The Law Reformer

Introduction: in the year of the 460th anniversary of the birth of Francis Bacon, an English philosopher and lawyer, statesman and court practitioner, of special relevance is research into Bacon’s contribution to the development of theoretical and organizational bases of the law reform and the technique of law systematization. In his works, Bacon put forward a set of ideas concerning rationalization of common law and novelization of statutory law in early modern England. Purpose and objectives: to identify the features of legal discourse and dogmatic opposition between legal corporations of lawyers of common and civil law; to analyze their influence on the formation of Bacon’s legal worldview; to determine his contribution to the development of the concept of the ‘reform of law’ and the doctrine of the sources of law in Anglo-Saxon jurisprudence; to evaluate the content of his theoretical treatises and legislative proposals concerning the systematization of statutory and case law in early Stuart England. Methods: in the course of the study of Bacon’s development as a thinker and his career advancement, we employed methodological approaches such as dialectical, cultural, general historical, sociological, dogmatic. When analyzing Bacon’s legal ideas and doctrines, his legislative projects and theoretical writings, we applied both general scientific methods (system-structural and formallogical, inductive and deductive) and special legal methods of cognition: historical-legal, comparative- legal and formal-legal, as well as methods of legal hermeneutics, interpretation, and juris linguistics. Results: we have formulated the definitions of the ‘reform of law’ and ‘systematization of law’ in the context of the legal discourse of early Stuart England and specifically in the framework of Bacon’s teachings; studied the directions of Bacon’s activity aimed at improving the judicial procedure and evidentiary practice, at unifying the law within the Anglo- Scottish union, and also the special model of the gradual reform of English law developed by Bacon. He defined the proper legal and technical conditions for the systematization of law, the necessary elements of legalistics, and the ‘general part’ in the form of a list of legal maxims andregulis juris provided in his translation. Conclusions: according to Bacon, ‘schematism’ of reforming the law involved several successive stages. We have established the following scheme of legal systematization as the ultimate goal of the legal reform according to Bacon’s plan: review and revision of statutory law – chronological incorporation of statutes and precedents – thematic hybrid codification (or consolidation) – creation of a ‘digest’ (corpus of laws) as a final document.

Vietnam's economic reform effort and intends to retain firm political control, the legal system is being required to serve simultaneously as a means of market liberalization and as a continuing tool to maintain the political authority of the Party and the state apparatus it has created and reinforced.The Vietnamese legal system cannot begin to fulfil the complex, challenging, and contradictory tasks set for it-and, perhaps more importantly, no meaningful debate on those challenges and contradictory goals can begin in Vietnam without a highly trained and sophisticated group of legal professionals and legal scholars.Legal training and research constitutes the base from which an effort to confront the challenges of economic liberalization and political stability and their contradictions must initially emanate, for without practitioners and scholars who can both understand and question the goals set for the legal system there can be little hope for significant progress in the legal sector.It was to understand this key base for legal reform in Vietnam that the Ford Foundation requested a consultancy report in early 1992.The goal of the consultancy-with results described in this article-was to understand the current position and role of legal training and research facilities in Vietnam, to determine the status, training, and interests of faculty, and to study the prospects for reform and expansion of this sector as a precondition and contribution to broader reform of the legal system.That consultancy visit, and this report, constitute the first systematic study of the role of Vietnam's legal training and research sector in the Vietnamese legal reform process. 2

Women and Sharia Law in Northern Indonesia: Local NGOs and the Reform of Law in Aceh Dina Afrianty London and New York: Routledge, 2015, viii+194p.One of the earliest legal texts available to us from the Malay world was written in Aceh at the request of its female ruler: Mir?at al-?ullab fi tashil ma?rifat al-a?kam al-shar?iyyat li malik al-wahhab of ?Abd al-Ra? uf al-Sinkili (d. 1693) commissioned by the contemporary sultana Safiyat al-Din Taj al-?Alam (r. 1641-75). The book and its author, as well as the sultana, have been enjoying memorable position in the historical memory of appealing equally to its learned and unlearned classes. In present-day Sharia law has generated much debate for almost last two decades especially with regards to the oppressive attitude of law towards the women, and one might wonder why female ruler should ask member of her elite to write book about oppressive Sharia law. Although the answer might be concern of historical enquires, the book under review gives an answer through ethnographical research. A rather provocative answer comes from reputed pious activist at Banda Aceh who says: There is something about the Acehnese that connects us with sharia and the people from outside Aceh will never be able to understand that connection. Putting to one side any judgment, the book does try to understand the connection in fascinating way.Dina Afrianty's Women and Sharia Law in Northern Indonesia: Local NGOs and the Reform of Law in Aceh conveys the nuances of women's lives under Sharia law. One of the major contributions of the book is implicit in its title itself: Aceh's differentiation between Sharia law and law, which might sound synonymous at first glance. But Afrianty substantiates how both should be understood differently. Taking cue from the earlier arguments of Hooker (1983), Mir-Hosseini (2006), and others on the division between Islam and its law, she tells us how the Acehnese distinguish between the sharia as divine law based on such foundational scriptures as Quran and Hadith, and the law implemented as Qanuns. The latter is only Fiqh of Aceh, which is a product of Acehnese ?ulama?'s interpretation of scriptures that is then used by politicians (p. 78). It would have been even more insightful if the author had elaborated on this division and its conceptualization by local women activists in the following chapters.Based on her six-months of fieldwork in Banda Aceh (the capital city of Aceh Province, northwestern Indonesia), Afrianty investigates the responses of Acehnese women towards the implementation of law, the roles of their indigenous identity and local culture, and most importantly, the ways in which religious Acehnese women activists reconcile their understanding of gender, equality, women's rights with those of Western/international values (p. 3). Afrianty conducted interviews, attended seminars and workshops, and utilized archival materials and the book is composed of five chapters (including one case-study), together with an introduction, conclusion, and postscript.In the first chapter titled Women's Movements in Muslim Societies, Afrianty contextualizes her work within three broader concerns: the existing literature on the Muslim women's movements across the world, their encounters with Sharia and law, and their collective attempts to engage with law that often resulted in Islamic feminism. She argues that since Muslim female intellectuals and activists understood gender inequality and repression towards Muslim women as deriving from the misuse and misinterpretation of scriptures by male rulers and elites, they turned towards the original scriptures to reinterpret those while being more sensitive to gender equality and women's rights. This global movement has influenced Southeast Asia too, particularly Malaysia and Indonesia. …

End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.

Introduction: Law and Policy for China's Market Socialism John Garrick Part 1: China's Evolving Investment, Company and Business Law Environment 1. China's Outward Direct Investment in Context: From 'Open Door' to 'Going Out' Jianfu Chen 2. Company Law Reform in China Xianchu Zhang 3. China's Enterprise Bankruptcy Law: Implementation of the Corporate Reorganization Provisions Roman Tomasic and Zinian Zhang 4. Chinese Contract Law after the UN Convention on Contracts for the International Sale of Goods Yan Chang Bennett Part 2: Critical Issues for China's Law and Policy Reforms 5. Understanding Chinese Real Estate: The Property-Boom in Perspective Richard Hu 6. The Political Economy of China's Environmental Law Reforms Feng Lin, Andrew Chan and Wilson Cheung 7. Implementing China's Labor Law Reforms: Interests and Obligations at the Firm-Level William J. Hurst, Jonathan Kinkel and Alexandra Sowash 8. Chinese Outward Direct Investment: Case Studies of SOEs going Global Yingjie Guo, Shumei Hou, Graeme Smith and Selene Martinez-Pacheco 9. China's Taxation Law Reforms in the Context of 'Market Socialism' John Garrick Part 3: Courts, Alternative Dispute Resolution and Anti-Corruption Measures in China 10. Economic and Social Rights: The Role of Courts in China Randall Peerenboom 11. Alternative Dispute Resolution in China Fan Yu 12. Organised Crime in China: The Chongqing Crackdown Norman P. Ho 13. Conclusion: Law and Policy for 'Opening Up' [kaifang] and 'Going Out' [zou chu qu], John Garrick

This article explores contemporary contestations surrounding women’s inheritance of land in Africa. Legal activism has gained momentum, both in agendas for law reform and in test case litigation, which reached the United Nations Committee on the Elimination of Discrimination against Women in ES and SC v. United Republic of Tanzania. Comparing the approach of Tanzania to that of its neighbours, Uganda, Kenya and Rwanda, this article explores patterns of resistance and omission towards enshrining an equal right to inherit in land and succession laws. It identifies two main reasons: neoliberal drivers for land law reform of the 1990s and sociopolitical sensitivity surrounding inheritance of land. It argues that a progressive approach to constitutional and law reform on women’s land rights requires understanding of the realities of claims to family land based on kinship relations. It calls for a holistic approach to land, marriage and inheritance law reform underpinned with constitutional rights to equality and progressive interpretations of living customary law.

<p><em><span style="font-family: Times New Roman; font-size: medium;">End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.</span></em></p>

This article explores contemporary contestations surrounding women’s inheritance of land in Africa. Legal activism has gained momentum, both in agendas for law reform and in test case litigation, which reached the United Nations Committee on the Elimination of Discrimination against Women in ES and SC v. United Republic of Tanzania. Comparing the approach of Tanzania to that of its neighbors, Uganda, Kenya and Rwanda, this article explores patterns of resistance and omission towards enshrining an equal right to inherit in land and succession laws. It identifies two main reasons: neo-liberal drivers for land law reform of the 1990s and sociopolitical sensitivity surrounding inheritance of land. It argues that a progressive approach to constitutional and law reform on women’s land rights requires understanding of the realities of claims to family land based on kinship relations. It calls for a holistic approach to land, marriage and inheritance law reform underpinned with constitutional rights to equality and progressive interpretations of living customary law.

This paper argues that a simple, memorable framework which codifies what Law Reform Commissions do well can significantly help those who are engaged in law reform activities, but who lack law reform expertise. Law reform has become increasingly complex both because ageing legislation needs frequent review and because new legislation seeks to address an increasing breadth of multifaceted issues. Since the late twentieth century, most Commonwealth countries have established Law Reform Commissions (LRCs) and charged them with leading reform efforts. Law reform, however, is also carried out by other actors who lack the experience and expertise of LRCs. The existing, often dated law reform literature discusses what LRCs do and what LRCs do well, but little attention has been devoted to analysing the nature of that expertise and distilling it in a way that can be used by others who lack such expertise. This paper develops a five-part framework (“the Framework”) for law reform largely based on LRCs’ work that will be useful to non-expert bodies that carry out law reform. It then tests that framework by applying it to a case study of the law reform efforts of the Western Australia’s Department of Health (“WADOH”) to reform Western Australia’s (“WA’s”) Public Health Act. This case study demonstrates that the Framework has the capacity to assist law reformers and help make their efforts more effective. This paper argues that WADOH’s reform efforts were only partially successful. An important element of reform which WADOH missed was paying attention to the ways proposed reforms addressed the health needs of Indigenous Peoples in WA. Had WADOH applied the Framework developed in this thesis, it would have understood the need to go beyond focusing on non-Indigenous interests and engage more Indigenous—as well as non-indigenous—participants in its law reform processes. It also seems likely that the limitations of WADOH’s reform proposals cannot be attributed solely to the shortcomings of the reform process; such limitations also stem from WADOH’s failure to utilise a contemporary view of public health that would have prompted it to focus more on Indigenous health issues.

Why should the international law reform community be interested in how New Zealanders do law reform, or how New Zealanders debate how law reform? This article argues that there are three principal reasons that New Zealand ought to be of interest. 1 A small place that does lots of reform, or at least thinks a lot about reform First, the very smallness of New Zealand (a population of 4.8 million) creates both opportunities and problems for law reform that do not necessarily exist in the same way in larger countries. Literature often focuses on the difficulties of reform in large legal systems, such as those is in Europe or North America, but smaller countries present issues that are worthy of study. New Zealand is a case study of how law reform can, and should, be done in smaller jurisdictions, as well as what cannot be done, or done only with difficulty. 2 A successful legal system Second, observers often see New Zealand as successful both in its respect for the rule of law and in the state of its law more generally. While there is some contrast between the helicopter view of a successful legal system and the angst of local commentators who claim that New Zealand is falling behind, that success ought to prick overseas attention as to how New Zealand accomplishes what it does. 3 A different kind of traditional Law Commission? Thirdly, while New Zealand has an independent Law Commission, as other Commonwealth countries do, there has been a distinct change of emphasis from an identity model to a process model of law reform. The identity model presents law reform as accomplished by a certain kind of body, while the process model focuses on the significance of the Commission's independence in the policy and law reform process. This process model of law reform claims not to remove politics from law reform, but rather to enable law reform even where politics might otherwise have prevented it. Moreover, focusing on the process rather than the identity of the body raises the prospect that the “law reform” process can be applied to subjects beyond technical lawyer's law. This is a view that is most associated in New Zealand with Sir Geoffrey Palmer, who was the founder of the New Zealand Law Commission during his time as Attorney-General and Minister of Justice, and who served as president of the Law Commission from 2005 to 2010.

As a result of the Truth and Reconciliation Commission of Canada (or TRCC, 2015a, 2015b), calls to action concerning education and law reform have been made. Currently, there is an increase in reconciliation discourse in law, healthcare and education policy, curricula and pedagogy. In Canada, efforts to decolonize institutional structures compel scholars and activists to highlight the imperative of critical analysis of identity and place in answering the calls to action. Although it was developed by the Ministry of Education for the province of Ontario, more than a decade ago, prior to the TRCC, the First Nations, Métis, and Inuit Education Policy Framework continues to inform policy and administrative procedures. Informed by Indigenous knowledge systems embedded in restorative justice and peace-building practices, this paper presents a critical analysis of the First Nations, Métis, and Inuit Education Policy Framework (2007) and finds evidence resembling discursive settler-colonial patterns of Indigenous erasure through the practice of silencing Indigenous participation and voice. Through this critical analysis, several themes emerged including colonialism, survivance, patriarchy, self-identification, notions of education, assessment, and “us versus them” binary narratives. In response, this paper argues for a trans-systemic and transdisciplinary approach to the critical analysis of discursive patterns of silencing and erasure in policy, law reform, and administrative processes. Further, through deepening interpretations and understandings of Indigenous theory and knowledge systems, it may be possible for settler-colonial stakeholders to more acutely discern the impact of settler-colonialism embedded in education, policy, administration, and legal discourses. These findings have implications for educators and administrators as well as administrative, law and policy reform.

Advocates for social change, including lawyers and law professors, explicitly inquire into the relationship between theory and practice in law reform efforts. Theory is intentionally used to develop novel legal principles and procedures in an attempt to produce just results. The study of lawyering for social change offers law students an angle other than that of traditional legal education on what they are learning in law school and on lawyering choices. How lawyers design strategies to attempt to bring about social change, how they determine what is good policy, how they develop theories about the appropriate relationship between lawyers and their communities, and how the legal system resists effective social change are important and intriguing inquiries.This article discusses a seminar entitled Law and Social Reform. This seminar gives students a forum in which to consider the types of change that hey think are desirable, to propose change and strategies for securing it, and to evaluate the effectiveness of a reform effort. After studying law reform efforts from an historical perspective, participants focus on and present their own proposals for law reform. While collaborating with advocates in the community working on the chosen topic, each student writes a paper on a reform idea and the strategy necessary for its attainment. Each participant's paper is carefully supervised in preparation for classroom presentation.

Croatia is relatively small country with population of approx. 4 million inhabitants. It is a European country, and is part of the Central and Eastern Europe. The area of the state is 56, 594 km2 by land, and 31,479 km2 by sea (interior waters and territorial sea), in total 88,073 km2 which makes Croatia one of the medium-sized European countries. It was a part of Yugoslavia till 1991. After its inde- pendence, Croatia shifted from socialist regime to democracy, and the law reform followed. Croatia has enacted new Constitution in compliance with all international standards, abolishing the death penalty. In the beginning of its independence, it has taken existing legislature of Yugoslavia, but later it has been working on its own legislature and reform of the judiciary and (criminal) law system. So, in past few decades it has gone through a significant law reform, among other law areas criminal law was also significantly affected and influenced by the state law reform. Many new laws were enacted regulating area of criminal law, as well as the laws regulating some issues relevant for criminal law (both substantive or procedural, and penitentiary as well). The main laws in field of criminal law (in broader sense) are Penal code (subsequently: PC) for Substantive criminal law, Criminal Procedure Act (subsequently: CPA) for Criminal procedural law and Penitentiary Act (subsequently: PA) for Penitentiary law. In this paper (report) will be presented some key information about Croatia, Croatia’s judiciary system and criminal law system and reform.

In this article, I consolidate research that tracks the activism of the mining justice social movement from the late 1990s to present. As a starting point, I conceptualize this movement as a transnational political project that seeks to transform the terms of corporate resource extraction pursuant to the political and legal arrangements of neo-liberal economic globalization. In this context, I reflect on the movement’s most significant human rights-oriented law reform projects in the Americas: Indigenous right to consultation legislation in several Latin American countries, and a series of non-judicial grievance mechanisms in Canada, in response to the right to remedy norm in international law. Drawing on existing research, I conclude that in both cases the state has responded with law and policy reforms that fall far short of achieving advocates’ objectives. I argue that these shortcomings are due in part to the persistence of three liberal/neo-liberal ideologies in the reforms in question: formalism, voluntarism and privatism. To better understand and explain these findings, I turn to three critical theories of human rights legal activism: pragmatism, left critique/critical legal liberalism and counter-hegemony. I examine the work of a range of scholars writing under the banner of each theory in order to identify key debates and insights that may be instructive as the mining justice movement, and related social and environmental justice movements, continue to aspire toward a law reform agenda capable of addressing pressing global environmental and social justice issues.

This chapter examines law and policy reforms concerning drinking water. It emphasizes drinking water over other law reforms considered in Chapter 4 because of the direct link with the realization of the human right to water, the relative lack of interest given to drinking water, and the specific ways in which law and policy reforms are being introduced. The chapter focuses on rural drinking water supply that has seen a major policy shift since the mid-1990s with the introduction of water sector reform principles to drinking water supply, including a new focus on demand-driven schemes, cost recovery, and user participation. It analyzes in particular the Swajal pilot project that kick-started the reforms and the Swajaldhara guidelines that have contributed to mainstream them. The final section places the analysis in the context of the realization of the human right to water.