Story Of Law Research Articles

The In/Ex-clusiveness of International Law: Some Remarks from the Concluding Panel of the 17th Annual Conference of the European Society of International Law

Looking into the history of international law, it can be said that it has moved from exclusiveness to inclusiveness. This is evident from the language of treaties that shifted from ‘We the civilized nations’ to ‘We, the member states’, ‘the States Parties to the present Convention’.1 However, the story of international law has continued to bounce between inclusiveness back to exclusiveness in our modern times. In international organizations’ terms, ‘consensus’ can be said to reflect the most inclusivity in adopting treaties and resolutions. Consensus means all states agree to adopt the instrument, albeit sometimes with a few reservations that differentiate between consensus and unanimity, the latter not allowing any reservation during the adoption of an instrument. Exclusivity can be traced in negotiations when some states negotiate an instrument, adopt it and request others to join it, such as some of the conventions adopted by the Council of Europe (CoE) and opened to ratification by other states. The CoE is an exclusive club of states that implemented the previously mentioned process in opening some of its instruments to ratification by other states that are not members of the CoE club. This can be considered as an attempt to seek inclusivity, yet it puts other states from outside the club at a disadvantage when they are faced with a ‘take it or leave it’ option about a treaty they did not negotiate.

Some issues of securing claims arising from corporate legal relations

Issues of corporate relations and corporate governance are topical in the development of the country's economy. As President of the Republic of Kazakhstan K. Tokayev noted in his messages, dozens of national holdings, thousands of state-owned enterprises, and quasi-state organizations operate in the country. However, there is a question about the results and quality of their work, and only in one or two cases is the corporate governance system up to par. This suggests that in other organizations it is necessary to develop a corporate governance system. Its place in the economy is important, because due to the lack of an international corporate governance system of the appropriate level, enterprises and organizations cannot raise funds through the stock exchange. In the article, the author gives the scientific concept of "corporation", "corporate disputes", analyzes the short stories of substantive civil law on the definition of new categories of corporate disputes, their occurrence, legal entities. Suggests ways to identify actual problems related to the definition of departmental subordination of corporate disputes, namely the contradictions of departmental subordination and understanding the reasons that caused them, and their resolution. Emphasizes the features of substantive and procedural law in relation to corporate disputes. In addition, during the transitional period of the economy of Kazakhstan, changes and additions are made to some sections of the law «On a joint-stock company», which provides an effective form of management and business of a joint-stock company. Key words: corporation, corporate dispute, joint-stock company, legal entity, shares, corporate relations, dividends, earnings per share, share market price, court, lawsuit.

Divorce and Democracy: A History of Personal Law in Post-Independence India, S. Saxena

Divorce and Democracy: A History of Personal Law in Post-Independence India is a timely (re)telling of the complex story of personal law in post-independence India. Marking legal historian Saumya Saxena’s debut, the book traverses numerous themes of historical and continued relevance to the fabric of India’s democracy. These include—but are not limited to—the relationship between law and religion, the ‘content’ and ‘vocabulary’ of India’s democracy, gender, and minority rights. In the process, Saxena animates the plurality of actors and acts that have impacted the course of the story of personal law and challenges the centrality often accorded to the state in such discourses. Saxena’s inquiry unfolds across six chapters that are prefaced by an introduction and succeeded by a conclusion styled as a postscript. The chapters are organized chronologically, mapping the transformative events and interactions over roughly a decade each from 1946 onwards. Each chapter delves into one major archive with the intention of bringing them into conversation with one another.1 Throughout, ‘the legal archive remains an “optic” rather than the law’s own gaze, where legal spaces merely provide multiple avenues of storytelling’.2

The Spell of Place in Carpentaria

The following paper allows us to study the links between place and Australian Aboriginal Dreamtime or Dreaming. Such an approach foregrounds the need to re-envision our world as in permanent co-presence of human and other-than-human, and thus the necessity to reassess and ultimately refuse monological nationalist foundation narratives and replace them with more inclusive ones to reflect more fully what sustainable relationships in nature and society at large really consist in.Carpentaria offers a very original revisiting of the Gothic spectral motifs of disappearance and disorientation so prevalent in non-Indigenous Australian literature – replacing them instead with an acceptance of being haunted and “possessed”. Possession in Carpentaria is about being revitalised by place, as the work of anthropologists, poets and thinkers like Glowcewski, Glissant or Abram (The Spell of The Sensuous), have amply demonstrated. In Wright’s novel, the notion of possession and being possessed by the river country takes on a unique urgency, thus foregrounding the importance of stories, “stories of deep knowledge”, not only for themselves, but precisely because such law stories can have a major and lasting impact on ideological, economic and social choices but also point to new or, to be more accurate, rediscovered epistemologies.

How important are the groundbreaking cases in administrative law?

The story of Canadian administrative law could be seen as a move toward deference driven by some fundamental decisions of the Supreme Court of Canada. Debates about this move centre on the proper role for reviewing courts as well as the politics lying behind administrative law decisions. Most recently, the 2019 Supreme Court decision in Vavilov raised concerns that it licenses judges to undertake more intrusive review. Key to this story is the assumption that these groundbreaking decisions of the Supreme Court influence how lower court judges decide challenges in the administrative law context. Prior empirical studies have found that the 2008 Supreme Court decision in Dunsmuir increased the use of the reasonableness standard of review as well as the rate at which judges affirm administrative decisions. However, it can be difficult to empirically account for the variety of contexts and decision makers involved. This article uses decisions of the Federal Court to examine whether Dunsmuir and Vavilov changed how judges decide. It finds that, while the use of reasonableness has dramatically increased, the rate at which judges affirm administrative decisions has not changed over time. The article discusses these results and what they imply about the influence of these groundbreaking Supreme Court decisions.

(Dis)passionate law stories: the emotional processes of encoding narratives in court.

In this conceptual article, we propose that legal professional decision makers’ transformation of narratives in court (encoding) influences their emotional attunement to the stories at hand. First, we argue that the process of encoding is linked to the strict demand for dispassion in legal settings. Second, we introduce three techniques that regulate the emotional processes at play during the encoding of law narratives: demarcation, fragmentation, and proximation. Demarcation and fragmentation produce emotional distance from narratives and their associated emotions, while proximation refers to the deliberate calibration of emotional attunement to law stories to enable legal decision making. Demarcation and fragmentation are sustained by background emotions of ease and interest when stories align with legal requirements, versus disinterest and irritation when ‘too many’ details are introduced. Proximation is regulated through the epistemic emotions of doubt and certainty. By scrutinizing the subtle emotions involved in legal encoding, we problematize the ideal of judicial dispassion.

Law as Anti-Kinship: The Colonial Present in Global Surrogacy

Law and regulation are often seen as the panacea for the ills of science and markets: regulation minimizes risks by setting out clear rules, calls out abuses when those rules are not obeyed, and disciplines actors, institutions, and states to behave according to collectively agreed upon principles. In this article I challenge this liberal narrative of regulation by looking at how cross-border surrogacy arrangements are currently debated in private international law. I first demonstrate that technosciences are intimately linked to regulatory and legal frameworks. Here, recombinant knowledge has led to new formations of legal parenthood while obscuring other forms of kinship in quite paradoxical ways. Second, the liberal story of law and regulation erodes the history and political economy in which law has come to represent itself as universal and moveable. I examine how a gendered, racialized, and (post)colonial context of global fertility chains is lost in the legal instruments designed to protect the people involved in international surrogacy arrangements, preferring instead neoliberal forms of kinship. Finally, the liberal story of law also embraces the story of individualism. I show the conflicts that arise when such individualist forms of law are transplanted to non-individualist contexts, both in non-Western and Western contexts. I argue that by subjecting non-liberal others (across the Global North-South divide) to bioethical frameworks that intervene in kinship ontologies, private international law runs the risk of prolonging the logic of colonial and imperial thinking.

Law and Commerce: The Fortunate Crisis of the Eighteenth Century

ABSTRACT This article refines a common narrative about eighteenth-century commercial law and its relationship to economic development. It looks at a specific doctrinal strand of English common law–promissory notes–and argues that their recognition by statute without regard to common law’s requirements led to a serious destabilization and a crisis for the legal community. This crisis coincided with the South Sea crash and its aftermath, when promissory notes were most needed by the population at large. However, a fortunate effect of this crisis was that promissory notes went essentially unregulated by the courts, and their use was thereby allowed to proliferate. When Lord Mansfield effected his reforms, this brought mercantile cases back to common law courts and brought certainty to the law (albeit at the cost of common law processes). With these commercial instruments in common use and on certain legal foundation, the financial instruments and networks were in place to allow the process of economic development that eventually became modern capitalism. Therefore, instead of the narrative of the steady development of English institutions to pave the way for industrial and financial capitalism, the story of common law’s development is of institutional failures that happened to be fruitful.

A TWAIL Perspective on Loss and Damage from Climate Change: Reflections from Indira Gandhi's Speech at Stockholm

AbstractThere seem to be no answers to resolve the deadlock between the Global North and the Global South on liability and compensation for loss and damage from climate change. Revisiting the original story of international environmental law from the Stockholm Conference of 1972 may help us address these historical tensions. In doing so, this article unveils the genesis of Third World Approaches to International Law (TWAIL) from the Stockholm Conference as an alternative consciousness centred around the aspirations of the Global South. Indira Gandhi's plenary address at Stockholm outlined the Global South's position on environmental issues, which greatly influenced early TWAIL scholarship in the 1980s. Locating TWAIL's origins at Stockholm allows us to: (1) chart the environmental concerns of the Global South till date; (2) infer its evolved view on the “development versus environment” debate; and (3) understand the role of future TWAIL scholarship in challenging the enduring and structural limitations of international environmental law, especially in future deliberations on loss and damage.

Framing Law Stories: Work Health and Safety and the Self-employed Person’s Wellbeing

The question of whether law can, or cannot, touch the territory of the wellbeing of workers is steadfastly rising to the surface of the contemporary world of work. This begs exploration of whether current law provides ways to workers’ wellbeing. This article explores whether the self-duties that the self-employed person owes herself under sub-sections 19(5) and 28(a) of the Work Health and Safety Act 2011(NSW) (‘WHSA’) touch her wellbeing at work. The WHSA is the state’s adoption of the Model Work Health and Safety Act. In adopting the methodology of legal narratology ( Olson 2014 ), this article unframes grand narratives of law and wellbeing and renders a collection of micro narratives which emerged from the law stories told by seven self-employed persons juxtaposed with the story the WHSA tells of itself. The research has been conducted in the Northern Rivers region of New South Wales. The article draws upon four law stories which frame the interpretations that: (1) the self-employed person must ensure, and take reasonable care for, his or her own physical and psychological wellbeing and safety, while wellbeing unlimited from that definition lies in law’s lacunae; (2) the self-employed person must ensure the provision of adequate facilities for her wellbeing at work and the maintenance of those facilities, while an intentional by-product of discharging health and safety duties is wellbeing beyond liability; (3) the self-employed person may, or may not, promote wellbeing in discharging her self-duties ( Tooma 2020 ); and (4) a desire for law in the self’s wellbeing appeals to law beyond the WHSA. The article ultimately invites the reader’s own interpretations of the ineffable, sometimes called wellbeing.

Yoongoorrookoo

ABSTRACT Since the momentous release of the Montecristi Constitution of Ecuador in 2008, which recognised Nature, or Pacha Mama, as a subject of rights, the rights of Nature movement across the world has gained exponential momentum, with numerous jurisdictions worldwide now recognising some form of legal subjectivity vested upon Nature. In particular, since 2017, river personhood has dominated news headlines around the world as one of the most recognisable forms of Nature’s novel subjectivity. The emergence of legal personhood for nature, however, has been far from uncontroversial, and numerous critiques have been advanced against the use of such a legal category – traditionally applied to humans and their abstract creations (such as States and corporations) – to the natural world, resulting in numerous calls for an alternative category of legal personhood (one that some rights of Nature advocates have termed an ‘environmental person’). Against the backdrop of this emerging debate, this paper acknowledges the work undertaken by the Martuwarra Fitzroy River Council (Martuwarra Council), which was established in 2018 in the Kimberley region of Western Australia by six independent Indigenous nations to preserve, promote and protect their ancestral River from ongoing destructive ‘development’. The Council believes it is time to recognise the pre-existing and continuing legal authority of Indigenous law, or ‘First Law’, in relation to the River, in order to preserve its integrity through a process of legal decolonisation. First Law differs markedly from its colonial counterpart, as its principles are not articulated in terms of rules, policies and procedures, but rather through stories. This paper, therefore, begins with a dialogical translation of one First Law story relating to Yoongoorrookoo, the ancestral serpent being, to create a semantic bridge between two apparently distant legal worldviews. A dialogical comparative analysis is then followed to posit and explore the concept of an ‘ancestral person’ as a novel comparative tool that may be able not only to capture the idea of Nature as a legal subject, but also complex Indigenous worldviews that see Nature – in this case instantiated in the Martuwarra – as an ancestral being enmeshed in a relationship of interdependence and guardianship between the human and the nonhuman world. To instantiate and embody such relationships, the paper directly, and somewhat provocatively, acknowledges the River itself, the Martuwarra RiverOfLife, as the primary participant in such dialogue, an embodied non-human co-author who began a conversation then left to human writers to continue.

Pardoning Infanticide in Late Medieval France

The handling of infanticide in late medieval France offers modern audiences an underappreciated paradox: on the one hand infant murder was deplored as grave sin and crime, on the other hand, it was a pardonable offence, even the infanticidal singlemother who had killed to conceal her sin could obtain royal grace. This is far more than the usual story of law differing from practice. Christian ideology of mercy and forgiveness for sin played a central role in shaping the regulation of illegitimate births as well as abortions, stillbirths, and infanticide. Church and secular authorities alike sought to prevent as well as punish the death of infants, but they also created and implemented systems of justice with the explicit purpose of providing mercy to the repentant murderer, even an infanticide.

1968 – Decolonization: Mauritius and the Chagos Archipelago

It was not until the Union Jack was lowered that the cheering of the crowds had completely drowned out the military orchestra. The Mauritian flag soared into the sky and with it the gaze of now Prime Minister Seewoosagur Ramgoolam, who stood in awe of the moment. Independence was now official. Mauritius’ independence ceremony on 12 March 1968 followed the same protocol of symbolism that was seen in the few other countries that already celebrated their independence from the British. In the context of colonies gaining independence, such symbolism seems to have been elevated to a status as important as the act of gaining independence itself. It was as if the deal could not be considered sealed unless in the presence of the people, the colonial power and the world, the foreign flag was finally lowered for the own flag to rise. And it is impossible to hold that skepticism against former colonies; after all, it was certainly not uncommon for oral and – as the story at issue will show – even written guarantees of colonial powers to turn out to be empty promises. With all its glory, that day in March 1968 also brought along a bitter-sweet taste. British soldiers were still patrolling the streets, their warships were still present and the fear of violence that had ravaged the country throughout the months leading up to independence, felt just as real on celebration day as it did before. Most bitter of all, as would become clear years later, was the sacrifice Mauritius had made in the pursuit of its independence – the Chagos Archipelago. This (sixth) story of international law is one of opposites. It ventures into the victory of independence over colonialism on the one hand, while demonstrating the defeat of full self-determination in light of still existing influence of former colonial powers over unliberated territories. This paradox seems inherent to the notion of ‘decolonization’: a truly pivotal process of emancipation in international law that was, however, never been fully completed. In three parts, the present piece will examine this paradox, by firstly discussing the historical background leading up to the first decolonization waves (II.). Secondly, it shall discuss Mauritius’ independence in 1968 and the following detachment of the Chagos Archipelago (III.). Third, it will emphasize milestones of legal development in the law on decolonization that took place in the subsequent decade (IV.) and lastly conclude on the progress made ever since and where the pertinent decades stand in the bigger picture of the international rule of law (V.).

Office-holding and officiality

Much of positivist jurisprudence and public law theory celebrates an idea of the ‘legal official’ as one appointed and identified by law to claim and wield law’s powers over subjects. That idea treats the official as the holder of an office constituted by law and so relies heavily upon law’s fabricated normativity and its insulation from social and moral normativity. This article challenges that view by drawing a distinction between ‘law’s offices’ and ‘officials of the law.’ More precisely, it distinguishes the status of office-holding under the law from the moral standing of ‘officiality’ carried by officials of the law and transmitted through practices of recognition of the role of official. The article challenges positivist orthodoxy to account for the moral standing that recognition carries into the role of official, alongside the institutional rules of office. In a response to John Gardner’s work on ‘officials of the law,’ which insists upon the morally laden role of official but avoids an over-moralized account of law’s normativity, I argue that recognition generates and carries moral normativity within and between the roles of official and subject in a way that inserts such recognition, and the role of official, into the story of law’s normativity.

Uncommon Law: Judging in the Anthropocene

The origin story of environmental law begins with judges working valiantly to protect the environment, but ultimately, out of an apparent necessity, passing responsibility to legislators and regulators. There is truth to the story, but it ignores important aspects of the demonstrated expertise, creativity, and dynamism of common law judges. Given the trajectory of the environmental law narrative, judges today too anxiously defer to legislative and regulatory policy, and we have come to expect, sometimes champion, this shirking of environmental responsibility. But this logic of deference is unpersuasive in an age where legislators and regulators also struggle, and most often fail, to address environmental issues like climate change. This chapter urges that, instead of minimizing the role of judges, there is immense need to rediscover the possibilities of common law environmental protection. There is need to write a new origin story in which courts, legislators, and regulators carry shared responsibility. The threat of climate change demands a turn to courts for a variety of services, not least, adjudication that uncovers individual suffering and declaration of norms of right and responsibility. The judge’s role in candidly attending to these meaningful decisions can be the catalyst for much needed political action.

Fairness and Flexibility: Understanding Corporate Bankruptcy’s Arc

The paper grows out of two observed trends in corporation bankruptcy practice: first, reorganizations are increasingly structured by deals agreed to by insiders (including controlling creditors) before cases are filed, and bankruptcy courts have shown a willingness to adopt these deals within the chapter 11 process, despite concerns that the deals might not strictly comply with the Bankruptcy Code. But at the same time, there is a growing backlash – seen not only in academic writing, but also in appellate court decisions – against the flexible, deal culture that the bankruptcy courts have embraced. My paper shows that these opposing forces are not new. By looking at the long history of corporate bankruptcy – going back to the initial railroad insolvencies before the Civil War – I show how the story of American corporate reorganization law exhibits a distinctive pattern: a long, slow wave, drifting between flexibility and fairness. I argue that movements toward the extreme “fairness” pole are inherently unstable. In particular, because moves to extreme fairness tend to render reorganization systems unusable, the need for a functional reorganization system will inherently force a move back from fairness and toward flexibility. I conclude by arguing that changes to help the legitimate interests of small players getting crushed in the current system are worthwhile, but “reforms” that ultimately help distressed debt investors or other asset managers extract greater returns from bankrupt corporations are misguided at best. Moreover, as shown by an analysis of the prior reign of tremendous fairness – from about 1938 to 1978 – such a system is inherently unstable because the corporate reorganization system becomes unworkable. Rigidity increases the pressure for change. The best solution then is to scale back the extremes of the present ultra-flexible chapter system, without going so far as to thwart its very utility.

Reading the story of law and embeddedness through a community lens: a Polanyi-meets-Cotterrell economic sociology of law?

In this article I propose that the role of law in Karl Polanyi’s concept of the “always embedded economy”1 can be enriched by the application of the “lens of community” 2 developed by Roger Cotterrell.3 I begin with Polanyi’s suggestion that economic action and interaction are always “embedded” in wider social life. Reading through the lens of community, we can be more specific: any actor is at once engaged, to different degrees (from fleeting to stable), in multiple types (whether focusing on instrumental, traditional, affective and/or belief-based action) of social life. I then explore a second, implicit, cornerstone of Polanyi’s argument: that analytical and normative approaches to economy may become disembedded from wider social life. Reading through the lens of community we can again be more specific: in the transformation to a market society, the analytical and normative approaches that are central to economic actions and interactions are confused with, and privileged over, those that are central to non-economic actions and interactions. This confusion and privileging can have what we might call a performative effect on action and interaction. Finally, I explore Polanyi’s story of law as a facilitator both of disembedding movements and of re-embedding countermovements. The application of a law-and-community lens suggests some additional details of that storyline and that there are additional plotlines to be pursued. The practical potential of this Polanyi-meets-Cotterrell economic sociology of law is briefly illustrated with references to two twenty-first-century cautionary tales: the World Bank’s investment climate programme and the 2008 financial crisis.

EU Law Stories: Contextual and Critical Histories of European Jurisprudence

In the shadow of multiple crises afflicting the EU in recent years, the contributors to this richly textured volume found themselves shaken by a sense of “existential crisis articulated in EU law scholarship.”1 This perception is not only attributable to EU law’s uncertain fortune as a subject of study in American academia, but also to the growing number of legal scholars questioning the very “raison d’être of the project of European integration.”2 Many of the volume’s contributors “began by feeling self-estranged . . . from the process of European integration” and from a field of law long maligned as self-referential, dogmatic, and formalistic.3 They turned to storytelling in the hopes of breaking the hermetic seal of EU law’s conventional wisdom, inspired by the interdisciplinary and critical promise of the law and society, critical legal studies, and postcolonial studies movements. This move is astute, timely, and compelling. It has become obvious to anyone who has followed the controversies surrounding the Euro-crisis, Brexit, the migration crisis in southern Europe, or the rule of law crisis in Hungary and Poland that European institutions and the European Court of Justice (ECJ) are now commonplace objects of storytelling, whether they like it or not. In retrospect, this should have surprised no one. Even Eric Stein’s now-emblematic 1981 phrase with which this volume begins––describing the ECJ as “tucked away in the fairyland Duchy of Luxembourg”4—foreshadows how the hidden and the distant are destined to inspire folklore. EU law was bound to be discovered by politics sooner or later. But what kind of folklore would result?

Law and Aesthetics in the Anthropocene: From the Rights of Nature to the Aesthesis of Obligations

The Anthropocene thesis contends that the earth has entered a new geological epoch, dominated by human action. This article examines the Anthropocene in relation to law and aesthetics, arguing that the concepts of law and the stories of law’s origins that we mobilise in this context play a significant role in rendering us sensitive or insensitive to the multifarious challenges that the Anthropocene poses to social life. In arguing against aspects of Earth Jurisprudence scholarship, which has developed a novel understanding of the ‘rights of nature’, this article argues that it is through an attention to obligations, rather than rights, that a sensitivity to the forces and relations that define the Anthropocene might be fostered. The shift from rights to obligations entails a commensurate movement from aesthetics – where questions of form, integrity and harmony predominate – to aesthesis, the study of the somatic, sensory and affective dimensions of human experience. The article concludes by arguing that it is within the contemporary city, understood as a discrete form of human and infrastructural association, that an aesthesis of obligations in the context of the Anthropocene can be most acutely perceived.

Book Review: A Short History of European Law: The Last Two and a Half Millennia

The creation of Europe under a unifying law has been one of the most important human achievements. This law set out a number of man-made rules, devised to ensure peaceful relations, with the purpose of holding the continent together, albeit not entirely successfully as the history of decades of internal political conflicts demonstrate. Nevertheless, the fragile malleability of this law has meant the endurance of the unity despite conflicts, and its evolution means that it influences what is known today as European law. In A Short History of European Law, Tamar Herzog beautifully and succinctly tells the story of European law in six parts, exploring its journey across different phases of history, from the ancient times to the twentieth century.