Abstract The notion of a sovereign polity holding a monopoly over law that is followed within its jurisdictional borders is threatened by the phenomena of transnational law and normative pluralism. Authoritative norms can be highly influential upon legal processes within the borders of a polity. Those norms may be derived from other legal systems, religious or belief systems or a combination of both. In this era of globalization, normative pluralism exists as an everyday fact of life almost everywhere in the modern world. This article considers the normative pluralism that has been experienced in Arnhem Land in the Northern Territory of Australia and the need to further develop the pluralism model of semi-autonomous social fields.
{"title":"Normative Authority in the Context of Transnationalism, Pluralism and Semi-Autonomous Social Fields: Focus on Arnhem Land","authors":"D. Kelly","doi":"10.1515/ils-2016-0253","DOIUrl":"https://doi.org/10.1515/ils-2016-0253","url":null,"abstract":"Abstract The notion of a sovereign polity holding a monopoly over law that is followed within its jurisdictional borders is threatened by the phenomena of transnational law and normative pluralism. Authoritative norms can be highly influential upon legal processes within the borders of a polity. Those norms may be derived from other legal systems, religious or belief systems or a combination of both. In this era of globalization, normative pluralism exists as an everyday fact of life almost everywhere in the modern world. This article considers the normative pluralism that has been experienced in Arnhem Land in the Northern Territory of Australia and the need to further develop the pluralism model of semi-autonomous social fields.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"14 1","pages":"27 - 34"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/ils-2016-0253","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66807505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract A terrorist attack in Jalan Thamrin Central Jakarta on 14 January 2016, killed eight people, including the four attackers, and injured over 20 others. While the attack was amateurish and failed to achieve the mass casualties no doubt sought by the planners, it successfully garnered considerable media coverage and galvanised Indonesia’s policy and law makers to act on revisions to the country’s anti-terrorism laws. The paper discusses the attack itself, which reveals aspects of current terrorist strategies, transnational planning, funding and communications, and links to ISIS. It argues that the attack illustrates weaknesses in Indonesia’s treatment of convicted terrorists, notably in sentencing, corrections and rehabilitation. The paper then discusses the role of the media and securitization theory to explain the timing and momentum for law reform. It concludes with a discussion of likely revisions to the terrorism laws, including possible significantly increased police powers and a potential role for the Indonesian military in counter-terrorism operations unprecedented in the post-reformasi era.
{"title":"ISIS, Jihad and Indonesian Law: Legal Impacts of the January 2016 Jakarta Terrorist Attacks","authors":"A. Fenton, David Price","doi":"10.1515/ILS-2016-0255","DOIUrl":"https://doi.org/10.1515/ILS-2016-0255","url":null,"abstract":"Abstract A terrorist attack in Jalan Thamrin Central Jakarta on 14 January 2016, killed eight people, including the four attackers, and injured over 20 others. While the attack was amateurish and failed to achieve the mass casualties no doubt sought by the planners, it successfully garnered considerable media coverage and galvanised Indonesia’s policy and law makers to act on revisions to the country’s anti-terrorism laws. The paper discusses the attack itself, which reveals aspects of current terrorist strategies, transnational planning, funding and communications, and links to ISIS. It argues that the attack illustrates weaknesses in Indonesia’s treatment of convicted terrorists, notably in sentencing, corrections and rehabilitation. The paper then discusses the role of the media and securitization theory to explain the timing and momentum for law reform. It concludes with a discussion of likely revisions to the terrorism laws, including possible significantly increased police powers and a potential role for the Indonesian military in counter-terrorism operations unprecedented in the post-reformasi era.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"14 1","pages":"1 - 26"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/ILS-2016-0255","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66807515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The Essay reviews a book on law-pertinent empirical research methods and data, but is mainly devoted to placing the subject of the book in context. The Essay thus (i) supplies a quantitative measure of the progress of the social sciences since the start of the twentieth century; and (ii) reports a regression analysis of data to identify variables that account for the frequency with which articles in general-purpose U.S. law reviews have relied on quantitative evidence. The Essay also considers the incorporation of empirical social science into law schools.
{"title":"Book Review Essay","authors":"L. Barnett","doi":"10.1515/ils-2016-0259","DOIUrl":"https://doi.org/10.1515/ils-2016-0259","url":null,"abstract":"Abstract The Essay reviews a book on law-pertinent empirical research methods and data, but is mainly devoted to placing the subject of the book in context. The Essay thus (i) supplies a quantitative measure of the progress of the social sciences since the start of the twentieth century; and (ii) reports a regression analysis of data to identify variables that account for the frequency with which articles in general-purpose U.S. law reviews have relied on quantitative evidence. The Essay also considers the incorporation of empirical social science into law schools.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"13 1","pages":"29 - 48"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66807525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article’s objective is to expose the rhetorical source of the heavy irony in Australia’s immigration detention regime. The observer might wonder why an isolated and vast land could be so concerned at, and afraid of, small groups of “boat people.” Therefore, the paper poses the question as to what reasoning and public policy purposes might underlie the successful public rhetoric vilifying “boat people,” creating the construct of “people smuggling” and demanding military operations to “turn back the boats.” It tries to correlate with a likely state desire to resurrect the old laws of attainder, civil death and outlawry, in order to create a slave-class of displaced migrants, for solely state interests and purposes. In addressing the question structurally, discussion begins with a brief look at the Australian law. Argument then concentrates on the originating negotiations in the international high councils. After this, the article looks at instances of people smuggling rhetoric in Canada, also addressing briefly the United States law. Then there is a section on modern rhetorical analysis, which argument tries to use to explain what might underlie these government methods. The paper briefs the reader on the old laws of civil death, outlawry and attainder in Australia, with a view to a contextual assessment as to whether they are really what underlie the draconian outcomes of Australia’s human trafficking and people smuggling laws and policies. The research outcome will likely suggest that conveniences to the state such as efficiency in policing, removing likely political opposition from new arrivals, avoiding any dilution of the local culture and skirting unwanted international rights are most likely to be the real state intent.
{"title":"People Trafficking and Smuggling Crimes in Australia: A Critical Analysis of State Intent","authors":"G. Lilienthal","doi":"10.1515/ILS-2016-0249","DOIUrl":"https://doi.org/10.1515/ILS-2016-0249","url":null,"abstract":"Abstract This article’s objective is to expose the rhetorical source of the heavy irony in Australia’s immigration detention regime. The observer might wonder why an isolated and vast land could be so concerned at, and afraid of, small groups of “boat people.” Therefore, the paper poses the question as to what reasoning and public policy purposes might underlie the successful public rhetoric vilifying “boat people,” creating the construct of “people smuggling” and demanding military operations to “turn back the boats.” It tries to correlate with a likely state desire to resurrect the old laws of attainder, civil death and outlawry, in order to create a slave-class of displaced migrants, for solely state interests and purposes. In addressing the question structurally, discussion begins with a brief look at the Australian law. Argument then concentrates on the originating negotiations in the international high councils. After this, the article looks at instances of people smuggling rhetoric in Canada, also addressing briefly the United States law. Then there is a section on modern rhetorical analysis, which argument tries to use to explain what might underlie these government methods. The paper briefs the reader on the old laws of civil death, outlawry and attainder in Australia, with a view to a contextual assessment as to whether they are really what underlie the draconian outcomes of Australia’s human trafficking and people smuggling laws and policies. The research outcome will likely suggest that conveniences to the state such as efficiency in policing, removing likely political opposition from new arrivals, avoiding any dilution of the local culture and skirting unwanted international rights are most likely to be the real state intent.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"46 20 1","pages":"1 - 28"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/ILS-2016-0249","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66807403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Walker and Karsten are two important decisions in disability discrimination law – not solely on the basis of their legal and practical repercussions for the United Kingdom (UK) and European Union (EU), respectively, but because they capture the very ideological spirit of domestic and European anti-discrimination legislation. The former directly relates to disability discrimination in the UK and the entire EU is feeling the brunt of the Court of Justice of the European Union’s decision in the latter. This article explores the impact of both these decisions and to what extent the obese or those suffering from a functional overlay are now protected from being discriminated against by the Framework Directive 2000/78 and the United Kingdom’s Equality Act 2010.
{"title":"Disability Discrimination: Obesity and the Court of Justice of the European Union’s decision in Karsten Kaltoft v Billund Kommune Case C-354/13 ECJ","authors":"C. Singh","doi":"10.1515/ils-2016-0250","DOIUrl":"https://doi.org/10.1515/ils-2016-0250","url":null,"abstract":"Abstract Walker and Karsten are two important decisions in disability discrimination law – not solely on the basis of their legal and practical repercussions for the United Kingdom (UK) and European Union (EU), respectively, but because they capture the very ideological spirit of domestic and European anti-discrimination legislation. The former directly relates to disability discrimination in the UK and the entire EU is feeling the brunt of the Court of Justice of the European Union’s decision in the latter. This article explores the impact of both these decisions and to what extent the obese or those suffering from a functional overlay are now protected from being discriminated against by the Framework Directive 2000/78 and the United Kingdom’s Equality Act 2010.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"12 1","pages":"1 - 11"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/ils-2016-0250","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66807457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In the wake of the Fukushima nuclear disaster, decision makers described the reactor failures and the tsunami that triggered them as beyond imagination. Yet, the possibility of such a tsunami was understood by experts and the implications for reactor safety were clear. This was not an isolated phenomenon in natural or human catastrophes. This paper considers why the possibility of catastrophic event is often excluded from consideration and methods for incorporating low-probability catastrophes into risk assessment. In part, this phenomenon can be explained by the goals of decision makers and avoidance of cognitive dissonance. Moreover, professional cultures may blind even experts to risks that do not fit established paradigms. The paper considers some possible mechanisms for ameliorating the problem.
{"title":"“Beyond Imagination”: Government Blind Spots Regarding Catastrophic Risks","authors":"D. Farber","doi":"10.1515/ils-2015-0001","DOIUrl":"https://doi.org/10.1515/ils-2015-0001","url":null,"abstract":"Abstract In the wake of the Fukushima nuclear disaster, decision makers described the reactor failures and the tsunami that triggered them as beyond imagination. Yet, the possibility of such a tsunami was understood by experts and the implications for reactor safety were clear. This was not an isolated phenomenon in natural or human catastrophes. This paper considers why the possibility of catastrophic event is often excluded from consideration and methods for incorporating low-probability catastrophes into risk assessment. In part, this phenomenon can be explained by the goals of decision makers and avoidance of cognitive dissonance. Moreover, professional cultures may blind even experts to risks that do not fit established paradigms. The paper considers some possible mechanisms for ameliorating the problem.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"11 1","pages":"28 - 5"},"PeriodicalIF":0.0,"publicationDate":"2013-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/ils-2015-0001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66807210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This paper analyzes the role of urban and regional planning in mitigating the impact of tsunamis in Chile, particularly in response to the tsunami of February 27, 2010. It examines the draft norms and policies to reduce the impact of tsunamis at the national level, as well as tsunami mitigation measures proposed in recent reconstruction plans by local councils. This paper shows that local regulations that mitigate the impact of tsunamis are being designed and developed in a weak national regulatory framework and are “improvised” at the local level. Therefore, a clear regulatory framework and set of urban polices is required in Chile at the national and local level to reduce vulnerability to tsunamis. The paper concludes with policy recommendations to mitigate the impact of tsunamis in Chile through urban and regional planning at the national and local level.
{"title":"Regulation of Coastal Zones and Natural Disasters: Mitigating the Impact of Tsunamis in Chile Through Urban and Regional Planning","authors":"Geraldine Herrmann","doi":"10.1515/ils-2015-0002","DOIUrl":"https://doi.org/10.1515/ils-2015-0002","url":null,"abstract":"Abstract This paper analyzes the role of urban and regional planning in mitigating the impact of tsunamis in Chile, particularly in response to the tsunami of February 27, 2010. It examines the draft norms and policies to reduce the impact of tsunamis at the national level, as well as tsunami mitigation measures proposed in recent reconstruction plans by local councils. This paper shows that local regulations that mitigate the impact of tsunamis are being designed and developed in a weak national regulatory framework and are “improvised” at the local level. Therefore, a clear regulatory framework and set of urban polices is required in Chile at the national and local level to reduce vulnerability to tsunamis. The paper concludes with policy recommendations to mitigate the impact of tsunamis in Chile through urban and regional planning at the national and local level.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"11 1","pages":"29 - 44"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/ils-2015-0002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66807281","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article examines the legal protection of ex-tenants after disasters in Japan. The “Act Providing Temporary Measures concerning Land Lease and Building Lease in the Cities Damaged by War” of 1946 conferred not only the right to lease rebuilt buildings, but also the right of ex-tenants to lease the land of destroyed buildings. Therefore, many victims of the war disaster were entitled to construct and keep self-made shelters on the site of destroyed buildings. Thus, emergencies created exceptions to general rules or principles. The implementation of the Lease Act of 1946 was initially limited to the war disaster, but the government later issued the implementation Cabinet Orders of the Lease Act of 1946 to major disasters until 2004. However, in the case of the Great East Japan Earthquake of 2011, the local communities and local bar associations raised strong oppositions against the Lease Act of 1946 on the motif that the implementation of the Lease Act of 1946 would cause complicated legal and social problems. The Ministry of Justice decided not to enact an implementation Cabinet Order of the Lease Act of 1946. The Japanese Diet adopted a new Act regarding the lease in time of disaster in June 2013 to abolish the right to lease land and to lease newly rebuilt buildings as well. In a highly developed modern society, it is difficult to justify exceptions to general principles even in the case of emergencies caused by large-scale disasters.
{"title":"Disaster and Protection of Tenants in Japanese Law: General Principles in Time of Emergencies","authors":"Shun-ichi Koyanagi","doi":"10.1515/ils-2015-0004","DOIUrl":"https://doi.org/10.1515/ils-2015-0004","url":null,"abstract":"Abstract This article examines the legal protection of ex-tenants after disasters in Japan. The “Act Providing Temporary Measures concerning Land Lease and Building Lease in the Cities Damaged by War” of 1946 conferred not only the right to lease rebuilt buildings, but also the right of ex-tenants to lease the land of destroyed buildings. Therefore, many victims of the war disaster were entitled to construct and keep self-made shelters on the site of destroyed buildings. Thus, emergencies created exceptions to general rules or principles. The implementation of the Lease Act of 1946 was initially limited to the war disaster, but the government later issued the implementation Cabinet Orders of the Lease Act of 1946 to major disasters until 2004. However, in the case of the Great East Japan Earthquake of 2011, the local communities and local bar associations raised strong oppositions against the Lease Act of 1946 on the motif that the implementation of the Lease Act of 1946 would cause complicated legal and social problems. The Ministry of Justice decided not to enact an implementation Cabinet Order of the Lease Act of 1946. The Japanese Diet adopted a new Act regarding the lease in time of disaster in June 2013 to abolish the right to lease land and to lease newly rebuilt buildings as well. In a highly developed modern society, it is difficult to justify exceptions to general principles even in the case of emergencies caused by large-scale disasters.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"44 1","pages":"45 - 67"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66807334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Official investigations that followed the Fukushima Nuclear Disaster revealed that it could have been prevented by reasonable safety measures. Investigators concluded that close relationships between government officials and industry executives led to very weak regulatory oversight and the failure to address the risk of violent earthquakes and tsunami such as those that struck the Fukushima Nuclear Power Station on March 11, 2011. News reporters conducted their own investigations in the months following the disaster. Japan’s information disclosure law provided an invaluable tool that enabled them to obtain government records related to regulation of Japan’s nuclear power plants. This article describes some of the stories they produced. Appearing on the front pages of newspapers with daily circulations in the millions, this work provided an authoritative inside view of the failed regulatory process to the Japanese people. The work of the investigative bodies and the news media drove the demand for change that led to disbanding of the regulatory agencies that failed and their replacement by an entirely new regulatory body. This article highlights the importance of “right to know” laws such as Japan’s information disclosure law in creating the opportunity for news reporters and others to demand the release of otherwise confidential government records that can enlighten everyone on matters of great public interest.
福岛核灾难后的官方调查显示，通过合理的安全措施，事故本可以避免。调查人员得出的结论是，政府官员和行业高管之间的密切关系导致监管监督非常薄弱，未能解决像2011年3月11日袭击福岛核电站(Fukushima Nuclear Power Station)那样的强烈地震和海啸的风险。新闻记者在灾难发生后的几个月里进行了自己的调查。日本的信息披露法提供了一个宝贵的工具，使他们能够获得与日本核电站监管有关的政府记录。本文描述了他们制作的一些故事。这项研究出现在每日发行量达数百万份的报纸的头版，为日本人民提供了一个权威的关于失败的监管过程的内部观点。调查机构和新闻媒体的工作推动了变革的需求，导致了失败的监管机构的解散，并由一个全新的监管机构取而代之。本文强调了“知情权”法律的重要性，例如日本的信息披露法，为新闻记者和其他人创造了要求公布政府机密记录的机会，这些记录可以启发每个人了解重大公共利益问题。
{"title":"Japan’s News Media, The Information Disclosure Law, and The Fukushima Nuclear Disaster","authors":"Lawrence Repeta","doi":"10.1515/ils-2015-0003","DOIUrl":"https://doi.org/10.1515/ils-2015-0003","url":null,"abstract":"Abstract Official investigations that followed the Fukushima Nuclear Disaster revealed that it could have been prevented by reasonable safety measures. Investigators concluded that close relationships between government officials and industry executives led to very weak regulatory oversight and the failure to address the risk of violent earthquakes and tsunami such as those that struck the Fukushima Nuclear Power Station on March 11, 2011. News reporters conducted their own investigations in the months following the disaster. Japan’s information disclosure law provided an invaluable tool that enabled them to obtain government records related to regulation of Japan’s nuclear power plants. This article describes some of the stories they produced. Appearing on the front pages of newspapers with daily circulations in the millions, this work provided an authoritative inside view of the failed regulatory process to the Japanese people. The work of the investigative bodies and the news media drove the demand for change that led to disbanding of the regulatory agencies that failed and their replacement by an entirely new regulatory body. This article highlights the importance of “right to know” laws such as Japan’s information disclosure law in creating the opportunity for news reporters and others to demand the release of otherwise confidential government records that can enlighten everyone on matters of great public interest.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"16 1","pages":"69 - 88"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/ils-2015-0003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66807288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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