Subordination Of Law Research Articles

Feminist Legal Biography: A Model for All Legal Life Stories

ABSTRACT Legal biography remains, with some exceptions, strongly influenced by Victorian biographical models, with a focus on ‘great’ men (since women could not become lawyers before 1920, and there have been few ‘great’ women lawyers) and their public achievements and contributions to law, and with little attention given to their private lives or their attitudes to women’s subordination in law. Feminist legal historians have widened the net to include women pioneers working in and with law before 1920. But feminist legal biography is not just about uncovering the lost lives of women; rather, it focuses on gender – the relationship between the sexes – and recognizes that biographies of men require consideration of the ways in which men maintained their dominant position in law and society, as much by the private support of women at home as by excluding and marginalizing women professionally. As for biographies of women, recent enthusiasm to recover their stories has suffered from a tendency to mould them into heroines or role models, again on the Victorian model. Feminist legal biographers of women need to avoid the perils of over-identification with their subjects (manifested by anachronistic familiarity and historical inaccuracy) and the siren call of anecdote and myth.

Rethinking the Role of Law and Contracts in East-West Commercial Relations

Commerical law in Asia is outpacing Asian commercial practices by a wide margin. Even though Western insistence on the rule of law as a condition of cross-border commerce has been met by enthusiastic acceptance and lawmaking by Asian policymakers, it has not occasioned the pervasive change in individual attitudes and beliefs essential to a widespread change in the traditionally subordinate role of law and contracts in matters of private commerce. As a result, there is a significant normative gap throughout Asia between written commercial law and commercial behavior, with traditional expectations often still strong regarding the subordination of law and contracts to evolving circumstances and relational values. Moreover, there is every reason to expect this gap to persist for decades or longer, with its narrowing no more likely to herald the complete Westernization of Asian commercial practices than it is the evolution of entirely new principles for East-West economic exchange that incorporate and reflect fundamental non-Western values. An important challenge for East-West commerce in the meantime is to somehow account in the structure and governance of commercial relationships for traditions so different that law and contracts are determinative of performance and outcomes in one but subordinate to other values in the other. The likely trade-off, for those bold enought to attempt an accommodation, will be reductions in predictability for increases in commercial stability. In the context of dispute resolution and international commercial arbitration, this will require turning a deaf ear to demands for Westernizing control mechanisms and instead working to preserve inexact and flexible rules of procedure, elastic notions of relevance and evidence, significant presentational latitude and variance, arbitrator responsibilities inconsistent with Western notions of impartiality, and, an openness to decisional rules and outcomes inconsistent with Western notions of legal predictability and commercial justice. In the context of contractual choice of law, this will require the designation of unconventional decisional rules, such as the combination of equity and lex mercatoria, that would empower arbitrators to act contra legem, and in the process, to explore and articulate new principles of governance that transcend the fundamentally different understandings within the Western and non-Western worlds regarding the role and rank of law and contracts in commercial relationships. Finally, this will require new contract terms that blur the traditional distinction between dispute resolution and performance by embodying mutual executory promises to consider and adjust in good faith to evolving circumstances in a business relationship. Through all of these efforts, a shared understanding may emerge of a legal basis upon which East-West commerce successfully may proceed.

Rethinking the Punitive Turn

This article examines the thesis that the recent punitive shift taken by western states can be explained in terms of what Christie calls the `subordination of law and order systems to the purposive logic of the rational bureaucratic state' (Christie, 1996). While accepting that this `subordination to modernity' thesis has considerable explanatory power, this article argues that it is nevertheless limited in terms of providing an adequate explanation of the punitive shift. While it is true that it can help explain how punitive solutions may evolve out of rationalizing tendencies integral to the modern state, this thesis cannot account for what Garland (1996) terms the `criminology of the other' and the contribution of this to the current punitive turn. Not only is this `criminology' irreducible to the rationalizing forces specific to modernity, it is also a form of `criminology' the appearance of which marks a decisive attack upon other attributes of modernity around which modern penal systems were also constructed; in particular, as this article will examine, the `restricted economy of limits' that historically established the normative parameters within which modern penal systems emerged. To interpret the punitive turn, this article argues that it is necessary to trace its genesis not only to a purification of modernity, but also and in a different respect to its dissolution and replacement by what, after Bataille, will be termed an `economy of excess'.

Genealogy of morality and law

In order to clarify the relationship between morality and law, it is necessary to define both concepts precisely. Cultural realities refer to concepts which are more specifically defined if we focus towards the genealogy of those realities, that is to say, their motivation, function and aim. Should we start from legal anthropology, comparative law and history of law, law arises as a social technique which coactively imposes ways of solving conflicts, protecting fundamental values for a society's co-existence. Values subject to being protected are proposed by morality, the latter making subordination of law to morality inevitable. This explains that a great number of modern constitutions include a reference to fundamental moral values, that is to say, they have explicitly positivised moral contents. Legal reasoning, at all levels and expressions, needs to appeal to the aforementioned values. Constitutional reasoning, international law, legislative activity and judicial practice are studied to verify the latter. This subordination of law to morality sets out a serious problem: moralities are cultural realities which are only valid for a specific society. In order for law not to fall in a not very rational legal relativism, law should not be subordinated to morality, but to ethics, the latter understood as cross-cultural morality. The Universal Declaration of Human Rights was a step forward in this sense.

Droit et souveraineté à l'aube du XXIe siècle

SummaryThe author explores the relationship between the concept of sovereignty and international law. First, he examines this theme in its changing historical context, particularly the subordination of law to sovereignty by Hegel and the nineteenth-century positivists, and the various attempts by Kelsen and others in the twentieth century to assert the primacy of international law. He then examines the stress laid upon sovereignty as a means of obtaining a more just international economic order by states of the Third World. The implications of bilateral and multilateral agreements that grant broad powers to financial and economic international institutions are also examined to determine their impact upon the sovereignty of less developed countries. The author also examines the implications of the extensive practice of treaty-making and the adoption of rules and standards within a range of Specialized Agencies of the United Nations. He also traces the gradual development of the European Economic Community from free trade area to European union as envisaged by the Single European Act, under which the sovereignty of member states is steadily giving way. In the final analysis, the author concludes that sovereignty is a relative concept. It is not sovereignty itself which is impeding the development of a true community of states but rather the many economic, social, political, and psychological conflicts which impede the development of common values uniting the whole international community.