Process Of Law Reform Research Articles

Work and social representations: Sociological and linguistic analysis of a legislative creation process

As part of a wider program that studies the legislative creation process regarding work conditions in the Argentine Republic, the purpose of this research is to examine the different ways in which the written press represents, on one hand, the formulation and approval process of the Labor Risk Law reform, which concluded on 25 October 2012 with the passing of Law 26,773, and, on the other hand, the scope, content, and sense of said regulation. The perspective of the research is interdisciplinary, its methodology is qualitative, and the process guiding the textual analysis is inductive and hermeneutic. The corpus is made up of the news related to the studied legislative process. The news analysis was carried out according to the proposal of a Sociological and Linguistic Discourse Analysis. Thus, the argumentative strategies and the linguistic resources deployed were associated with the interpretive models of reality underlying those texts, and moreover, the similarities and differences among the various news articles were examined as regards the representation of (a) working conditions; (b) workers and employers and their respective rights and obligations; (c) the legitimacy, need, and legality of the regulation passed; (d) the scope of the protection granted to workers; and (e) the effect of this regulation on workers’ constitutional rights and guarantees.

Law Reform in the Ancient World: Did the Emperor Augustus Succeed or Fail in His Morals Legislation?

This is an Article with a dual purpose. First, it is concerned with the process of law reform: How do we judge a given reform's success or failure? Do we adopt strictly linear metrics? Or do we look at non-linear impacts? Thus: In the campaign against tobacco, do we judge it a success because it has reduced cigarette smoking? Or because it reduced the political power of the tobacco companies?In this Article, I apply this complex means of analyzing law reform to the Emperor Augustus' morals legislation. Legal historians have typically regarded Augustus' morals legislation as having achieved, at best, mixed results. These historians, however, have tended to perform a linear assessment of the legislation. Did Augustus achieve the results he professed to want: that is, were cases of adultery prosecuted more frequently? Was elite childbirth encouraged? I argue, in contrast, that the legislation must be seen against Augustus' larger political agenda, which was the subjection of elite families to the laws of the emerging Roman Empire. Seen in these political terms, I argue that the legislation can be judged in substantial measure as successful.

Considering Commercial and Company Law Reform

This article considers the factors that contribute to effective commercial and company law reform. First, the factors contributing to the success of the recent company law reforms in Hong Kong will be considered. Next, suggestions will be made as to how future law reform processes may be improved. These will be a focus on personal property security law, which involves aspects of both commercial and company law. Suggestions include the importance of considering insolvency implications, the formation of a Personal Property Security Law Working Group in Hong Kong, and the need to allow sufficient time for the law reform process.

The capacity to refuse psychiatric treatment: a guide to the law for clinicians and tribunal members.

In some Australian states clinicians and mental health tribunal members are already required to assess a person's decision-making capacity before involuntary treatment can be applied. Professionals in other jurisdictions will likely soon be required to do the same as mental health law reform in most Australian jurisdictions makes the assessment of decision-making capacity a central component of the process of providing unconsented psychiatric treatment. We provide a guide to the legal issues around the capacity to refuse psychiatric treatment to assist with this task. We review the legislation in the four Australian states most advanced in the mental health law reform process and use examples from clinical practice and the common law to describe how decision-making capacity should be assessed by these statutory standards. Clinicians and tribunal members will primarily be required to judge whether a person with mental illness can understand the information relevant to the treatment decision and whether he or she can use or weigh that information to come to a decision. A person with a mental illness is presumed to have capacity, but that presumption can be rebutted. Capacity is specific to the decision at hand and cannot be determined by the nature of the decision made. The information provided should assist clinicians and tribunal members to make determinations of decision-making capacity around treatment refusal in the context of mental illness.

Law Commissions – What is the essence of their law reform role?

Article by Neil Faris (Solicitor and a former Commissioner at the Northern Ireland Law Commission) reflecting on the nature of law reform as carried out by law commissions. This is in the context of the author’s experience in the Northern Ireland Law Commission. The paper assesses the importance of independence in any law reform body and the particular impact which law commissioners may bring to the law reform process. The paper looks at the history of law reform in Northern Ireland leading to the establishment of the Commission with a brief overview of the work of the Commission. The conclusion is that there is a role for effective law reform driven by commissioner led independent law commissions. The author makes a strong case for the need for independent law commissions to promote high quality law reform. His article gives an idea about how law reform works in practice with law commissions providing one route for reforming the law.

How Does Institutional Change Occur? Two Strategies for Reforming the Scope of Labour Law

There is currently a broad consensus over the need to reform the personal scope of the application of labour law. Great ideas are only the beginning of any law reform process, however. As labour law scholars, we often act as if change is driven by ideas, even as we observe and write about other causes of institutional change. The puzzle of how institutional change occurs in practice has absorbed regulatory and institutional theorists for some time. This article draws on the work of Kathleen Thelen, in particular. It is concerned with two strategies of purposeful institutional change and with the question of how agents of social change bring about reform. These strategies are here termed 'complementary layering' and 'experimental displacement' and illustrated with case studies drawn from the textile, clothing and footwear industry in Australia and head-load work in Maharashtra, India, two of the most innovative examples of strategies to expand the scope of labour market regulation worldwide. A mixed methodology entailing interviews with workers and regulatory agents, legal analysis and broader political economy analysis is employed to explore the strengths and weaknesses of these strategies for bringing about institutional change in practice.

The Politics of Land Reform in Kenya 2012

Abstract:This article provides a critique of the final stages of Kenya’s land law reform process, which has resulted in the approval of the 2012 Land Act, Land Registration Act, and National Land Commission Act. It argues that in spite of the constitutional and political importance of the new legislation, the process was marked by haste, lack of engagement by legislators, and little participation by citizens. The new laws can be viewed as a deeply disappointing outcome of a decade’s struggle over land policy. The article explores the effects of the constitutional deadlines for new legislation; the contradictory role of civil society in relation to the new laws and the bureaucratic structures they create; and the redistributive intentions and potential of the new land legislation.

“Those who come to do harm”: The Framings of Immigration Problems in Costa Rican Immigration Law

This article examines the political rationales at work behind the particularly repressive 2006 Costa Rican immigration law and subsequent immigration reform process and resulting 2010 law through an analysis of two rival framings of immigration in Costa Rica. First, I examine how the rushed nature of the 2006 law constructed a crisis in which migrants, particularly Nicaraguans, represented urgent threats to national security. Next, I examine the 2010 law that emerged from the reform process and the alternative framings of immigration as an issue of human rights and integration that migration advocates contributed to the new law. I argue that the juxtaposition of integration and security frameworks in the new law reinforces the law's most repressive measures, contributing to an overall project of securitization and marginalization of immigrants.

Corporate Law Reform and Political Environment: An Empirical Analysis Employing Public Comment Procedure Data

Corporate law shapes the fundamental business environment and affects various stakeholders such as shareholders, managers, employees, and creditors. Each stakeholder has an incentive to influence the reform process of corporate law. The many corporate law reforms in Japan reflect its rapidly changing business environment. It is possible to determine the behaviour of various stakeholders by examining the politics of the reform process of corporate law.In order to understand the corporate law reform process, this paper uses the notice-and-comment procedure (`public comment procedure'), which was introduced by the Administrative Procedure Act in 1993. The Administrative Procedure Act requires every law reform or order proposed by a government agency to undergo a public comment procedure. Under this procedure, people submit comments to the Ministry of Justice; some of these comments are reflected in the final bill, whereas others are not. The paper performs a quantitative analysis of a hand-collected dataset from two recent public comment procedures on corporate law reform. By analysing the comments with respect to the issues, we can understand the mechanism of the corporate law reform process, particularly the relative political power of various interest groups.The results showed that the bureaucrats are rigid and not willing to take public comments seriously. However, on some technical issues, legal academics and legal professionals, such as courts and law firms, influence the behaviour of the bureaucrats. The results showed that the bureaucrats employed these comments to honour the technical views of professionals. In other cases, corporate managers significantly influence the reform process. The results did not support Croley's (2007) independence hypothesis about government agencies.

Family Law Reform in (Neoliberal) Context: British Columbia's New Family Law Act

This article introduces and critically examines the new British Columbia (Canada) Family Law Act (FLA), which lays out new norms and procedures for the resolution of family disputes and emphasizes out-of-court dispute resolution. These changes are also intended both to reflect and to construct the ‘new’ face of contemporary motherhood and fatherhood post-separation. After identifying the neoliberal context within which the changes will play out, we explain the law reform process and summarize the reforms pertaining to post-separation parenting. Key changes include: replacing the terms ‘custody’ and ‘access’ with an expanded definition of guardianship; a list of specific factors that must be considered in determining a child’s ‘best interests’; a detailed definition of domestic violence; explicit rules to guide relocation; and authority for courts to make conduct and non-compliance orders. The FLA distances itself from presumptions regarding the preferred form of parenting arrangements post-separation, but the post-separation default position is that each parent is the child’s guardian with all parental responsibilities. The last part of the article places the changes in their contemporary social and political context and critically evaluates their strengths and weaknesses. Our conclusion cautions that without adequate resources to support families and improved access to justice, the innovative aspects of the FLA may be thwarted.

Fishing for equality: Policy for poverty alleviation for South Africa's small-scale fisheries

With the advent of democracy in South Africa there were great expectations that poor coastal fishing communities would gain legal access to coastal resources historically relied on for food and livelihoods. However, a failure to formally recognise the small-scale fisheries sector and adequately cater for them in the post 1994 law reform process, precipitated legal action by a group of fishers against the Minister (George K and others vs. the Minister of Environmental Affairs and Tourism) in 2005.11George K and others vs. the Minister of Environmental Affairs and Tourism 2004 (EC1/05). This court action resulted in a ruling by the Equality Court in May 2007 that required the Minister responsible for fisheries to develop a policy that would address the needs of this hitherto excluded group and immediately provide ‘interim relief’ through access to marine resources. This paper reports on the final policy (promulgated in June 2012) that emanated from a five year policy development process largely driven by civil society, NGOs and researchers. It highlights key principles and provisions in the new policy that signal a paradigm shift in the governance of small-scale fisheries in South Africa – from a largely resource-centred approach to one that is more people-centred, and which recognises fisher rights as human rights, as well as the important role that marine resources can play in poverty alleviation. It concludes by exploring some of the implementation challenges.

Empirical Facts: A Rationale for Expanding Lawyers’ Methodological Expertise

This article examines the importance of the social evidence base in relation to the development of the law. It argues that there is a need for those lawyers who play a part in law reform (legislators and those involved in the law reform process) and for those who play a part in formulating policy-based common law rules (judges and practitioners) to know more about how facts are established in the social sciences. It argues that lawyers need sufficient knowledge and skills in order to be able to critically assess the facts and evidence base when examining new legislation and also when preparing, arguing and determining the outcomes of legal disputes. For this reason the article argues that lawyers need enhanced training in empirical methodologies in order to function effectively in modern legal contexts.

British Developments in Non-Discrimination Law: The Equality Act

This paper examines the Equality Act 2010 and considers the extent to which it meets the objectives of the law reform process. At its core, there are two key aims identified in the Act: ‘to reform and harmonise equality law’, and ‘to increase equality of opportunity’. The first aim might be characterised as more technical in nature. It entailed the challenging process of consolidating many different legal instruments into one legislative Act, while at the same time modernising the legislation in various respects. The second aim is profoundly ambitious as it explicitly seeks to bring about a particular social change. This paper considers how the Equality Act measures up to both of these objectives.

Principles and Politics in Law Reform: Sexual Offences in Scots Law

In 2007 the Scottish Law Commission completed a project for the reform of Scots law on rape and other sexual offences. The bulk, but by no means all, of the Commission's recommendations were enacted in the Sexual Offences (Scotland) Act 2009, which came into force in November 2010. Although this paper will have much to say on the new law on sexual offences, its main focus is on the process of law reform which led to this change. In particular, the paper will address two general themes about law reform, in the sense of the systematic method of law reform adopted by bodies like Law Commissions. The first is that most good law reform exercise must identify the underlying principles which inform and structure the ultimate recommendations. The second relates to the 'politics' of law reform. For this purpose 'politics' has two contrasting meanings. One is the external political context to the project itself; what political factors (if any) were involved in the project being initiated, in moulding the proposals for reform, in deciding whether or not to implement the recommendations, and determining the final form which the law would take in statute. In the case of the sexual offences project, politics in this sense was involved at all these stages, and it is impossible to understand how we now have the law in the form it is without being aware of these political factors. Many law reformers are wary of these political influences. Law Commissions spend considerable time and hard work in carrying any project through to completion. Yet, often enough, the strength and purity of their proposals for reform are often watered down in the political process of the passage of an implementing bill in the Scottish or UK Parliament. Worse still, the Government, whether in Holyrood or Westminster, might decide against legislative implementation of the recommendations of an entire project, often but not always, because it anticipates a hostile political reaction to any implementing bill.

Institutional Change in Practice: Experimental Displacement and Complementary Layering in Labour Law Reform

Wide agreement over the need to reform the personal scope of the application of labour law has emerged at a national and supranational level. Great ideas are only the beginning of any law reform process, however. As labour law scholars we often act as if change is driven by ideas, even as we observe and write about other causes of institutional change. The puzzle of how institutional change occurs in practice has absorbed regulatory and institutional theorists for some time. This paper draws on the work of Kathleen Thelen, in particular. It is concerned with two strategies of purposeful institutional change and with the question of how agents of social change bring about reform. These strategies are here termed ‘complementary layering’ and ‘experimental displacement’ and illustrated with case studies drawn from the textile, clothing and footwear industry in Australia and head-load work in Maharashtra, India; two of the most innovative examples of strategies to expand the scope of labour market regulation worldwide. A mixed methodology entailing interviews with workers and regulatory agents, legal analysis and broader political economy analysis is employed to explore the strengths and weaknesses of these strategies for bringing about institutional change in practice.

Managing Law Reform: Applying a Best Practice Framework to Western Australia's Public Health Law Reform Efforts and Better Serving Australia's Indigenous Peoples

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.

Religion, custom and gender: marital law reform in South Africa

AbstractThis article analyses the legal processes of recognising customary and religious (Muslim) marriages in South Africa's constitutional democracy. It argues that the best interpretation of the Constitution requires laws that address cross-cutting issues of recognition and redistribution relating to religion/culture and gender, and that the best way to achieve this is through a ‘pluralistic solidarity’ that enables dialogue on how to secure cultural and religious recognition without undermining the rights of women. It examines how the different processes of cultural/religious law reform in South Africa have become sites of struggle over the meaning of collective and individual identity, public/private power, citizenship and rights, and gender and democracy, and how particular sociopolitical conditions, ideological struggles and overarching conflicts and interests have shaped each process of law reform. Thus it distinguishes between the ideal and the possible, the normative and the strategic, in law reform. It notes the conditions under which the incomplete process of recognition of Muslim marriage law has seen a greater deference to religious norms and private regulation than customary law reform, which saw a greater institutionalisation of gender equality norms. The article concludes by emphasising the open-ended nature of legal processes, the possibilities of using courts to challenge ongoing inequalities in religion and custom, and the ever-present role of politics in legal outcomes.

The Resource Management Act Reforms: A Return to Unbridled Power?

A lecture to the Environmental Defence Society, delivered in Auckland on 7 August 2013. The lecture traces the “Think Big” economic philosophy of the late 1970s and early 1980s, epitomised by the National Development Act 1979, and examines how this provided the foundations for the Resource Management Act 1991. It describes the extensive law reform process that preceded the Resource Management Act, and the problems that beset the product.

Agreed Use and Fair Use: The Economic Effects of Fair Use and Other Copyright Exceptions in the Digital Age

This paper reviews the merits of arguments being advanced to justify adoption of US style fair use exceptions to copyright law in countries that currently do not have it. Although I outline the background on global initiatives to introduce copyright exceptions, the focus of the analysis is on the Australian Law Reform Commissions’ (ALRC) recent Discussion Paper, which has recommended adoption of broad fair use exceptions to copyright law Australia. This study can be seen as representative of the analysis promoting such reforms globally.In this context the paper also considers empirical studies relied on by the ALRC which have attempted to estimate the economic effects of what they call copyright exceptions industries (CEI) that rely on exceptions to copyright law. These studies in effect attempt to assert that exceptions to copyright law might make a larger economic contribution than copyright law itself. These studies are being promoted to the ALRC and in other copyright law reform processes as providing empirical economic analysis of the economic benefits of copyright exceptions like fair use. To that extent this paper seeks to assess their strengths and weaknesses and whether they are “fit for purpose”.My general conclusion is that moves to extend copyright exceptions in response to the development of the digital economy are mistaken in that it will only serve to reduce incentives for the development of new creative works, which in turn is likely to reduce overall social welfare. Rather I argue the development of the digital economy requires the opposite response – namely the strengthening of copyright and the limiting of exceptions. The reason why is that the Internet has served to reduce transaction costs. Transactions costs provide the basic rationale and define the economic scope for fair use exceptions. To the extent transactions costs are falling, the benefits of fair use also fall. The scope for fair use to contribute to innovation and economic growth is thus reduced. This necessitates a reduction in the extent of fair use laws rather than an extension.

Pengaruh Wacana Gender Dalam Pembangunan Hukum Keluarga di Indonesia

The Effect of Gender Discourse in the Development Family Law in Indonesia. One of the social movements that emerged and gained its strength in the second half of the 20th century is feminism movement that encourages a structural change in the patriarchal structure society and equality between men and women. The movement also includes Muslim countries. The struggle of feminism or gender equality gained its momentum when the practice of discrimination towards women prevail in the Muslim community that is supported by treasury classical Islamic law (fiqh). It is on that particular context, the process of family law reform in Muslim countries at the end of the century-20s became an important arena of women's advocacy groups of their rights, as well as incorporate aspects of family law reform. DOI: 10.15408/jch.v1i1.2985