The concept of rights stands at the very center of our legal universe. An imaginary alternative legal universe might have similar legal norms to ours, except that they are centered on the concept of duty. Is there any significant difference between these two legal universes? The Hohfeldian assumption of complete correlativity between rights and duties might imply that the difference between these two universes is merely a matter of rhetoric. This Article, however, argues that a rights-based legal world would presumably be significantly different from a legal world based upon duties. For this purpose, the Article examines the way in which contradictory norms are resolved. A rights-based system decides cases of contradictory norms according to a process that is different from that used by a duty-based system. The Article is devoted to examining the roots of this difference, its significance and its social implications. Alongside the discussion of the classical and modern legal sources from the Western legal tradition, the Article contains a comparative discussion of Jewish law sources, which demonstrates a typical example of a duty-based legal system.
{"title":"Deciding Between Contradicting Norms: Rights-Based Law vs. Duty-Based Law and Their Social Ramifications","authors":"Benjamin Porat","doi":"10.1093/ajcl/avac037","DOIUrl":"https://doi.org/10.1093/ajcl/avac037","url":null,"abstract":"The concept of rights stands at the very center of our legal universe. An imaginary alternative legal universe might have similar legal norms to ours, except that they are centered on the concept of duty. Is there any significant difference between these two legal universes? The Hohfeldian assumption of complete correlativity between rights and duties might imply that the difference between these two universes is merely a matter of rhetoric. This Article, however, argues that a rights-based legal world would presumably be significantly different from a legal world based upon duties. For this purpose, the Article examines the way in which contradictory norms are resolved. A rights-based system decides cases of contradictory norms according to a process that is different from that used by a duty-based system. The Article is devoted to examining the roots of this difference, its significance and its social implications. Alongside the discussion of the classical and modern legal sources from the Western legal tradition, the Article contains a comparative discussion of Jewish law sources, which demonstrates a typical example of a duty-based legal system.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"432 ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138518509","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":"City, State: Constitutionalism and the Megacity","authors":"Erika Arban","doi":"10.1093/ajcl/avac032","DOIUrl":"https://doi.org/10.1093/ajcl/avac032","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47032499","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}
Private MNCs that operate in developing host states through overseas subsidiaries are regularly accused of human rights and environmental violations. Host state plaintiffs who then seek redress in home states where a corporate parent is domiciled face a number of doctrinal limitations. Focusing on the United States, the United Kingdom, and Canada, this Article outlines the current state of common law doctrines that consistently inhibit host state plaintiffs from advancing transnational home state claims. Cumulatively, the doctrines create a ‘jurisdictional vacuum,’ illustrating that domestic legal principles have not kept pace with commerce that spans across state borders. As international business has been able to structure itself to avoid the adjudicative reach of home state courts, harmed host state plaintiffs are unable to utilize domestic common laws to exact civil liability and obtain compensation. Comprised mainly of transnational claims that originate in commercial activities in the extractive and manufacturing industries, the vacuum’s doctrinal limitations fall within two broad categories. In the first category, home state courts have parochially interpreted corporate legal personality. Adhering to the corporate veil, they have disaggregated otherwise integrated transnational business operations in accordance with the entity theory of liability. They have also disaggregated MNC liability from government and individual liability by, respectively, holding onto ‘statist’ notions of international law and restrictively construing corporate personhood. In the second category, home state courts have taken restrained approaches to transnational corporate claims that implicate foreign relations or trade and investment or, otherwise, impinge on a host state’s judicial system. They have routinely invoked deferential and prudential doctrines, namely forum non conveniens and act of state, and restrictively interpreted the presumption against extraterritoriality. And when they have eschewed restraint in boomerang litigation, the end result has equally thwarted the ability of host state plaintiffs to procure compensatory remedies.
{"title":"The Jurisdictional Vacuum: Transnational Corporate Human Rights Claims in Common Law Home States","authors":"Hassan Ahmad","doi":"10.1093/ajcl/avac036","DOIUrl":"https://doi.org/10.1093/ajcl/avac036","url":null,"abstract":"\u0000 Private MNCs that operate in developing host states through overseas subsidiaries are regularly accused of human rights and environmental violations. Host state plaintiffs who then seek redress in home states where a corporate parent is domiciled face a number of doctrinal limitations. Focusing on the United States, the United Kingdom, and Canada, this Article outlines the current state of common law doctrines that consistently inhibit host state plaintiffs from advancing transnational home state claims. Cumulatively, the doctrines create a ‘jurisdictional vacuum,’ illustrating that domestic legal principles have not kept pace with commerce that spans across state borders. As international business has been able to structure itself to avoid the adjudicative reach of home state courts, harmed host state plaintiffs are unable to utilize domestic common laws to exact civil liability and obtain compensation.\u0000 Comprised mainly of transnational claims that originate in commercial activities in the extractive and manufacturing industries, the vacuum’s doctrinal limitations fall within two broad categories. In the first category, home state courts have parochially interpreted corporate legal personality. Adhering to the corporate veil, they have disaggregated otherwise integrated transnational business operations in accordance with the entity theory of liability. They have also disaggregated MNC liability from government and individual liability by, respectively, holding onto ‘statist’ notions of international law and restrictively construing corporate personhood. In the second category, home state courts have taken restrained approaches to transnational corporate claims that implicate foreign relations or trade and investment or, otherwise, impinge on a host state’s judicial system. They have routinely invoked deferential and prudential doctrines, namely forum non conveniens and act of state, and restrictively interpreted the presumption against extraterritoriality. And when they have eschewed restraint in boomerang litigation, the end result has equally thwarted the ability of host state plaintiffs to procure compensatory remedies.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45382591","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}
Prior to Vanuatu’s independence in 1980, in the absence of applicable joint regulations, French law applied to French citizens and English law applied to British citizens. Members of the indigenous population were governed by a different regime. Subjects of other countries were required to “opt” for either the French or the English legal system within one month of arrival. At independence, French and English laws continued in force, unless revoked by the Vanuatu Parliament or incompatible with the independent status of Vanuatu. However, the opting provisions were repealed and it was not made clear when and to whom each system of law was to apply. In practice, French law is rarely applied. Commencing with a brief explanation of the sources of law in Vanuatu, this Article seeks to identify the rules for the application of French law in Vanuatu today through an analysis of relevant case law. It then goes on to explore divergence between English and French law, which might be of significance for parties to civil cases. The Article also discusses the results of empirical work carried out in Vanuatu, which sheds some light on the reasons why French law has been marginalised.
{"title":"Comment ça va? The Status of French Laws in Vanuatu","authors":"J. Corrin","doi":"10.1093/ajcl/avac033","DOIUrl":"https://doi.org/10.1093/ajcl/avac033","url":null,"abstract":"\u0000 Prior to Vanuatu’s independence in 1980, in the absence of applicable joint regulations, French law applied to French citizens and English law applied to British citizens. Members of the indigenous population were governed by a different regime. Subjects of other countries were required to “opt” for either the French or the English legal system within one month of arrival. At independence, French and English laws continued in force, unless revoked by the Vanuatu Parliament or incompatible with the independent status of Vanuatu. However, the opting provisions were repealed and it was not made clear when and to whom each system of law was to apply. In practice, French law is rarely applied. Commencing with a brief explanation of the sources of law in Vanuatu, this Article seeks to identify the rules for the application of French law in Vanuatu today through an analysis of relevant case law. It then goes on to explore divergence between English and French law, which might be of significance for parties to civil cases. The Article also discusses the results of empirical work carried out in Vanuatu, which sheds some light on the reasons why French law has been marginalised.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41848908","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}
For centuries, diverse groups of people living in the highlands of Southeast Asia have resisted lowland empires in China, Myanmar, Thailand, and Vietnam. The interaction between lowlanders and highlanders has been described as “internal colonization”—a process involving the absorption or displacement of highland communities and customary law. This Article draws on an empirical study to explore whether the Vietnamese Government’s new “village covenant” (Hương ước) program is continuing internal colonization by transforming and displacing customary law in the Vietnamese Central Highlands. It uses a novel analytical framework—synthetized from legal pluralism and systems theory—to argue the state legal system and highland communities lack a shared conceptual grammar in which to identify common ground, reconcile differences, and converge. The Article closes with the conclusion that, although highland communities are resisting internal colonization, the forces of modernity are slowly changing the deeply held epistemic assumptions underlying customary law.
{"title":"Legal Pluralism and the Struggle for Customary Law in the Vietnamese Highlands","authors":"J. Gillespie, Hong Thi Quang Tran","doi":"10.1093/ajcl/avac024","DOIUrl":"https://doi.org/10.1093/ajcl/avac024","url":null,"abstract":"\u0000 For centuries, diverse groups of people living in the highlands of Southeast Asia have resisted lowland empires in China, Myanmar, Thailand, and Vietnam. The interaction between lowlanders and highlanders has been described as “internal colonization”—a process involving the absorption or displacement of highland communities and customary law. This Article draws on an empirical study to explore whether the Vietnamese Government’s new “village covenant” (Hương ước) program is continuing internal colonization by transforming and displacing customary law in the Vietnamese Central Highlands. It uses a novel analytical framework—synthetized from legal pluralism and systems theory—to argue the state legal system and highland communities lack a shared conceptual grammar in which to identify common ground, reconcile differences, and converge. The Article closes with the conclusion that, although highland communities are resisting internal colonization, the forces of modernity are slowly changing the deeply held epistemic assumptions underlying customary law.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41319116","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":"New Media and Freedom of Expression: Rethinking the Constitutional Foundations of the Public Sphere","authors":"Shigenori Matsui","doi":"10.1093/ajcl/avac028","DOIUrl":"https://doi.org/10.1093/ajcl/avac028","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48210394","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":"Legal Perspectives on the Streaming Industry: The United States","authors":"Irene Calboli","doi":"10.1093/ajcl/avac021","DOIUrl":"https://doi.org/10.1093/ajcl/avac021","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44420739","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 Justiciability of Economic, Social, and Cultural Rights","authors":"V. Nanda","doi":"10.1093/ajcl/avac031","DOIUrl":"https://doi.org/10.1093/ajcl/avac031","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47837565","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":"Multicultural Populations and Mixed Legal Systems in the United States: Louisiana and Puerto Rico","authors":"O. Moréteau, Luis Muñiz Argüelles","doi":"10.1093/ajcl/avac016","DOIUrl":"https://doi.org/10.1093/ajcl/avac016","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48288055","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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