Changes In Legal Culture Research Articles

Peranan Budaya Hukum Kementerian Lingkungan Hidup dan Kehutanan Dalam Penetapan Hutan Adat

After the decision of the Constitutional Court Number 35/PUU-X/2012 which stated that customary forests are not part of state forests but private forests provide legal certainty and protection of the rights of indigenous peoples in managing customary forests. As a follow-up to this decision, the Ministry of Environment and Forestry established Minister of Environment and Forestry Regulation P.32/Menlhk-Setjen/2015 concerning Private Forests which has been renewed through Minister of Environment and Forestry No.9 of 2021 concerning Management of Social Forestry. Until now, the number of customary forests that have been determined is 107 customary forest units. One of the factors supporting the increase in the number of customary forests is a change in the internal legal culture of the LHK when verifying and validating customary forest applications. Based on the results of the research, facts and problems were found, one of which was related to the requirements for recognition of legal subjects for groups holding rights through regional legal products which could be in the form of Regional Regulations (PERDA). The PERDA contains the Recognition and Protection of Indigenous Peoples and the areas managed by these communities. Some PERDAs are not included with maps of customary territories or there are no other regional legal products that define the boundaries of the community's managed areas. In addition to the problems of legal subjects and areas of management, changes in the legal culture within a government institution also have an influence on the process of recognizing these rights. This writing uses an empirical legal research approach by examining the roles of the legal culture of the Ministry of Environment and Forestry in determining customary forests

The leading causes behind medico-legal claims and the use of mediation as a possible solution

Medico-legal claims in the South African health sector have noticeably increased since approximately 2007. This is significant as money spent from the public health budget on these claims is money which ought to have been spent on other healthcare priorities. As such, it becomes vital to understand why these claims have shown such drastic increases and what could be done to stem the rising tide. This article addresses two main themes: first, it explains the various causes for increased claims related to the medical field and broader possible solutions to this problem; secondly, mediation is proffered as a viable means of negating the negative impact of these claims on the health sector and budget. The conventional method of resolving medico-legal disputes is through adversarial court litigation. Litigation is expensive, time-consuming, complex and emotionally taxing, and the eventual outcome often fails to satisfy the needs of the litigants. Conventional civil dispute resolution exhibits little appreciation for, or consideration of, alternative and better-suited dispute resolution techniques and mechanisms. In this article we argue that mediation offers a viable alternative to resolve medico-legal issues. In essence, mediation is third-party (mediator) facilitated dispute resolution through negotiation. The process is less expensive, less time-consuming, uncomplicated, and party-oriented. In addition, it has the potential to enhance access to justice. However, to achieve this will require a change in legal culture.

“Thinking like a lawyer” in an uncertain world: The politics of climate, law and risk governance in the United States

This article explores the legal aspects of risk governance using the Supreme Court’s decision in Massachusetts v. EPA. Legal ways of thinking – based on realist risk conceptions requiring a showing of simple causation before granting relief – may derail efforts to address uncertainty. Courts filter risk questions through legal procedures and epistemologies to become legal-scientific risk conceptions. At the same time, lawyers and judges have disproportionate power in violation of the normative goals of risk governance. Furthermore, litigation narrows the number of concepts and parties while adding complexity to already uncertain and multifaceted risks. I argue that the majority’s reasoning in Massachusetts v. EPA suggests that judges can make existing legal mechanisms more responsive to risk governance by incorporating the judicial precautionary principle into case law. This subtle insertion of the precautionary principle into precedent governing legal standing tempered aspects of the law that made responding to systemic risks more difficult. The dissenting opinions reveal underlying ambivalences towards globalization that could impact whether institutions choose to confront systemic risks. I argue that changes in legal culture can lead to risk governance within existing regulatory systems, in contrast to those scholars who advocate for radically new governance regimes.

Judging the Public Interest: The Rule of Law vs. The Rule of Courts

Judging the Public Interest: The Rule of Law vs. The Rule of Courts

The transition to a democratic Portuguese judicial system: (delaying) changes in the legal culture

AbstractThe Revolution of 25 April 1974 had a strong impact on justice in Portugal. Initially, it can be said that there was evidence of a process of democratisation involving the judicial structures, together with effective improvements to conditions allowing for independent and autonomous professional performance. However, in analysing the course of judicial reforms, it can be seen that changes took place more on a legislative level than in terms of the performance of the courts, proving that the evolution of the judicial system still demands a change of the legal culture. Therefore, the objective of this paper is to reflect on the evolution of the legal architecture in Portugal, seeking to determine whether the transition to a democratic judicial system is complete or whether, on the contrary, we are still faced with the process of justice in transition, delaying any changes in the current legal culture.

Adversarial Legalism and the Emergence of a New European Legality: A Comparative Perspective

This essay explores two interrelated questions. First, what are the sources of the current legal culture in the United States and Europe, and second, what, anything, can be said about how European legal culture could change in the face of increasing conflict between citizens and the state over the definition and content of social rights? The essay begins by refining the concept of legal culture employed in the analysis. While accepting the conventional accounts offered by scholars like Lawrence M. Friedman, James L. Gibson and Gregory A. Caldeira, it adopts a more expansive definition which employs Erhard Blankenburg’s methodology, which gives equal weight to legal rules and institutions as to legal consciousness, that is, social attitudes towards the law. Next, the essay explores the ways in which the contrasting legal consciousnesses found in the United States and Europe have informed the public/private distinction in the two legal cultures. In particular, the chapter emphasizes the degree to which in the United States elite legal consciousness moved between the two opposing poles of instrumentalism and formalism, while in Europe legal culture has been dominated until quite recently by a dogmatic tradition that views law as independent of politics. The essay investigates the degree to which adversarial legalism is the legal culture of the United States and observes that adversarial legalism has produced more political gains in private rights such as tort and contract than in public rights, such as the right to welfare or healthcare. Conversely, as some such as Mark Osiel has observed, European legal culture has produced a sphere of private right in which law is seen as marginal to political contestation but where social rights have been successfully secured through politics, and not legal intervention. The essay concludes by considering whether, as conflict over social right become more intense in Europe (due to the contraction of the economic basis of the welfare state), European citizens will look to legal tools made available through the European Union to press their claims in law as opposed to politics. It further asks, whether, if this were to occur, that the turn to law would necessarily mean a change in legal culture and an increase in legal adversarialism in Europe.

Speculating on the Future of Attorney Responsibility to Nonclients

The trend toward greater liability to one's opponents in litigation is but one example of the overall diffusion of attorney responsibility. This may represent either greater animosity aimed at attorneys or broader liability across the board in society. Other explanations include a diffusion of attorney roles with a corresponding trend toward unifying standards of liability for a broad range of service professionals, as well as a pluralization of the attorney client relationship. Primarily, however, the trend toward greater responsibility to nonclients represents a crumbling of the overriding fidelity to a partisan adversary ethic. To the extent this trend is present in the core of the adversary system its extension to non-litigation fields of practice seems even more likely.Broader liability may be a result of or an incentive for change in legal culture. Even if standards of liability do not encourage attorneys to balance their adversarial zeal on behalf of clients with some concern for fairness toward third parties, the culture of the law may be changing to an extent which will encourage this change. The number of individuals and entities that are opting out of litigation, or who are forced by law to pursue less adversarial methods of dispute resolution, indicate that the overriding ethic of adversarial partisanship is beginning to be balanced with concerns toward more cooperative transactional and dispute resolution methods. The increasing popularity of mediation for a broad range of dispute resolution and the significant debate over the proper role of attorneys in this field is but one indication of this trend.

Into Positivism: Georg Friedrich von Martens (1756–1821) and Modern International Law

There is a familiar way in which every politics – also international politics – is a politics of law. After all, most politics aims expressly to end up in the legal regulation of something. Such an image presumes the separation of the two, politics and law, like the distance between cause and effect, ends and means. But there is another, more subtle connection between politics and (international) law, a relation not between separate entities, but what is really a relation of identity. For whatever else political power might be, at least it entails the ability to speak authoritatively. And what is an authoritative form of normative speech – what idiom to use, what may be taken for granted and what is in need of proof and so on – is a reflection of legal doctrine and culture, what at any moment is recognised as professional legal speech.1 Changes in legal culture and doctrine are reflexively linked with political change, indeed, we often recognise the latter by observing the former. As ideas about authoritative speech change, familiar vocabularies lose their persuasive power. Old authorities no longer sound authoritative. A new idiom catches the imagination and new speakers begin to ring true, or right, that is, in possession of something powerful. Modern legal doctrine – legal doctrine since Bodin, Hobbes and Grotius – arose as a response to the loss of persuasive power in old European religious and scholastic vocabularies. Towards the end of the 16th and beginning of 17th centuries new forms of scientific and political speech began to articulate the transformation that was taking place in early modern Europe, providing an alternative both to the old verities and to the reactive scepticism that remained unable to carry a solid political form.2 The spiritual and political crisis peaked in the Thirty Years War out of which emerged a novel language of normative authority – natural law – with its own native speakers, the natural lawyers. Sounding in part like philosophers, in part like lawyers, often exploiting the idioms of mathematics and natural sciences, these men were able to speak persuasively about the role of the new territorial entities in providing security and, in due course, welfare to their populations. The new language made it possible to think the world as naturally divided into separate secular states whose rulers would enjoy supreme authority, both articulated in and limited by the idiom of secular sovereignty. By the end of the 18th century, this vocabulary had, for its part, become vulnerable to increasing criticism. The monarchic absolutism it had helped to support in practice, and the abstractions about human nature that it produced as theory, now seemed suspect and unpersuasive, its native speakers increasingly sounding like new scholastics out of step with an enlightened era.3 We recognise some of that critique in Rousseau’s attack on the way Grotius had offered “fact” for right and in Kant’s indictment of the whole lot of the natural lawyers – Grotius, Pufendorf and Vattel – as “miserable comforters” whose legal principles