Theorising the Global Legal Order

Hart Publishing has recently published Andrew Halpin and Volker Roeben (eds), Theorising the Global Legal Order (2009). As they explain:

This book aims to capture an exploratory approach to theorising the global legal order. Avoiding any brand loyalty to a particular academic perspective, it brings together scholars who contribute a variety of insights covering quite different topics and viewpoints. It sets itself the target of producing a distinctively legal theory of global phenomena, which is capable of illuminating the path of law as an academic discipline, as it confronts a bewildering array of novel situations and innovative ways of thinking about law. The broad base of perspectives found among the contributors, combined with a helpful commentary from the editors, makes the book an ideal Reader to introduce a subject that is becoming of increasing importance for academics, students and practitioners, in law and related fields.

The book's contents include:

• Andrew Halpin and Volker Roeben, ‘Introduction’
• H Patrick Glenn, ‘Cosmopolitan Legal Orders’
• William Twining, ‘Implications of “Globalisation” for Law as a Discipline’
• Stefan Oeter, ‘Theorising the Global Legal Order - An Institutionalist Perspective’
• Ko Hasegawa, ‘Incorporating Foreign Legal Ideas through Translation’
• Catherine Dupré, ‘Globalisation and Judicial Reasoning: Building Blocks for a Method of Interpretation’
• Ari Afilalo and Dennis Patterson, ‘Statecraft, Trade and Strategy: Toward a New Global Order’
• Oxana Golynker, ‘European Union as a Single Working-Living Space: EU Law and New Forms of Intra-Community Migration’
• Déirdre Dwyer, ‘The Domestic Enforcement of Supranational Rules: The Role of Evidence in EC Competition Law’
• Stephen Allen, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards a Global Legal Order on Indigenous Rights?’
• John Gillespie, ‘Developing a Framework for Understanding the Localisation of Global Scripts in East Asia’
• Nicholas Dorn, ‘Governance Through Corruption: Cosmopolitan Complicity’
• Christian Walter, ‘Decentralised Constitutionalisation in National and International Courts: Reflections on Comparative Law as an Approach to Public Law’
• Andrew Halpin and Volker Roeben, ‘Concluding Reflections’

The latest Global Jurist

The Global Jurist has posted the following new articles:

Frontiers

Elisabetta Grande, 'Dances of Justice: Tango and Rumba in Comparative Criminal Procedure'

Advances

Andrea Zanoni, 'Hedge Funds' Empty Voting in Mergers and Acquisitions: A Fiduciary Duties Perspective'

Topics

Julie De Coninck, 'Overcoming the Mere Heuristic Aspirations of (Functional) Comparative Legal Research? An Exploration into the Possibilities and Limits of Behavioral Economics'

Federico Picinali, 'Is "Proof Beyond a Reasonable Doubt" a Self-Evident Concept? Considering the U.S. and the Italian Legal Cultures towards the Understanding of the Standard of Persuasion in Criminal Cases'

Featured Article

Maria Rosaria Ferrarese, 'When National Actors Become Transnational: Transjudicial Dialogue between Democracy and Constitutionalism' (examines how constitutional dialogue works, and addresses the different kinds of legitimation the courts' refer to, democracy and constitutionalism)

About the journal

Global Jurist offers a forum for scholarly cyber-debate on issues of comparative law, law and economics, international law, law and development, and legal anthropology. Mindful of globalization and respectful of cultural differences, linguistic and cultural barriers are overcome and legal issues are finally discussed outside of the narrow limits imposed by positivism, parochialism, ethnocentrism, imperialism and chauvinism in the law.

The transnationalization of legal cultures

The German Law Journal has posted the contributions to a 10th Anniversary Symposium on the ‘transnationalization of legal cultures’. The articles include:

Festakt Remarks

• Brun-Otto Bryde, ‘In Praise of Transnationalism’
• Armin von Bogdandy, ‘Positioning German Scholarship in the Global Arena: The Transformative Project of the German Law Journal’
• Robert A Pollard, ‘Remarks from the U.S. Embassy in Berlin’
• Heribert Hirte, ‘Remarks from the German-American Lawyers’ Association (DAJV)’
• Axel C Filges, ‘Remarks from the German Federal Bar (BRAK)’
• Russell A Miller, ‘The German Law Journal as “Lived” Comparative Law’

Theorizing Transnational Law

• Susanne Baer, ‘Observations on a Birthday’
• Matthias Mahlmann, ‘Varieties of Transnational Law and the Universalistic Stance’

Transnationalizing Public Law

• Ingrid Wuerth, ‘Transnationalizing Public Law’

Transnationalizing Private Law

• Gralf-Peter Calliess & Moritz Renner, ‘The Public and the Private Dimensions of Transnational Commercial Law’

Europe as Transnational Law

• Karl-Heinz Ladeur, ‘Europe Has to Be Conceived as an Heterarchical Network and Not as a Superstate!’
• Christian Calliess, ‘The Transnationalization of Values by European Law’
• Christoph JM Safferling, ‘A Criminal Law for Europe: Between National Heritage and Transnational Necessities’

Resumé

• Kaitlin Abplanalp & Ronald Bruckmann, ‘Conference Report — The Transnationalization of Legal Cultures’

Holbrook on ‘Legal hybridity’

Justin Holbrook recently posted ‘Legal hybridity in the Philippines: lessons in legal pluralism from Mindanao and the Sulu Archipelago’ in SSRN. This is the abstract:


From Kurds in Afghanistan to Muslims in the Philippines, we live in a world in which normative obligations do not always follow political boundaries. For a variety of political, economic, and social reasons, people sometimes find themselves residents of a state they neither helped create nor voluntarily joined. What allegiance do such people owe to the legal systems of the states to which they belong? Should they be permitted to adopt and follow proprietary legal codes that conform to cultural norms but exist distinct from national jurisprudential schemes? As nations throughout the world struggle to find plural solutions to normative conflict, these questions are of vital importance to subnational and supranational legal regimes.

In this Article, I explore these issues by drawing on legal pluralism as a methodology to analyze subnational normative conflict. I do so by engaging in a case study of the Philippines, a country which has been a hotbed of conflict for more than 400 years. I first address the mechanisms employed by Spanish and American colonizers in responding to normative conflict in Mindanao and the Sulu Archipelago. I then proceed to a discussion of the steps taken by the Philippine government to formally recognize Muslim normative obligations, including the adoption of Presidential Decree 1083, the Muslim Code of Personal Laws. Finally, I review the Philippine government’s approach to legal hybridity in the context of four practices identified by Paul Schiff Berman in Global Legal Pluralism: dialectical discourse, margins of appreciation, jurisdictional redundancy, and limited autonomy regimes. I conclude by suggesting that the Philippine government’s approach, though less than fully realized, models the possible benefits of pluralism in a normatively complex and contentious hybrid society.

Twining on 'general jurisprudence'

Back in the Spring, William Twining (University College London) published General jurisprudence: understanding law from a global perspective (2009). As the Cambridge University Press explains:

This book explores how globalisation influences the understanding of law. Adopting a broad concept of law and a global perspective, it critically reviews mainstream Western traditions of academic law and legal theory. Its central thesis is that most processes of so-called ‘globalisation’ take place at sub-global levels and that a healthy cosmopolitan discipline of law should encompass all levels of social relations and the legal ordering of these relations. It illustrates how the mainstream Western canon of jurisprudence needs to be critically reviewed and extended to take account of other legal traditions and cultures. Written by the one of the foremost scholars in the field, this important work presents an exciting alternative vision of jurisprudence. It challenges the traditional canon of legal theorists and guides the reader through a field undergoing seismic changes in the era of globalisation. This is essential reading for all students of jurisprudence and legal theory.

With the works of Boaventura de Sousa Santos, Patrick Glenn, Werner Menski, and Esin Örücü (among others), it's also essential reading for all students (and teachers) of comparative law.

Lecture and Call for Papers

The Irish Society of Comparative Law (ISCL) will hold (i) its inaugural Autumn Lecture on 26 November 2009 at Trinity College Dublin, Ireland and (ii) its Annual General Meeting and Conference on 5-6 March 2010 at Queen’s University Belfast, Northern Ireland.

The ISCL Autumn Lecture will be delivered by Professor Esin Örücü (School of Law, University of Glasgow). Her paper is entitled ‘A Comparatist’s Analysis of the Convergence of Legal Systems’. The lecture will be delivered from 5.00pm – 6.30pm in Room 11 of the first floor of the Law School, 39 New Square, Trinity College Dublin. Admission is free and a light refreshment will be available after the lecture.

A Call for Papers has also been issued for the ISCL Annual General Meeting & Conference. Papers placing Irish law in comparative perspective are especially encouraged, but any topic in comparative law or legal systems may be proposed: private or public law, criminal law and criminal justice, legal education, legal history, etc. Papers on European or international law will also be considered. Proposals should be short (250 words) and sent to b.dickson@qub.ac.uk. The deadline for receipt of proposals is 8 January 2010. You do not have to be a member of the Association to propose a paper. Proposals will be responded to within a week of being received.

The Annual General Meeting and plenary address will take place on Friday 5 March. Conference sessions and the conference dinner will take place on Saturday 6 March. Registration forms and additional information will be available shortly.

The Irish Society of Comparative Law is open to those interested in Irish and comparative law. Queries should be directed to the Secretary of the Society: Ms Bénédicte Sage, Faculty of Law, University College Cork: b.sage@ucc.ie.

Post-doc Position at Tilburg University's TICOM Institute for Comparative Law

To be advertised shortly on jobs.ac.uk: TICOM, the Institute for Comparative and Transnational Law at Tilburg University Law School, has an opening for a post-doc with research interests in comparative law and/or European private law. The announcement on the Tilburg University website can be found here. Deadline for applications is October 1st. Interested candidates can contact the Institute's Director, prof. Jan Smits, for further information.

Conference on Hybrid Legal Systems (SICL, Lausanne, 10-11 Sept 2009)

The Swiss Institute of Comparative Law will host an international conference on mixed jurisdictions and hybrid legal traditions this month, entitled: 'Going Beyond the Mixed Jurisdiction Theory: the Emergence of Hybrid Legal Systems and their Implications for the Comparative Lawyer', with the subtitle: ‘Negociating Boundaries: Hybrid Legal Traditions and Comparative Lawyers’. The programme for the conference, to be held in Lausanne on the 10th and 11th of September, can be found here.

Comparative legal scholars from a wide range of jurisdictions will present both case studies on 'hybrids in action' and 'developing hybrids' (with reference to Cyprus, Malta, China or the WTO for example) and formulations of a new theory of 'legal families'. Further information and registration the website of the Swiss Institute of Comparative Law, or via Sean Donlan (University of Limerick).

Comparative Law Works in Progress Workshop (Feb 2009): Call for Papers

CALL FOR PAPERS

Fourth Annual Comparative Law Works in Progress Workshop
February 6-7, 2009
Held at Princeton University

Sponsored by:
American Society of Comparative Law
University of Michigan Law School
University of Illinois College of Law
Princeton University, Program for Law and Public Affairs

Mathias Reimann (University of Michigan Law School), Jacqueline Ross (University of Illinois College of Law), and Kim Lane Scheppele (Princeton University, Program for Law and Public Affairs) are calling for paper submissions for the Third Annual Comparative Law Works in Progress Workshop which will take place at Princeton University from February 6-7, 2009. The arrival date would be February 5. This workshop will co-sponsored by the American Society of Comparative Law.

There is no regular opportunity for comparative law scholars in the United States to meet and discuss their work in any depth. The scholarly programs of the meetings of the American Society of Comparative Law are chosen and organized by the respective host schools and aim at the presentation of finished papers on a given topic. While there is some opportunity to present work in progress, there is little opportunity for sustained discussion.

The meetings of the Comparative Law Section at the AALS Conference each January are also dedicated to a specific topic and usually exhaust themselves in the presentation of papers with little substantive discussion. There is thus a need for a forum in which comparative law work in progress can be explored among colleagues in a serious and thorough manner that will be truly helpful to the respective authors.

The Annual Comparative Law Works-in-Progress Workshop is intended to fill that need. It will involve up to six papers during a two-day period. If more than six papers are submitted for discussion, the organizers will jointly decide which ones to accept, giving preference to younger scholars.
The participants will consist of the respective authors, one commentator on each paper, faculty members of the host institution, particularly those with expertise in comparative law and research, and others interested in attending. The overall group will be kept small enough to sit around a large table and to allow serious discussion (20 people maximum). The papers will not be presented at the workshop. They will be distributed two weeks in advance and every participant must have read them before attending the meeting. The commentator will present a 10 to 15 minute introduction and critique, leaving at least one hour for discussion. There are no plans to publish the papers. Instead, it is up to the authors to seek publication if, and wherever, they wish.

The Fourth Annual Comparative Law Workshop will take place on February 6-7, 2009 at the Princeton University. The Workshop will be funded by the host school and by the American Society of Comparative Law (ASCL). Authors of papers and commentators from ASCL member schools will be reimbursed for their travel expenses and accommodation up to $600.00, in accordance with the ASCL reimbursement policy (as posted on its webpage), though only up to six authors and commentators will be reimbursed by the ASCL. (Princeton University will reimburse the remainder.) The ASCL’s policy provides that reimbursement is available only if the applicant cannot obtain reimbursement from his or her home school.

Interested authors should submit papers electronically to Kim Lane Scheppele (kimlane@Princeton.EDU) by December 31, 2008. We will inform them of our decision by early January, 2009. "Work in progress" means scholarship that has reached a stage at which it is substantial enough to merit serious discussion and critique but that has not yet appeared in print (although it may have been accepted for publication. It includes law review articles, book chapters or outlines, substantial book reviews, and other appropriate genres.Our objective is not only to provide an opportunity for the discussion of scholarly work but also to create an opportunity for comparative lawyers to get together for two days devoted to nothing but talking shop, both in the sessions and outside. We hope that this will create synergy that fosters more dialogue, cooperation, and an increased sense of coherence in a discipline badly in need of it.

Signed: Mathias Reimann, Jacqueline Ross, Kim Lane Scheppele

Kessler on Conciliation in 19th century Europe and the US

Amalia Kessler (Stanford Law) has posted 'Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication' on SSRN (Theoretical Inquiries in Law, 2009 forthcoming). (The paper was posted back in August, but only notified on the Stanford Working Paper Series last week). This is the abstract:

A sizeable body of literature suggests that informal methods of dispute resolution - and, in particular, conciliation - flourish only in societies marked by extensive social hierarchy. Given this literature, it is quite surprising to discover that in the mid-nineteenth century, the United States embarked on an extensive debate regarding whether to adopt conciliation courts, whose primary function was to reconcile the disputants by persuading them to embrace an equitable compromise. First created by the French Revolutionaries in 1790, conciliation courts were widely established throughout continental Europe. Observing this development, leading American lawyers and politicians - anxious to respond to public complaints about the costly nature of litigation and the growing power of the legal profession, and seeking a solution to the deep social rifts threatened by new forces of urbanization and industrialization - pondered seriously whether the United States ought to follow suit. Debate over whether to embrace such institutions occurred at the very highest of levels - including at the New York Constitutional Convention of 1846, now more famously remembered for giving rise to the Field Code. And a series of states enacted constitutional provisions authorizing their legislatures to create conciliation courts. Ultimately, however, despite the widespread interest in such institutions, these were never meaningfully established - except in the notable case of the Freedmen's Bureau courts of the Reconstruction south. This paper explores this largely forgotten episode in American legal history. It examines why a nation that was radically egalitarian by standards of the time would seriously consider embracing an institution that we tend more commonly to associate with inegalitarian, strongly hierarchical societies - and why, after coming so close to adopting conciliation courts, it ultimately failed to do so. In the process, by situating the debate over conciliation courts in a broader social and legal context, the paper also excavates the origins of the modern, quintessentially American commitment to the virtues of formal, adversarial legal process.

This is comparative legal history on a scale so grand that readers are sure to take issue with at least some details of Kessler's claim. But the argument presented, and the potential for the episode discussed to illuminate persistent questions about American 'distinctiveness', would seem easily to warrant the broad perspective taken. One objection at least that I personally thought might undermine Kessler's thesis, namely that wanting conciliation and successfully implementing conciliation may be two very different things, in particular when it comes to causal explanation, is dealt with to some extent in a footnote that may be worth quoting here (no 11):

"There is a difference, moreover, between a society’s desire to adopt informal methods of dispute resolution (including conciliation) and its ability successfully to do so. A closer reading of the evidence may well show that whatever a society’s reasons for seeking to embrace conciliation, the technique proves successful only to the extent that disputants can be persuaded to defer to the judge’s authority and that this, in turn, is most likely to occur in close-knit communities marked by clear, deeply embedded social hierarchies. Along these lines, it is striking that the French conciliation courts were directly descended from (and in many ways replicated) the seigneurial courts of the corporatist Old Regime".

I'm not fully sure this is the end of this particular difficulty, but Kessler's argument is undoubtedly facinating.

Customary law and Constitutional Law in Africa (New Papers: Tebbe & Andrews)

Two new papers on SSRN deal with the interrelationships between constitutional law, customary law and tradition in Africa. Penelope Andrews (Valparaiso) has posted 'Who's Afraid of Polygamy? Exploring the Boundaries of Family, Equality and Custom in South Africa' on SSRN (Utah L Rev, 2009). The abstract:

South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. My paper will examine the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, I will focus on the Recognition of Customary Marriages Act (the Act), a statute that purports to regulate customary marriages, including the establishment of such marriages, as well as their termination. I evaluate the influence of this statute, if any, on gender equality, and whether its purported protection of women in polygamous marriages, in fact results in such protection.

Nelson Tebbe (Brooklyn Law School), for his part, has posted 'Inheritance and Disinheritance: African Customary Law and Constitutional Rights' on SSRN (Journal of Religion, 2008). This paper's abstract:

This Article concerns the conflict between African traditional rules of inheritance, which feature a rule of male primogeniture, and the post-apartheid constitution, which contains a strong guarantee of gender equality. While that guarantee must ultimately be enforced by the judiciary, this Article argues that the South African Constitutional Court's recent decision to strike down the central African customary rule for property inheritance carries a greater danger of backlash than has commonly been recognized. That risk is particularly grave under current political conditions, which are seeing a shift toward Africanization. Enduring change might more profitably be achieved by Parliament, by provincial and local governments, and by local communities themselves. A recent decision concerning inheritance of the chieftainship suggests that some African communities are already harmonizing customary law and progressive constitutional values. The Article ends by suggesting an approach that incentivizes localized reform, rather than commanding it in the first instance.

Sitaraman on the 'Use and Abuse of Foreign Law in Constitutional Interpretation'

Ganesh Sitaraman (Harvard Law) has posted 'The Use and Abuse of Foreign Law in Constitutional Interpretation' on SSRN (Harvard J of Law and Public Policy, forthcoming). This is the abstract:

This article provides a typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when, and what the stakes and parameters are in each case. Much of the commentary on foreign law usage has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured a more basic question - the ways in which foreign law can be used, that is, the how of foreign law. Focusing on the why of foreign law threatens to generalize arguments into debates on foreign law when it may be more helpful to debate particular methods of foreign law usage. Some methods of use may be more easily justified and others totally unjustifiable. Some scholars have recognized the need to focus on the how of foreign law, but they have identified only a limited set of ways in which foreign law could be used. This limited categorization of foreign law usage prevents clear evaluation of which uses are appropriate. The article's typology demonstrates that most uses of foreign law are not problematic, and as a result, that the foreign law debate should focus specifically on the few uses that are potentially problematic, rather than on foreign law more generally.

As the author himself says: "these days, everyone has something to say about the use of foreign law in constitutional interpretation". Much of the relevant American literature is dominated by the US perspective to such an extent that the main lines of argument are often difficult to follow for outsiders (like myself). Sitamaran's paper, too, is focussed on the US, but his views do have a broader application. And whether you agree with his typology or not, the emphasis on the 'how' question of the use of foreign materials is certainly very welcome.

Köbler in the English Courts: Cooper v Attorney-General

The Times today reported a decision of Mr Justice Plender in the case of Stephen Cooper v Attorney-General (Judgment of 30 September 2008) in the English High Court (The Times, 7 October 2008, 'When judicial error in EC law gives rise to damages'). This is thought to be the first claim brought in the UK for damages based on the cause of action developed by the ECJ in the case of Köbler v Republik Österreich (Case C-224/01).

The claim concerned two judgments of the Court of Appeal of 1999 and 2000, in which the Council for the Protection of Rural England, of which the claimant was a trustee of the London branch, had been refused judicial review of decisions by local authorities in London (R. v London Borough of Hammersmith and Fulham [2000] 2 C.M.L.R. 1021).

According to The Times, "His Lordship (...) deduced from Köbler, Traghetti del Mediterraneo SpA v Repubblica Italiana (Case C-173/03) ([2006] ECR I-5177 and Gestas, an as yet unreported case of the French Conseil d’État, May 19, 2008, that member states had to make good damage caused by individuals by infringements of Community law for which they were responsible, even where the infringement stemmed from a decision of a court adjudicating at last instance, provided that three conditions were met: (i) the rule of law infringed must be intended to confer rights on individuals; (ii) the breach must be sufficiently serious and state liability could not be confined only to cases concerning intentional fault or serious misconduct; and (iii) there must be a causal link between the breach of obligation and the loss or damage sustained by the parties".

Murkens on Comparative Constitutional Law in the Courts

Jo Murkens (LSE Law Department) has posted 'Comparative Constitutional Law in the Courts: Reflections on the Originalists' Objections' on SSRN as an LSE Legal Studies Working Paper (No. 15/2008). This is the abstract:

The controversy surrounding the judicial use of comparative constitutional law is not new. However, the debate has recently been reignited by a number of US Supreme Court justices who have spoken out on the use of non-US law in the Court. Scalia opposes, and Breyer favours, references to 'foreign law'. Their comments, made both within and outside of the Court, have led to a reaction by scholars. Arguably the debate is US-specific as it resembles the different views regarding constitutional interpretation, namely whether the Constitution's original, or rather its current, meaning is determinative. Yet the debate also raises broader issues of constitutional theory and politics: formal vs substantive legitimacy, globalisation of the courts, judicial sleight of hand, the cultural foundations of constitutional law, and the citation of non-primary sources of law in litigation. The present article explores these issues. It rejects radical approaches (either against or in favour of comparative constitutional law) and instead argues for a more modest process which both identifies the national specificity of law and grasps the mediating potential of law as a self-reflexive discourse.

Valcke on Convergence and Divergence in Contract Law

Catherine Valcke (U Toronto Law) has posted her European Review of Private Law article 'Convergence and Divergence between the English, French, and German Conceptions of Contract' on SSRN (University of Toronto Legal Studies Research Paper, No. 08/14). This is the abstract:

This piece aims to highlight the different internal and external perspectives on the English, French, and German law of contractual mistake. While the solutions devised by these three systems in response to mistake issues are functionally equivalent, it is possible to reconstruct the different means internally deployed by each system to reach these solutions into (different) coherent forms of argumentation. Depending on whether one takes an internal or an external perspective, therefore, one could conclude that the three systems are simultaneously converging and diverging.

This is an innovative contribution to the often exceedingly mono-dimensional convergence/divergence debate in European private law. Valcke again - see also her article 'Comparative Law as Comparative Jurisprudence' in 52 Am J Comp L 713 (2004) - demonstrates the importance of integrating multiple perspectives and objects of comparison when engaging in comparative research. Recommended.