Legal System

This chapter addresses international law in Afghanistan. States where the ‘post-conflict’ period is, in fact, a series of continuing sub-national conflicts, are often coded as ‘failed’ or ‘fragile’ and are also criticized as failing in their embrace of international law. In the case of Afghanistan, such ‘discourses of deficiency’ also erase some important legal history. For most of its history, Afghanistan has been contingent as a Westphalian state. This means that it has also had a fluid relationship with the institutions and norms of international law, including the normative discourse and practice of the international rule of law. Although Afghanistan has been a member of the United Nations since 1946, and thus a contributor to international law in the twentieth century, it is seen more as a subject of international law. After considering these issues, the chapter then highlights the complexity of Afghan’s location within, as well as its relationship with, international law, international legal institutions, and international legal norms.

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.

This article examines the historical development and social and intellectual functioning of Islamic law in the twelfth through fifteenth centuries. In particular, it considers the progressive stabilization and institutionalization of the four classical Sunni madhhabs (schools of law) and the corresponding developments in Imami Shi‘ism; developments in legal theory (usul al-fiqh); and the practical administration of the law. It also discusses the various forms of ijtihad and taqlid that could generate new legal rulings, along with the textual forms and real-world interactions within which legal judgments were sought and expressed. Finally, it looks at the fatwa, which consists of a legal opinion issued in response to an inquiry (istifta’).

This article discusses academic work in relation to appellate courts. It concentrates on characterizing and explaining judicial decision-making and winning on an appeal. Furthermore, it raises questions about the nature and coverage of empirical legal research on appellate courts, and discusses general methodological questions. It also looks at rival approaches to describing what judges do in making decisions, and what motivational assumptions are most commonly made and finally indicates the broad outlines of how the field should develop methodologically in the future. Empirical legal research suffers from the main weakness of the entire body of empirical research applied to appellate courts. This article concludes by mentioning that a shift of focus is needed to other aspects of law. To be forced into a choice, a judge must feel that what he regards as morally correct would be inconsistent with existing law.

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 studies international law in Australia. As a former British colony, Australia received a Western and specifically British tradition of international law, which was initially tied to imperial interests and even the possession of its own colonies in the Pacific. While its international legal personality matured in the 1920s and 1930s, it was only after the Second World War that Australia came to exercise a genuinely independent approach to international law. A hallmark of Australian policy and practice has been a broadly bipartisan political commitment to international law and institutions and to multilateralism, albeit affected by its close alliance with the United States. As a self-described ‘middle power’, Australia views the international legal order as giving it a voice on the international plane, securing its territorial and economic interests, and reflecting the values of the Australian community. Accordingly, Australia participates actively in the various specialized branches of international law and their associated governance mechanisms and dispute resolution procedures, although it occasionally strays from full compliance with its obligations.

This chapter considers both the foundations for, and the content of, the High Court's authority in Australia. It focuses principally on the current authority of the High Court, but with reference to some aspects of its history. The chapter first explains the Court's constitutional status as Australia's apex court, performing the role of both constitutional court and ultimate appellate court for both federal and State matters. It next outlines the institutional features of the Court that underpin its authority, in particular its composition and independence. The chapter then examines the Court's authority to enforce constitutional limits through judicial review of legislative action. Lastly, the chapter considers the Court's authority to review executive action and the constitutional foundation for that role.

This chapter focuses on international law in Bangladesh. Neither the Constitution of Bangladesh nor any statute contains any specific provision on domestic application of international law rules. However, it is well settled by various judicial decisions that in respect of domestic application of international treaties, Bangladesh is a dualist country. In order to be applied by national courts, it is necessary for the treaty to be incorporated into Bangladesh’s legal system by an act of incorporation. In respect of customary international law, there is no clear judicial decision on whether customary law automatically forms part of Bangladesh law or whether, like treaties, such law is required to be made a part of Bangladesh law by a legislative, judicial, or other measure. It is likely that Bangladesh courts will adhere to the English and common law tradition of treating customary international law as automatically forming part of Bangladesh law as long as there is no inconsistent domestic legal provision.

Latin American lawyers have been usually acknowledged for their influence and involvement in the formation, organization, and functioning of the state. Since the political movements that led to the independence from the European colonial powers more than two centuries ago until today, lawyers have always been front and center in the life of every Latin American country. From their most obvious occupations as judges, advocates, and legislators, to several other less visible roles, legal professionals are both ubiquitous and important. The intensification of globalization in recent decades has inevitably affected the role of Latin American lawyers, thus compelling us to look beyond national borders. This chapter does precisely that. It examines the transnational dimension of Latin American lawyers by looking at the contributing factors that led to its development. The chapter describes some of the common traits of transnational lawyers in the region. This chapter also explores the rise of mass torts and consumer protection in Latin America, two of the most visible areas that showcase the transnationalization of legal practice. The time frame of this chapter is the last three decades, a period of important political, economic, and social developments across the region, and also for the legal professions globally. In a more general way, this chapter engages with the broader discussion about the transnationalization of law in contemporary society, and the transformation of the legal profession.

This chapter focuses on Sir William Blackstone (1723–1780), the author of the most important book in the history of the common law. The four-volume Commentaries on the Laws of England (1765–1769) and the series of lectures Blackstone delivered at Oxford from 1753, changed the way lawyers thought about the law. Blackstone’s Commentaries were read by more people, non-lawyers as well as lawyers, than any other English law book. Their influence is difficult to overstate, and extends into the twenty-first century. Almost as momentous was Blackstone’s influence on legal education. While gradual, the transfer of legal education from the law office and the courts to the university, which Blackstone pioneered, had an enormous impact on legal development, as law professors contributed to the formation of generations of lawyers and themselves came to play a significant role in legal development.

This chapter begins with a brief overview of the foundations of the field of Chinese legal history. It then delves into questions of methodology and approach. Three such questions face the field now and in the near future. First, historians, law scholars, and anthropologists with their different training and bases of knowledge, ask different questions about law. Second, comparative law inextricably intertwines with Chinese legal history, and its use and abuse needs to be examined and its lessons be better learned. Third, given the sophistication for centuries of Chinese rulers’ efforts to propagate official lines about the law, it has been exceedingly difficult for scholars to pierce through it to see what was actually happening on the ground. Improvement in this will help us understand how, and the extent to which, substantive law reached the population during different periods of China’s history.

This chapter studies international law in Cambodia. Cambodia’s evolving relationship with public international law must be understood in the context of the nation’s unique history and circumstances, which are marked by colonization, conflict, Vietnamese occupation, territorial administration, civil war, transitional justice, and state-building. Cambodia’s legal system has undergone significant changes from the early days of unwritten customary laws, to the imposition of French civil law, and thereafter the ‘legal vacuum’ created by the ultra-Marxist Khmer Rouge regime that left Cambodia in a state of war and international isolation until the 1980s. The chapter then outlines key aspects of international law in and apropos Cambodia that illustrate Cambodia’s reception of public international law, and its position as an active participant in the international legal system. Cambodia has certainly taken strides in its participation in dispute resolution on the international plane. However, its tryst with international law is a fractious one.

This chapter describes the experiences of five Central Asian states—Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan—with international law over the past three decades, identifying some of the distinctive features of Central Asian states’ approaches towards international law. The commonalities in the stance of Central Asian states on matters of international law are determined by the context of their emergence as sovereign states at the end of the Cold War, their common history as former Soviet republics, their belonging to the Eurasian group of continental legal systems, and their common status as landlocked developing states. At the same time, each Central Asian state has its own specifics, with differences in their foreign policy priorities, levels of economic development, and resource endowment. The chapter then reviews the participation of Central Asian states in the Commonwealth of Independent States (CIS), particularly their experiences with the CIS Economic Court.

This chapter discusses international law in China. Although the teaching, research, and dissemination of international law have become part of China’s steady efforts to achieve its aspirations for national rejuvenation, early Chinese experience with international law still remains a key to understanding China’s present attitude towards international law. Indeed, the perennial concern with its status, security, and territorial integrity, as shaped by its historical legacies, still overshadows China’s legal behaviour in the conduct of its foreign relations. Today, with its rise to world great-power status, China is depicted as a stakeholder in the present international system. China has been playing a constructive role in international and regional issues and has made significant contributions to world peace and development. In the inquiry into China’s attitude towards international law, one area which China attempts to draw attention to is the importance of the Five Principles of Peaceful Co-existence.

This chapter examines the uneasy relationship between the Australian Constitution and membership of the Australian polity. Unlike some constitutions, the Australian Constitution contains no mention of ‘citizenship’. Instead, formal membership of the Australian community is determined by reference to the constitutional categories of ‘subjects of the Queen’ and ‘people of the Commonwealth’ and through the legislative definition of citizenship under federal law. These peculiar features of the Australian context reflect what is generally assumed to be the modest role of the Constitution in determining national identity and the fact that Australia was not an independent nation at the time of the Constitution's drafting. Developments in legislation, constitutional jurisprudence, and mooted constitutional amendments all point towards a greater role for the Constitution in determining Australian ‘citizenship’ in the future.

This chapter applies a transnational law perspective to climate change governance. Climate change is increasing the interdependence of different states and economic activities, as the consequences of greenhouse gas emissions from somewhere are felt everywhere. This has prompted an international climate politics in which diverse actors grapple with growing interdependencies. The transnational nature of the climate crisis is however but partially reflected in international climate law. The chapter argues that the Paris Agreement has the potential, as a central node in a still-heterarchical climate governance, to interlink instruments and mechanisms from different levels of law and from the public and private sectors. The chapter also draws attention to interactions with often-overlooked sites of climate governance, including transnational commercial law, private international law, and contractual dispute resolution. It concludes with suggestions for further work in the domains of scholarship and practice.

This chapter considers the meaning of the term ‘common law’ and its application in the context of Australian federalism. It discusses some views on common law vis-à-vis the Constitution, as well as the history of the development of common law in Australia. The common law of Australia includes the choice of law rules. The common law choice of law rules select which of the competing State or Territory laws is the lex causae. They apply either directly in the court of the forum, or where federal jurisdiction is exercised, as ‘picked up’ by operation of section 80 of the Judiciary Act 1903 (Cth). A further significant aspect of the development of the common law of Australia is its illustration of the temporal character of the common law.

Customary law grows out of the social practices which a given jural community has come to accept as obligatory. It is a pervasive normative order, providing the regulatory framework for spheres of human activity as diverse as the family, the neighbourhood, the business of merchant banking, or international diplomacy. This article looks at the indigenous customary laws of sub-Saharan Africa. It deals with the preservation of the law in an oral tradition and how it has been influenced by certain social, economic, and political structures. This focus requires, in turn, that particular attention be paid to factors influencing the production of texts on customary law. Because textual information on the subject is limited, often outdated, and somewhat subjective, readers must be made aware of how changes in the theories of jurisprudence and anthropology have affected ideas and preconceptions.

This article assesses the scholarly state of affairs regarding the influence of comparative law in national systems. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously. The second and third section distinguishes several types of use of comparative law by national legislatures and courts, providing the background for a critical evaluation of this influence in the subsequent sections. The fourth section discusses the legitimacy question and the question of how to categorize the different uses of foreign law. The fifth section addresses why a legislature or court actually refers to foreign law and is how to explain the different extent to which countries are open to foreign influence. The last section considers the exact influence of comparative law arguments on the legislature’s or court’s reasoning.

This article examines comparative law in Islamic/Middle Eastern legal culture. The first section discusses the comparative framework in Islamic law and civilization. The second section describes the rule of law in the prism of the legal profession. The third section discusses the notions of public and private in issues such as constitutions, contracts, and torts, and family law. A millennium and a half after the Islamic revelation, unrest and violence associated with the Islamic/Middle Eastern world make one wonder, from a comparative perspective, whether West and East are not on a collision course precisely because of their diametrically opposed concepts of law. On the Western side, law is associated with nation-states and their territory; on the Islamic/Middle Eastern side, law is dominated by the personal dimension, defined by an individual’s religious, and often sectarian identity.