Legal Encounter Research Articles

Справа МС ООН Україна проти РФ «Щодо звинувачень у вчиненні геноциду відповідно до Конвенції про запобігання злочину геноциду та покарання за нього»: prima facie

The main issues of the dispute within the International Court of Justice «Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide» are considered in the proposed article. The analysis is made in context of other disputes between Ukraine and Russia, which are considered by other international adjudication institutions. Dispute completely corresponds to the general legal strategy of Ukraine while defending its interests in legal encounter with Russia are established.

Lawfare as part of hybrid wars: The experience of Ukraine in conflict with Russian Federation

The main objective of the article is to prove the need for the state to have a centralised legal strategy to ensure the protection of state interests on an international level during a hybrid conflict. Centralisation of control and the planning and implementation of legal actions on an international level are core elements of such a strategy, especially for actions under the jurisdiction of international institutions. This article provides an analysis of treaties and of the practice of adjudication in Ukraine during the conflict with the Russian Federation. The findings of the study show that the legal dimension of hybrid conflict has some sub-levels: legal actions of states in hybrid conflicts taken at interstate level; the level of enterprises controlled by the state; and the private level. The practice of Ukraine shows that the exercising of a multilevel legal encounter during a hybrid war faces a number of problems including the intersection of actions (sometimes even direct conflict), even among authorities involved in the legal protection of state interests; and problems with collecting and analysing the information necessary to protect state interests in the legal dimension; state authorities that are not directly involved in a legal encounter may exercise actions which will complicate the legal position of the state. One of the first steps taken by the state in a hybrid conflict is, therefore, to create special authority or entrust an existing one with the coordination of the functions of lawfare. The next step of such an authority is the strategic "programming" of the opponent's legal actions with the aim of achieving an advantage in the legal dimension of a hybrid conflict.

Убийство по мотиву кровной мести: особенности субъекта преступления

This article focuses on the resolution of issues and difficulties legal professionals encounter when qualifying criminal acts under Item e.1 of Part 2 of Article 105 of the Criminal Code of the Russian Federation (Item e.1). The issues and difficulties appeared when the 1996 Criminal Code entered into force and still exist. They are associated with the absence of a legal definition of blood feud in the text of the Criminal Code and other federal statutes, and also with the fact that Decision No. 1 of the Plenum of the Supreme Court of the Russian Federation, On Judicial Practice in Murder Cases, of 27 January 1999, both in the previous and in the current versions, does not contain any comments and clarifications on the characteristics of Item e.1. The greatest difficulties in investigative and judicial practice appear when determining the subject of the given crime. For a long time, the question of what kind of subject of the crime - general or special - is the subject of the crime envisaged in Item e.1 (formerly Item k of Article 102 of the Criminal Code of the RSFSR) continues to be controversial and open in the Russian criminal law theory. The author of the article has made a comprehensive critical analysis of the points of view, opinions, and approaches available in the criminal law doctrine regarding the definition of the type of subject in Item e.1 - murder motivated by blood feud; this has an important qualification value and directly affects the legal assessment of the criminal act provided for in this item. The article presents and examines the doctrinal provisions, court decisions, and norms of criminal law in terms of determining the type of subject of murder motivated by blood feud. The author proposed, explained, and scientifically substantiated a uniform approach to the definition of the subject in Item e.1; this approach can order the Russian law enforcement practice and resolve all the problems. The author also formulated conclusions supported by arguments and reasons. The conclusions confirm the correctness of the scientific and legal approach, according to which the subject of the crime envisaged in Item e.1 is special and should belong to a group of population which cultivates the custom of blood feud.

Robert Cover and Legal Pluralism - Redux

This short essay meditates on and reconsiders Robert Cover’s distinct vision of legal pluralism in the light of today’s political and legal environment. In a 2013 talk, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3302988, I discussed three dimensions of Cover’s legal pluralism: its centering of narrative, its frank focus on state violence and non-state resistance in the encounter of legal orders, and its important insight that non-state communities could articulate and defend their own distinct accounts of the state’s legal order. Each of these ideas looks different today than it did even a few years ago. The narrative of the moment is a specific form of polarization that threatens to hollow out whatever nomos comes within its expanding orbit. The state today is no longer just an imperial ruler asserting its will over smaller scale, paedeic communities, but an increasingly fragile legal order that has become deeply vulnerable to a jurispathy from below. And the scholarly effort to chart the complex dynamics of legal encounter can verge on looking precious in the light of our current brokenness. Nevertheless, it remains vital to take up Robert Cover’s challenge and continue to try to search for an account of nomos and narrative that can make sense of both richly thick communities and atavistic teams, of both imperial states and fragile polities.

Event(ful) spaces of organised legal encounter: Reflections from a client consultation competition on domestic violence law in Cambodia

AbstractOver the past five years, geographers’ engagement in legal observation and/or intervention has begun to gain momentum, with a particular emphasis on the courtroom. Courtrooms are positioned as epicentres of law(yering) in‐action, yet their pre‐eminence should not deflect from efforts to build a more inclusionary geography of law attendant to other, less high‐profile and official, spaces of law. In this paper, I elaborate on this argument by interrogating a client consultation competition (CCC) that I co‐organised on domestic violence law with staff and students from a higher education institution in Phnom Penh, Cambodia. The paper hones in specifically on the political interface that the CCC event fashioned between myself, the student competitors, and the state. Drawing on participant observation and audio‐recordings of the event, in addition to post‐competition focus groups I held with students, the paper demonstrates the value of cross‐pollinating social geographic work on events and encounter with legal‐oriented scholarship in the discipline on spaces and actors of law. Chased within the political, their fusing together permits researchers to widen their horizons beyond the court event and to think creatively about other legal infrastructures in which law and legal practice comes to be known and operationalised. The paper therefore asks that geographers committed to fostering justice not only step inside the courtroom, but also venture into spaces where its future prospects are born.

The Contact Point of Customary Law and Islamic Law (Legal History Perspective)

The period before various legal traditions encounter to Indonesia, the people living in these islands has owned rules that contain the value of values as the original law. The term of original law is also known as the name of "chthonic" law, and is used as the customary law of the community of Indonesia, or the archipelago known at that time. The customary law tradition is very different from other legal traditions; this system has a special character that is very different from the character of other legal traditions. Furthermore, around the seventh century of AD, the influence of religion encounter as well; the first is Hinduism, then the religion of Islam brought by traders from Arabia and India. The term known as custom, with its unwritten form and religious element as the definition proposed by Soepomo (1996), is indeed identical with the term given by experts in the colonial period such as: “Godsdientige Wetten, Volks instelingen En Gebruiken" (Regulation of Religious Ordinance, People's Institution and Customs), "Godsdientige Wetten, Instelingen En Gebruiken (Religious Regulations, Institutions, and Customs), Met Hunne Godsdiensten en Gewoonten Samenhangen de Rechts Regelen" (Rules of law relating to Religion and religion customs habits), in addition there are also called the Islamic Law or Mohameden Law. It shows that at that time Customary Law is equalized as religious law. The point of contact between the two can also be identified from the theories that develop at that time as in the theory of Receptio in Complexu (Salmon Keyzer and van Den Berg); Receptie Theory (Scouck Hurgronye); Theory of Receptio a Contrario (Ha zairin). The relationship between customary law and Islamic law is widely found in the field of family law that is the issue of marriage law and inheritance law. After Independence, legislation products related to Islamic law include Law no 1 of 1974, Law no 50 of 2009, Law no 21 of 2008 regarding Islamic Banking.Int. J. Soc. Sc. Manage. Vol. 5, Issue-2: 51-59

Navigating the safety implications of doing research and being researched in Kyrgyzstan: cooperation, networks and framing

ABSTRACTMuch security-related research conducted in Central Asia appears to disregard the nexus between the data gathered and participants’ and researchers’ experiences of safety during the research. This article explores the interconnectedness of these factors and their effects on the knowledge produced on security. It investigates the legal and institutional context researchers encounter when conducting research in Kyrgyzstan; namely, a state monopoly over knowledge on certain subject matters linked to political stability and security. Furthermore, drawing on the combined fieldwork experience of the authors, the article explores the roles of cooperation, networks and framing in navigating the security implications of doing research. To conclude, we suggest a long-term and collaborative production of knowledge on security in Central Asia to counter the prevailing modes of knowledge production which lean towards epistemically violent and politically provocative topics.

Belonging to Law

This article examines the appeal to law as the basis for civic identity and political belonging under conditions of religious diversity. Beginning by assessing the descriptive utility of the concept of ‘secularism’, the article argues that secularism is best approached as a repertoire of moves available in negotiating the relationship between religion and political authority, focusing then on one such move evident in the contemporary project of liberal secularism: the assertion, in the face of the challenges posed by religious diversity, that to belong to the political community means, above all else, to belong to law. This shift of ‘obedience to the law’ to the diagnostic center of civic belonging is explored by turning to two case studies drawn from the legal encounter with Islam in Canada: the debate over official recognition of Sharia law and controversies surrounding the niqab. Having assessed the implications that this move has for the understanding and management of religious difference, the article explains the attractiveness of this symbolic appeal to law – whereby law begins to stand as a kind of synecdoche for the secular state – and assesses the effect of this alignment of law and belonging on the politics of religious diversity.

Belonging to Law: Religious Difference, Secularism, and the Conditions of Civic Inclusion

This paper examines the appeal to law as the basis for civic identity and political belonging under conditions of religious diversity. Beginning by assessing the descriptive utility of the concept of “secularism,” the paper argues that secularism is best approached as a repertoire of moves available in negotiating the relationship between religion and political authority, focussing then on one such move evident in the contemporary project of liberal secularism: the assertion, in the face of the challenges posed by religious diversity, that to belong to the political community means, above all else, to belong to law. This shift of “obedience to the law” to the diagnostic centre of civic belonging is explored by turning to two case studies drawn from the legal encounter with Islam in Canada: the debate over official recognition of Sharia law and controversies surrounding the niqab. Having assessed the implications that this move has for the understanding and management of religious difference, the paper explains the attractiveness of this symbolic appeal to law – whereby law begins to stand as a kind of synecdoche for the secular state – and assesses the effect of this alignment of law and belonging on the politics of religious diversity.

Assessing Security Technology’s Impact: Old Tools for New Problems

The general idea developed in this paper from a sociological perspective is that some of the foundational categories on which the debate about privacy, security and technology rests are blurring. This process is a consequence of a blurring of physical and digital worlds. In order to define limits for legitimate use of intrusive digital technologies, one has to refer to binary distinctions such as private versus public, human versus technical, security versus insecurity to draw differences determining limits for the use of surveillance technologies. These distinctions developed in the physical world and are rooted in a cultural understanding of pre-digital culture. Attempts to capture the problems emerging with the implementation of security technologies using legal reasoning encounter a number of problems since law is by definition oriented backwards, adapting new developments to existing traditions, whereas the intrusion of new technologies in the physical world produces changes and creates fundamentally new problems.

Islamic Legal Theory, Secularism and Religious Pluralism: Is Modern Religious Freedom Sufficient for the Shari'a 'Purpose [Maqsid]' of 'Preserving Religion [Hifz Al-Din]?'

Perhaps the most popular trend in contemporary Islamic legal and political thought is to view shari'a as embodied not primarily in specific rules nor in terms of a painstaking, thorough extraction of those rules from the revelatory texts according to the methods of classical legal theory (usul al-fiqh), but rather as defined in terms of the overall 'purposes' (maqasid) for which God revealed the law. The theory of the 'purposes of divine law' (maqasid al-shari'a), which I refer to as a form of 'Complex Purposivism' in legal interpretation and argumentation, is often viewed as a panacea for modern reformers and pragmatists who want to establish Islamic legitimacy for new substantive moral, legal and political commitments in new socio-political conditions, because it allows Muslims to ask not whether a given norm has been expressly endorsed within the texts, but whether it is compatible with the deeper goods and interests which God wants to protect through the law. All maqasid theories posit that there are five universal necessary interests the protection of which the law prioritizes: life, religion, lineage, property and reason. For all of these interests, protection can involve both positive and negative liberties, as well as various forms of restrictions on other less fundamental acts. The purpose of this paper is to examine some treatments of the meaning and extension of the Islamic legal purpose (maqsid) of protecting religion (hifz al-din), with an eye towards Islamic legal theorists' explicit or implicit encounter with modern liberal and secularist understandings of what it means to 'protect religion'.

EVALUATION OF A MEASURE OF INCIDENTAL LEGAL RISK BEHAVIORS IN COLLEGE STUDENTS WHO USE ALCOHOL

The purpose of this study was to develop a new measure of incidental behaviors that put college students at increased risk of legal consequences while using alcohol, the Legal Risk Behaviors while using Alcohol (LRBA) scale. Two hundred and twenty one college students who used alcohol were recruited to complete an online study about their use of alcohol, specific behaviors engaged in while using alcohol, and associated consequences. Analyses revealed that the 19-item LRBA consisted of three factors--"Risky Behaviors," "Protective Behaviors," and "Private Settings." Analyses suggested that the LRBA had adequate test-retest reliability and internal consistency. Initial results indicate that the LRBA may be a useful measure to help us better understand what behaviors college student engage in that increase their risk for experiencing a legal encounter.

‘Tell me what he said! We’ll decide if it makes sense or not’: a case study of legal interpreting between English and Chinese in Britain

The principle that, during police interviews, people who do not speak English should have access to interpreters has long been established in legal practice in the UK. However, very little is known about the extent to which or how this principle is actually applied. The aim of this study was to provide a close look at current legal interpreting practices in different types of legal encounter in the UK. The broad questions guiding my analysis were: what was actually going on in these events; what were the specific problems associated with interpreting in legal settings; and what were the problems associated with interpreting between Cantonese and English? What can the close study of interpreters as they interpret tell us about the process of ‘interpretation’ in legal settings? An ethnographic approach was adopted to collect and analyse the data. I observed and audio-recorded four interpreting events which involved Chinese interpreters. In order to understand the process of interpretation and reflect the interpreter’s point of view, interviews with each interpreter involved were arranged immediately after the recorded data has been transcribed. The main finding emerging from this study is that the legal practitioners exerted most control over the interaction through their use of language. However, this control was sometimes undermined, knowingly or unwittingly, by both interpreters and clients. In addition, it was found that, while interpreting, the interpreters were trying to understand what was said, but that their understanding was shaped by their knowledge and experience of the world. The interpreters in my study filtered information which they deemed to be significant and relevant to the situation. Working with different languages and with different cultural traditions, the interpreters could only interpret in ways which they thought were most appropriate to the situation. For example in one interview, the police needed to find out whether the suspect had bought an MOT certificate knowing that purchase of the certificate was illegal. Since time of the action was not marked in the suspect’s answers (because in Chinese the verb itself does not indicate time); the interpreter clarified with the suspect, on her own initiative, whether he knew at the moment he bought the certificate that the purchase would constitute a crime. Interpreters were making moment-by-moment decisions related to the unfolding of the interpreting event rather than by reference to established procedures. Because of the complexity of the interactional processes and the power asymmetries involved in events such as these, I argue for a more dialogic approach to the study of legal interpreting, one which takes account of the participants’ understanding of particular legal interpreting events. I also argue for a more critical approach to the study of legal interpreting, one which takes full account of the wider institutional and discursive context in which specific legal interpreters find themselves working.

Competing Narratives in a Judicial Retention Election: Feminism versus Judicial Independence

Feminists' opposition to a state trial judge in a retention election provided an opportunity to explore important issues about legal consciousness and differences between negative and affirmative resistance. Three questions about legal consciousness and resistance are addressed: What effect does an encounter with an allegedly bad judge have on people's legal consciousness? Under what circumstances will people engage in negative or affirmative resistance against a legal encounter they perceive as unjust? What instrumental effects on institutional practices and what constitutive effects on legal consciousness can such resistance have? The article draws on narrative analysis to explore the conditions for transformation of legal consciousness and mobilization of political action in a judicial retention election.

Comparing Women's Rights Litigation in the Netherlands and the United States

At first glance, the legal system in The Netherlands-where the courts lack the power of judicial review, the concept of amici curae is undeveloped, and interest groups seldom have their own lawyers-seems an unpromising arena for pursuit of interest group litigation. Yet an active practice of women's rights litigation has developed and faces many of the same strategic choices and suffers from many of the same limits of law as a mechanism for changing deeply engrained sexism as has women's rights litigation in the United States. However, differences between the two countries in the structure of the legal profession, the legal and political mechanisms for articulating organized interests, and the particular types of legal problems women encounter, give Dutch feminist litigation its own character.

The elderly guardianship hearing: A socio-legal encounter

This study examines guardianship hearings for the aged as socio-legal encounters. The legal encounter is similar to the encounter as Goffman (1961) describes it in the following ways: it is an event bounded in time and space; and, it involves the temporary formation, and then dissolution, of a “we” in action. This study demonstrates that the legal encounter differs from the encounter that Goffman describes in the following ways: it is structurally constrained by guardianship law; it has a “prep-period,” suggesting that boundaries may be more stagelike than absolute; and the legal encounter does not operate as a fully consensual gathering. Analysis focuses on the structure of, and the interaction within the hearing, as both affect the adjudication process and the elderly proposed ward. Implications for legal representation of the elderly client are probed in the context of the guardianship hearing as focused encounter.

Jacob and Laban

The narrative of the encounter between Jacob and Laban occurs at an important juncture in the Jacob cycle (Gen. xxv 19-xxxvi 43). Jacob is in the midst of his journey home from Paddan-aram, the setting for the major events of his life up to this point. His final direct dealings with his kinsman Laban are described, under whose service he has been engaged for twenty years (xxxi 38, 41). The immediately preceding chapter concludes (v. 43) with a description of Jacob's rise to growing economic prosperity while in Laban's household. This creates the situation (vv. 1+2) out of which Jacob's departure is motivated (v. 3). The motivation plays a key role in the story because it is Yahweh himself who finally ensures the safety of Jacob and his household in the face of his accuser (and judicial authority)-Laban. Cf. vv. 24, 29, and 42. Jacob's return is recorded in xxxi 4-xxxiii 20 1). This return home is the major unit under which the smaller units, such as the one under discussion, is subsumed. That the encounter with Esau in chapter xxxii is a new episode is obvious and need not detain us. With these introductory observations, let us turn to a structural analysis of Jacob's return home, detailing his legal encounter with Laban.