The Challenges of Recognising and Formalising Traditional Laws

ABSTRACTThis article examines how social imaginaries of women as equal in the public sphere, rooted in a long history, support gender equality. However, there is tension between national law, traditional (adat) law and Islamic law in the narratives of Indonesian Muslim women. In Indonesia, law is not conceived of as a universal boundary that may not be violated, but rather as a discursive tradition subject to negotiation depending on local conditions. In some parts of Indonesia, women are imagined as powerful agents who have often exercised leadership in society. In other parts, patriarchy is strongly entrenched. Law, and the imaginary of women, is in an ongoing process of transformation in response to the dynamic between modern education, global religious influences and traditional practices. Traditional law is grounded in the narratives of people within specific local ethnic groups and interacts with Islam and changing modern conditions to create unique local understandings of the role of women in society. National law in Indonesia often has less authority than religious and traditional law. Both the interpretation of law and the prevalence of women in positions of leadership are supported by imaginaries of women as powerful actors in the public sphere.

This article highlights the cultural and traditional practices that continue to discriminate against women in Cameroon, given that gender equality has been recognised and guaranteed in the Constitution of Cameroon and all international human rights instruments which Cameroon has ratified, notably the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol, the African Charter on the Rights and Welfare of the Child, and all other international and regional conventions and covenants relating to discrimination against women. The article points out that the status of a woman under traditional law is far less than that of a slave. A woman is regarded as an abominable object and subjected to harmful customary practices. Some customs still continue to affect the physical and psychological development of the village woman. It is suggested that the village woman should be empowered financially, economically and socially to fight against customary practices that violate their rights.

The purpose of this study is to investigate whether the U.S. stock market differentially and rationally prices discretionary accrual components of earnings of U.S.-traded foreign companies from different legal systems – code and common law. The study covers 1,426 U.S.-traded nonfinancial foreign firm-years (265 firms) from 1981 to 2000 including 686 common law firm-years (126 firms) and 740 code law firm-years (139 firms). Both Mishkin (1983) and hedge portfolio tests are performed to conduct our investigation. Hedge portfolio tests show that the market overprices the discretionary accruals for code law firms than those for common law firms. At the same time, the Mishkin (1983) tests show that U.S. market may, on average, rationally prices discretionary accruals for the full sample size of code and common law firms, but the hedge portfolio tests indicate that market may not rationally price discretionary accruals for every firm, especially for with extreme on discretionary accruals. The major limitation of this study is small size of sample. Future research can conduct a large-sample study by using code law and common law firms listed in their domestic markets rather than in the U.S. markets. Because of finding of this paper, investors can identify mispriced foreign firms publicly traded in the U.S. stock market by focusing more on code law firms than common law firms.

Seeking the views of metropolitan, university educated Nigerians in Lagos and Abuja (the previous and current capital cities respectively), our study explores gendered perspectives on the issue of remarriage after divorce to gain a deeper understanding of how customary, Islamic and statutory laws intersect. We build on previous studies (e.g. Therborn, 2004) to highlight that from the 1930s onwards, marital aspects of modern customary laws may be more patriarchal than some pre-colonial ones due to the colonial codification of customary laws in Africa. The empirical basis of our study is interviews with 24 Nigerian men and women, including female divorcees. The results suggest that what Ibrahim (2015) calls “the sociocultural penalties of divorce” are borne more heavily by women and this is exacerbated because traditional or customary laws in modern Nigeria were reshaped by colonial Christian codification. We conclude that whilst Yoruba people seem to have thwarted some of the more negative legacies of religious codification on traditional laws more than other major ethnic groups, customary laws in Nigeria still require re-codification to take on board the perspectives of African feminism.

Dedicated to 85th anniversary of the Doctor of Legal Sciences, Professor of the Theory of Law and State Department, Dead of the Scientific Direction Social and Cultural Investigations of Law Gennadiy Illarionovisch Muromtsev. The scientists contribution to legal science has been analyzed. The focus is on his investigations in the sphere of legal and political systems of the developing countries, general theory of law, and comparative law. G. I. Muromtsev looks at the specifics of legal systems of the developing countries in combination with different elements of legal cultures within the national legal systems; this makes their structure, the system of sources of law, the technique of its systematization and so on significantly inconsistent. Professor G. I. Muromtsev for the first time in the theory of law of this country revealed the specifics of the traditional law and law-governed nature of its origin. Also for the first time ever, he gives the universal definition to the notion source of law, which is acceptable not only to European but also to traditional law. He investigates law as an integral part of culture; through this prism he examines contemporary Russian law. He gives original interpretation to legal technique, the code of laws in reference to Russian conditions. He has developed fundamentaly new conceptions of genesis of the law, mononorm, historical typology of the law; for the first time from materialistic standpoint he revealed the law-governed nature of the origin, structure, and evolution of Muslim law.

“Unable to Defend Him”: Conflicting Views of Female Violence in Swedish Medieval Law

Bali, as a province with strong roots in local cultural traditions and significant economic importance for Indonesia, is striving to balance modernity and tradition, economics, especially mass tourism, and cultural identity. This is why Universitas Warmadewa, one of the largest Balinese universities, chooses the theme ‘Local Wisdom and Business Law’ for its international conferences each year.As a non-Indonesian legal scholar, this theme presents two challenges for me. Firstly, I am not an expert in tourism economics and can only approach the topic from a traditional market law perspective, theoretically. Secondly, the terms used in Indonesian legal discussions may seem vague and unclear from a German perspective, as the legal discussion in Indonesia integrates traditional legal phenomena pragmatically into the applicable legal system. This may also be historically conditioned because since independence Indonesia has to handle a legal pluralism in law, which also finds its cause in the legacy of the colonial era.When speaking on the legal perspective of ‘local wisdom’, several questions are unclear to me:What exactly is local wisdom and how can it be defined?Where does it fit into the Indonesian legal system?What role can local wisdom play in contemporary law?Local wisdom may be understood as part of traditional customary law or Adat, at least in terms of its influence on legal issues, as the conference theme suggests. The terminology around ‘customary law’, ‘Adat’, ‘indigenous law’, or ‘living law’ is still a problematic issue in Indonesian scientific discussion and should only be briefly mentioned in this presentation. The term ‘Adat law’ was originally not used in Indonesian society and was first systematically used by the Dutch. Van Vollenhoven, considered the ‘father of Indonesian Adat law’ by Indonesian scholars, defined Adat law as law that is not based on codified legal rules from the legislator. This definition is still used by contemporary Indonesian scholars. Adat law in this sense contains sanctions, making the character of ‘law’. It was characterized by Van Vollenhoven as dynamic and flexible folk law, which combines the term with the often-used term of ‘living law’. There are numerous discussions in Indonesian literature about Indonesian customary law, its functions, and significance, but the terminology has not been clearly defined and the role of religious law is also subject to numerous publications.Therefore, having read various contributions on the topic, I am left confused because some of them discuss the existence of legal principles of living customary law and describe them as “national Indonesian principles,” which can replace parts of the post-colonial Indonesian law, but they do not clearly identify these principles. The topic seems to be of almost patriotic importance to Indonesia, making it particularly difficult for foreign scholars to approach the subject in presentations before Indonesian colleagues. My contribution should be seen in light of this difficulty, as a first observation of the phenomenon from a foreign perspective.The term Adat is already difficult to comprehend, and this is even more true for the term “local wisdom” in a legal context. So, what is the “Local Wisdom” that I am asked to talk about? The Terms of Reference of our conference describe the meaning of “local wisdom” mainly as the clash of market actors in local Balinese tourism that can lead to conflicts, which the law should resolve. These conflicts are said to occur because local communities and institutions, based on a kind of traditionally grown trust, seek to build and maintain their business relationships in the tourism industry. This trust, which one could call “traditional good faith,” meets the need to regulate contractual arrangements more formally in terms of contract law (“more official...instead of just relying on promises or good faith”).In this sense, local wisdom is an aspect of good faith. Based on this understanding of the term, I have no systematic issues with the term “local wisdom.” However, it should be noted that good faith and contract, as a predictable shaping of legal relationships between market actors, should not be seen as opposites. It is possible and necessary to resolve disruptions in contractual relationships in light of good faith and, if necessary, adapt contractual regulations. Here, “local wisdom” should not be understood as a unique source of good faith, but as a general aspect that can influence the expectations of the contracting parties and their trust in shaping the law. This raises the question of which factors should be taken into account by the non-local contracting party in good faith, and which should not. It is a question of the concrete assessment of the structure of interests and the balance of the contract, how to allocate risk and assign external aspects to the contracting parties and which aspects should be considered subsequently.This is a theoretical matter, and it is unlikely to play a significant role in practice since local market actors and communities have the freedom, within the framework of private autonomy, to incorporate their traditional interests into the contract negotiations. This allows for traditional interests to participate in the “equivalence justice” of the contract. However, if the traditional interests of the local community result in unacceptable consequences for the contract’s execution, the question of whether these reasons can lead to a change in the contract’s basis may arise. In civil law systems, the clausula rebus sic stantibus is regulated as a limitation of the pacta sunt servanda principle and falls under the principle of good faith (bona fides). If the invocation of “local wisdom” by one party leads to the other party having to agree to an adjustment, it would have to be examined.I would like to give you an example of this, which seems credible even if no prove about the issue can be delivered due to the ‘popular’ source: A person without Indonesian citizenship acquired the right to use a plot of land with a house in Bali ten years ago. Since foreigners cannot acquire land ownership in Indonesia themselves, the foreigner had agreed on a legal arrangement with an Indonesian citizen resident in Bali, in which the Indonesian acquired ownership (hak milik) of the land with the foreigner’s money and agreed on right to use for the foreign partner. After ten years, the foreigner wanted to sell the property again to move to his country of origin. The agreement with the Indonesian partner stipulated that the Indonesian partner must agree to the sale of the plot on the wish of the foreign partner and would receive 10% of the sale amount in the event of a sale. In the case described, however, the Indonesian partner seems to have refused to sell the property on the agreed terms. He was not satisfied with the 10% share and demanded a 70% share instead. As justification for this, he argued that the contract terms should be changed because he had spiritually enhanced the property over the years through certain religious rituals and this required a revaluation of his shareholding.It is not known whether the case was heard in an Indonesian court and how it was finally settled. Assuming the case had occurred as described, from the perspective of Indonesian civil law, it is clear that no change in the business basis of the contract occurred as a result of the Indonesian partner’s spiritual acts, which can lead to an adjustment of the agreement between him and the foreign contractual partner. Just as local communities depend on their interests in cultural identity being taken into account even in legal relations with partners coming from outside, foreign investors must be able to rely on certain standards of contractual obligation. The principle of good faith would be grotesquely overstretched if local contracting partners could use fuzzy notions of ‘local wisdom’ to make contractual arrangements more flexible in their favour.Another example of the clash between traditional legal customs and supra-regional legal ideas in highly traditional markets with supra-regional economic importance, such as Bali, is the handling of legal disputes and methods of dispute resolution. The trust of traditional communities in supra-legal ties of interest in business relationships, as mentioned in the Terms of Reference to this Conference, meets a systemic trust in formal contractual regulations of non-local actors. The reference points of trust of the respective groups of market actors thus differ. This also affects dispute resolution. According to Sulastriyono, the voluntary character of traditional customary law has the advantage over civil law methods of litigation and dispute resolution of a ‘win-win’ solution, which leads to greater acceptance of the solution by the parties to the conflict. In theory, this is undeniable. However, it is questionable whether this acceptance can also be achieved among contract participants who do not originate from the respective culture, because the existence of sufficient advantages for a party may well depend on the integration of the party in the respective local society. Moreover, the indisputable advantages of consensual dispute resolution can also be well integrated in state procedural law via mediation mechanisms.Cases such as the one outlined one above would in principle be likely to erode the confidence of foreign investors in Indonesian law in general if courts do not rule clearly and draw clear boundaries here. The example seems to be a particularly extreme case, but it shows how important it is to clearly determine the meaning and possible role of terms such as ‘local wisdom’ and ‘tradition’ for use in law. Culturally related aspects are prone to serve as a tool for discrimination against individuals and companies that do not belong to the respective cultural environment. The difficulty, for example, of establishing an intellectual property right on cultural heritage follows not only from the contrast between individual subjective rights and collective subjective rights. It follows above all from the problem of determining the collective rights holders who are to benefit from ‘their’ cultural heritage. Who is a member of a certain culture? Is there a generational link or does it depend on the integration of the individual into his or her living environment? If the legal system does not want to fall back to abstruse considerations of ‘blood identity’, what remains is the assignment of such claims to territorial authorities or the state itself, whose task it is to protect cultural diversity on its territory. This is the path that the Indonesian legislature had taken in Art 38 Law No 28/2014 on copyright law.The misuse of cultural aspects carried into the application of law is also visible in another aspect: In another paper I have pointed out the problem that the concept of traditional customary law in Indonesian law and the position of Adat law in the hierarchy of norms seems in need of clarification. Shidarta notes that there is no sufficient clarity about the relationship between Adat law and state law and thus no consistent system of Indonesian law as a whole. Accordingly, the maturation of an independent Indonesian legal system suffers to this day from the internal conflict with the colonial legacy of existing state law based on Dutch civil law and the lack of a consistent overarching pluralistic concept of law. This is seen by Shidarta as a major reason why the systematic positions of customary law, Islamic law and western law within national law are not clearly defined and why a clear hierarchical determination of the various sources of law in relation to national law is lacking. The doubts about the systematic location and certainly also the failure to establish the principles of traditional customary law as original Indonesian law after the attainment of independence instead of the sources of law inherited from the colonial period are probably due - in addition to the idea of the state founders of an Indonesian unitary state (‘eenheidstaat’) - above all to the disagreement about the concept of customary law, which is formally understood in the sense of a binding source of law defined during the colonial period, or as post-colonial Adat law in the sense of traditional customary rights of various Indonesian ethnic groups either with a binding character or as norms of social order based on voluntariness. In this respect, too, different definitions of the term can be found in the literature:There is thus generally a more philosophical recognition of the importance of traditional customary law in the sense that customary law reflects the actual sense of law of the people and the Indonesian people as a nation. The latter statement seems problematic to me because the statement only applies with regard to the significance of customary law as a source of law, but not to the content of the individual customary laws of the various ethnic groups, in which different legal customs apply in each case. It therefore seems questionable to me whether Adat law can be understood in the sense of an alternative to Indonesian state law. In my opinion, Adat as a source of concrete legal norms has a supplementary development perspective in the communal area. Here it can certainly have an influence on economic life in the regions if it is applied consistently and transparently, and its importance would grow especially if the autonomy of municipal territorial units were strengthened, and a strong federalism were developed. However, a scientific inventory of norms and principles of local customary law is then required, and a clear formulation of such norms is needed, because it must be ruled out that the invocation of undefined, non-transparent or arbitrarily formulated Adat rules unduly restricts the freedom of market actors and are used as protectionist instruments in the provinces.In this sense, I believe that the postulate that Indonesian law must simply recognise Adat law as it has grown and as it is applied alive within the Indonesian local societies falls short, because the compatibility of social rules based on voluntariness and constantly changing with the overall legal system based on the rule of law is at least debatable. In other words: either one renounces the legal certainty and predictability of legal norms in the area of traditional customary law. This could then constitute a breach of the constitutionally enshrined principle of the Rule of Law. Or one formulates clear norms based on traditional legal principles, which have the character of binding legal norms and applies them in the sense of subsidiarity in the local environment with priority over central state law in certain predefined aspects. Then the rules of the hierarchy of norms must be correspondingly clear. However, the question of the hierarchy of norms then no longer presents itself as a problem of the nature of Adat or customary law because the latter would have lost its character as actual customary law. The advocates of a strong recognition of Adat by state law will, however, reject this path because they see the advantage of traditional customary law over state law precisely in its flexibility and ability to change. This flexibility would no longer be readily available through an integration of traditional principles into a local classical law in the sense of imperative norms.A clear hierarchy of norms defined by constitutional law seems indispensable, because such local customary law cannot displace state law without further ado, but only if the principle of subsidiarity and the better regulation of local circumstances by local law indicates otherwise. This would also be in line with the philosophical assessment of local customary law as the law that best captures the living conditions of the people in its cultural area of application. The importance of the principle of subsidiarity should generally be given more attention in the discussion on legal pluralism in Indonesia. This can not only ensure greater recognition of traditional customary law, but also enable the transparency necessary for the predictability of the law.Insofar as Adat is to be understood as the source of ‘abstract normative’ aspects, as certain common Indonesian legal values and principles in the sense of a ‘pan-Indonesian’ legal order and, as such, is to find its way into an independent state Indonesian civil law, legal scholarship in Indonesia will also have to identify and clearly define these principles. In doing so, it will be necessary to determine which principles of traditional customary law in the various regions of the archipelago are suitable as overarching legal principles, so that they can possibly have an identity-forming effect in a national private law. This difficult process might lead to reform of the Indonesian Civil Law which meets the special requirements of a socially and culturally integrated legal system.Indonesia as a state with a unified internal market needs a cross-cultural private law and commercial law. Consideration of the interests of local communities and traditions is of importance in a multicultural state. The Indonesian constitution therefore emphasises the specifics of traditional rights and thus guarantees Adat its own status in the legal system. However, there seems to be a lack of a clear hierarchy of norms in the legal system and a clear definition of the nature of Adat. A hint of a certain hierarchy between Adat and state law is indeed found in agricultural law (Art. 5 Law No. 5/1960 on the Basic Regulations of Agrarian Principles) and in forestry law (Law No. 41/1999 on Forestry). Adat is recognised here but must harmonise with state law. It is therefore likely to be in a relationship of subsidiarity to state law. The fundamental assertion of the primacy of state law over other co-existing legal systems is also in line with the view of Indonesian legal scholars such as Sunaryati Hartono. Referring to Griffiths’ formulation of “weak legal pluralism”, where co-existing legal systems are subordinated to a dominant formalistic national law, it can be stated that the Indonesian legal system follows this model.In my opinion, the integration of traditional customary law into the legal system should not be done as a mere tolerance of state law towards deviating regulations of facts in certain regions. From my perspective as a foreign observer, this seems to lead to significant problems for the development of the Indonesian economy and for investment. In particular, this seems to me to be the case for Bali. Local Wisdom can be incorporated into the contractual relations of the parties within the framework of private autonomous arrangements. A ‘creative’ qualification of protectionist measures against outside market actors or the justification of the failure to sanction breaches of contract or violations of law against outsiders as ‘Adat’ or ‘protection of local traditions’ should be consistently avoided.Incidentally, it seems to me that in contract law there is no real opposition between state law and traditional customary law. Either the parties trust each other, in which case state law does not prevent an agreement based on good faith. Or they do not, in which case only state contract law can lead to proper solutions. The same applies to traditional dispute resolution methods, to which the parties to the conflict can easily submit. In contrast, the integration of customary law as independent Indonesian legal principles or as legal norms at the local or municipal level into Indonesian law would require considerable academic effort. For this, the principles concerned would have to be clearly identified, systematised, and formulated to be able to substantiate a claim to validity beyond the respective local communities. The mere reference to historically evolved convictions of local communities is too vague. The term ‘local wisdom’ seems to me to be problematic in this sense to accurately describe the question of the collision of traditional customs and expectations of outside market actors, especially since it is already conceptually positively evaluative. Finally, it should not be forgotten, that the continental European codifications are culturally neutral and in big parts based on the Roman law. Roman law itself was not developed under the cultural framework of northern and middle European regions, however it served well as source for the modern European codifications. These codifications are working fine until these days in different nations without obvious incompatibilities with local traditions. The amount of a ‘Volksgeist’ after the idea of Friedrich Carl von Savigny within the Private Law does not play a big role in the contemporary discussion as law should be seen in a pragmatic way as a viable tool to organize the modern society. Indonesia is an important economically emerging nation. As such it might be a good idea to keep an internationally compatible private law, which might be carefully adapted to certain peculiarities of the Indonesian society. The use of general clauses as entrance doors for local legal convictions seems to be a good way for that and a clearly defined legal hierarchy with a constitutionally based legal subsidiarity principle seems important. In contrast, the foundation of modern law on nationalistic, local, or indigenous traditional customs should only be done with extreme caution, if at all. The contemporary discussion on the role of Adat in Indonesian law shows the great difficulty of determining viable legal rules that can enter a future reformed Indonesian private law as ‘originally Indonesian’. The criticism against Von Savigny’s ‘Volksgeist’ idea also applies here: Defining who the ‘people’ are and what constitutes their common identity is already hardly rationally possible in a non-multi-ethnic state, even more in a multi-ethnic state. National identity-forming circumstances are hardly suitable as common principles for pluralistic societies.

IN RECENT YEARS much has been written of the social, political and economic status of teachers in western society. Conversely, little attention has been given to the study of the legal personality of teachers across national lines, which suggests that the subject deserves the consideration of students of comparative education. To that end, this article examines the legal status of teachers in France and England as shaped and defined by their respective law systems. For purposes of definition, the legal status of teachers represents the sum of their rights, duties, privileges and immunities, all of which have evolved from a variety of legal sources, both written and unwritten. Broadly speaking, two great law traditions are at work in the western world: codified law and common law. France and French-speaking lands, and to a lesser extent her Continental neighbours, may be classified as codified law nations; while England and most English-speaking states qualify as common law countries. Codified law nations emphasize the written law as expressed in codes, constitutions and statutes, the bulk of which originates from legislative authorities. Common law nations pay respect to the unwritten law as reflected in the customs and traditions of society, much of which is formally recorded in case law as created by judicial authorities. Viewed philosophically, the English law tradition displays a Baconian and Lockian spirit: Baconian because legal realities are arrived at inductively and Lockian because it combines the elements of empiricism and evolution. Not having a written constitution or code of law like France, her legal development has been inspired more by unwritten than by written sources. The essence of common law is that it represents a set of customs and traditions that has won favour and acceptance over a span of time. The codified law tradition of France, on the other hand, is revolutionary in outlook and Cartesian in spirit. Whereas English law is deeply attached to history, French law represents, at least in design, a fresh start in law building, unspoiled by custom and usage. The establishment of the Napoleonic Code during the first decade of the nineteenth century and the reality of five Republics, each with its own constitution, testify to the French tendency of constructing new legal and political structures, without formal reference to the past. In Cartesian terms codified law is a body of written principles from which specific rules of action may be derived. An interesting point is that English empiricism and French rationalism are values underlying education as well as law. The Cartesian love of good order and rational design are reflected in France's pyramidal educational structure and in her recent commitment to undertake educational planning on a grand scale. Moreover, the revolutionary pattern of creating institutions anew without regard to history is as true for French education as it is for French law. For example, the grande ecole and the lycee are, respectively, products of the Revolution and the Napoleonic era. Still another example of the pervasive

Customary Law and the Nationalist Project in Spain and Peru

Terrorist attacks on persons or property on the high seas or in the newly designated “exclusive economic zones” bear analogy closer to the traditional international law of “piracy” than most observers suspect. In traditional practice “private ends” in the usual sense was not an essential element of the offense; the label and its legal results were attached to unrecognized belligerents too. The latest codifications of the international law relating to piracy, principally those deriving from the 1958 Geneva Convention on the High Seas, are patently defective. A new formulation is proposed, with a commentary that, among other things, points out how international criminal law and universal jurisdiction can be coordinated with the generally accepted international law of armed conflict to clarify what is currently a chaotic legal situation.

The process of formation of different directions of objective scientific analysis of problems of the theory of state and law is investigated; the analysis of the transformation processes of Christian- law traditions in the legal system is carried out. Attention is drawn to the fact that the issue of preserving an identical national law culture and law traditionalism in the general context of globalization and European integration processes remains open; in the process of formation and development of the legal system. The author argues the point of view, the Christian-law traditions as an activity of social and interpersonal interaction through religious cognition and worldview is reflected on the level of social and individual consciousness. Guidelines are formed on the basis of ideas, beliefs, and ideas about Christian-law traditions. The ideals of Christian-law traditions are in the minds of both the postulates and the patterns of material and spiritual content. It is noted that the appeal to the Christian-law traditions is important in creating a community and in seeking to give society independence and autonomy In modern society, Christian-law traditions are used as a form of preservation and transmission to the next generations of spiritual culture, an important element of education of the people. In addition, Christian-law traditions as a kind of cultural and law traditions form the historical basis of the modern existence of the people, fix the sources of its existence. The ideological content of Christian-law traditions are spiritual and law values, stable standards of worldview and behavior, norms of morality, stereotypes of thinking, political, law and philosophical ideas, aesthetic ideas. It is argued that Christian-law traditions, together with axiological perceptions, beliefs and knowledge of acceptable order and structure of society, are passed down from generation to generation in the form of law experience on the basis of law mentality and within the law culture form law traditions. In addition, Christian-law traditions are part of the system of values of law, are the basis of law values, law ideas and ideas that have found their normative fixation, official recognition, institutionalization in positive law and are transmitted from one state to another in the form of laws, rules, legal attributes, legal monuments, etc. within the relevant legal system. Key words: legal system, law traditions, Christian-law tradition, law inheritance, law culture, law polycentrism, law consciousness.

The usual alternative between an independent indigenous origin of Israelite casuistic law and the thesis of its dependency on the tradition of cuneiform law is too simple. The individual casuistic sentence of the book of Covenant (e.g. Exod. 21.18-19) is rooted in Israelite trial narratives and records, and is of indigenous origin in the local courts of the early Israelite rural countryside. In this context a knowledge of the tradition of cuneiform law was rather improbable. Entirely different is the situation with the collection and redaction of these laws into Israelite law codes. The drafting techniques of the Book of Covenant were derived from a tradition of cuneiform legal drafting techniques. The law codes were used in the curriculum of legal education in Israelite administrative centres. Here the knowledge of cuneiform legal traditions could have its place.

Defamation law seeks to reconcile protecting reputation and free speech, which has long made it significant for journalism. Common law systems have taken three broad approaches to the reconciliation: the traditional law protected reputation strongly; U.S. law became much more protective of speech from the 1960s on; and more recently, most other common law jurisdictions have protected speech slightly more. Civil law systems differ in many details from the common law: the relationship between defamation and privacy is generally stronger; criminal defamation is the standard action; and litigation is comparatively speedy. Overall, however, civil defamation laws in Europe have broad parallels with many common law countries outside the United States. Varied approaches exist across Africa, Asia, and South America, with some jurisdictions having much more restrictive defamation laws in practice. In almost all instances, it remains possible for powerful interests to use defamation law strategically against critics to try to manage their reputations. Traditional defamation law has often been said to have a “chilling effect” on speech where public interest stories are not published because of fear of defamation liability. As public debate has become more valued in many societies, defamation law has evolved to protect more speech and lessen the chilling effect. The most dramatic change has been to U.S. law. Much greater burdens have been placed on public officials and public figures. These public plaintiffs need to prove what is called actual malice, which involves proving a false and defamatory fact was published that the publisher knew to be false or recklessly disregarded the likelihood of its falsity. This must be proven to a higher standard of proof than normal, or the case can be dismissed early in the litigation. The U.S. approach also provides much greater protection for opinion and comment. The requirements for public plaintiffs go much further than traditional law, where there is no requirement to prove a defamatory allegation is false, caused harm, or was published with fault. Other common law jurisdictions have developed new defamation defenses in response to the chilling effect; many now provide a defense for material that cannot be proven substantially true, but is of public interest and was published reasonably in all the circumstances. Damages are the usual remedy for common law defamation, despite long-standing calls to develop wider remedies. Their amount has long been contentious, and the risk of very substantial awards and high litigation costs for defamation in common law systems are important challenges for publishers. Under civil law systems, fines paid to the state, and even imprisonment, are possible penalties, with damages often also available to those defamed, and rights of reply to people criticized in the media also possible. Much defamation research is technical and aimed at practitioners. But empirically informed, sometimes interdisciplinary, research into defamation law, news production and media content also exists. Future challenges for defamation law and its research include the effects of Internet communication on who gets sued and where, and the role of intermediaries in relation to the content they make available.

This article analyzes some of the most salient features of the state and the legal system in Mozambique. I propose the concept of the heterogeneous state to highlight the breakdown of the modern equation between the unity of the state, on the one hand, and the unity of its legal and administrative operation, on the other. The centrality of legal pluralism is analyzed in light of an empirical research focused on community courts and traditional authorities. I use the concept of legal hybridization with the purpose of showing the porosity of the boundaries of the different legal orders and cultures in Mozambique and the deep cross-fertilizations or cross-contaminations among them. Special attention is given to the multicultural plurality resulting from the interaction between modern law and traditional law, the latter conceived here as an alternative modernity.

Integrative practice in Asia – India and China