Legal Hegemony Research Articles

International Collaborative Responses to Transnational Cybercrime: how China Strengthen its Capacity to Combat Transnational Cybercrime

The borderless nature of the Internet has greatly facilitated the growth of crime in cyberspace. Cybercrime today has caused huge economic losses worldwide and is violating the right to privacy on a massive scale. The consequences of cybercrime are serious and often occur in different countries and regions. The priority of territorial jurisdiction has been affected by transnational cybercrime., and its convenient application has been lost when the results of the crime are generalized. The basis of subjective territoriality and objective territoriality would be unclear. The abstract cross-border nature of cybercrime has led to frequent conflicts of jurisdiction among States and may even lead to the legal hegemony of cyber-technology powerhouses. The traditional extradition mechanism has gradually failed to respond to the interstate demand to combat transnational cybercrime. In recent years, China has not only introduced strategic policies at the national level to safeguard cybersecurity and combat cybercrime, but has also made progress in criminal legislation, administrative legislation and international cooperation legislation. China has also accumulated experience in police cooperation to combat transnational cybercrime. In order to better cooperate with other countries in international cybercrime , China should actively participate in the formulation of international conventions and regional multilateral agreements on the punishment of cybercrime. It should also further improve its domestic legislation.

The Impact of the Extraterritorial Application of American Law on China and the Response to it

The extraterritorial application of American law has a long history of development, which has developed from the original firm territorialism to the " effect principle". Today, under the banner of the "America First" principle, the U.S. continues to expand the range of the extraterritorial application of its laws by expanding the "connection point", to achieve its political objectives, putting on a“legitimacy” cloak. After continuous development, it has been characterized by legal hegemony, extensive connection points, systematic operation, the politicization of applicable objects, and low predictability. The improper extraterritorial application of American law has caused many adverse effects on China, and China has actively responded to them through national legislation, regional cooperation, and enterprise compliance and legal remedy. However, these measures are still insufficient to eliminate all the adverse effects and to safeguard the legitimate rights and interests of our country. Therefore, China should also further improve it by formulating and revising relevant laws and regulations, improving working mechanisms, setting up compensation mechanisms and strengthening foreign-related rule of law talents, making full use of international and domestic laws to effectively curb the improper extraterritorial application of American law, and protect China's overseas interests.

Edward Livingston, Nullification, and Louisiana's Political Transformation

Abstract: This article corrects major historiographical flaws concerning Louisiana's early relationship with the United States and argues the federal tariff was the most critical factor influencing state reconciliation. Leading Louisiana historians like Peter Kastor concur that slavery inspired French-speaking Creole planters to embrace U.S. citizenship. Their consensus further holds that Creole commitment to slavery crystalized their national cultural acceptance. However, Creole planters shared far more with Caribbean slaveholders than those in the American South. Throughout Louisiana's early territorial and statehood years, slavery bolstered animosity between Anglo-Americans and Creoles. The former viewed Creoles through a racist lens and remained wary of their slave-related cultural practices, like openly acknowledging mixed-race relationships. The latter feared that English-speaking migrants would undermine their legal hegemony and inspire insurrection. Though slavery impeded Louisiana unity, the federal tariff did more than anything else to foster it. Throughout the 1820s, Creole planters became reliant on federal sugar protections to alleviate competition. Thus, the tariff gave Creoles a considerable incentive to embrace national political identities. Louisiana's redoubtable statesman Edward Livingston was particularly instrumental in promoting reconciliation on both sides. Before becoming Andrew Jackson's Secretary of State, the exiled New Yorker spent decades representing his adopted state's culturally divergent Creoles. When South Carolina triggered the Nullification Crisis in 1832-1833, Livingston spoke with Louisiana's unique perspective and eloquently guided Jackson's response which deftly balanced federalism's necessities with states' rights concerns. Thus, through the tariff, Louisiana not only embraced its new American identity, but the government employed Louisiana's voice to preserve the Union.

Identity, Ethnicity, and Nationalism

Abstract This article focuses on the changing cultural, social, and ideological characteristics of the central Sephardi Rabban Yochanan Ben-Zakai synagogue in Jerusalem, as a lens reflecting social and ideological processes of the local Sephardi community during the first half of the twentieth century. These included the community's attempts to consolidate its cultural uniqueness and civic identity vis-à-vis the surrounding and evolving spirits—within the Jewish community and outside it; its struggles with the local Ashkenazi community over historical and legal hegemony; its changing and evolving attitude toward the Ottoman and British Empires; and its gradual yet distinct adoption of the Jewish national framework. The article is based on an in-depth study of the archives of the Sephardi Commission (Va'ad Ha'eda HaSepharadit) in Jerusalem, as well as literary and scholarly sources and the local Jewish press of the time.

МІЖНАРОДНЕ ВРЕГУЛЮВАННЯ КОМЕРЦІЙНОГО СУДНОПЛАВСТВА НА НИЖНЬОМУ ДУНАЇ У ХІХ - ПОЧАТКУ ХХ СТ.

The article analyzes the main international acts, treaties, conventions governing commercial shipping in the Lower Danube in the XIX – early XX centuries. Considerable attention is paid to the periodization and peculiarities of international diplomacy regarding commercial shipping on the Danube. The measures of European states for the introduction of a single legal regime and guarantees of safety of navigation on the Danube are considered. The attempts of the Russian Empire to establish political, economic and legal hegemony in the European international shipping trade are analyzed. The process of creation of the European Danube Commission (hereinafter – EDC) and its place in the deployment of international shipping in the region is studied. By the middle of the XIX century most often used bilateral diplomacy aimed at strengthening the presence of European countries on the Danube. Britain, Austria, and Russia actually imposed their conditions on the Ottoman Empire regarding shipping and trade relations. The Russian Empire almost monopolized its presence on the Lower Danube with the Peace of Bucharest (1812), the Peace of Andrianople (1829), and the Ackermann Convention of 1826, much to the displeasure of leading European countries. Therefore, from the middle of the XIX century efforts of European countries (including Britain, France, Austria) were aimed at ousting Russia not only from the Danube, but from the Budzhak region and the creation of an international commission (EDC), which would regulate commercial shipping. Russia’s defeat in the Crimean War of 1853-1856 and the loss of the Danube part of Budzhak temporarily drove it out of the Danube region. The legal alternative was the activity of the EDC, which was clearly regulated by international treaties and conventions. In addition to regulating the shipping regime, the EDC dealt with the issue of quarantine, arrangement of shipping channels, legal regime in the area of responsibility. Even the victory in the Russo-Turkish War of 1877–1878 failed to restore Russia’s full presence. The agreements of 1878–1883, according to which Russia regained the Danube part of Budzhak and the Kiliia estuary, became a certain compromise, and the powers of the EDC extended to the entire Lower Danube. Until 1918, control over waterways continued to be exercised by the European Danube Commission, which in turn also did not take into account the interests of the newly formed Danube states (Romania, Serbia, Bulgaria).

German Legal Hegemony?

Time and again, the German discourse on European legal matters has facilitated the charge that it attempts to create a German-dominated space, even after World War II. Armin von Bogdandy and Verfassungsblog have asked a number of eminent scholars and practitioners of constitutional and EU law in Europe and beyond to share their thoughts on whether or not German legal hegemony is, in fact, a matter of concern in contemporary EU law, and, if so, what could and should be done about it. The symposium has been published first and can still be accessed on the Verfassungsblog (https://verfassungsblog.de/category/debates/german-legal-hegemony-debates/).

Legal Consciousness and the Sociology of Labour Law

Abstract Building on recent calls to expand the field of empirical labour law research, this article seeks to delineate a special place for legal consciousness research within a new sociology of labour law. The idea that employment relations have become increasingly juridified has been used to justify important policy interventions such as reforms to the employment tribunal system, restricting the ability of workers to bring claims. Yet, we know remarkably little about work-related legal consciousness in order to assess the purported growth of ‘litigiousness’ in society and its implications for policy. This article provides an extended critique of a recent text in the field of legal consciousness studies, Nobody’s Law by Marc Hertogh.1 What began as a straightforward review of Hertogh’s book became a defence of an earlier, seminal work by Ewick and Silbey,2 which Hertogh seeks but ultimately fails to discredit. Ewick and Silbey’s critical approach stands up well against close scrutiny. The debate centres upon issues of legal hegemony, and on epistemology and ontology in the sociological study of labour law.

Undocumented migrants’ right to health care: Physicians’ rejection of law in their gatekeeper roles

Abstract Background Legal consciousness theory acknowledges the known gap between law in writing and law in its everyday practical application in society. Limited research has explored legal consciousness in medical contexts, and limited knowledge exists surrounding how the intrusion of law in medical authority impacts applied medical ethics. Conflicts between law and medical ethics can be saliently observed in Sweden, where current law forcibly places physicians in a gatekeeper role in satisfying undocumented migrants' right to health care access, relying on physicians' assessments of whether patients without legal residency status should be provided 'care that cannot be deferred'. Methods In this context, the present phenomenological study sought to explore how legal terminology is experienced, understood, and applied by physicians, contextualising the perceived meaning ascribed to the imposed gatekeeper role. Qualitative interviews were conducted with 42 physicians from five major Swedish hospitals, and analysed through the lens of legal consciousness theory. Results Participants actively rejected law by taking a firm, and often collective, stance against its intrusion in their work. Rejection of law was constructed through: rejecting legal hegemony and government imposed non-medical responsibilities; perceiving professional authority and medical ethics as empowering; considering repercussions of legal non-compliance unthreatening; believing increased legal knowledge would not influence their professions' foundational role. Conclusions The study produced novel findings, contributing to the limited body of work exploring legal consciousness in medicine. Regardless of legal knowledge held, when law conflicted with foundational medical ethics, the intrusion of law in the medical profession lead to the explicit rejection of law. Findings accent the need for laws addressing healthcare access to be compatible with foundational medical ethics and principles of non-discrimination. Key messages Regardless of legal knowledge held, when law conflicted with foundational medical ethics, the intrusion of law in the medical profession lead to the explicit rejection of law. Findings accent the need for laws addressing healthcare access to be compatible with foundational medical ethics and principles of non-discrimination.

The Chinese Advantage in Emergency Law

Abstract This Article has a twofold purpose. On the one hand, it offers comparative materials for an informed discussion of COVID-determined emergency law in China and Italy by assessing its normative implications and political genealogy. On the other hand, it explores the essential contiguity between the ‘state of exception’ triggered by the pandemic and the possible geopolitical shifts in global legal hegemony in the actual phase of surveillance capitalism which is witnessing a decline of law as a form of social organization and its replacement by the predictive models elaborated by technology. In this respect, the traditional Western iconography has long described the Chinese legal tradition as a “law without law”, a despotic regime with intrusive population surveillance whose distance from the Western paradigm is deemed almost unbridgeable. And yet the legal response to coronavirus both in Europe and in the U.S. somewhat replicates the allegedly distant Chinese model in terms of restrictions and surveillance mechanisms which are being deployed to counter the crisis in the face of a formal commitment to the rule of law. This Article concludes that the emerging pre-eminence of the “rule of technology” over the “rule of law” in a critical event of historic proportions like a pandemic should and will set the future agenda of comparative studies in a double direction. On the one hand it calls for a truly critical reconsideration of role of law in society which in turn impels to rethink the hold of the liberal constitutional model and the obsolescence of traditional legal taxonomies. On the other hand, it might point to the emergence of an unexpected Chinese legal leadership, determined by the progressive undoing of the Western legal and political narratives whose backbone has been relentlessly eroded by decades of neoliberalism and populism.

International Law and the Precarity of Ottoman Sovereignty in Africa at the End of the Nineteenth Century

As a state that occupied an unstable position on the continuum of late nineteenth-century European inter-imperial system of sovereignty—oscillating between a subject and an object of new forms of imperialism—I argue that the Ottoman Empire presents a unique case study through which to examine the process of legalistic exclusion of non-Western states from an emerging international system of legal relations. This article investigates the precarity of Ottoman sovereignty in the Horn of Africa at the end of the nineteenth century in relation to a growing European global legal hegemony. It historicizes the process of Ottoman exclusion from the ‘family of sovereign nations’ with all the rights and privileges that belonging to this exclusive group of European imperial states entailed. This is done through an excavation of the roots of nineteenth-century international law and its relation to the Ottoman state, followed by the demonstrative example of the Ottoman-British negotiations surrounding Ottoman rule in Zeila (Somalia) and Massawa (Eritrea) between 1885 and 1895.

Legal Consciousness and Cultural Capital

In this article, we use a Bourdieusian framework to theorize the relationship between cultural capital and legal consciousness, and in turn to consider how variation in legal consciousness contributes to the creation and maintenance of legal hegemony. We investigate how cultural capital shapes the ways people navigate situations that force them to mediate between state-conferred rights, on one hand, and requests from state authority, on the other. Specifically, we analyze open-ended responses to a series of vignettes about constitutional rights in the criminal procedure context. We find that high cultural capital gives rise to a greater sense of self-efficacy in police–citizen interactions. This finding parallels the literature on the influence of cultural capital in the education context and may point to a more general pattern of self-advocacy within the juridical field. People with high cultural capital also evince a more salient sense of entitlement, understanding their own needs and desires as paramount. The social processes we identify may make people with limited cultural capital more vulnerable to investigative authority, and thus more susceptible to arrest and prosecution. Even if knowledge of a right and the opportunity to assert that right are equally distributed, meaningful access to that right remains inequitable.

Transitional Justice, International Law and the United Nations

What relationship does international law have to transitional justice and what role has the United Nations (UN) played in shaping that relationship? The international legal history of this concept reveals that the UN has shifted from relying on international law to support nationally determined transitional justice efforts to expecting States to conform to a growing body of international legal standards it has set in this field. This turn to international legal hegemony and UN managerialism can marginalise some of the most pressing concerns of people attempting to overcome past large-scale abuses. In recent years, the UN has expanded its work in transitioning societies and scholars have recommended ways for better addressing the needs of their members. However, these measures seem partial at best, as they disrupt neither international law’s hegemony nor the UN’s managerial role in this field, which operate as major constraints on societies weighing their transitional justice options.

Rationalizing injustice: The reinforcement of legal hegemony in South Africa

The legal system in South Africa holds a legitimate and authoritative position in the country’s constitutional democracy and political order, despite the commonplace experiences of injustice that take place at the hands of the criminal justice system. This article looks at how the legal consciousness of community activists, student activists and migrants is shaped by experiences of arrest and detention, and focuses particularly on how their perceptions of the law reinforce the legitimacy and hegemonic status enjoyed by the criminal justice system and broader legal system in South Africa. The article draws on original interviews with community activists, student activists and migrants, who recounted their experiences of arrest and detention. Using a socio-legal framework of legal consciousness, the article unpacks how these groups reinforce legal hegemony through the ways in which they understand and rationalise their experiences of punishment. Despite the reasonable expectation that those who have experienced a miscarriage of justice would be most sceptical and pessimistic about the law’s legitimacy, this article finds that they continue to maintain their faith in the law. The article presents an analysis of interviews conducted with members of these groups, and shares evidence that begins to explore some of the ways in which South Africa’s criminal justice system is able to sustain its legitimacy, despite the gaps between what the law ought to be and what the law actually is.

Rationalizing injustice: The reinforcement of legal hegemony in South Africa

The legal system in South Africa holds a legitimate and authoritative position in the country’s constitutional democracy and political order, despite the commonplace experiences of injustice that take place at the hands of the criminal justice system. This article looks at how the legal consciousness of community activists, student activists and migrants is shaped by experiences of arrest and detention, and focuses particularly on how their perceptions of the law reinforce the legitimacy and hegemonic status enjoyed by the criminal justice system and broader legal system in South Africa. The article draws on original interviews with community activists, student activists and migrants, who recounted their experiences of arrest and detention. Using a socio-legal framework of legal consciousness, the article unpacks how these groups reinforce legal hegemony through the ways in which they understand and rationalise their experiences of punishment. Despite the reasonable expectation that those who have experienced a miscarriage of justice would be most sceptical and pessimistic about the law’s legitimacy, this article finds that they continue to maintain their faith in the law. The article presents an analysis of interviews conducted with members of these groups, and shares evidence that begins to explore some of the ways in which South Africa’s criminal justice system is able to sustain its legitimacy, despite the gaps between what the law ought to be and what the law actually is.

Towards a Linguistic Criticism of Legal Hegemony: Some remarks on ‘Bentham v. Judges and Co.’

Bentham’s hatred of the major elements of the legal culture of his times is legendary. He thoroughly criticised the notions of natural law and social contract that were at the roots of Blackstone’s legal doctrine as so many fictions. His criticism also centred, in a more technical manner, on several fictions that belonged to the ordinary legal reasoning of the common lawyers. Substantive fictions such as the crime of grand larceny and procedural fictions such as the procedure of ejectment were everyday fare for legal practitioners. By unveiling how these fictions, understood as linguistic devices, operated, Bentham highlighted how they contributed to debase the law’s addressee’s practical reasoning in order to reinforce her subjection to the class of jurists. His contempt for artificial (but purposeful) legal technicalities allows to understand how full blown the hermeneutics of suspicion he developed against the hegemony of legalism (which will sound familiar to Marxists) was. Nevertheless, one cannot help concluding that Bentham might have been the very victim of the power structure he fought.

The Cold War and Comparative Law: A Reflection on the Politics of Intellectual Discipline

How much does the current state of comparative legal studies owe to Cold War political imperatives? What happened to our discipline once such imperatives declined in the aftermath of the bipolar world? Comparative lawyers have been completely naive about the impact of the Cold War on their own discipline both as it reached maturity in the 1950s and as it developed after the fall of the Berlin Wall until now. This consequence of the professional depoliticization of comparative law is especially troublesome since the Cold War has accompanied in its entirety the historical moment in which the common law tradition, especially in its U.S. epiphany, has been able to conquer global legal hegemony. Thus, the current disciplinary knowledge of comparative law, the very toolkit of our methodology, has developed in the context of the Cold War confrontation and has reached full global dominance in its aftermath. It is worth thinking about possible implications of this context on the professional project of legal comparativism if we wish to maintain an acceptable level of critical understanding of ourselves.

The Neglected Side of the Coin: Legal Hegemony, Class Consciousness, and Labour Politics in China

The Neglected Side of the Coin: Legal Hegemony, Class Consciousness, and Labour Politics in China

Pluralism Legal, Legality And Capitalism

The development of legality has intrinsic relationship with the capitalist system, so that it is essential to reconcile the analysis of the current economic model with standards from state law. It happens that, as it turns out the frustration of the applicability of the right post, a crisis arises in statist legal hegemony, which in turn, can only be overcome by expanding collective participation and consequently the implementation of an alternative right that with the consolidation of legal pluralism your mind, be able to establish appropriate channels to meet the social demands.Therefore, it is crucial that the resourcefulness of law expands the participatory way in order to extend, in a democratic way, the recognition of alternative sources of law and the constitution of the legal mosaic to all those who represent the true popular demands, for example, the collective actors.

The Imaginary Foundation of Legal Systems: A Mimetic Perspective

Starting from the premise that the normative foundation of legal systems is widely considered to be imaginary, this article addresses the question how actors in those systems are able to experience this fictional basis and consider it binding. As the answers already given in legal and political philosophy tend to be limited to instrumental explanations, it is argued that insights from aesthetic philosophy, and more specifically mimesis theory, can help to gain a more profound understanding of both the nature of fictions and the human capacity to use them. Drawing from Kendall Walton's work, fiction use is reconceptualized as an interactive game of make-believe that has active and passive players, involves the use of props, and is governed by both constitutive and regulative rules. It is claimed that human beings are able to play and appreciate this game on the basis of a dual consciousness in which their minds are partly devoted to going along in the fiction of legal hegemony, and partly having to derivate experiences. Tentatively, it is argued that these derivate experiences form our main gratification, and hence the prime motive, for playing the game and accepting its outcomes.

Constructing Colonial Legality in Russian Central Asia: On Guardianship

AbstractThe history of Islamic law in Russian Central Asia defies many of the categorizations offered by both global and Russian imperial history. Recent studies of law in the age of colonialism have concluded that the attainment of legal hegemony in the colonies was consequent upon the initiative of indigenes that strategically manipulated jurisdictions; as colonial subjects increasingly involved the state in their private conflicts, they effectively pushed their masters to consolidate the institutional arrangements through which the state dispensed justice. Historians of the Russian Empire have reached a diametrically different conclusion: under tsarist rule, they argue, Muslims continued to access the services of the “native courts,” which remained mostly untouched following Russia's southeastward expansion. As the empire promoted a policy of differentiated jurisprudence, Russians effectively safeguarded the integrity of Islamic law. I argue that both of the aforementioned approaches are confined to the level of institutional history, and thus fail to consider that the creation of colonial hegemony rested on ways in which colonial subjects understood law and viewed themselves as legal subjects. I show that Russians, from the outset of their rule in Central Asia, initiated Muslims into colonial forms of legality by overcoming the jurisdictional separation they had themselves put in place. In allowing the local population to file their grievances with the military bureaucracy, the Russians effectively pushed Central Asians to reify colonial notions of justice, and thereby distance themselves from the tradition of Islamic legal practices.