Socio-legal Perspective Research Articles

Reinventing or rediscovering international law? The Russian Constitutional Court’s uneasy dialogue with the European Court of Human Rights

This article discusses interactions between the Constitutional Court of the Russian Federation and the European Court of Human Rights. More specifically, it critically examines evolving legal reasoning of the CC with respect to its interpretation of international law. Furthermore, it reflects on broader implications of the CC’s recent rulings that reaffirm the primacy of the Constitution of the Russian Federation over the ECtHR judgments in part where they appear to be contrary to the constitutional law provisions. These rulings are anticipated to have a long-lasting effect on the Russian legal system. They reflect a changing relationship between international and domestic law and signal a shift in Russia toward a more autonomous understanding of international law rooted in the principle of sovereignty that differs from the Western narrative of the discipline. Even more broadly, these emerging new interpretations support the idea of fragmentation of international law not only from a strictly legal perspective—as a plethora of conflicting sources of law—but also from a socio-legal perspective as a discipline harboring conflicting narratives.

Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice

This collection of essays is the product of the workshop Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice held at the International Institute for the Sociology of Law (Oñati, Spain) in May, 2017. The papers explain and explore the multiple global projects that attempt to rewrite judicial opinions by incorporating feminist legal reasoning or methods. Each essay grows out of the authors’ experiences working with projects based in a particular socio-political, geographical, historical and jurisprudential context: Canada, England, Australia, Ireland, New Zealand, Scotland, and a multi-jurisdictional international law project. Collectively, the essays bring new insights, methods and challenges to the study of the feminist project of equal justice across the boundaries of culture, race, nation and gender. Esta colección de artículos es producto del seminario Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice, que tuvo lugar en el Instituto Internacional de Sociología Jurídica (Oñati, España), en mayo de 2017. Los artículos explican y exploran los múltiples proyectos globales que intentan reescribir opiniones judiciales incorporando razonamientos o métodos jurídicos feministas. Cada artículo proviene de las experiencias de las autoras en su trabajo con proyectos basados en un contexto sociopolítico, geográfico, histórico y jurisprudencial concreto: Canadá, Inglaterra, Australia, Irlanda, Nueva Zelanda, Escocia y un proyecto jurídico internacional multijurisdiccional. En conjunto, los artículos aportan nuevos enfoques, métodos y desafíos al estudio del proyecto feminista de justicia igualitaria, más allá de los límites de culturas, razas, países y géneros.

Social Inclusion, Equality and Respect of Transgenders: Rise of New Socio-Legal Perspective

Social Inclusion, Equality and Respect of Transgenders: Rise of New Socio-Legal Perspective

The ‘Phantom Local’ and the Everyday Distinction Practices of Humanitarian Actors in War: A Socio-Legal Perspective

This article is concerned with the everyday practices of international humanitarian actors who deliver assistance in armed conflict zones. Drawing on original fieldwork conducted in South Sudan, it elucidates how humanitarian actors engage with the principle of distinction in international humanitarian law (IHL). The article considers how the desire to enforce distinction impacts humanitarian actors’ relationships with others, and introduces the concept of everyday distinction practices. These practices have an important performance component, designed to appease the “phantom local.” It is proposed that such practices may have adverse implications for the humanitarian– beneficiary encounter. By positioning war-affected populations as an audience for distinction, everyday distinction practices reconfigure the victims of war from being receivers of aid to perceivers of aid. By lumping beneficiaries together with armed actors as part of the “phantom local,” distinction practices also paint the victims of war as an object of mistrust, fear, and potential danger.

Policing Peers and Selves between Law and Morality: A Socio-Legal Perspective on Managing Misconduct in Hunting

Policing Peers and Selves between Law and Morality: A Socio-Legal Perspective on Managing Misconduct in Hunting

The Conflict of Interest Between People and Corporation in the Construction Project of Apartment in Yogyakarta Indonesia a Socio-Legal Perspective

The Conflict of Interest Between People and Corporation in the Construction Project of Apartment in Yogyakarta Indonesia a Socio-Legal Perspective

Editors’ Note

The present issue is devoted to various aspects of Chinese law, focusing on topics as diverse as an empirical study of local government debt, questions of arbitration and conflict of laws reform, and a socio-legal perspective on guanxi, a conceptualization of social connection and indebtedness, and its impact on adjudication. In addition, this issue contains an essay Professor Jerome Cohen submitted to the Journal. In this essay, he reflects on the ways in which he pioneered the establishment of the current relationship between the United States and China in the field of law. We thought this personal retrospective would be of interest to our readership, particularly when seen in context with, and in contrast to, recent scholarship on Chinese law. We solicited the comments of two distinguished students and mentees of Professor Cohen, Professor James Feinerman and Professor Margaret Lewis. Their comments and Professor Cohen’s recollection underscore that Chinese law scholarship would not have penetrated the American academic landscape as it has had Professor Cohen and his followers not paved the way as they did. Together with the various articles collected in this issue, this short retrospective shows how Chinese law scholarship expressed in English has become a discipline in its own right, and how the intellectual landscape has shifted since the first breaking of the ice during the Cold War era.

PRAWO UŻYTKOWANIA WIECZYSTEGO JAKO POZOSTAŁOŚć PO EPOCE SOCJALIZMU REALNEGO – UJęCIE SOCJOLOGICZNOPRAWNE

StreszczeniePrawo użytkowania wieczystego zostało wprowadzone do polskiego porządku prawnego w 1961 r., a zatem w okresie tzw. realnego socjalizmu. Do przyczyn wprowadzenia tej instytucji prawnej zaliczyć należy istotne czynniki polityczne i ideologiczne, a w szczególności realizację koncepcji, wedle której państwo socjalistyczne nie powinno zbywać gruntów na rzecz osób fizycznych i prawnych. Poza funkcjami polityczno-ideologicznymi, omawiana instytucja pełniła także określone funkcje społeczno-gospodarcze, do których należało m.in. udostępnianie osobom fizycznym oraz spółdzielniom mieszkaniowym gruntów pod budownictwo mieszkaniowe. Po transformacji ustrojowej w 1989 r. instytucja użytkowania wieczystego nie została wyeliminowana z polskiego porządku prawnego, występuje też w obrocie prawnym. W perspektywie socjologicznoprawnej wynika to przede wszystkim z dopasowania funkcji społecznych omawianej instytucji do zmienionych warunków po transformacji ustrojowej.

Zimbabwe's 'Look East' Policy: A Sociolegal Perspective

The studies of the relations between China and Zimbabwe, as with other studies of Chinese relations with African states, have focused largely on the socio-economic and political aspects thereof. There has not been a discussion on the socio-legal perspectives of the relationship. The point of departure is that any relations between China and Zimbabwe must be legally sustainable. The socio-economic consequences of the relations are identified and analysed from a legal perspective, which leads to the conclusion that the 'look East' policy adopted by the Zimbabwean government as a way to counter sanctions imposed by the West is an intermestic policy. Based on national and international laws or standards of conduct expected of states, the Zimbabwean government's failure to protect industries, the environment, labour rights and the trade in armaments at critical moments indicates an abdication of its duties.

Beyond Hipster Antitrustt: A Critical Perspective on the European Commissionns Google Decision

This contribution offers a critical socio-legal perspective on the European Commission’s Decision in the Google Shopping investigation. In particular, three outstanding issues, concerning Google’s data collection, algorithmic transparency and the beneficiaries of the Decision are explored. The Decision does not address all the problems associated with Google’s platform power. However, it is argued that competition law, even modified from the current More Economic Approach as the antitrust hipsters suggest, is not able to do this alone, but has to be part of a multi-regime response involving regulation and consumer law.

Where the wild things are: animal victimization in federal environmental crime cases

Although there has been a marked increase in studies of animal abuse from a variety of socio-legal and green criminological perspectives in the past two decades, we have a limited empirical understanding of the extent of animal victimization in environmental crime prosecutions in the United States. In order to better understand the nature and distribution of animal victimization in environmental crime prosecutions, we employ a content analysis of federal environmental crime cases, 2001–2011. Out of 972 cases, results show identifiable animal victimization plays a role in six percent of cases. Although animal victimization in environmental crime may be extensive, its role in environmental prosecutions appears secondary. We conclude with possibilities of expanding animal protection via wildlife and environmental law connections.

Propiedad intelectual para la gestión de ciencia, tecnología e innovación en empresas estatales cubanas

El trabajo sintetiza aspectos de una investigación sobre propiedad industrial desde la perspectiva socio-jurídica y contable financiera, orientándose a su adecuación en la empresa estatal socialista en virtud de su responsabilidad económica, social y medioambiental como forma fundamental del modelo cubano para alcanzar competitividad y alto desempeño. Se esbozan criterios sobre el ordenamiento e implementación de la propiedad industrial a través de la gestión de ciencia y tecnología, protección y difusión de resultados del conocimiento como alternativas de regulación en la cadena de valor a ciclo completo de la innovación, dinámica del patrimonio intangible y relaciones de intercambio con aplicación de la mercadotecnia como filosofía de negocio empresarial. Se proponen estrategias respecto a derechos de dicha institución en la gestión económica organizacional.

Book Review: Labour Regulation and Development: Socio-Legal Perspectives

Book Review: Labour Regulation and Development: Socio-Legal Perspectives

Protection of Children from Offences of Sexual Assault, Sexual Harassment and Pornography: A Law Enforcement View and Review

<div><p><em>‘Neutrality helps the oppressor, never the victim’ is a famous quote of the Nobel laureate Elie Wisel. Although children have been maltreated in the course of our entire history, since they have no knowledge of the wrong and the right, hence ‘interest theory’ of jurisprudence remains true.<a title="" href="file:///C:/Users/Alan/Google%20Drive/IRA%20MAY%202017%20Issues%20(1)/JMSS/Formatted%20papers/Paper%2025.docx#_ftn1"><strong>[1]</strong></a> Child abuse and neglect are serious global issues and can be physical, sexual or psychological. Many research studies have shown that children under the age group of 5-12 are at a higher risk of suffering from child abuse and neglect. The statistical analysis says that 40 million children become victims of child abuse all over the globe and 1,850 die due to extensive abuse and lack of affection and attention. An attempt has been made to differentiate the types of abuses and neglect, the signs and symptoms, the impact of the trauma on the well-being of the child. Drawing inferences from previous research works on the global issues, the paper has been prepared on the national context as the child sexual abuse is an under-reported offence in India. The study conducted by the Government of India in 2015 estimates the burden of sexual abuse which revealed shocking results and showed that every second child in the country was abused; among them, 52.94 per cent were boys and 47.06 per cent were girls. Highest sexual abuse was reported in Assam (52.27%) followed by Delhi (41%), Andhra Pradesh (33.87%) and Bihar (33.27%).<a title="" href="file:///C:/Users/Alan/Google%20Drive/IRA%20MAY%202017%20Issues%20(1)/JMSS/Formatted%20papers/Paper%2025.docx#_ftn2"><strong>[2]</strong></a> There is a causal connection between child abuse and pornography; specifically child pornography depraves and corrupts the young minds which pose more danger to the child abuse. However, arguments frequently presented to defend pornography; such dichotomy stands between law and morality. The research paper tries to review the above issues focusing on recent legislations and views of policy makers in this regard.</em></p></div><div><br clear="all" /><hr align="left" size="1" width="33%" /><div><p><a title="" href="file:///C:/Users/Alan/Google%20Drive/IRA%20MAY%202017%20Issues%20(1)/JMSS/Formatted%20papers/Paper%2025.docx#_ftnref1">[1]</a>Padmaja K., Child Interests- Socio Legal Perspectives, A Amicus books, First Edi., The ICFAI University Press, 2007, pp. 4-27</p></div><div><p><a title="" href="file:///C:/Users/Alan/Google%20Drive/IRA%20MAY%202017%20Issues%20(1)/JMSS/Formatted%20papers/Paper%2025.docx#_ftnref2">[2]</a> Tamuli RP Paul B Mahanta P. A statistical analysis of sexual assault-a retrospective study. <em>J Punjab Acad Forensic Med Toxicol </em>2013;13(1):7-13<strong></strong></p><p> </p></div></div>

Education as a Contrivance to Ending Child Marriage in Africa: Perspectives from Nigeria and Uganda

Nigeria and Uganda have both ratified the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and have enacted domestic legislations that provide for the promotion and protection of the rights and welfare of children. Sadly, child marriage still exists and is one of the leading causes of morbidity and school dropout among children in both countries. This paper examines the legal and policy frameworks for combating child marriage and highlights the trends, challenges and prospects from a socio-legal perspective. It reveals a number of systematic procedural problems in the legal and policy apparatus for addressing child marriage. In responding to these challenges, the authors argue that the Nigerian and Ugandan governments should enhance access to basic education and initiate institutional reforms pertinent to the legal framework for effective enforcement of the laws that address child marriage.

Administrative Law and Human Rights Standards in Legal Aid: An Overview with Examples from Finland and England & Wales

The majority of writing on legal aid is from a socio-legal or political perspective and little attention has been paid to legal aid as a branch of administrative law. This is an important failing as the legal aid requirements imposed by international human rights law do not only relate to the scope of legal aid, but also establish parameters for the administration of legal aid schemes. These requirements may be met directly within the specific legislation governing legal aid, but in some instances rely on the application of general domestic administrative law principles. Employing a comparative approach, this article explores some of the connections between administrative law, international human rights law and the provision of legal aid, using the jurisdictions of Finland and England & Wales as examples. Good protection of the relevant international human rights standards is provided in Finland through a robust administrative law system which contains a clear set of basic principles and is directly applicable to the making of decisions on legal aid. In England & Wales administrative law principles are not as helpful; however the manner in which administrative law acts upon discretionary decision-making in that jurisdiction means that strengthening administrative law principles might not have much impact on legal aid administration. In such a situation subject-specific legal aid legislation must be relied upon to meet human rights standards.

The Human Rights Act in a Culture of Control

This paper uses a socio-legal perspective to shed light on the UK’s current backlash against human rights. While Euro-scepticism and the UK’s political constitutionalist tradition does somewhat explain the hostility towards judicial protection of human rights, this paper argues that this is not the entire picture. Perspectives from politics, sociology and criminology reveal that the political conditions in which the HRA was introduced were already inimical to the judicial protection of human rights. Since the mid-to late Twentieth Century, criminal justice policy in the UK underwent what David Garland terms ‘dramatic changes’. These changes include, amongst other factors: an increasingly active legislature in the criminal justice field; changes in the emotional tone of crime policy; the politicisation of crime; and populist rhetoric and policies. This paper will argue that the current political climate that is hostile towards criminals or other ‘others’ (e.g. immigrants) is symptomatic of this ‘culture of control.’ Defenders of human rights have identified this problem of unpopular ‘others’ and have attempted to counter them by downplaying the role that human rights have had in such contentious cases or emphasising the importance of human rights in cases that are seen as more publicly pleasing. These defences however, fail to address why this othering occurs, and what, if anything, can be done to counter this. At the same time, the reach of the legislature in other areas of public policy has receded to the rise of the executive and ‘technocracy’ in what has been termed ‘the decline of parliaments’. High profile projects such as Policy Exchange’s ‘Judicial Power Project’ which make the case for a more restrained approach to judicial review are conceptualising the increase in judicial powers as a unilateral decision made by the judicial branch. This, however, ignores the aforementioned sociological and political factors that affect the dynamic and balance of power between the legislature and the executive, and in turn how this affects judicial power. By placing the existing debate regarding the judicial protection of rights in this broader context, a more comprehensive explanation of rights hostility can be understood. This paper will conclude by arguing that as a result of this culture of control, hostility towards the judicial protection of human rights in the UK will not abate with the repeal of the HRA and its replacement with a ‘British Bill of Rights’.

Introduction: New Historical and Socio-Legal Perspectives on Jewish Divorce

Introduction: New Historical and Socio-Legal Perspectives on Jewish Divorce

Legalization Under the Premises of Globalization: Why and Where to Enforce Corporate Social Responsibility Codes

This contribution advances the argument that global self-regulation through corporate social responsibility codes can and should be enforced under domestic private laws. Corporate social responsibility codes are defined as unilateral corporate commitments that indicate a corporation's willingness to take on a global regulatory role in the absence of a global political government—a phenomenon that is difficult to grasp from the perspective of traditional private law categories. The contribution thus starts by discussing the aspects in which private corporate codes and private law categories seem not to fit, and points to recent developments in substantive private law that could change this situation, namely case law, statutory reform, and the novel contract designs used by private actors to effectuate their corporate social responsibility codes, which private law can rely upon. This contribution argues that these developments provide sufficient ground to assume a gradually evolving readiness within substantive private law to provide for the enforcement of these corporate social responsibility codes. Subsequently, the contribution focuses on the normative side of the argument. From a socio-legal perspective, the main reason in favor of enforcement is identified in the specific social potential and the risks created through these corporate codes for a globalized society that private law has to help mitigate. Based on this argument, the contribution continues by discussing the possible actors that could realize enforcement. First, it identifies domestic courts as important actors to enforce this type of global self-regulation, and, in this context, analyzes how, in order for domestic courts to pursue such an enforcement strategy on the basis of substantive private law, private international law equally requires a transformation. Second, the contribution considers international arbitral tribunals as additional institutions that could be entrusted with the enforcement if related changes in domestic arbitration laws can safeguard the function of domestic courts to monitor this enforcement role of arbitrators .

Direct Provision as Aftercare for Aged-Out Separated Children Seeking Asylum in Ireland

Ireland’s approach to after-care for ‘aged-out’ separated children is problematic. Currently, upon reaching the age of 18, most separated young people are moved to ‘direct provision’, despite the fact that the State can use discretionary powers to allow them to remain in foster care. Direct provision is the system Ireland adopts providing bed and board to asylum seekers, along with a weekly monetary payment. Separated young people in Ireland are in a vulnerable position after ageing out. Entry into the direct provision system, from a legal and social work perspective, is concerning. Utilising direct provision as a ‘form of aftercare’ emphasises Governmental policy preferences that privilege the migrant status of aged-out separated children, as opposed to viewing this group as young people leaving care. Utilising a cross disciplinary approach, this article reviews the literature to critically analyse these issues from socio-legal and social work perspectives. This analysis will be placed in the context of primary qualitative research with experiences of separated children and young people and key stakeholders. This article concludes, that the administrative and legal approaches to aged-out separated children tend to limit the ability of the State to provide adequate aftercare supports to these young people. Ultimately, their migrant status is privileged over their status as care leavers.