Diffusion of Legal Innovations Engel, Christoph; Weinshall, Keren
Annual review of law and social science,
01/2022, Letnik:
18
Journal Article
Recenzirano
The law is permanently under construction. Most legal change is intentional. A legislator, a court, or one of the law's subjects hopes to better achieve a purpose by switching from one rule, one ...interpretation, or one remedy to the next. Yet empirically, legal innovation tends to be a process that takes time. At the macro level, the diffusion path is often S shaped: It does not start immediately and levels off after a while. This article links legal innovation to diffusion research and discusses micro processes that have the potential to generate the observed diffusion paths.
The paper is dedicated to describing the way of reception by the Polish Constitutional Tribunal of the “chilling effect”, i.e. an institution related to such activities of public authorities that ...form an indirect act of deterrence regarding the execution of constitutionally guaranteed rights and freedoms, esp. the freedom of expression. The discussed concept has originated in judicial decisions of the US Supreme Court and has spread into many contemporary legal systems, including jurisprudence of the European Court of Human Rights. Although it is evident that the Tribunal “took over” that concept from the ECHR, it in fact developed its own, unfortunately internally inconsistent, understanding of the chilling effect. Four different ways of application of chilling effect may be noticed in judicial decisions of the Polish CT, while only two of them reflect the perception of this institution by the US Supreme Court and the ECHR.
This paper discusses comparative law and literature as an approach to studying law culturally, addressing how the study of literature from the standpoint of comparative law identifies one way of ...coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through imaginary legal transplants. By transplanting legal ideas from the real world to literature, authors imagine worlds as they construct legal meanings in their storytelling. Whereas a legal transplant is a notion filled with problems and paradoxes, in literature it is far less problematic. Imaginary legal transplants are different from real-world transplants because in the real world legal diffusion takes place in mutant form, transforming transplants into irritants. The legislator never controls the world completely, whereas in fictional literature the creator of a written work controls the created world. In this sense, it is argued, imaginary legal transplants are perfect transplants.
To overcome the problem of hyper-regulation and overlapping regulations, the Government carried out several deregulations by implementing the omnibus law to accelerate the simplification of rules. ...The focus of this legal study was on the legis ratio technique of the omnibus law Regulation on job creation from a legal and development perspective in Indonesia. This paper aims to analyze and contribute to the basis and reference for legal interpretation regarding applying the omnibus law technique through transplantation of national laws. This normative legal study employs both a statutory and a conceptual approach. The legal material analysis technique used is content analysis, which is any systematic procedure that encourages examining the content of the information obtained. This analysis focuses on all the secondary data obtained. After receiving the necessary data, this paper analyzes the data logically, systematically, and juridically. The research findings and discussion in this study are the subjects of the investigation. The following are obtained. First, the legislators have taken a progressive interpretation approach by changing the "omnibus" diction in the Preamble to letter e with the Job Creation Bill and not questioning the conflict between omnibus law techniques with the Act. 12 of 2011 concerning the Establishment of Legislation, so that the legal transplant process within the legal framework of development can be implemented through adjustments to national laws.
French civil law played an important role in China’s pursuit of modernity, primarily because many key actors were educated in French law schools and their projects of modernization were inspired by ...judicial practice or doctrine in the hexagon. This article offers a survey on the writings of four of these actors, namely Ma Jianzhong, Georges Padoux, Jean Escarra, and Wang Boqi, and discuss how they understood Chinese modernization through the lens of French law. Though all of them shared the idea that a well-designed civil code can serve the political purpose of creating a powerful modern state, their notions on the relation between modern law and traditional society distinguishes from each other. This finding shows that the formulation and elaboration of a modernizing project are contingent determined by the given historical contexts.
In 1866, religion played a significant role in unifying the Romanian national spirit. A foreign prince was brought to rule under the Orthodox faith, and this religious aspect was incorporated into ...Article 82 of the Constitution.
The limitation of political rights in Romania was based on ethnic criteria, with Jews and other non-Christians excluded from full participation. The electoral system introduced a high property-based voting qualification, reflecting, to some extent, liberal principles, but effectively limiting actual participation.
Thus, the Romanian Constitution of 1866 struck a delicate balance between borrowed liberal ideals and the specific cultural context of Romania. It emphasized the role of religion and property ownership in shaping political rights and identity, while also attempting to align with European constitutional standards. The electoral system of 1866 in Romania fell short of democratic ideals and perpetuated inequalities. It shaped the political landscape and had far-reaching consequences for the country’s governance and representation.
Summary
Why did Louis XIV establish high courts in the distant and sparsely populated North-American colonies? The logic of the establishment of the Sovereign Council of Québec in 1663 and the ...Superior Council of Louisiana in 1712 is indeed in no way similar to the one which led to the creation of high courts in the metropolitan territories previously under foreign sovereignty. In the colonies, there was no need to safeguard the provincial privileges, in particular that to be judged in accordance with the local customs and procedural rules. Historians have emphasized the idea that justice foremost asserted the king's authority on his overseas territories and France's position on the international scene. Colonial institutions were thus merely considered as extensions of the metropolitan model. This paper proposes to study the high courts of New France through the prism of legal transplant theories, focusing on the objectives and expectations of the donor rather than on their objects or on the obstacles faced by the receiver. We assert that the overseas high courts were a means to define and orientate the French colonial policy rather than an end in themselves. Their judicial and, above all, regulatory competences made them indeed a particularly suitable instrument for the fulfillment of the monarchy's political and economic expectations.
Article 69(7) of the International Criminal Court Statute develops a specific rule to exclude evidence and thus ensure evidentiary reliability and procedural integrity before its proceedings. China ...has introduced the exclusionary rule of illegally obtained evidence that places an overriding priority on pursuing factual accuracy, because the rule has been devised and applied primarily for the sake of preventing miscarriages of justice and bolstering governmental integrity. A political imperative for truth makes the rule incompatible with the existing institutional environment. The ICC’s rule and practice illuminates the importance of neither assuming the excellence of the rule nor borrowing the rule without modification, but of exploring the rule that is based upon one’s own practical experience, institutional structure, and political powers. This article embraces the room for flexibility, experimentation, and adaptation that can contribute to a healthy scheme for legal transplant and law reform.
Abstract
Islamic financial law (IFL), an emerging global legal order, is a highly fragmented law comprised of both state and non-state generated laws, standards, commercial practices, institutions, ...fatwās and legal ideas. A recent event involving ṣukūk issuance in which Dana Gas claimed that its ṣukūk were no longer Sharīʿah-compliant highlights the legal disjuncture between global IFL and the laws of municipal legal systems, which have chosen to facilitate and regulate Islamic finance. Systemic legal issues or 'legal gaps' undermine investor confidence and impede sustainable development of the Islamic finance industry. Legal gaps include but are not limited to undeveloped securities laws, enforceability issues and a lack of clarity with respect to the role and effect of the Sharīʿah in the municipal legal systems of many MENA (Middle East/North Africa) states. This paper analyses these gaps and in so doing illustrates the relationship of IFL to the law of the United Arab Emirates.
Borrowed from England and Wales, the Chinese Appropriate Adult Scheme involves a dynamic of selective adaptation. This article analyses two salient features of the appropriate adult scheme within the ...Chinese context, in comparison with its counterpart in England and Wales: its complementarity of the juvenile's parent, and the passive role that appropriate adults play during pretrial interrogations. Drawing upon empirical evidence, the article argues that the transplanted Chinese appropriate adult scheme has failed to oversee the legality of interrogations, nor does it provide adequate safeguards for juvenile suspects. The concept of vulnerability that lies at the heart of the appropriate adult safeguard in England and Wales appears to be lost in translation. Rather than providing a safeguard for juveniles at their most vulnerable, the appropriate adult is more concerned with indulging the needs of the interrogators in China.
PDF
