Western Legal Systems Research Articles

Liability for Pure Financial Loss: Revisiting the Economic Foundations of a Legal Doctrine

As generally understood in the law and economics literature, the economic loss rule states that a plaintiff cannot recover damages for a pure financial loss. The comparative study of the pure economic loss rule reveals that the recognition and significance attributed to such rule, and to the notion of ‘economic loss’, varies considerably across Western legal systems. Bussani and Palmer analyse the results of an extensive case study on the issue of pure economic loss across all national legal systems of Europe and provide an interesting grouping of the approaches followed by national courts of Europe, describing them variously as ‘liberal’, ‘pragmatic’ or ‘conservative’. The question has emerged in the European context in conjunction with the ongoing search for a common core of European private law and the consideration of a unified European civil code. Comparative legal analysis reveals that the policies and rules governing tortious liability for pure economic loss in Europe are not governed by common principles. Legal systems simply do not share a common approach to this issue. Even those that seek to preclude recoverability of pure financial loss use different definitions and follow different formulations of the problem. An interesting point recently brought to light by comparative legal analysis is that, unlike most other issues in the field of torts, the different approaches on the issue of pure economic loss do not follow the familiar common law/civil law divide.

Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth Century Japan. By Darryl E. Flaherty Cambridge, MA: Harvard Univ. Asia Center, 2013. 335 pp. $35.38 hardcover.

Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth Century Japan. By Darryl E. Flaherty. Cambridge, MA: Harvard Univ. Asia Center, 2013. 335 pp. $35.38 hardcover.Darryl Flaherty's Public Law, Private Practice is an elegantly written, exhaustively researched, and profoundly insightful study of Japan's legal profession as it evolved through the nineteenth century. Anyone with serious interest in comparative perspectives on legal profession and law and development-not to mention those simply interested in Japan's legal transformation from the late Tokugawa period to the end of the Meiji era-will discover new, provocative insights.A few readers of this review may wonder how a study on the Japanese legal profession in the nineteenth century could possibly have much significance or attract any interest beyond a handful of legal historians concerned with a culturally distinctive and therefore largely irrelevant country on the fringe of continental Asia. Keep in mind, however, that the same might have been said for the United Kingdom and the relevance of the English or North American legal professions in the nineteenth century. The United Kingdom and its North American colonies uniquely benefited from a combination of factors, not the least of which was the advent of a handful of immigrants to remote and largely inhospitable locations north of the extraordinarily wealthy and culturally advanced Castilian domains to the south.Flaherty's study is significant because he tells, in elegant prose and great detail, the story of continuity, correspondence, and change in the exemplary political and economic transformation of this small archipelago theretofore in self-imposed isolation. In the middle of the century, Japan had been long ruled by warrior elites within a legal order based on an even more ancient-but, by almost any contemporary measure, highly advanced-public law order derived from the imperial Chinese tradition. Its continental neighbors included two of the world's three oldest and wealthiest bureaucratic empires-the Russians to the north and the Chinese to the west and south. And like them, it had withstood for three centuries the sequential threats of cultural if not military conquest in turn by upstart, empire-building kingdoms in Western Europe. In sequence, they included Spain and Portugal in the sixteenth and seventeenth centuries, the Netherlands in the eighteenth, and now, as the nineteenth century and the industrial revolution dawned, France and England, the most powerful, expansive, and, in this new era, enlightened of all. At the end of the century, Japan remained not only one of only a handful of independent states that had not been either absorbed by an imperial neighbor or colonized or even subdued by any West European kingdom. Instead, it had itself become an industrial, military, and even colonial power, defeating neighboring empires in war as had almost simultaneously the United States, also a newly arrived member of club of world powers and rival in the Pacific.The story of Japan's transformation is especially a story of law. By the end of the century, Japan had not only independently established the most advanced Western legal system outside of the West but, like its Western colonial counterparts, was in the process of reforming in like measure the legal systems of Taiwan and Korea, its two colonial territories. It would also become the model for legal reforms undertaken by the only other remaining independent polities in East Asia-China and Siam.Today, in terms of nominal GNP, China and Japan have the second and third largest national economies in the world and in terms of per capita income as well as equal distribution of that wealth, the first of Japan's two colonies, Taiwan, rivals Germany, and the second, South Korea, rivals France. Japan itself rivals the greatest imperial power of the nineteenth century, the United Kingdom. All three are today stable and functioning constitutional democracies in which transfers of political authority without violence or any significant social disruption has become the norm. …

On the symbiosis of law and truth in Christian theology: reconciling universal and particular through the Pauline law of love

This article argues that the secular liberal and positivist foundations of the modern Western legal system render it violent. In particular, the liberal exclusion of faith and subjectivity in favour of abstract and universal reason in conjunction with its privileging of individual autonomy at the expense of the community leads to alienation of the individual from the community. Similarly, the positivist exclusion of faith and theology from law, with its enforced conformity to the posited law, also results in this violence of alienation. In response, this article proposes a new foundation for law, a natural law based in the truth of Trinitarian theology articulated by John Milbank. In the Trinity, the members exist as a perfect unity in diversity, providing a model for the reconciliation of the legal individual and community: the law of love. Through the law of love as the basic norm, individuals love their neighbours as themselves, reconciling the particular and the universal, and providing a community of peace rather than violence.

A Study of the Compensation Legislation for International Nuclear Damage

In the paper, the author will analyze the provisions in the international conventions and in some western legal systems, and probe into the particular characteristics of the civil liability of nuclear damage. The author of the article concludes that the major nuclear states in the world usually have adopted diverse remedy mechanism, including the responsibility of nuclear facility operators, social responsibility, and the state compensation liability to provide adequate, timely and reasonable legal remedies for victims.Key words: International Nuclear Damage; Civil Liability; Paris Convention; Vienna Convention

Reconsidering legal capacity: radical critiques, governmentality and dividing practice

This article argues that governmentality perspectives provide a fruitful way to analyse the complex interactions between disability and the law, using Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) and mental disability as a ‘case study’. The governmentality literature recognises that the law is implicated in the truths, knowledges, rationales and practices through which disability is rendered known and knowable. From this perspective, a governmentality approach provides a framework for considering the complex and contradictory relationships between capacity, disability and law. This article analyses the concept of legal capacity in Article 12 and its challenge to mental capacity as a central principle in developed Western legal systems. The article shows that rights claims in the second half of the twentieth century reinforced the classical privileging of cognitive ability and rational capacity as a threshold requirement for citizenship. As a consequence, capacity and incapacity operate as mutually constitutive dialogues of normality, in which determinations of incapacity disqualify individuals with mental disabilities from mainstream social discourse and from recognition before the law. Paradoxically, the rules of exception operate differently in the criminal law. On one hand the criminal law recognises that mental disability diminishes criminal culpability. On the other, mental disability frequently goes unrecognised in the day-to-day conduct of the criminal justice system and in the adjudication of minor offences, resulting in the hyper-incarceration of those with mental disability. This article argues that the radical re-conceptualisation of the notion of legal capacity in the CRPD promises to recast decision-making relationships throughout the legal system by replacing determinations of capacity and incapacity with strategies of support. The article observes that the radical agenda may be undermined if the rationale and consequences of this shift are not fully appreciated.

KONSEP HUKUM MODERN: SUATU PERSPEKTIF KEINDONESIAAN, INTEGRASI SISTEM HUKUM AGAMA DAN SISTEM HUKUM NASIONAL

Indonesia is known as a country with a mixed legal system. The current legal system is dominated by three major legal systems, namely Western legal system, customary legal system and Islamic legal system. The mixing of legal systems has been an emerging problem, because basically each legal system has a different character. The most basic problem is unbalancing in the formation of legal system in consequence of the dominance of Western legal system from customary and religious legal system. This paper try to analyze the concept of integration of religious legal system in the national legal system to make its position can be balanced. Based on the analysis, the concept of Three Pillars of Modern Legal Systems is suitable for the modern Indonesian legal system in order to integrate the diversity of cultures, customs and religions.

Compensating acquitted pre-trial detainees

Western legal systems are far from having provided the same solution to the problem of whether acquitted pre-trial detainees should be compensated for the harm suffered as a result of detention on remand. Various arguments have been formulated in order to justify or criticize this compensation, but the possible incentive effects of this compensation on criminal behavior has not yet been considered. This paper analyzes these effects, focusing on the case where detention was lawfully and diligently carried out by State agents, and not having been caused by negligence on the part of the detainee. The paper shows that such compensation can either deter crime or encourage it, depending inter alia on the standard of evidence used to decide whether to compensate or not. Finally, the paper analyzes which standards of evidence maximize both deterrence and social welfare, and discusses some possible extensions.

‘Rule of Law’ as Anti-Colonial Discourse: Taiwanese Liberal Nationalists’ Imagination of Nation and World under Japanese Colonialism

Law is – and has long been – a crucial element of (post-) colonial orders. It is commonplace wisdom that the Western centre dominates the eastern periphery, not only through outright force but also via institutions and ideas. Europeans and Americans have a long history of bringing ‘civilisation,’ be it Christianity, ‘modernity’ or law, to peoples they perceive as less civilised. Despite the common practice of applying different rules to different peoples, colonisers often see the lack of uniformity of law in the colonies as a failure, if not a necessary evil, for the ‘uncivilised’ colonised native. For countries that narrowly escaped subjugation to Euro-American colonialism, such as China and Japan, the sentiment of the humiliation endured when being forced to ‘openup’ and adopt Western legal systems is still very much alive.

The Idea of Legal Responsibility

The article analyses and reconstructs a broad idea of legal responsibility which underlies and normatively links tort law with the law of unjustified enrichment. The article’s central proposition is that responsibility for damage caused and enrichment-responsibility are closely interrelated. Both aspects of obligations are equally an expression of corrective justice, and ultimately serve to protect the civil rights of citizens. It is shown that the idea of civil equality and the principle against unjustified enrichment require citizens to assume responsibility not only for the consequences of their misbehaviour, but also for the consequences of lawful actions that non-reciprocally endanger the rights of others. This can be seen particularly clearly in cases of necessity like Vincent v Lake Erie. Under current law, those cases fall in between the categories of unjustified enrichment and wrongs; in most legal systems, they are therefore regarded as particularly hard cases. Nevertheless, the liability of a person lawfully causing damage in a situation of necessity exemplifies the idea of legal responsibility, and thus helps in better understanding the law of non-contractual obligations. Methodologically, the article combines historical arguments derived from the late scholastic theory of restitution with a comparative analysis of Western legal systems and contemporary private law theory. This approach is designed to overcome the conceptual boundaries of national private laws on both sides of the English Channel; it may help to address difficult legal problems more appropriately.

Offer and Acceptance and the Dynamics of Negotiations: Arguments for Contract Theory from Negotiation Studies

textabstractThe doctrine of offer and acceptance forms the basis of the rules of contract formation in most western legal systems. However, if parties enter into elaborate negotiations, these rules may become difficult to apply. This paper addresses the application of the doctrine of offer and acceptance to the formation of contract in the context of negotiations. The paper argues that while the doctrine of offer and acceptance is designed to assess the issues related to the substance of the future eventual contract (the substantive constituent of negotiations), these issues overlap within the context of negotiations with the strategic and tactical behaviour of the negotiators (dynamic constituent of negotiations). Analysis of these two constituents can be found in negotiation studies, a field which has developed over the last decades. Using the rules of offer and acceptance of the UNIDROIT Principles of International Commercial Contracts as an example, this paper shows that the demarcation between the substantive and the dynamic constituents of negotiations can be used as the criterion to distinguish between, on the one hand, the documents and conduct forming a contract, and, on the other hand, other precontractual documents and conduct. Furthermore, the paper discusses the possibility of using the structure of negotiation described by negotiation studies as an additional tool in the usual analysis of facts in order to assess the existence of a contract and the moment of contract formation.

Interrogating religion: Christian/secular values, citizenship and racial upliftment in governmental education policy

AbstractFaith schools have (re)gained an increasingly prominent place within the public education system in the UK. Whilst the former Labour government expanded the number of state-funded faith schools during its terms in office, they continue to be supported by the current coalition government. The expansion of faith schooling has continued despite widespread opposition attributing much of the religious divisions and lack of community cohesion within society to faith schooling, particularly after ‘race riots’ in the north of England in 2001. This article does not seek to contribute to the largely polarised debate arguing either for or against faith schools. Instead, I explore how religion circulates in governmental discourse supporting faith schools and the sociopolitical work it does through law. I focus on the key contention put forward particularly by the former Labour government that faith schools, contrary to being divisive, can actually play an important role in the promotion of community cohesion, precisely because of the values and ethos of these schools. I examine how this governmental discourse is influenced by social capital and communitarian theories that highlight the role of Christian or church school values in fostering citizenship and community cohesion through education. I suggest that the influence of these theories on government policy has led to church schools becoming a benchmark for other schools to emulate, especially where they embody state/British values which are sometimes posited as being universal and secular. Rather than the expansion of faith schools being a policy that supports schools of all faiths, Muslim schools in particular have been singled out as posing a potential ‘threat to the nation’ and the social cohesion within it. In addition, I argue that the often invisibilised normative influence of de-theologised Christian/secular values plays a role in regulating the boundaries of ‘acceptable’ religion. The potential effects of delimiting religion through the discourse of values, coupled with the engendering of citizenship and belonging of children from minority religious/ethnic backgrounds within the education system, might also be viewed as effectively resulting in a form of ‘racial upliftment’. My analysis draws on critical religion and race perspectives that remain largely absent within socio-legal scholarship on law and religion and indeed citizenship. One exception is more recent scholarship on gender and the banning of Muslim religious dress in schools and other public spaces, and the recognition of certain areas of Muslim family law within Western legal systems. However, analyses that attend to the contingent ways in which religion can circulate and be produced through law relating to children are urgently needed alongside those attending to gender.

A Critical Study on How the Saudi Arbitration Code Could Be Improved and on Overcoming the Issues of Enforcing Foreign Awards in the Country as a Signatory State to the New York Convention

It is essential for developing countries, including Saudi Arabia, to reform investment related regulations and laws, especially those related to arbitration. Sharia law in Saudi Arabia causes major concerns to foreign investors as it differs considerably from western legal systems. Therefore, the processes of arbitration and outcome are suffering from uncertainty and ambiguity. This essay will answer the question of how the Saudi government could encourage foreign investors through improving the current arbitration law. In reaching a conclusion on the necessary improvements, three main aspects will be analysed in the Saudi Arbitration Act which are finality of awards, choice of arbitrators and the authority to enter into arbitration agreements. Another important aspect will be discussed is the enforcement of foreign awards as a contracting state of the New York Convention. In conclusion, it is found that the Arbitration Code has several deficiencies that would concern foreign investors. Recommendations on how to develop the law will be given in order for the arbitration law to serve its purpose that is to create a legal certainty and security regarding dispute settlement.

Actio Libera in Causa

The actio libera in causa doctrine, as originally formulated by various Enlightenment philosophers, concerns the imputation of responsibility to actors for actions unfree in themselves, but free in their causes. Like our Enlightenment counterparts, contemporary philosophers of criminal law, as well as most Western legal systems (both common law and civil), allow that persons can be responsible for acts that are not free when performed, provided they were free in their causes. The actio libera doctrine allows us to impute unfree actions to persons, provided they were responsible for causing the conditions of unfreedom that characterizes those actions when performed. This doctrine seems to be instantiated in a great many actual legal practices. But I argue that we must distinguish between two importantly different understandings of the doctrine itself and its application in law. On the one hand, the actio libera doctrine allows us to waive the voluntariness requirement that is generally needed for criminal liability. On the other hand, it disallows defendants to appeal to defences they would otherwise be entitled to use to block liability, if they culpably created the conditions of their own defence. The first case involves rules of imputation, while the second concerns culpability, and justifying the actio libera doctrine therefore faces different challenges in the two cases.

Online Security and the Protection of Civil Rights: A Legal Overview

The paper examines the connection between online security and the protection of civil rights from a legal viewpoint, that is, considering the different types of rights and interests that are at stake in national and international law and whether, and to what extent, they concern matters of balancing. Over the past years, the purpose of several laws, and legislative drafts such as ACTA, has been to impose “zero-sum games”. In light of current statutes, such as HADOPI in France, or Digital Economy Act in UK, the paper intends to illustrate how more satisfactory solutions are feasible in the field of online security, such as the new “Police and Criminal Justice Data Protection Directive” that the European Commission presented in January 2012. At least in Western legal systems, it should be clear that either civil rights prevail over security (no balancing), or such balance has to satisfactorily protect individual rights (proportionality).

Africanisation of Legal Education Programmes: The need for Comparative African Legal Studies

Debates and discussions about the African renaissance and the Africanisation of universities have raged for decades. The goal of developing an emancipatory Afrocentric system that frees African education from the continuous and dominant influence of Euro- and American-centric cultural values remains a challenge. This is particularly so with respect to conventional African legal training and research programmes. Some African legal scholars, sometimes imbued with xenophilia, have in many ways participated in the process that has seen the continuous marginalisation of studies on the law in Africa and African law. This paper argues that there is a need to rethink the place devoted to the study of African law and African legal systems. It contends that African law generally and African legal systems specifically will hardly be able to develop when present-day students spend most of their time, especially in a course such as comparative law, studying western legal systems. In order for African legal education to be relevant and meaningful it must prepare and equip today’s lawyers to operate in a global world. It is therefore suggested that an Africanised legal programme should include a course on African legal studies and aim to be contextually and globally relevant whilst being sufficiently innovative and flexible to address the urgent needs of our times.

ALESSANDRO STANZIANI. Rules of Exchange: French Capitalism in Comparative Perspective, Eighteenth to Early Twentieth Centuries.

Alessandro Stanziani's Rules of Exchange is an admirably ambitious and largely successful book that seeks to reframe prevailing conceptions of the relationship between law and market in the formation of the modern capitalist state. Focusing primarily on France, but also briefly exploring such countries as Italy, Germany, England, and the United States, Stanziani undertakes a series of chronologically ordered case studies—including such topics as shops, trademarks, speculation, and unfair competition—to show that law has played a vital role in market formation throughout the West. Drawing on new institutional economics, he rejects both the neoclassical position that markets flourish in the absence of regulation and the Marxist claim that law simply reflects market relations. But while new institutional economics has focused largely on identifying legal rules and institutions that minimize transaction costs and thereby promote efficiency, Stanziani emphasizes that—as a matter of actual historical development—there is no clear linkage between the evolution of modern Western legal systems and the goal of promoting market efficiency. To the contrary, he insists, the law that regulates capitalist practice today was primarily a product of politics—of particular groups seeking to promote their interests within existing social, institutional, and cultural constraints. These interests ranged from such self-serving goals as trying to keep competitors out of the market to more public-minded aspirations like attempting to guarantee a sufficient supply of healthful meat at a given price to urban populations. But, however far-ranging, “the aim was not to maximise efficiency and minimise costs nor thwart the imperfections of the market” (p. 69).

Ambivalences en droit de la consommation remarques sur les effets de l'écriture du droit

In every legal system, consumer law indicates problems that it is supposed to solve: imbalance, unfairness and unconscionability. It raises important questions about a legal system’s pre-existing ability to deal with those problems. In a way, consumer law’s very presence in a legal system judges that system. When considering consumer law as a part of the system, an opposition arises between two kinds of discourse. First, there is a discourse, which constructs consumer law as a legal entity apart from the others, sometimes leftist, founded on a defense of social justice or on market regulation. From this angle, consumer law might easily appear to be subversive. Second, there is a discourse, which results from the effort to accommodate consumer law within the legal tradition’s general private law. Under this discourse, rather than disrupting the core private law, consumer law is integrated into it. A gap may thus be noticeable between the initial intentions that sustain consumer law and the effects it produces. The author’s claim in this paper is that this gap, which generates ambivalence about consumer law, results from western legal systems’ main way of formalizing law in the contemporary era by writing.

STRENGTHENING LEGAL EDUCATION AND JUDICIAL TRAINING IN THE MALDIVES: A CASE STUDY

The article discusses the law and policy reform activities carried out by the Asian Development Bank with its focus on countries in the Asia-Pacific region, and the legal interventions which impact upon citizens, private sector, and state institutions. The technical assistance seeks to strengthen legal education and judicial training in the Maldives. Under this project, the country’s recently-established Faculty of Shariah and Law was strengthened to provide legal education to students wishing to study shariah and law and obtain a law degree. Also, judicial training was provided to the country’s judges and island magistrates to carry out their duties in hearing cases and applying law and court procedures. The article postulates the need to take into account and address the local needs, context and sensitivities, rather than merely transplanting a western legal system which would otherwise not work for the country and its peoples where shariah is an important legal system. It also highlights the need to adopt a flexible approach in addressing problems and challenges rising during project execution to ensure realization of effective results. The article offers some thoughts and reflections on the lessons learnt for consideration in any developing country on a similar project to strengthen legal education and judicial training.

Corporate Governance Principles and Islamic Law

Corporate governance is one of the vital elements of any corporation and economic development. Globalization and cross borders investments effect many Islamic countries economies. Starting from this point; International and local Investors need to know that there is a legal frame work that will support and serve their interests. Despite its rapid growth and increasing presence on world financial markets in the Islamic world, little is written on corporate governance from Islamic perspective. Few studies have been carried out in order to come up with alternative models of corporate governance from the Islamic point view. These studies seem to suggest that Islamic corporation may adopt a totally different model of corporate governance or a modified version of the western model of corporate governance as an alternative for its corporate governance framework as well as in actual practice. Many Islamic corporations adopted the western model of corporate governance. Moreover, some would argue that there is a wide difference between the Islamic law and the modern Corporate Governance principles. Some research claims that Islamic Law has nothing to do with Corporate Governance principles, and because the Islamic law is an absolute divine law, there is a profound confrontation between Islamic law and western legal system. As well as introducing Corporate Governance Codes in Islamic countries without any reference to the Islamic rules support this idea. The proponents of the western model of corporate governance continuously attempt to defend their model and the opponents strongly criticize them especially in the aspect of shareholder value and stakeholder value, principle-agent relationship or the agency problems. In this article, I will try to find if there is any relation between the modern Corporate Governance principles and the Islamic law rules by focusing on the Corporate Governance principles in regards to shareholder value and stakeholder value with the contact of ownership issue in Islamic law. Analyzing the relation between the shareholders and the board of directors and compare it to the concept of fiduciary “Wakalah” in Islam. Finally, I will analyze the disclosure rules in modern corporate governance with the concept of “Gharar” rule in Islamic law. The main objective of this comparison is to find if there is any harmony and/ or difference in the factors between the modern Corporate Governance principles and the Islamic law rules, if there are any.

Matrimonio e Famiglia Non Fondata sul Matrimonio (Marriage and Family Not Founded on Marriage)

Matrimonio e Famiglia Non Fondata sul Matrimonio (Marriage and Family Not Founded on Marriage)