The article begins by describing some shared ancestral figures of both comparative law and socio-legal studies, and the conundrums they have left to both fields. It then turns to the divisions between socio-legal studies and comparative law. It qualifies this account of disciplinary division with a description of two important areas of research—non-European comparative law and legal pluralism. The discussion describes the new rapprochement between the fields, and outlines a series of foci of active debate. These include the nature of legal pluralism under conditions of globalization, the character of legal culture, the causes and prospects of legal transplants, and the consequences of legal harmonization. From this point of view, the article outlines a number of points of general agreement between comparative lawyers and socio-legal scholars in hopes that the debate on these particular points can now be put to rest.
Joan E. Durrant
Debates over corporal punishment’s effectiveness have come to an end. No study has shown it to have long-term benefits, while many have demonstrated its substantial and wide-ranging risks. Today, the primary focus is on ending it. The increasing recognition of children as rights-bearers is leading an ever-growing number of countries to legally prohibit corporal punishment of children. These laws are intended to foster recognition of children’s rights to protection from all violence, reduce approval and use of corporal punishment, and lower the threshold for tolerance of violence against children. Population-level data from Sweden, Germany, and New Zealand indicate that these changes are taking place. Additional research suggests that a combination of prohibition and large-scale public education is the most effective route to ending the corporal punishment of children.
Val Napoleon and Hadley Friedland
This chapter sketches four phases or eras that characterize the changing state of debate regarding Indigenous legal traditions and highlights the progress and ongoing challenges faced by Indigenous people in trying to recover these legal traditions as part of their decolonization and self-determination efforts. It begins by setting out a logical starting point from which to root the discussion about Indigenous legal traditions. Attention then turns to the repression of Indigenous legal traditions during early colonization and the resilience of these traditions through this dark period, along with the contemporary recovery and revitalization of Indigenous laws despite the limited spaces afforded to them by state justice systems. The chapter looks at the wetiko (also known as windigo) in order to highlight the broader issues all Indigenous legal traditions have had to contend with through the four eras described. The Indigenous experiences are examined in relation to Canada’s criminal justice system.
How courts determine copyright infringement has been the subject of scholarly debate. Where courts fail is in adequately appreciating the richness of a creative work, often reducing the novel, the song, the work to its literal terms. While the need for contextualizing creative works is accepted, the approach is not. This article uses the aesthetic framework of literary critic M.H. Abrams to offer a conceptual framework to contextualizing a work within the legal method for assessing copyright infringement. This framework is applied to the problems of infringement by reproduction and unauthorized public performance. Abrams’ aesthetic categories provide a multivalent approach to copyright law. The article ends with a precatory discussion of the problems of conceptualism in law, whether in the application of economic models or of aesthetic theories.
D. M. Davis
This article has two primary objectives: to interrogate objections to social and economic rights and, secondly, to examine the extent to which these objections have given rise to different forms of judicial and constitutional responses to social and economic rights in comparative national jurisdictions. It suggests that when courts have compelled the legislature or the executive to justify a policy choice in terms of an articulated conception the meaning of a social and economic right, a process of deliberation flows therefrom which cannot be discounted. It leads to more accountable government, it provides a voice for litigants who would otherwise be silenced, and, in a number of cases, results in the provision of a basic minimum of goods and services to those who otherwise would have been left out in the proverbial cold.