Kjell Å Modéer
This chapter is about the relations between the national legal system and the ‘other’—especially from the creation of the modern nation state in the early nineteenth century and up to current times. Comparative law in the twentieth century was dominated by the concept of ‘valid law’, functionalism, legal positivism and legal realism. The parameters of time and space within law were minimalized. The German law emigrés from Nazi Germany to England and the United States played a special role for the relation to comparative law, and several of these scholars played a great role for the post-war development of comparative law. Critical theories and post-colonialism have developed new legal discourses on culture and identity, and have increased interest not only in history but also in differences between legal cultures—and thus an increasing interest in comparative legal history.
Agustina Ramón Michel
This chapter is about abortion law in Latin America. Latin America abortion law is often categorized as seriously restricted. And this is so, partially. Abortion is criminalized if it does not fit in the legal indications (e.g. health risk, rape) contemplated. However, the region is in a process of examining some of their laws and implementation. The chapter argues that we should go beyond the more classic discussion in comparative constitutional law and engage in constitutional discussions in which we check thoroughly the persistent criminalization of abortion in most of the world, and the (health) regulations on abortion that put doctors, not women, at the centre and hinder access to safe abortion. If the law recognizes an abortion right to women, thus, it needs to deliver regulations that fit that purpose. The second part of the chapter analyses these regulations, as they burden women’s rights and overstep constitutional governmental discretion to regulate this practice.
Luciana Gross Cunha
Access to justice in Latin America has undergone substantial changes in the recent history of the region. With few exceptions, these changes accompanied the process of political transition to democracy. These changes range from the incorporation of new procedural instruments, through the constitutionalization of rights and new designs of the justice system, and even by the creation of alternative forms of conflict resolution and incorporation of principles inspired by international treaties, such as the reasonable duration of the process. This chapter presents an overview of the main institutional transformations in Latin American countries that have had an impact on access to justice. Although most of the examples refer to the Brazilian case, the studies about the region show that similar process has happened in other Latin American countries.
Key debates in administrative law often play out within the contours of ‘accountability’. This chapter suggests that the concept of accountability is normatively and analytically useful in comparative administrative law, provided that there is clarity as to the level of abstraction at which the term is used. The chapter proposes a three-tier approach to the concept of accountability—accountability as a political ideal (‘level 1 accountability’), as a specific set of normative commitments (‘level 2 accountability’), and as an empirical phenomenon (‘level 3 accountability’). It argues that the usefulness (and contestability) of comparative approaches will vary as one moves from one tier to the next. Next, it discusses three case studies that illustrate specific institutional manifestations of accountability and demonstrate how the operation of accountability differ based on the background constitutional structure. Finally, the chapter presents certain key challenges to accountability that implicate different tiers of accountability.
This chapter examines the role of adjudication systems in handling environmental disputes. It first considers the role of the judiciary in relation to the environment and its place within the context of value-driven decision-making. It then explores the challenges raised by environmental litigation and their impact on environmental adjudication systems, along with various responses to them. It also describes different models for judicial adjudication of environmental disputes that take into account jurisdictional specialization, judicial specialization, scope and hierarchy of the court’s review, specialist cost and standing rules, and access to legal and scientific advice. Case studies are is used to illustrate bespoke solutions to environmental adjudication. The chapter concludes with an analysis of the relative merits of the adjudicative models mentioned above, and what this implies about environmental adjudication in general.
This chapter focuses on important debates at the intersection of regulatory law, constitutional structure, technical competence, and public participation. It concentrates on the representative democracies that are at the heart of this volume. In such polities, delegation of policy-making authority to the executive branch is inevitable as the state confronts the social and economic problems of modern life. Statutory and constitutional language is incapable of eliminating policy discretion given the complexity of these problems and the need to respond quickly to changed circumstances. Such delegation, however, appears to violate democratic norms that view the legislature as the only source of legitimacy. Even in a system with a popularly elected president, executive-branch policy choices must confront the issue of democratic legitimacy. These choices may bear little or no relationship to promises made during the electoral campaign, and they may involve only minimal legislative involvement. Thus, although policy delegation is inevitable, it is also democratically problematic. To further the democratic credentials of executive policy-making, this chapter defends the use of administrative procedures that require transparency, citizens’ input, and public reason-giving.
Giacinto della Cananea
This chapter focuses on the changing relationship between administrative law and the nation-state. The starting point is, simply, that the nation-state now operates in an increasingly complex web of national, transnational, and supranational legal processes. The chapter asserts that this is no mere incremental change. Arguably, it requires us to reconsider, both normatively and empirically, the traditional paradigm according to which administrative law is a sort of national enclave. Normatively, it is important to understand that at the basis of this paradigm there is not just a set of ideas and beliefs about the particularities of each national legal culture or tradition, but there is a certain vision of the state. Empirically, there are various forms of interaction between national, international, and supranational legal orders that are worth considering. As such, the chapter draws upon some case studies and argues that the jurisprudence of international and supranational courts can help us to understand both why the general principles shared by most, if not all, legal orders are relevant for the public authorities that act beyond the states and why such principles must be taken into account within national systems.
Administrative Law Values and National Security Functions: Military Detention in the United States and the United Kingdom
Laura A. Dickinson
This chapter focuses on the case of extraterritorial military detention by the US and the UK—two countries that quickly deployed and then repeatedly refined their detention policies during the nearly two decades following the terrorist attacks of September 11, 2001. Military detention is arguably one of the quintessential national security functions where deference to executive discretion is strongest. As such, it is an activity that differs markedly from the types of practices that form the core work of many domestic administrative agencies, and administrative law scholarship tends to ignore the national security domain. Yet even here, in a realm seemingly so insulated from administrative law norms, agencies in both the US and the UK have implemented a variety of administrative rules and procedures, as well as non-judicial administrative tribunals to assess the status of detainees. Although the US and the UK followed different pathways, both countries have ultimately come to embrace administrative law frameworks for military detention. And both countries have gradually moved to protect, at least to a limited extent, the core administrative law values of rationality, transparency, participation, and procedural protection even as they have rejected fully judicialized detention processes. This comparative case study therefore illustrates the significance of administrative law values in the area of national security and points toward the need for further scholarship at the intersection of national security law and administrative law.
This chapter compares the respective roles of administrative institutions and administrative power on the one hand, and other governmental institutions and powers on the other, in dealing with drug use, possession, and trafficking in China and Victoria (Australia). Comparison of these two jurisdictions provides both opportunities and challenges. Though one is a nation-state, the other a sub-national state within a federation, both have jurisdiction to regulate drug use-related harms and offending. There is thus comparability in terms of jurisdiction. More importantly, the opportunities and challenges for comparison stem from the divergence in fundamental political system; one authoritarian and one liberal democratic, and the nature of the relationship between state and citizen that flows from this. This divergence has implications for selection of both comparative methodology and the subject matter of comparison.
This chapter concerns administrative procedure—the rules governing the process of decision-making. ‘Administrative procedure’ ultimately refers to a how governmental organizations actually conduct business and manage responsibilities. Today there are a bewilderingly large and diverse number of administrative procedures. Whilst the first general administrative procedure acts (APAs) focused on the so-called ‘administrative act’ (typically a unilateral decision made by public bodies), their reach progressively broadened as the responsibilities of the executive branch and public administrations grew. APAs branched out to deal with other legal acts, such as rules and regulations, agreements under public law, guidelines and administrative guidance, as well as setting general principles to which administrative activities would be subject.
This article begins with a discussion of the constitutionalization of affirmative action and its side effects. It examines the legal underpinnings of affirmative action in two relatively well-endowed developing countries and former British colonies — Malaysia and South Africa — where the disadvantaged groups that receive the benefits of affirmative action are numerical majorities from the start. It also considers the case of India, where the disadvantaged groups targeted for affirmative action initially are numerical minorities. The discussion then turns to the non-constitutionalization of affirmative action and its side effects. In countries where affirmative action has not been constitutionalized and where the beneficiaries (women excepted) are minority groups, the legal validity of a program of this kind will depend upon whether it meets a set of formal requirements. The most important of those is arguably that the outcome of the decisional process by which scarce goods are being allocated should not be exclusively determined by group membership. The soft, gender-focused, ‘discrimination-blocking’ EU affirmative action model and the (exceptional) US affirmative action regime are examined.
“Africa Needs Many Lawyers Trained for the Need of Their Peoples”: Struggles over Legal Education in Kwame Nkrumah’s Ghana
John Harrington and Ambreena Manji
In the late 1950s and early 1960s, the setting up of university law schools in many African nations led to often bitter battles over the purpose of legal education. The stakes in these struggles were high. Deliberately neglected under colonial rule, legal education was an important focus for the leaders of new states, including Kwame Nkrumah, the first president of Ghana. It was also a significant focus for expatriate British scholars and American foundations seeking to shape the development of new universities in Africa. Disputes centered on whether training would have a wholly academic basis and be taught exclusively in the University of Ghana or be provided in addition through a dedicated law school with a more practical ethos. This debate became entangled in a wider confrontation over academic freedom between Nkrumah’s increasing authoritarian government and the university, and indeed in wider political and class struggles in Ghana as a whole. Tensions came to a head in the period between 1962 and 1964 when the American Dean of Law was deported along with other staff over allegations of their seditious intent. This chapter documents these complex struggles, identifying the broader political stakes within them, picking out the main, rival philosophies of legal education which animated them, and relating all of these to the broader historical conjuncture of decolonization. Drawing on a review of archival materials from the time, the chapter shows that debates over legal education had a significance going beyond the confines of the law faculty. They engaged questions of African nationalism, development and social progress, the ambivalent legacy of British rule and the growing influence of the United States in these territories.
The paradigmatic public institution associated with the application of Islamic law from the rise of Islam until the end of the nineteenth century has been the qadi. This essay examines the scholarship on this institution, organizing studies into doctrinal works and empirical works. Doctrinal studies of the qadi are based almost entirely on literary sources, most commonly legal texts. Historical sources have also been important, especially for the pre-Ottoman period. Empirical studies of the qadi, by contrast, base themselves almost entirely on surviving court records. Thus, most empirical studies are limited to courts of the Ottoman Empire which kept systematic records of court decisions in contrast to the courts of previous Muslim states, which did not. In the modern period, there has been a distinct rise in an anthropological approach to the qadi, with numerous studies having been published based on direct observation of the behavior of Muslim judges.
This chapter explores the idea of a ‘tradition’ of comparative administrative law (CAL) in the trans-Atlantic Anglosphere. It first deals with a period from the early eighteenth to the late nineteenth century. At this time, Western comparative public law was predominantly an Anglo-European affair. The chapter next focuses on a period between about 1880 and 1940, a time of heavy intellectual traffic between England and the US, in which the birth of an identifiably Anglo-American tradition in comparative administrative law may be witnessed. Finally, the chapter is concerned with the impact on the Anglo-American tradition of the US Administrative Procedure Act (APA). The APA marked the maturation of American administrative law as a legal category concerned above all with judicial control of administrative power.
Sally Engle Merry
The concept of legal pluralism has proved enormously fruitful in challenging ideas about the centrality of state law and increasing awareness of the diversity of ways that individuals interact with the law. As scholars seek to understand international law as a sociocultural as well as a legal field, the concept of global legal pluralism offers a useful framework. It provides a way to theorize the fluidity and fragmentation of international law as well as its spaces of openness and opportunity. It is a way to understand its regulatory role in conjunction with regional, national, and local systems and the structures of local, national, and global power which shape its practices. The concept of global legal pluralism highlights both the global nature of the new legal terrain as well as the relative normativities of various orders, from the strictly “legal” to those based on cultural practices rather than state law. The anthropological concept of legal pluralism helps to understand the complexity of the global legal order, with a focus on the way its fragmentation and incommensurability operates in practice in the highly complex sociocultural global situation.
Keebet von Benda-Beckmann and Bertram Turner
Since the turn of the century, the term “legal pluralism” has seen a remarkable rise in interest. It is now widely accepted, although it was long rejected in legal studies. When legal anthropologists began to refer to “legal pluralism” in the 1970s, this marked a crucial change in anthropological thinking about law. Since then, not only have political and economic developments profoundly changed constellations of legal pluralism but also the term itself has followed a variety of trajectories and accrued multiple meanings in the process. In particular, in the trajectory of global legal pluralism, it has acquired a normative meaning that is quite distinct from its use in anthropology as a tool of analysis. This chapter discusses how the anthropological study of law and legal pluralism developed from the study of law in colonial societies toward empirical studies in postcolonial settings and in nation-states around the globe under conditions of ever-increasing global connectedness and complexity. Global legal pluralism is analyzed in relation to topics that include law and development, religion, human rights, minorities, indigeneity, and politics of global legal pluralism. At the end the chapter offers an outlook into future anthropological research on global legal pluralism. Insights were developed not only in response to sociopolitical developments but also to changing theoretical perspectives.
This chapter assesses three key strands in the case law of the Court of Justice of the European Union concerning a central dimension of foreign relations law, namely, the application of international law. The first section focuses on how the Court has reviewed the compatibility of EU-concluded treaties or envisaged treaties with the European Union’s constitutional text and also the review of treaties concluded by the member states. Judicial review powers in relation to treaties have increasingly been included in constitutional texts, but the European Union is distinctive in that its Court of Justice has regularly been called upon to exercise this form of jurisdiction, thus offering potentially valuable foreign relations law insights for constitutional design and practice in other constitutional systems. The second section focuses on the judicial enforcement of treaties and identifies a spate of recent rulings where more international law friendly outcomes would have been possible. A briefer third section focuses on the application of customary international law and highlights in particular the high threshold set for judicial review vis-à-vis such norms. The recent judicial developments identified in each of the respective three sections of this chapter have increasingly been deployed to challenge the traditionally dominant narrative in EU law scholarship of a Court of Justice that adopts a markedly international law friendly approach.
The inevitable interaction of legal and quasi-legal systems and norms across territorial borders not only impacts individuals as members of multiple communities (both territorial and nonterritorial), it also has implications for the conduct of cross-border arbitration. This chapter charts emerging non-state-based norms as applied in the context of international arbitration. It addresses how arbitral bodies can and do use nonstate standards in adjudication including industry standards, customs, and practices and how national courts uphold such applications. Over time, resort to these various quasi-legal standards is contributing to the creation of a transnational set of norms that is reshaping the global arbitral system.
International labor law was a paradigmatic field for public international law. This chapter chronicles the ambivalent move to embrace a less hierarchical and traditional understanding of legal ordering in transnational labor law. Evoking research on normative thickening through metaphorical recourse to the architect, landscaper, and gardener, this chapter challenges the starting assumption of order, calls for a long historical view that unbundles labor law from a narrow industrialization-centered narrative, and turns attention to the ways in which the labor law landscape can be held in motion. Underscoring the ways that labor sharpens understandings of transnational law, this chapter reads transnational solidarity and emancipation into a methodological account of transnational law.
This chapter examines the role of environmental assessment (EA) in mediating between the scientific, political, and normative elements within environmental decision-making. It first provides an overview of the origins of EA and how it spread worldwide before considering the different theoretical models that have been developed to explain the structure and role of EA as an institutionalized approach to environmental decision-making. It then discusses the elements of environmental impact assessment (EIA) as a policy instrument, namely: application, screening, scoping, participation, decisions, and follow-up and monitoring. The chapter concludes with an analysis of the convergence and divergence in EA practice and how the diverging approaches to EA may affect the degree or type of influence that assessment processes have on environmental outcomes.