusion on the other. It focuses on the relations between (community oriented) welfare agencies on the one hand and police agencies on the other hand. Starting from the empirical data, two polarising models are put forward in order to analyse the evaluate this co-operation: a consensus model and a conflict model. Referring to a normative framework, it will be argued that a conflict model has to be preferred in order to develop a socially just crime prevention model.     

Patent Related Indicators for Assessing Knowledge-Generating Institutions: Towards a Contextualised Approach

This contribution aims at examining the extent to which patent related indicators are relevant for shedding light on the notion of excellence within knowledge-generating institutions. Traditionally, excellence has been looked upon as the ability to create interesting and valuable new scientific concepts, theories and data. From such a perspective, scientific excellence can be assessed through scientometric measures of publication output and impact. The recent interest in the entrepreneurial phenomenon within knowledge-generating institutes justifies efforts to examine the relevancy of broadening the set of indicators used to assess such institutions into the direction of entrepreneurial excellence. In this paper we will examine the relevancy of using patent data in order to delineate such additional, more entrepreneurial oriented, indicators. The arguments and findings presented in this respect will lead us to a plea for the use of these indicators in a contextualized manner.     

Questioning Appeals to Community within Crime Prevention and Control

This article casts a critical eye over some of the (often ignored) assumptions which underlie recent appeals to community in crime prevention and control. The article considers the philosophical origins, ambiguities and tensions within such appeals. In so doing, it draws explicitly upon the growth of community safety and to a lesser extent restorative justice in Britain and considers some of the implications to which this shift may give rise. In particular, it focuses upon the manner in which appeals to community converge and collide with changing social relations which may undermine their progressive potential. Specific attention is given to the implications of: increasing social and spatial dislocation; the commodification of security; and policy debates about a growing underclass. It is argued that there is much confusion as to how, and to what extent, communities can contribute to the construction of social order. Within the dynamics of community safety and crime control practices there are dangers that security differentials may become increasingly significant characteristics of wealth and status with implications for social exclusion. This questions the extent to which crime is an appropriate vehicle around which to (re)construct open and tolerant communities.     

Social sciences and the evolving concept of corruption

The term corruptio appears in many languages, but behind it lie several contrasting strands of thought and language. Current political usages of corruptio--emphasizing bribery, which in turn is just one of several families of ideas to which the term has variously been attached--date from the late 18th or early 19th century, have been strongly influenced by Anglo-Saxon legal thought, and may be traced to Roman roots. But French lexicographers developed a richer and more diverse vocabulary to encompass the crimes of civil servants and judges in addition to those of the people who sought to influence them. Religion, and in particular offices within the Church, also strongly influenced the ideas and vocabulary of corruption. Ultimately, corruptio can be said to have Biblical origins and a core meaning centered around injustice. The complexity and richness of the idea of corruption, as viewed from that perspective, in often lost in the narrower and more technical usages that dominate contemporary debate and analysis.