Official Law Research Articles

Islamic Counter-Hegemonic Legal Knowledge and Its Unofficial Interpretation and Glocal Dissemination

Despite the Kemalist repressive secularism, several Islamic groups and Sufi brotherhoods have either continued to exist or new ones in addition to modern ones such as faith-based civil society organizations (to satisfy both the official and unofficial laws) have emerged. All these have their own knowledge bases, religious outlooks and interpretation mechanisms. Gulen Movement, albeit being the most known one, is only one of these myriad number of religious or religio-secular societal formations. It is an Islamic civil society movement originated in Turkey. It has mainly focused on science and secular education. It is urbanite, composed of mainly educated participants. The movement has created its own spaces such schools, hospitals, dormitories, universities, cultural centers, think tanks, newspapers, TV stations, web portals and political lobbying associations to form and express an identity of a modern Sufistic Turkish Muslimhood. Even though Gulen is the main actor in the movement who has engaged with producing new Islamic knowledge in his constant responses to the socio-political affairs and challenges by reinterpreting Islamic sources in tune with contemporary time and space, the movement participants contribute to this process in different ways, such as by giving transferring knowledge to him from their own local contexts or by contextualizing and disseminating the knowledge produced by Gulen. There are interesting outcomes of these processes. For instance, many of the movement participants are of the view that something that I dubbed as “Muslim Secularism” is possible, an idea that unofficial Islamic law is compatible with Alfred Stepan’s twin tolerations. Similarly, following the maqasid conceptualization, many movement participants support universal human rights, liberal and/or social democracy and equal citizenship regardless of religious affiliation. There are also several expert participants in the movement who have been producing knowledge as theologians, social scientists and intellectuals in different parts of the world. Some of these are critical engagement with the movement itself and their critical stance on some actions of the movement (e.g. the movement’s Turkish nationalism, its existence within the Turkish bureaucracy, its close but problematic proximity to the AKP politicians until 2013, its media’s poor democratic performance, transparency and accountability problems) sometimes faces anti-expert sentiments from some other movement participants.

Navigating Pluralities Reluctantly: The Marriage Contract in Dutch Galle

This article examines diverse practices in the establishment of marriage partnerships in eighteenth-century Sri Lanka,1parts of which were controlled by the Dutch East India Company (VOC). Family law was an area in which the attempt to transform local practices was conspicuously present, but not fully achieved. Lawful marriage was linked to conversion to Dutch Protestantism and to inheritance of property. In the authoritative space of the provincial board that heard the matrimonial disputes examined in this article, the Company did not proactively attempt to reform family life, an area where it could not easily dictate terms. It made a significant dent as the requirement for marriage registration was recognised by natives. But the limited reach of the introduced law is evident in the Company’s reluctant recognition that its two-step process of reading the banns and subsequent marriage ceremony created confusion and that locals still followed customary practices for forging unions. The VOC faced a normative order in the villages that was characterised by ritual underpinnings. Such local features went unrecognised in official law rules, but their perseverance is testimony to the pluralities in practice in an early colonial encounter in the Indian Ocean world.

Corporate Social Responsibility and Its Implementation in Tourism Industry: A Comparative Study between Indonesia and Australia

The concept of Corporate Social Responsibility (CSR) has been widely spread to developing countries. Most scholars argue that the CSR will give economic benefit to the local communities surrounding the company. Indonesia and Australia have adopted the concept of CSR into some legislation and regulations. When the laws of CSR were implemented in the field of tourism, some companies thought that they do not have any legal obligation to implement it. In practice, local communities have used CSR to demand the tourism industries to provide any social, cultural and economic facilities. This article is aimed at providing an analysis regarding the legal framework of Indonesian and Australian laws and regulations concerning CSR, particularly in Tourism Sector. In addition, it is intended to analyze how the implementation of CSR in tourism may strengthen the local communities. It is a normative legal research that primarily scrutinizes written official law and regulations as well as relevant court decisions regarding the issue of CSR, company, and tourism. It can be concluded that both Indonesia and Australia have regulated the concept of CSR very well as stipulated in official law and regulations. Regarding the implementation, by revolving within the scope of sustainable development concept as well as a gradual increase of tourism industries participation in CSR, the well-being of the local community will surely be improved.

Tradycja petrażycjańska w polskiej socjologii prawa albo o tym, co zyskaliśmy, nie odwołując się do Ehrlicha

The goal of the presented paper is to show the qualities of Polish sociology of law that arise from how it formed and developed under the influence of a particular theoretical inspiration – the theory of Leon Petrażycki – specifically the ways that tradition has been influencing the direction of studies, as well as the descriptions of legal reality. According to the author, that influence is not limited to direct references, but has a broader scope that is expressed in an approach to analyzing the social context and functions of legal phenomena. To further emphasize the originality of Polish sociology of law, the article explains the differences between selected elements of Petrażycki’s theories and the proposals of Eugene Ehrlich. The problems that were undertaken by both scholars, and are still important to socio-legal studies, were presented from that point of view. Furthermore, the paper emphasizes the elements of Petrażycki’s works that did not appear elsewhere in early socio-legal thought. The study field is crucially narrowed by not orienting it towards analyzing and comparing initial ideas of Petrażycki and Ehrlich. Rather, it aims to analyze the possible influence of different views on differentiating the subjects of studies as well as their goals. In particular, the paper draws attention to the way Polish scholarship uniquely perceives the problematics of the social nature of legal phenomena, legal pluralism, the relationship between law and state (and especially legal phenomena unrelated to the state), legal culture and the usefulness of law as an instrument of social change. This is the perspective from which the paper presents selected Polish research projects and socio-legal analyses. The paper chiefly attempts to show a very particular quality of Polish sociology of law: the affirmation of legal phenomena that forms the basis for critique of faulty and socially dysfunctional official law.

The Evolution of the Ancient Way of the Warrior: From the Ancient Chronicles to the Tokugawa Period

The term bushidō is widespread today and involves history, philosophy, literature, ­sociology and religion. It is commonly believed to be rooted in the ancient “way” of the bushi or samurai, the Japanese warriors who led the country until modern times. However, even in the past the bushi were seldom represented accurately. Mostly, they were depicted as the authors thought they should be, to fulfil a certain role in society and on the political scene.By taking into account some ancient and pre-modern writings, from the 8th to the 19th centuries, from the ancient chronicles of Japan, war tales, official laws, letters, to martial arts manuals and philosophical essays, and by highlighting some of the bushidō values, this article attempts to answer the questions how and why the representation of the bushi changed from the rise of the warrior class to the end of the military government in the 19th century.

Concept and peculiarities of the primus in the labor law of Ukraine, whether in connection with legal responsibility

The article covers the scientific approaches to understanding categories as "coercion", "state coercion", "administrative coercion". The signs of coercion in the official law of Ukraine, which is not related to legal liability, are disclosed. Emphasizing the specifics of coercion in the official law of Ukraine, not related to legal liability). Proposed under compulsion in the law of law, not related to legal liability, it is necessary to understand the application of the measures provided for by the administrative and legal norms of the measures of influence on the law-abiding subjects who are exposed to their negative consequences of moral, personal, property, organizational or other character with the aim prevention or termination of unlawful actions, overcoming their harmful consequences.Measures of administrative coercion, not related to legal liability, constitute their own administrative and preventive measures as a set of measures of official influence of state bodies, and in cases of delegation of relevant powers and public associations to individuals, legal entities, regardless of the will and desire of the latter , in the form of moral, personal, property, organizational restrictions of their rights, freedoms, legitimate interests in order to prevent the commission of unlawful acts by any and certain persons, zab BAKING enforcement under any circumstances.The purpose of administrative and preventive measures, which is complex and in fact combines two elements: general preventive and specially preventive (general and special preventive measures). Measures of administrative coercion of a preventive nature are used to prevent the commission of offenses on the part of concrete persons and to prevent certain types of offenses. This circumstance allows the conditional division of the actual preventive measures of administrative coercion into two subgroups: measures special (detailed, with a clearly defined specialpreventive purpose) and general (with a general purpose purpose) character

A práxis da produção do espaço jurídico-político glocal pelos municípios do Consórcio Intermunicipal da Fronteira (CIF)

O artigo analisa a práxis da produção do espaço jurídico-político glocal pelos municípios integrantes do Consórcio Intermunicipal da Fronteira (CIF), evidenciando a experiência da ordenação político-jurídica e administrativa de Dionísio Cerqueira (SC), Bom Jesus do Sul e Barracão (PR) e de Bernardo de Irigoyen, Argentina. Os municípios do CIF, ao produzirem o espaço social, político, econômico e cultural, a partir da práxis do local e de seu entorno, com atividades nas relações internacionais, criam uma juridicidade específica, relacional e própria dos espaços de representação glocalizada, caracterizada por um microssistema normativo consuetudinário comum entre os municípios, à margem do direito internacional oficial.

Decolonising the mindsets, attitudes and practices of the allopathic and indigenous health practitioners in postcolonial society: An exploratory approach in the management of patients.

BackgroundThe indigenous health care system continues in the postcolonial era to be perceived by antagonists as a threat to Western medicine. It has been associated with ‘witchcraft’, actively discouraged and repressed through official government prohibition laws. Despite that, human immunodeficiency virus and acquired immunodeficiency syndrome (HIV and AIDS) patients consult both allopathic and indigenous health practitioners.AimThe study explored a collaboration model between allopathic and traditional health practitioners in the management of patients living with HIV and AIDS in postcolonial South Africa.SettingWe conducted six combined focus group discussions and four separate group discussions with each category of co-researchers.MethodsCombined and separate focus group discussions were conducted with community members, allopathic and indigenous health practitioners, applying the cyclical method in the decolonisation process. Their perceptions and experiences in the management of HIV and AIDS patients were explored, and finally decolonisation strategies suitable for collaboration in their context were identified.ResultsThe two health systems were rendering services to the same HIV and AIDS communities. Lack of communication created confusion. Collaboration was long overdue. A change in mindsets, attitudes and practices among practitioners was critical, with an acknowledgement that ‘neither health system is better than the other, but the two should be complementary, recognising that the culture and beliefs of patients influence their health-seeking behaviour’.ConclusionCo-researchers were committed to working together in the fight against HIV and AIDS infections. Their model for collaboration addresses the challenges of patients’ secrecy, treatment overdose and the abandonment of antiretroviral treatment. Through the application of a decolonisation process, their mindsets, attitudes and practices towards each other were changed, enabling the joint development of a custom model for collaboration between allopathic health practitioners and indigenous health practitioners in the management of patients living with HIV and AIDS.

Dynamic Muslim Legal Pluralism in England, Turkey and Pakistan

The present thesis seeks to test if, and to what extent, claims of the modern nation-state laws to exclusive dominance over other spheres are tenable and re-assesses the operation of law in society. The thesis exemplifies the living law theory by putting the spotlight on Muslim laws in England, Turkey and Pakistan and substantiates that the metanarrative discourse of modern legality is challenged by `local' cultures and their `unofficial' obligation systems. In chapter 2, a model of operation of law in society is formulated. After providing a detailed account of theoretical discussions regarding legal pluralism, chapter 2 suggests that regardless of state recognition, several laws and normative orders interact, leading to continuous reconstruction of super- hybrid laws. In chapters 3,4 and 5, theoretical discussion and hypotheses formulated in the previous chapter are applied to the socio-legal sphere. The main areas of concern are Muslim marriage and divorce and, in each chapter, a different country and legal system are analysed. In each case, it is found that there are limits to state law, that people maintain their own self-perceptions of legal affairs and that unofficial laws co-exist with official ones. Muslims redefine and reconstruct their laws unofficially even within secular frameworks and undermine and obstruct the claim of official law to have a monopoly over the socio-legal sphere as the governing law. Skilful Muslim legal navigators, as post-modern entities of the socio- legal arena, combine rules of different conflicting normative orders and reconstruct their own super-hybrid laws as law-inventing citizens. The study suggests that states should move towards developing a `supra- modern' response. This is neither a full defence of modernity, nor a complete acceptance of postmodernity, but this thesis argues for an integrated theory which envisages that various types of laws interact, that the state law is also subject to legal postulates, and that state law is in charge of this process as a referee. Supramodernity does not lead to anarchy in contrast to post-modern formulations yet recognises diversity as part of the mosaic.

The interplay between official and unofficial laws in rotating savings and credit associations (Eqqub) in Tigray, Ethiopia

ABSTRACTThis article investigates how unofficial and official laws interact in regulating rotating savings and credit associations (ROSCA) in the Tigray Regional State in northern Ethiopia. ROSCAs are informal institutions that provide saving and lending facilities in traditional communities and societies across the world. In Ethiopia, they are known by the name “Eqqub.” First, essential background information on ROSCA will be provided, including references to the existing scientific literature. A second section will clarify the methodology used for the empirical research on “Eqqub” in the Tigray Regional State. The third part of the paper presents the actual findings of that investigation on the ground, especially concentrating on legal issues surrounding the governance of “Eqqub.” One of the main conclusions will be that the regulation of informal credit networks in northern Ethiopia is a paramount example of how normative pluralism works in practice, with official and unofficial laws and institutions interacting in subtle ways to order socio-economic reality.

Semi-Official Turkish Muslim Legal Pluralism: Encounters between Secular Official Law and Unofficial Shariia

The study looks at various aspects of the relationship between official law and the Muslim majority’s unofficial Shari’a law in Turkey. It provides a concise account of the current secular Turkish Civil Code with a special focus on family law issues such as consent, age of marriage, registration of marriage, religious marriage ceremony conducted by imams, and polygamy.

The Evolution of Identity Politics

The Evolution of Identity Politics

Systems Approach Conception of Legal Regulation

The article is devoted to the problem of the formation of systems approach conception of legal regulation in the context of integrative jurisprudence. Today the mechanistic approach to legal regulation retains its popularity. However, the mechanistic approach fails to take into account all the diversity interlinkages, relations and processes occurring in the legal reality, the socio-psychological and informational aspects of the interaction of subjects. The legal regulation does not completely match the legislative mechanism of purposeful state influence, law making and the application of the law of different government bodies and officials. The article points out that the systems approach conception of legal regulation allows to overcome diagrammatic mechanism design stages of state normative regulation and to consider the legal regulation as a complex system of interrelated norms (legal establishment) and legal relationships, legal consciousness and legal principles during information transmission in jural relations, solve the complicated scientific and practical problems of legal regulation.

The Actualization of the Concept «Free Finding Law» in the Works of Eugen Ehrlich

In this article the author questions the role of Eugen Ehrlich’s sociological jurisprudence in contemporary debates about legal pluralism. This dualist understanding of law was not typical for Ehrlich who considered that law always manifests itself as a unified social integrity, though it consists of many social orders. Law can be conceptually divided into two logical categories: official law (the law of a state and lawyers) and living (social) law. Neither was Ehrlich inclined to advocate for mechanical transformation of facticity into normativity – this requires additional creative work of lawyers. From this point of view, it is not practicable to use Ehrlich’s socio-legal theory for justification of the project of anthropological jurisprudence to include all normative systems of social regulation in the category of law under the slogan of legal pluralism. Citing Ehrlich as one of the founding fathers of legal pluralism is not undisputable because legal pluralism itself is not a unified scientific doctrine, and many assertions of legal pluralists contradict Ehrlich’s scientific position. Ehrlich was not inclined to undermine the role of law and judiciary in legal reality, which sometimes is typical for some legal pluralists.   Keywords: sociology of law, living law, legal pluralism, normativity, state, social unions, society, law-bound state. https://doi.org/ 10.31861/ehrlichsjournal2017.01.036

Becoming a citizen: habits of national belonging in the United States

ABSTRACTGrounded in feminist phenomenology in partnership with everyday citizenship research, this paper examines the everyday, lived experience of citizenship. Arguing that becoming a citizen involves the development of habits of citizenship, I examine felt habits of national belonging especially in the lives of children. How do children learn habits of citizenship that enable and even require citizens to distinguish themselves from those with ambiguous or no citizenship? My answer will be that much of this learning takes place in everyday situations and activities, ones in which the formation of citizenship habits often can seem ‘invisible’ but that are just as important to citizenship as are official procedures and laws. After explaining the theoretical framework of feminist phenomenology, I analyse examples from the lives of children in the United States to illustrate how they learn three related habits of national belonging: (1) habits based on exclusionary citizenship, (2) habits supporting sub-citizenship, and (3) habits grounded in subordinate citizenship. I conclude that rather than abandon the concept of citizenship, feminists need to find ways to transform habits of national belonging into tools for social justice.

La garantía social y la autoejecución del derecho al trabajo: La España post-crisis (2007-2017)

What happens when neither the institutions nor the official law are able to cover the basic needs of subsistence and a decent life of an individual or group of people? Do they have, in these situations, a right to self-enforceability of rights? This article will analyze this issue and the main debates associated with it, focusing on the different experiences and types of self-enforceability of the right to work that have occurred in Spain during the last years following the 2007-2008. In particular, it will be analyzed different cases of factory recovery and land occupation and self-management looking at the differences between these two forms of self-executing of the right to work.

Illegal use of natural resources in federal protected areas of the Brazilian Amazon.

BackgroundThe Brazilian Amazon is the world’s largest rainforest regions and plays a key role in biodiversity conservation as well as climate adaptation and mitigation. The government has created a network of protected areas (PAs) to ensure long-term conservation of the region. However, despite the importance of and positive advances in the establishment of PAs, natural resource depletion in the Brazilian Amazon is pervasive.MethodsWe evaluated a total of 4,243 official law enforcement records generated between 2010 and 2015 to understand the geographical distribution of the illegal use of resources in federal PAs in the Brazilian Amazon. We classified illegal activities into ten categories and used generalized additive models (GAMs) to evaluate the relationship between illegal use of natural resources inside PAs with management type, age of PAs, population density, and accessibility.ResultsWe found 27 types of illegal use of natural resources that were grouped into 10 categories of illegal activities. Most infractions were related to suppression and degradation of vegetation (37.40%), followed by illegal fishing (27.30%) and hunting activities (18.20%). The explanatory power of the GAMs was low for all categories of illegal activity, with a maximum explained variation of 41.2% for illegal activities as a whole, and a minimum of 14.6% for hunting activities.DiscussionThese findings demonstrate that even though PAs are fundamental for nature conservation in the Brazilian Amazon, the pressures and threats posed by human activities include a broad range of illegal uses of natural resources. Population density up to 50 km from a PA is a key variable, influencing illegal activities. These threats endanger long-term conservation and many efforts are still needed to maintain PAs that are large enough and sufficiently intact to maintain ecosystem functions and protect biodiversity.

ROMAN LAW AND THE TWO LANGUAGES IN JUSTINIAN'S EMPIRE

Abstract This paper, reflecting Fergus Millar's work on linguistic and cultural diversity in the Roman empire, surveys the evolving relationship of Latin and Greek as languages for Roman law. Normative texts remained predominantly Latin until the completion of Justinian's codification (534), even though that was a genuinely bilingual product. However, following the already existing pattern in the Greek east, a vast corpus of Greek materials was then quickly created to teach the codification in the official law schools. Designed to aid engagement with the source-texts, these ended up superseding them. Roman legal Greek, a mixture of Latin terminology plus standardized Greek vocabulary, became stabilized. After 534, new legislation was most often in Greek, necessitating parallel Latin materials to help Latin-speaking students, although sixth-century collections of Novels (‘new laws’) were still bilingual. In practice, however, in most of Justinian's empire, a lawyer (such as Dioscorus of Aphrodito) could function with limited Latin. Soon Roman law would bifurcate into two monolingual traditions, Greek in the east, Latin in the west.

Mixed and Mixing Systems Worldwide: A Preface


 This issue of the Potchefstroom Electronic Law Journal (South Africa) sees the publication of a selection of articles derived from the Third International Congress of the World Society of Mixed Jurisdiction Jurists (WSMJJ). That Congress was held at the Hebrew University of Jerusalem, Israel in the summer of 2011. It reflected a thriving Society consolidating its core scholarship on classical mixed jurisdictions (Israel, Louisiana, the Philippines, Puerto Rico, Quebec, Scotland, and South Africa) while reaching to new horizons (including Cyprus, Hong Kong and Macau, Malta, Nepal, etc). This publication reflects in microcosm the complexity of contemporary scholarship on mixed and plural legal systems. This complexity is, of course, well-understood by South African jurists whose system is derived both from the dominant European traditions as well as from African customary systems, including both those that make up part of the official law of the state as well as those non-state norms that continue to be important in the daily lives of many South Africans.

International Legal Analogies and Differences between Crimea and Kosovo

From international law concept, the case of Kosovo need to be treated in order to realize why it was a precedent case and why it is not a same case as other cases that currently are happening in the world with the special view on Crimea. The aim of research is to analyze the Legal Background, and Legal concepts of the comparison between these two cases, where these cases are same and where differs from each others. Analogies and Differences will be treated on this paper based on International law aspect by trying to shed light on the facts that made both countries to develop their will on Self Determination. This research will be done based on qualitative and quantity methods. I will explore the literature, reports from the official sites, International and National Laws, and other methods that will explored during the preparation of the paper.