Failing to Protect: Victims' Rights and Police Liability

In the light of the House of Lords decisions in Van Colle and Smith this commentary considers whether victims can truly be said to have 'rights' without effective remedies for police inaction. It also considers the implications for ineffective police responses to domestic violence, especially cases culminating in domestic homicide.     

Special report on labor and employment. Supreme Court upholds NLRB bargaining units rule

Providers should expect the number of union organizing campaigns to rise quickly in the wake of the Supreme Court's decision in AHA v. NLRB. Despite this increased activity, providers that offer good working conditions and maintain open lines of communication between employees and management, and that understand their legal rights in connection with such situations, will be much more likely to be effective in responding to union organizing activities.     

European Law Beyond ‘Ever Closer Union’ Repositioning the Concept,its Thrust and the ECJ's Comparative Methodology

The article investigates competing understandings of European law. It supports, against the prevailing EU‐centred understanding, an ecumenical concept that embraces EU law, supplementing international instruments, the European Convention on Human Rights and, importantly, various domestic laws enacting or responding to such transnational law, as well as European comparative law. To keep the concept in sync with European politics, it posits a new idea that binds the parts together: to provide for a European legal space rather than further European integration (the ever closer union). This idea can also serve as European law's functional equivalent to forming one legal order. European law thus conceived grasps the puzzling complex of interdependent legal orders, sets a common frame for corresponding reconstructions (European composite constructions, legal pluralism, network theories, federalism or intergovernmentalism) and allows forces with diverging outlooks to meet in one legal field, on one more neutral disciplinary platform. Within this framework, European comparative law finds a new mission as well as a sound legal basis.     

Justificatory Liberalism and Same‐Sex Marriage

Supporters of Justificatory Liberalism (JL)—such as John Rawls and Gerard Gaus—typically maintain that the state may not coerce its citizens on matters of constitutional essentials unless it can provide public justification that the coerced citizens would be irrational in rejecting. The state, in other words, may not coerce citizens whose rejection of the coercion is based on their reasonable comprehensive doctrines (i.e., worldviews). Proponents of the legal recognition of same‐sex marriage (SSM) usually offer some version of JL as the most fundmental reason why laws that recognize marriage only if it is a union between one man and one woman are unjust. In this article I argue that the application of JL in support of legal recognition of SSM does not succeed because the issue under scrutiny—the nature of marriage—is deeply embedded in, and in most cases integral to, many (if not most) citizens’ reasonable comprehensive doctrines. Thus, I argue that because of the effects and consequences of the legal recognition of SSM, it results (or will result) in a violation of JL against dissenting citizens.     

The Boycott of the Law and the Law of the Boycott: Law, Labour, and Politics in British Columbia

This article uses a critical theoryllegal mobilization perspective to study the 1987–92 trade union boycott of the British Columbia labour law. The problems encountered establishing a total boycott–one that would eschew all contact with the state–and the subsequent modification of the parameters of the boycott through a selective reliance on the law offer an important case from which to learn more about the role of law and legal rights in highly regulated organizations and how collectives mobilize the law. The author argues that legal rights are important to unions because of their ability to mediate the complexity of labour relations through a decentralization of authority. At the same time, mobilization of the law for this purpose accentuates localized identities and unequal resources that operate in tension with a boycott ethos, necessitating a deliberative politics to legitimize the law. By exploring the tension between these two forms of mobilization around law–one to reduce complexity, another to legitimize broad collective norms–the author analyzes and draws some conclusions about the reproduction of social unionism in British Columbia.     

Mothers, Extraordinary Labor, and Amacasual: Law and Politics of Nonstandard Employment in the South African Retail Sector

This article examines changing social meaning embodying legal categories of nonstandard employment within South African retailing between the 1950s and the postapartheid period. Using archival and interview material, the article shows how trade unions constructed part-time and casual employment through gendered, class, and racial meanings to produce two very different legal categories. Black workers' rights claims in the 1980s developed within these changing socio-legal parameters. The image of the full-time permanent worker became political agent, and in the postapartheid period, increasing numbers of casual workers became marginalized from the union. The relationship between rights and regulation gives us a more complex way of understanding worker politics.     

Tort Law and Corrective Justice

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary tort duties,' one is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches.     

Legal Positivism, Law's Normativity, and the Normative Force of Legal Justification

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence (section 1). I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law (section 2). I proceed to argue that legal decision-making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision-making thus conceived (section 3). Having done that, I discuss law's normativity (section 4), the normative force of legal justification (section 5), and the relation between the former and the latter (section 6). I conclude with a critical comment on Joseph Raz' understanding of the question of law's normativity (appendix).     

A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England, United States, Germany, France, Denmark, Russia, China, and Islamic legal tradition)

The purpose of this survey is to examine the underlying principles of criminal responsibility in selected common law and continental law jurisdictions as well as in the Islamic legal tradition through the lens of comparative law (legal jurisdictions of England, Canada, United States, Germany, France, Denmark, Russia and China are subject to the legal analysis). By conducting a comprehensive legal analysis of the concept of crime in selected legal jurisdictions, this study reveals the common legal features pertinent to the concept of crime that are shared by the major legal systems of the world. Particular attention has been given to the thorny and much debated area of the subjective element of a crime and the standards employed to demarcate between intentional and negligent conduct. Turning to comparative law as an invaluable tool of legal analysis, the study demonstrates that there are more common characteristics than originally anticipated regarding the concept of crime, as well as the basis of the principle of culpability in such major legal systems.     

The Fight to Globalize Labor: Understanding the Role of Activists in the Spread of International Norms

International relations scholars have traditionally focused on state-centered accounts of international legal norm development between nations while sociolegal scholars have focused on Weberian notions of occupational authority. This study advances a constructivist sociolegal approach emphasizing activist action as playing a unique role in shaping international norms. Specifically, this study investigates labor activists' intervention in U.S. bilateral and multilateral free trade agreements (FTAs) to examine why labor activists chose to initiate FTA disputes as a social movement tactic and how strategic interaction with international legal systems has helped them institutionalize and proliferate the International Labor Organizations' core labor standards. Through semi-structured interviews with legal, union, and government officials, alongside a content analysis of cases filed under the U.S. FTA system, this study shows the role activists played in advancing “globalized” standards in international law. This study finds that activists spread norms through a gradual mechanism of accretion, which focuses on the creation of standards and international legal standing over the individual outcomes of any given case.     

Comparative Sociology of Law: Legal Fields, Legal Scholarships, and Social Sciences in Europe and the United States

This article attempts to gain a better understanding of the sociology(ies) of law in a comparative perspective through a structural and comparative explanation of the American and the French legal fields. It is argued that comparative sociology of law will not be able to explain the difference among countries, scholars, movements, and schools of thought in short, it will not be able to compare—as long as it avoids the analysis of some social and cultural presuppositions related to the context in which these differences take place. It focuses mainly on two of these presuppositions. First, legal fields, with their history, their internal structure, and their power relations, and second the type of relation between the legal field and the state. The empirical examination provided in this article explicitly seeks to offer insights for the reconstruction of Bourdieu's structural theory of the legal field.     

欧亚经济联盟运行机制及其法治化路径

欧亚经济联盟作为近年来一个新兴的区域经济一体化组织,已经成为推动欧亚地区经济发展的重要力量,它以《欧亚经济联盟条约》为法律基础,并形成了以决策机制、关税同盟、争议和纠纷解决机制为主要内容的联盟运行机制。在具体运行中,由于大国政治、经济因素,决策机制出现了俄罗斯主导倾向,关税同盟存在着统一关税执行难、关税分配不平衡的困境,纠纷解决机制中的司法主权冲突问题。发展欧亚经济联盟需要将其运行机制朝向法治化方向发展,包括夯实联盟运行的法治化基础、强化主权平等下的决策机制、利益合理分享的关税同盟,以及联盟与成员国司法权平衡。欧亚经济联盟对中国"一带一路"具有极大影响,在法律框架下将两大项目对接是共同发展的最优选择,也是中国与欧亚经济联盟共赢的法治途径。     

Just-in-Time Justice: Globalization and the Changing Character of Law,Order, and Power

This article examines how economic globalization has dialectically interacted with the nation-state and legal order to facilitate the production of “just-in-time justice”—the increasingly flexible character of law, order, and power. Utilizing Chambliss’s analytic strategy, particularly his dialectical approach to lawmaking, I first examine the relationship between the global social order, economic globalization, and the changing architecture of nation-states. I then explore ways that the legal order has been flexibilized, including the creation of “states of exception,” the privatization of social control functions of the state, the development of transnational spaces for governance, and the widespread use of surveillance. My analysis of these transformations suggests that the greatest danger in the contemporary moment may be what we do not know, what is hidden from public accountability, beyond the public gaze. Importantly, this analysis also highlights that law continues to matter—or else there would not be such a press to ensure its disappearance.     

Reversed Solidarity in Pension Plans

There is a unexpected phenomenon in the majority of complementary pension plans in the Netherlands. Unlike other arrangements that are the result of collective bargaining and decision making, these pension plans increase the inequality in the distribution of (lifetime) income. In those plans, persons without a career contribute to the payment of pension provisions of those with a career. Generally speaking, this implies that blue-collar workers and women pay for the pensions of white-collar workers, who are mostly men. For some of the contracting parties, the terms of the pension contract seem to be disadvantageous and suboptimal. The question arises as to why these contracts are being concluded and how they can survive in a competitive environment. Moreover, since the pension plans are the result of collective bargaining between the organisation of employers and the labour unions, the question arises as to how reversed solidarity fits the alleged redistributive goal of the labour unions. The analysis leads to the following conclusions. Firstly, that information and transaction cost, collective agreements, legal barriers and market failures on substitute arrangements prevent the conclusion of optimal contracts. Secondly, employers would find the pension plan attractive because it discourages shirking, enhances productivity and the process of job matching and reduces labour turnover. Thirdly, a pension plan based on final salary is in the interest of the median voter in the labour union, who is older and earns a higher seniority wage than junior workers. Furthermore, in the given circumstances the pension plan enlarges union membership and the dues income of the union and endows the union leadership with more prestige and influence. Individual union members would not oppose such a pension plan for reasons of informational asymmetry, transaction cost and the inability to capture the full benefits of their actions.A comparison of the pension schemes of Belgium, Germany, France and the UK shows that there are large differences in the structure and content of retirement provisions. Reversed solidarity may also be part of the pension plans in Belgium and the UK.     

Globalization,inequality, and the legal services industry

Borrowing from sociology, this paper uses a ‘commodity analysis approach’ to discuss key developments in the legal services industry. The paper argues that globalization may lead to considerable restructuring in the legal business. These changes seem to indicate the likelihood of continued concentration of economic power, a trend that seems to mirror changes in the broader economy.     

Regulation of Cohabitation and Marriage in Canada

Marriage in Canada had lost much of its legal significance because of the extension of many of the incidents of marriage to unmarried cohabitants of the same or opposite sex. This process has resulted in large part from decisions of the Supreme Court of Canada that discrimination on the basis of sexual orientation or marital status is constitutionally impermissible. In a decision that seemed to many a surprising reversal of this trend, the Supreme Court of Canada in 2002 ruled that legislators could constitutionally exclude unmarried couples from family property laws. The effect of this decision has been to revive the legal significance of marriage. At the same time, courts have resurrected the social significance of marriage by accepting the argument of same-sex marriage advocates that a "separate but equal" civil union institution would not respect the constitutional guarantee of equality and by endorsing the constitutional right of same-sex couples to the symbolic value of marriage as a public and legal celebration of a relationship. Same-sex marriages may now be legally celebrated in three Canadian provinces, and the federal government has made a commitment to open up civil marriage to same-sex couples across the country. While some same-sex couples and unmarried cohabitants have fought for spousal or marital status, others have sought to avoid the burdens associated with spousal status. After the same-sex marriage debate is concluded, Canada will be ready to move on to consider whether all of the legal privileges and burdens now assigned to those in conjugal relationships, whether married, unmarried, same-sex or opposite-sex, can be justified.     

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.     

What makes an international institution work for labor activists? Shaping international law through strategic litigation

Studies on international legal mobilization often analyze the mobilization efforts of activists at a single international court. Yet we know little about how activists choose among multiple international institutions to advance social justice claims. Drawing on comparative case studies of Turkish and British trade union activists' legal mobilization efforts and case law analysis, I show that activists, guided by their lawyers, probe multiple avenues to identify the legal institution with the highest judicial authority and is most responsive to activists' claims. Once they identify their target institution, the iterative process between a responsive court and activists' strategic litigation can build a court's jurisprudence in a new issue area, even if the court provides limited de jure rights protections. Activists primarily use international litigation strategy to leverage structural reforms at the domestic level and to set new international norms through precedents.     

Quasi-National European Identity and European Democracy

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.