Law Agenda Research Articles

Ruling out Gender Equality? The Post-Cold War rule of law agenda in Sub-Saharan Africa

The post-cold war rule of law agenda in sub-Saharan Africa has not translated into reforms that enhance gender equality. The focus of reform efforts has reflected a post-cold war emphasis on creating a suitable legal and institutional environment for the market. In this climate any gains for gender equality have been limited and hard won. The main shortcomings are: gains in constitutional rights have had limited practical reach; official discussion of gender inequality in property remains disconnected from relevant broader processes such as restructuring of financial institutions; the reform agenda has not engaged with informal institutions, yet these have significant impact on gender relations; there has been relative under-investment in non-commercial judicial reform; and changes to labour regulation have been effected through sub-legislative and non-transparent processes and have not been interrogated for their failure to benefit workers in general, and in sectors dominated by women in particular.

Dom Quixote reencontra Sancho Pança: relações internacionais e direito internacional antes, durante e depois da Guerra Fria

Este artigo aborda a relação histórica entre as disciplinas acadêmicas de Relações Internacionais e do Direito Internacional a fim de proporcionar compreensão mais acurada acerca do atual debate interdisciplinar. Dessa forma, concepções convencionais sobre as principais teorias de Relações Internacionais - realismo e liberalismo - são discutidas, sendo estas teorias apresentadas sob novo enfoque. O liberalismo é concebido no contexto da convergência observada entre os estudiosos da política internacional e os juristas internacionais até o desenvolvimento de uma visão cética no campo do Direito Internacional, que é responsável pela criação do realismo em Relações Internacionais. O debate interdisciplinar pós-Guerra Fria é abordado por meio de três teorias distintas: institucionalismo, liberalismo e construtivismo. Argumenta-se que o construtivismo oferece maiores oportunidades para cooperação mais profunda entre estudiosos da política internacional e juristas internacionais. Isso se deve às conexões entre o construtivismo e a teoria crítica, o que permite unir construtivistas e teóricos legais críticos em uma Agenda Crítica para Relações Internacionais e Direito Internacional neste começo do século XXI.

Competition Law Chapter in the Oxford Handbook of Comparative Law

The rapid pace of economic globalization and the dramatic turn toward economic competition as the central factor in public policy thinking would seem to augur well for comparative competition law scholarship. Together, they have brought a wave of new antitrust statutes and increased the perceived importance of existing competition laws. Moreover, economic globalization brings those laws into increasingly frequent and direct contact and sometimes confrontation. Yet comparative analysis in this area has seldom gone beyond pure description to provide analytical insights into such issues. With notable exceptions, scholarship in the area remains limited, superficial, and often distorted. This essay examines where such scholarship is, why it is not elsewhere, and how it might be developed to respond more effectively to the challenges of globalization. It looks first at the current state of the literature - what has been and is being written? Which subjects are treated from which angles and subject to what kinds of influences. I then identify some of the forces that have created this literature and that are at work today. Finally, I envision a path for comparative antitrust law scholarship that may allow it to realize more fully its potential value and respond more effectively to the challenges of economic globalization. Three main themes run through this essay. One is that US law dominates the world of comparative competition law scholarship. It provides the background that frames such scholarship, and it thereby colors and shapes it as well. A second, and related, theme is that the centrality of US law and experience divides the writing in the area and often distorts it. This dominance generates two fundamentally different perspectives on competition law. In one, US writers look out at the world and say follow us. In the other, non-US writers ask, How do we assess US experience and how do we respond to US power and pressure? The third thread that runs through this chapter identifies the potential impact of economic globalization on the agenda of comparative competition law and the opportunities it creates for writers in that area to contribute to creating a sounder policy framework for transnational markets.

Corporate Governance Reform in Germany: The Second Decade

Notwithstanding one decade of corporate law reform during which the German legislature augmented the traditional explicit system of corporate control with market-based corporate governance devices, the German corporate governance reform law agenda is still packed. The paper provides an overview of the status of corporate law making on the verge of early Federal elections in Germany and examines the driving forces behind current reforms. It also considers governance-related securities and accounting law reforms. The authors provide brief comments on pending legislative steps and measure the impact of the reforms on the overall structure of the German corporate governance system. The paper serves two purposes. On the one hand, it provides an insight into the dynamic development of German corporate law under the influence of European, national, and international reform agendas. On the other hand, it describes the transition from the traditional German explicit system of corporate control to a system in which the legislature assigns capital markets a greater share in controlling managers.

Conservative and Progressive Visions in French International Legal Doctrine

How can one develop a progressive agenda of international law, while at the same time not sacrificing the unity and rigour which traditional formalism can appear to claim? In France formalists will not come out of a limited agenda of preservation of the integrity of the French and other classical states, while the progressives, searching for grounds of solidarity in international society, tread uncertainly in the formlessness of material demands made upon the law. Dupuy finds a material basis of unity of the legal order in a triad comprising the general principles of international law, the instrument of the legal fiction and the Kantian theory of the transcendental grounding of the validity of law. Dupuy places the task of developing such a material law in the hands of the international judiciary, despite reservations about their performance. Indeed, it is difficult to imagine any judiciary with the philosophical skill to undertake the tasks he sets them. In fact it is Pierre Legendre, the type of polymath which French culture so readily supports, who demonstrates how problematic is the formalist legal thinking based upon the classical French state. Despite Dupuy's conciliatory spirit towards his formalist compatriots he has opened a Pandora's box for them.

Corporate Governance Reform in Germany: The Second Decade

Notwithstanding one decade of corporate law reform during which the German legislature augmented the traditional explicit system of corporate control with market-based corporate governance devices, the German corporate governance reform law agenda is still packed. The paper provides an overview of the status of corporate law making on the verge of early Federal elections in Germany and examines the driving forces behind current reforms. It also considers governance-related securities and accounting law reforms. The authors provide brief comments on pending legislative steps and measure the impact of the reforms on the overall structure of the German corporate governance system. The paper serves two purposes. On the one hand, it provides an insight into the dynamic development of German corporate law under the influence of European, national, and international reform agendas. On the other hand, it describes the transition from the traditional German explicit system of corporate control to a system in which the legislature assigns capital markets a greater share in controlling managers.

PERAN KEPOLISIAN DALAM HUBUNGAN KRIMINAL JUSTICE SYSTEM BERDASARKAN UNDANG-UNDANG NO. 8 TAHUN 1981

Police Department is one part of criminal justice system in conducting police investigation to look for and find the suspects of the criminal then it is given feedback by arresting, jailing, and frisking as well as seizuring. The acts should be based on Decree Number 8 Year 1981 about Law Agenda on Crime to guarantee and protect human basic rights.

“We Might be Trusted”: Female Poor Law Guardians and the Development of the New Poor Law: The Case of Bolton, England, 1880–1906

This article uses the only surviving working diary of an English female Poor Law guardian in the late nineteenth and early twentieth centuries to explore two interrelated bodies of historiography. First, it engages with an historiography of the New Poor Law which has by and large seen the late nineteenth century as a period of atrophication. Second, it engages with a literature on female Poor Law guardians which has on balance questioned their achievements and seen such women as subject to all sorts of conflict and discrimination. The article argues that both perspectives may be questioned where we focus on local Poor Law policies and local women. Using the example of Bolton, in England, it is argued that the boards of Poor Law unions were riven by fracture lines more important than gender. Within this context, women of relatively high social status were able to manipulate the Poor Law agenda to make substantial changes to the policy and fabric of the late Victorian Poor Law. Rather than conflict, we often see a warm appreciation of the pioneering work of female Poor Law guardians.

The political economy of stalemate: organised crime, corruption and economic deformation in post-Dayton Bosnia

‘The biggest security threat to this country is not nationalism; it’s criminality, corruption and unemployment'2 More than seven years after the end of the Bosnian war and despite some $5 billion in international reconstruction assistance, Bosnia's economy remains stagnant and dysfunctional, while the country is rapidly gaining a reputation not as an emerging market economy but as a lawless and ungovernable state dominated by organised crime and corruption. This paper assesses Bosnia's post-Dayton political economy, arguing that the nexus between organised crime and corruption, on the one hand, and nationalist political forces, on the other, represents the most significant obstacle to the development of a market economy in Bosnia and poses a growing threat to the country's peace process. This situation is the product of Bosnia's particular post-war and post-socialist environment, which has created a powerful class of elites with an interest in perpetuating the status quo of a largely unreformed economy. In this context, international efforts to impose economic reforms from above, and to encourage local authorities to embrace a reformist marketisation and rule of law agenda, have met with little success. The paper concludes by suggesting that international peace building efforts need to pay greater attention to the ‘enforcement gap’ that has en abled crime and corruption to flourish in Bosnia.

Du contrôle juridictionnel de l'intervention publique à l'encadrement juridique par l'intégration économique régionale ou globale : aides publiques et fiscalité ? quelques pistes pour un programme de recherche

The report addresses the question whether and how economic globalisation affects the development of national rules governing public intervention into the market place, or whether the erosion of the interventionist power of States is due to changes of political and economic thought, by presenting a research agenda of comparative public law based on three hypothesis : First, public intervention into the market place, in particular by way of subsidies granted to enterprises and of fiscal measures, has been a core element of State sovereignty so that the limitation to which it has become subject due to regional integration and globalisation puts into question the very fundament upon which the law governing such interventions rest. Second, the establishment of judicial control over public intervention into the market place by virtue of such framework rules of is not without historical precedent ; in particular, a comparison may be made between, on the one hand, a State’s judicial control over subsidies granted and fiscal measures taken by local government, and, on the other, supranational or international ways of judicial control over State aids and fiscal measures. Third, however, this analogy may not be pushed to the assumption that the framework rules resulting from regional integration for State intervention, let alone the global rules for such intervention, might constitute the nucleus for the development of a global federal State. The first hypothesis is explained in more detail by a comparative historical summary of the State’s sovereign role in the economy and the rise of the rule of law as a way to control State intervention : it is much more the late result of the constraints of economic integration and globalisation than of the domestic evolution of the law. The substantiation of the second hypothesis constitutes a central part of the report, drawing extensively on French precedent, and contrasting it with both a comparative perspective and with the Treaty of Rome’s vision of missions of public service or, more precisely, of public interest. A main result of a more extensive examination of the proposed analogy may be that, contrary to what is frequently suggested, the limits which the law has set to State intervention in recent times are much more the result of framework building due to integration and globalisation than of a general change of political and economic thought. The third, cautionary hypothesis is explained, first, by reference to the organisation of judicial control which, on the one hand, States may exercise over local economic intervention, and, on the other, which the European Community or the World Trade Organisation have developed so far. In addition it is pointed to the differences which exist between the hierarchical structure of a State’s legal order and the over-lapping layers of national and supranational or international law that characterize the legal framework of globalisation. Such overlaps must be accommodated by reconciliatory rules of the kind that apply in cases of conflicts of laws, rather than by straightforward primacy rules. Thus, though due to their voluntary integration into a broader legal-economic framework, States may loose much of their sovereign power over territorial markets, that power does not necessarily accrue to the supranational or international organisation nor is the importance of the national State diminished. What does change, however, is the role the State has to play within the new institutional framework.

EMU and the Shift in the European Labour Law Agenda: From ‘Social Policy’ to ‘Employment Policy’

This article examines the interaction between EMU and the European Union (EU) employment strategy and its implications for law. It focuses on the importance of EMU as a catalyst in the development of the EU's social and employment policy in the years following the Treaty on European Union in 1992, up to the inauguration of a new employment policy in the Treaty of Amsterdam. In analysing the EU's discourse on labour market regulation, it is arguable that a shift has occurred in the EU's position on the ‘labour market flexibility’ debate: that the EU institutions are more readily accepting of the orthodoxy that labour market regulation and labour market institutions are a major cause of unemployment within EU countries and that a deregulatory approach, which emphasises greater ‘flexibility’ in labour markets, is the key to solving Europe's unemployment ills, along with macroeconomic stability, restrictive fiscal policy and wage restraint. As the EU's employment strategy has matured, this increased emphasis on employment policy has come to displace discourses around social policy. This change in emphasis has important implications for EMU since it signals a re‐orientation from an approach to labour market regulation which had as its core a strong concept of employment protection and high labour standards, to an approach which prioritises employment creation, and minimises the role of social policy, since social policy is seen as potentially increasing the regulatory burden.

Judicial reform and international legal technical assistance in Latin America

In Latin America judicial reform is crucial to both economic liberalization and democratization including the advancement of the rule of law and human rights agendas. The World Bank, the Inter‐American Development Bank, the United States Agency for International Development and other donors have responded with international legal technical assistance to a variety of projects, in pursuit of a number of different objectives. But for the most part governance improvements and economic concerns have been uppermost, reflecting the prominent position of the World Bank. The situation has both advantages and disadvantages. The future of judicial reform in the region will depend on the capacity to build a political consensus on the way forward, not just among donors but within the societies themselves.

Managing risk ‐ achieving protection? The police and probation agendas

In recent years the “protection of the public” has risen to the top of the law and order agenda, fostered by a populist Home Secretary. Not only has the effect been to raise the stakes in the sentencing process but also to shape the working and managerial agendas of criminal justice agencies. This article explores the potential of two agencies working to the same agenda of public protection, the police and probation service. It asks who will gain most from joint working and what might be lost in the process. It explores the difficulty of setting and achieving targets in an area fraught with so much uncertainty but etched into the public consciousness as needing action.

Between the norm and the exception: the Frankfurt School and the rule of law

Introduction: recovering the rule of law. Part 1 Carl Schmitt meets Karl Marx: a totalitarian concept of the political the social rule of law. Part 2 Legality and legitimacy: parliamentary legality or plebiscitary dictatorship? the unfinished agenda of rational law. Part 3 Sovereignty and its discontents: the permanent state of emergency beyond state sovereignty. Part 4 Toward the democratic rule of law: a democratic concept of the political between the norm and the exception. Conclusion: the presence of the past.

Yet Another Agenda for Law and Order: British Criminal Justice Policy and the Conservatives

The British government has recently launched a new package of legislation for criminal justice, one that is widely regarded as marking a return to traditional right-wing strategies of increased police powers and harsher punishments for offenders. This paper examines that development against the backcloth of Conservative policy for law and order as it has developed since the Conservative government came into office in 1979. It concludes that it is now possible to identify three clear phases in criminal justice policy under the Conservatives, each linked to wider political objectives. The effect of such policy shifts has been to destabilize the criminal justice system and to subordinate criminal justice policy to political expediency.

Redefining mental health law: Thoughts on a new agenda.

Mental health law traditionally focuses on preserving the civil and constitutional rights of people labeled mentally ill. However, because of fundamental changes in the public mental health system. most people labeled mentally ill no longer reside in state psychiatric hospitals. As a result, the core policy issue in mental health today is assuring access to community based services, supports, and housing which enable people to live successfully in the community. Because of this different environment, the definition and scope of mental health law must be expanded dramatically if those interested in the subject are to continue to influence mental health policy. This article examines five contemporary mental health policy issues, including changes in reimbursement systems and the growth of the consumer and family movements, that illustrate the legal, policy, and research questions which will emerge in an expanded and redefined mental health law agenda.