Role Of Legal Traditions Research Articles

A Comparative Analysis of Women’s Political Rights, 1981–2004: The Role of Legal Traditions

ABSTRACT In this article, we focus on the legal system to explain cross-national and temporal variance in women’s political rights. Compared to alternative legal systems, we find that common law is correlated with less political rights for women. The concepts of political discontinuity and legal memory are central to our theoretical framework. Political discontinuity occurs in times of deep political disruptions; for instance, during revolutionary periods. Whereas typically revolutions did not readily yield lasting improvements in women’s political rights, individual and systemic forms of legal memory meant that later progress toward political equality was facilitated. It is hard to overestimate the influence of legal systems on women’s rights around the world. Using available data for 148 countries from 1981 to 2004, we found that legal systems’ effect is robust to inclusion of more recent periods of upheaval, various model specifications and functional forms, disparate datasets, and different outcome variables.

Determinants of public–private partnership policies

ABSTRACT This article analyses the determinants of a country’s PPP policies. Using the World Bank’s 135-country Procuring Infrastructure PPPs 2018 database, we examine the role of legal traditions, European Union membership, transparency and macroeconomic indicators on the policies governing the adoption, procurement and management of PPPs in infrastructures. We find that transparency has a positive effect on the quality of PPP policies. Scandinavian countries are reluctant to enter into PPPs, while European Union legislation has a positive impact only on the procurement process. Macroeconomic indicator effects are weak on PPP score; larger government’s revenues reduce country’s PPP appetite.

On the Relative Pertinence of the Civil Law/Common Law Dichotomy When Reflecting on the Relationship between Comparative Law, Development Law and Living Law. Some Observations in the African Context.

This article examines the pertinence of resorting to the civil law/common law dichotomy in the context of the use of legal comparison to evaluate the relative “performance” of states in the development field. It accordingly looks into the growing importance of neo-institutionalist analysis in law and development economics, in order to conclude that if certain analyses have possibly unduly amplified the role of legal tradition as critical variable of states’ performance, they must nevertheless be credited with bringing to light the influence of institutional variables on such performance and with assisting us to grasp the relationship between civil law and common law from the angle of development law rather than from the more classic comparative law one. While it acknowledges the significance of institutional analysis, the article highlights its limited grasp of law’s ability to influence the development of a society. Focusing particularly on the example of Africa and the harmonization projects conducted there under the aegis of OHADA, it notes that a fixation on the civil law or common law legal tradition more often than not poses an epistemological obstacle or a distraction from the point of view of elaborating efficient normative intervention strategies in societies where economic relations are still predominantly informal. The article therefore defends the thesis, based on a perspective anchored in legal pluralism, that granting a disproportionate significance to the civil law/common law dichotomy is problematic when reflecting in an appropriately complex manner on optimal conditions for the development of such societies. However, this dichotomy remains relevant when considering the type of legal education that best prepares jurists to grasp the complexity of the normative landscape of such societies, so as to ensure that their normative interventions are aligned with living law rather than with law in books. In this respect, it must be acknowledged that several fundamental characteristics of the civil law tradition, as well as the type of legal education generally offered in states associated with this tradition, tend to prevent a genuinely complex understanding of that normative landscape, particularly because of the lasting hegemony of legal monism and positivism, and of the dissociation of state law from the political, economic and social contexts in which it arises and to which it seeks to apply. Such training therefore hampers the development of cultural intelligence in the jurists for whom it is intended. The article thus calls for a reform of legal education in civil law states, and for their opening up to legal pluralism and interdisciplinarity.

Courts, codes, and custom: legal tradition and state policy toward international human rights and environmental law

Acknowledgements Chapter One: Introduction Chapter 2: Constructing the Cornerstone: The Role of Legal Tradition in Shaping State Policy Toward International Law Chapter 3: The Common Law: Legal Culture, Courts, and the Continuity of Policy in the United States and Australia Chapter 4: The Civil Law: History and Nationalism in Germany and Turkey Chapter 5: Religious Legal Traditions: The Role of Islam in Shaping Policy in Egypt and Saudi Arabia Chapter 6: Mixed Legal Traditions: The Impact of Custom and Colonialism in India and Kenya Chapter 7: East Asian Legal Tradition: Confucius, Communism, and Community in China and Japan Chapter 8: Conclusion Notes Bibliography Index

Common Legalism: On the Common Law Origins of American Regulatory Culture

At least since Tocqueville, American legal practices and institutions have been seen as different in key respects from those of both England and continental Europe. Within this three-way comparison, evident Anglo-American differences diverted the search for the origins of U.S. legal culture away from explanations rooted in the common law tradition. It is widely accepted that the distinguishing features of American legal institutions, beginning with the primacy of adjudication within the administrative process, and continuing with the emphasis on juries and litigants in court procedure, closely correspond with key common law principles. Nonetheless, the prominent line of explanation, evident in Robert Kagan’s work on American adversarial legalism, has highlighted elements intrinsic to American political structure and history as explanation for trans-Atlantic institutional differences. This paper argues that notwithstanding differences between England and the United States, common law ideology and institutions played a crucial role in the creation of a distinct administrative state model in the United States. The paper accounts for the divergence between England and the United States through the fact that in England the common law has long competed with countervailing continental legal and political traditions. Common law ideology existed across key junctures of English history as an oppositional ideology aimed at curtailing perceived abuses of the king’s prerogative, and later parliamentary social legislation. Once we view the common law’s role in England through this oppositional lens, it becomes easier to see how and why common law ideology might explain distinctive elements of American legal culture, not only vis a vis continental Europe, but England as well. With this goal in mind, the paper draws on key works in English legal history to explain the coexistence of competing common law and continental legal ideologies in England over time, and the implications of this struggle where both similarities and differences between England and the United States are concerned. With this history in place, the role of legal traditions in the creation and persistence of contemporary differences between American and European legal cultures can come into clearer view.

Utilitarianism and the Criminal Law in Colonial India: A Study of the Practical Limits of Utilitarian Jurisprudence

The role of legal tradition in the reformist rhetoric of Benthamite Utilitarianism presents us with a contradiction. On the one hand, there is the common observation that Utilitarian jurisprudence was necessarily ahistorical and rejected the past as a source of concepts for reworking the criminal justice system existing in Britain during the late eighteenth and early nineteenth centuries. For philosophic reformers such as Bentham, contemporary British criminal justice was to be replaced by a scientific jurisprudence, abstract, universal, and secular in outlook, and antipathetic to the more conservative insistence that the foundations of the penal law continue to be tradition-based. ‘If society was to see any improvement, its law must be reformed; if its law was to be reformed it must be burned to the ground and rebuilt according to a new and rational pattern.’ On the other hand, we find that the very same Utilitarian thinkers, in works describing the state of the law in British India, were concerned with local rather than universal conceptions of criminality. In his 1782Essay on the Influence of Time and Place in Matters of Legislation, Bentham, for instance, urged the philosophic reformer to temper change in India by fitting Utilitarian judgments about the law to the frames of local society.