Institutions are made up of the interplay of three components: (i) formal rules, (ii) actual practices, and (iii) narratives (the last two are referred to jointly as informal institutional elements). However, lawyers in post-socialist countries do not see law through institutionalist lenses, but often nurture a false and simplistic idea of the law: they consider it to be the sum of rules, often disregarding the actual practices of the rules’ addressees and the narratives attached to the law (encompassing everything from the raison d’être and goal of the institution, its symbolism, the public discourse surrounding it, to social attitudes toward the institution). This restricted view makes Hungarian lawyers blind and to a certain extent also defenceless against recent authoritarian tendencies. Institution building has been a moderately successful feat in Hungary. To put it more pessimistically, it has partially failed since the end of socialism, in particular when it comes to actual practices and narratives. In the Hungarian context, consideration of the problems of institution building suggests two general conclusions: on the one hand, the lack of unison among the individual elements (rules, practices, narratives) renders institutions less stable and consequently less capable of inducing compliance with the law; on the other, the institutions that have been established have failed to deliver prosperity to the political community. This Article describes the constitution making of 2010–2011 from the perspective of institution building. This institutionalist view of the law yields two main specific findings: First, historical experience shows that in addition to honest determination, a swift, radical institutional overhaul of a complete legal system can only be sustainable in the presence of an external pressure, the effect of which has unfortunately decreased with Hungary’s accession to the European Union. That is, institution building should go hand in hand with effective international and EU obligations undertaken in more sober political moments to guarantee that the political community will not later enter into a self-destructive mode. Second, if they took more consciously into account elements beyond mere rules, such as actual practices and narratives in the realm of legislation, the application of the law and legal training would ideally result in the gradual reinforcement of substantive cultural elements. This, however, requires political action, more precisely the adjustment of formal rules. Since this is not in the interest of the incumbent decision makers, overcoming the impasse seems unlikely for the time being.
{"title":"Informal Institutional Elements as Both Preconditions and Consequences of Effective Formal Legal Rules: The Failure of Constitutional Institution Building in Hungary","authors":"A. Jakab","doi":"10.1093/AJCL/AVAA031","DOIUrl":"https://doi.org/10.1093/AJCL/AVAA031","url":null,"abstract":"\u0000 Institutions are made up of the interplay of three components: (i) formal rules, (ii) actual practices, and (iii) narratives (the last two are referred to jointly as informal institutional elements). However, lawyers in post-socialist countries do not see law through institutionalist lenses, but often nurture a false and simplistic idea of the law: they consider it to be the sum of rules, often disregarding the actual practices of the rules’ addressees and the narratives attached to the law (encompassing everything from the raison d’être and goal of the institution, its symbolism, the public discourse surrounding it, to social attitudes toward the institution). This restricted view makes Hungarian lawyers blind and to a certain extent also defenceless against recent authoritarian tendencies. Institution building has been a moderately successful feat in Hungary. To put it more pessimistically, it has partially failed since the end of socialism, in particular when it comes to actual practices and narratives. In the Hungarian context, consideration of the problems of institution building suggests two general conclusions: on the one hand, the lack of unison among the individual elements (rules, practices, narratives) renders institutions less stable and consequently less capable of inducing compliance with the law; on the other, the institutions that have been established have failed to deliver prosperity to the political community. This Article describes the constitution making of 2010–2011 from the perspective of institution building. This institutionalist view of the law yields two main specific findings: First, historical experience shows that in addition to honest determination, a swift, radical institutional overhaul of a complete legal system can only be sustainable in the presence of an external pressure, the effect of which has unfortunately decreased with Hungary’s accession to the European Union. That is, institution building should go hand in hand with effective international and EU obligations undertaken in more sober political moments to guarantee that the political community will not later enter into a self-destructive mode. Second, if they took more consciously into account elements beyond mere rules, such as actual practices and narratives in the realm of legislation, the application of the law and legal training would ideally result in the gradual reinforcement of substantive cultural elements. This, however, requires political action, more precisely the adjustment of formal rules. Since this is not in the interest of the incumbent decision makers, overcoming the impasse seems unlikely for the time being.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"2 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73143264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Comparison is a key component of legal reasoning. We move merrily from like to like within the doctrine of precedent. We invoke comparison whenever we distinguish or apply a case. This Article begins by elucidating how comparison is present in law. The Article shows how law cannot function without comparison, and how the legal world skips over the central role comparison plays in these matters. The Article explores the literature on legal comparison and draws on insights from philosophy, comparative law, and anthropology to better understand comparison in practice. This Article argues that while we are entangled in the questions of sameness and difference, of finding the function and tying together, we are still not asking the question of comparison. What is function and how is it related to comparison? Inspired by James Tully’s writings, the Article explores the aspectival views of the legal world suggested by the different games of comparison. The Article draws on Stephen Mulhall’s work on Wittgenstein’s seeing as, aspect dawning, and aspect blindness to further ask about our relationship to comparison. The Article shows how mainstream comparisons are ontic comparisons that think togetherness through the comparatist. The comparatist steers the belonging together and (un)makes the meaning of all things in mainstream comparison. The argument builds on earlier work by Igor Stramignoni, showing how the Western legal tradition is within a kind of Heideggerian calculative thinking. The Article explores the possibility of other kinds of comparison through Stramignoni’s poetic comparisons. This Article calls on us to slow down our comparisons and begin to question comparison itself.
{"title":"The Question of Comparison","authors":"Ida Petretta","doi":"10.1093/ajcl/avab003","DOIUrl":"https://doi.org/10.1093/ajcl/avab003","url":null,"abstract":"Comparison is a key component of legal reasoning. We move merrily from like to like within the doctrine of precedent. We invoke comparison whenever we distinguish or apply a case. This Article begins by elucidating how comparison is present in law. The Article shows how law cannot function without comparison, and how the legal world skips over the central role comparison plays in these matters. The Article explores the literature on legal comparison and draws on insights from philosophy, comparative law, and anthropology to better understand comparison in practice. This Article argues that while we are entangled in the questions of sameness and difference, of finding the function and tying together, we are still not asking the question of comparison. What is function and how is it related to comparison? Inspired by James Tully’s writings, the Article explores the aspectival views of the legal world suggested by the different games of comparison. The Article draws on Stephen Mulhall’s work on Wittgenstein’s seeing as, aspect dawning, and aspect blindness to further ask about our relationship to comparison. The Article shows how mainstream comparisons are ontic comparisons that think togetherness through the comparatist. The comparatist steers the belonging together and (un)makes the meaning of all things in mainstream comparison. The argument builds on earlier work by Igor Stramignoni, showing how the Western legal tradition is within a kind of Heideggerian calculative thinking. The Article explores the possibility of other kinds of comparison through Stramignoni’s poetic comparisons. This Article calls on us to slow down our comparisons and begin to question comparison itself.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"145 22 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515778","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Constitutional Transition and the Travail of Judges: The Courts of South Korea","authors":"J. Ohnesorge","doi":"10.1093/AJCL/AVAB008","DOIUrl":"https://doi.org/10.1093/AJCL/AVAB008","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJCL/AVAB008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45244601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abou-Nigm, V.R., McCall-Smith, K. & French, D. (eds.), Linkages and Boundaries in Private and Public International Law (2020).
about - nigm, v.r.， McCall-Smith, k;法国博士(编)，《国际私法与公法的联系与边界》(2020)。
{"title":"Private International Law Bibliography 2020: U.S. and Foreign Sources in English","authors":"Symeon C Symeonides","doi":"10.1093/ajcl/avab006","DOIUrl":"https://doi.org/10.1093/ajcl/avab006","url":null,"abstract":"Abou-Nigm, V.R., McCall-Smith, K. & French, D. (eds.), <em>Linkages and Boundaries in Private and Public International Law</em> (2020).","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"14 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138542575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article argues that democratic backsliding is operationalized through selective government funding of private speech. Subsidized speech can leverage the government’s voice while silencing or diminishing voices that seek to challenge the government’s message or create the background conditions for critical faculties. This leveraging, in turn, serves to entrench the power of the political majority, further insulating it from the processes of democratic change. Despite the voluminous literature on free speech, few discuss the problem of subsidized speech, even though it plays an ever-growing role in the formation of public discourse and public opinion. Accordingly, the Article makes three contributions. First, the Article examines three jurisdictions (Israel, Hungary, and Poland), arguing that the strategic use of subsidized speech is particularly prevalent in countries that are experiencing some version of “democratic backsliding.” The commonalities between these countries are no accident, for the motivation is the same: increasing governmental domination of civil society. Second, the Article departs from the extant approaches that identify subsidized speech as a problem for free speech or equality, by situating subsidized speech as a structural problem for democracy: majoritarian entrenchment. Although democracies have mechanisms to prevent entrenchment of the current political majority, those focus on elections and related aspects. Entrenchment, however, is not confined to these contexts. The Article thus extends the problem of entrenchment to the speech context. Third, the Article introduces and develops the “anti-entrenchment” principle. When the government seeks to entrench its power through funding decisions, the anti-entrenchment principle is triggered. Applying the anti-entrenchment principle can have far-reaching consequences, for it may require the government to subsidize precisely the speech it rejects.
{"title":"Democratic Backsliding, Subsidized Speech, and the New Majoritarian Entrenchment","authors":"Adam Shinar","doi":"10.1093/AJCL/AVAB004","DOIUrl":"https://doi.org/10.1093/AJCL/AVAB004","url":null,"abstract":"This Article argues that democratic backsliding is operationalized through selective government funding of private speech. Subsidized speech can leverage the government’s voice while silencing or diminishing voices that seek to challenge the government’s message or create the background conditions for critical faculties. This leveraging, in turn, serves to entrench the power of the political majority, further insulating it from the processes of democratic change. \u0000 \u0000Despite the voluminous literature on free speech, few discuss the problem of subsidized speech, even though it plays an ever-growing role in the formation of public discourse and public opinion. Accordingly, the Article makes three contributions. First, the Article examines three jurisdictions (Israel, Hungary, and Poland), arguing that the strategic use of subsidized speech is particularly prevalent in countries that are experiencing some version of “democratic backsliding.” The commonalities between these countries are no accident, for the motivation is the same: increasing governmental domination of civil society. \u0000 \u0000Second, the Article departs from the extant approaches that identify subsidized speech as a problem for free speech or equality, by situating subsidized speech as a structural problem for democracy: majoritarian entrenchment. Although democracies have mechanisms to prevent entrenchment of the current political majority, those focus on elections and related aspects. Entrenchment, however, is not confined to these contexts. The Article thus extends the problem of entrenchment to the speech context. \u0000 \u0000Third, the Article introduces and develops the “anti-entrenchment” principle. When the government seeks to entrench its power through funding decisions, the anti-entrenchment principle is triggered. Applying the anti-entrenchment principle can have far-reaching consequences, for it may require the government to subsidize precisely the speech it rejects.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"20 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74978140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"How Constitutional Rights Matter","authors":"Stephen A. Gardbaum","doi":"10.1093/AJCL/AVAB007","DOIUrl":"https://doi.org/10.1093/AJCL/AVAB007","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48300657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Wuthering Heights of Constitutional Amendment: A Portrait of Contemporary Theory and Practice","authors":"Francisca Pou Giménez","doi":"10.1093/AJCL/AVAA033","DOIUrl":"https://doi.org/10.1093/AJCL/AVAA033","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"37 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75278847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article maps the criminal law system in Saudi Arabia. Saudi Arabia enacted a criminal procedure code in 2001, but it lacks a comprehensive penal code, relying instead on (i) identifications of certain acts as violations of the law (from public behavior to matters of the state administrative cogwheel) scattered in various pieces of legislation and (ii) the classical Islamic legal tradition’s classification forming a criminal Islamic common law which is organized into (a) “set punishment” prescribed crimes (hadd, plural hudud), (b) crimes left to the court’s discretion (ta‘zir), and (c) two other forms of “violations of the body” with their own legal regime (qisas/retaliation and diya/blood money). The Article is based on extensive case law released by the Saudi Ministry of Justice.
{"title":"Mapping Saudi Criminal Law","authors":"C. Mallat","doi":"10.1093/AJCL/AVAA032","DOIUrl":"https://doi.org/10.1093/AJCL/AVAA032","url":null,"abstract":"\u0000 This Article maps the criminal law system in Saudi Arabia. Saudi Arabia enacted a criminal procedure code in 2001, but it lacks a comprehensive penal code, relying instead on (i) identifications of certain acts as violations of the law (from public behavior to matters of the state administrative cogwheel) scattered in various pieces of legislation and (ii) the classical Islamic legal tradition’s classification forming a criminal Islamic common law which is organized into (a) “set punishment” prescribed crimes (hadd, plural hudud), (b) crimes left to the court’s discretion (ta‘zir), and (c) two other forms of “violations of the body” with their own legal regime (qisas/retaliation and diya/blood money). The Article is based on extensive case law released by the Saudi Ministry of Justice.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"154 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76787883","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Union (EU) and the Association of Southeast Asian Nations (ASEAN) have developed fundamentally different regional regimes to address human trafficking despite both drawing on the framework established by the U.N. Palermo Protocol. These regimes have been deployed to achieve different missions: crime control animates the European framework whereas migration management informs the ASEAN regime. These different regional agendas have led to all central elements of the respective antitrafficking regimes being addressed differently including, the legal authority of the regional regime over domestic legislation, the allocation of responsibility between “sending” and “receiving” countries, their approaches to subjects of human trafficking, and the connectedness of each antitrafficking instrument to the wider regional regimes. The two regional responses challenge general assumptions about the universality and coherence of the growing international legal framework on human trafficking.
{"title":"International Law and Regional Norm Smuggling: How the EU and ASEAN Redefined the Global Regime on Human Trafficking","authors":"Marija Jovanović","doi":"10.1093/AJCL/AVAA030","DOIUrl":"https://doi.org/10.1093/AJCL/AVAA030","url":null,"abstract":"\u0000 The European Union (EU) and the Association of Southeast Asian Nations (ASEAN) have developed fundamentally different regional regimes to address human trafficking despite both drawing on the framework established by the U.N. Palermo Protocol. These regimes have been deployed to achieve different missions: crime control animates the European framework whereas migration management informs the ASEAN regime. These different regional agendas have led to all central elements of the respective antitrafficking regimes being addressed differently including, the legal authority of the regional regime over domestic legislation, the allocation of responsibility between “sending” and “receiving” countries, their approaches to subjects of human trafficking, and the connectedness of each antitrafficking instrument to the wider regional regimes. The two regional responses challenge general assumptions about the universality and coherence of the growing international legal framework on human trafficking.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"6 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80183773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Constitutional Law of the EU’s Common Foreign and Security Policy: Competence and Institutions in External Relations","authors":"T. Verellen","doi":"10.1093/AJCL/AVAA029","DOIUrl":"https://doi.org/10.1093/AJCL/AVAA029","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"4 3 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78350090","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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