Law and Social Change in the New Nations

1978 ◽  
Vol 20 (1) ◽  
pp. 3-28 ◽  
Author(s):  
Lawrence Rosen
Keyword(s):  
Social Change ◽  
Social Relationships ◽  
Legal System ◽  
Political Life ◽  
Legal Institutions ◽  
Legal Systems ◽  
Direct Control ◽  
Judicial Opinions

It is one of the central paradoxes of any legal system that it should appear at once so central to the imposition of decisive pronouncements aimed at the very structure of social relationships yet remain dependent on forces beyond its direct control for the acceptance and implementation of these strictures. This peculiar status of laws and legal institutions gives rise both to exaggerated claims for its impact on social change and equally unrealistic assertions that all legal systems merely follow and support processes whose fundamental operations are carried out in the broader spheres of social and political life. Like other institutions, a legal system performs distinctive tasks in accord with its own internal history and logic. But in its very design and operation it is deeply influenced by the struggles for control and influence that occur among its own personnel, and between them and other sectors of society. Being neither self-executing nor independently defined, statutory propositions and judicial opinions have impacts which are as difficult to trace in detail as they are wide-ranging and interconnected at large. Even in societies with elaborated and sharply delineated legal institutions, the role of the legal system in shaping or reflecting social and political patterns partakes of this confusion of distinctiveness and derivativeness.

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

scholarly journals Kilka uwag o responsywności prawa podatkowego na przykładzie urzędowych interpretacji prawa podatkowego

2019 ◽  
Author(s):  
Jarosław Kola ◽  
Przemysław Pest
Keyword(s):  
Social Relationships ◽  
Legal System ◽  
Law And Society ◽  
Tax Law ◽  
Tax Administration ◽  
Legal Systems ◽  
Basic Functions ◽  
Three Stages ◽  
The Concept Of Law ◽  
The Relationship

The article is an attempt to look at the development of Polish tax law through the prism of the concept of law development proposed by Ph. Selznick and Ph. Nonet. In the study Law and Society in Transition. Towards Responsive Law they distinguished three stages of evolution of legal systems: repressive, autonomous and responsive. The focus of the article is on the institution of the official interpretation of tax law, because an analysis of the transformation of the legal system allows to capture trends that are present in the development of its individual institutions as well as social relationships among its recipients. By indicating the evolution of official in terpretations of tax law in its two basic functions – those of informing and those of guaranteeing (protective) – the authors point to a wider context of the development of tax law to show whether and how changes in the normative regulation of official interpretations of tax law may affect the shape of the relationship between a tax payer and tax administration, where the perspective of the analysis of demand is the responsiveness of law. An analysis of the regulation of an official interpretation of tax law leads to the conclusion that due to the assigned ratio legis this interpretation must characterise them as corresponding mainly to the autonomous model. At the same time a responsive model of law does not undermine the autonomous model attributes. Thus if we were to accept that the provision of interpretation corresponds to the autonomous model, it would not be possible to note that it also has attributes that make it a responsive model. Irrespective of the fact that there is no element of negotiation, it is based on the interaction between the taxpayer and the tax administration. As part of this interaction, tax administration responds to the reported social need in terms of the ambiguity of law, which de iure – not least because of the possibility of bringing an action against the content of interpretation – takes place in the framework of a communication situation that is free from external coercion.

Getting Schooled: Legal Mobilization as an Educative Process

2017 ◽  
Vol 42 (01) ◽  
pp. 163-194 ◽  
Author(s):  
Mary Gallagher ◽  
Yujeong Yang
Keyword(s):  
Legal System ◽  
Formal Education ◽  
Legal Mobilization ◽  
Legal Knowledge ◽  
Legal Institutions ◽  
Legal Representation ◽  
Positive Effects ◽  
New Knowledge ◽  
Educative Process

This article explores the role of formal education and specific legal knowledge in the process of legal mobilization. Using survey data and in-depth case narratives of workplace disputes in China, we highlight three major findings. First, and uncontroversially, higher levels of formal education are associated with greater propensity to use legal institutions and to find them more effective. Second, informally acquired labor law knowledge can substitute for formal education in bringing people to the legal system and improving their legal experiences. The Chinese state's propagation of legal knowledge has had positive effects on citizens' legal mobilization. Finally, while education and legal knowledge are factors that push people toward the legal system, actual dispute experience leads people away from it, especially among disputants without effective legal representation. The article concludes that the Chinese state's encouragement of individualized legal mobilization produces contradictory outcomes—encouraging citizens to use formal legal institutions, imbuing them with new knowledge and rights awareness, but also breeding disdain for the law in practice.

Capital Switching and the Role of Ground Rent: 3 Switching between Circuits, Switching between Submarkets, and Social Change

1989 ◽  
Vol 21 (7) ◽  
pp. 853-880 ◽  
Author(s):  
R J King
Keyword(s):  
Social Change ◽  
Economic Crisis ◽  
Social Relationships ◽  
Urban Housing ◽  
Social Conditions ◽  
Housing Sector ◽  
Economic Sectors ◽  
Housing Submarkets ◽  
Rent Theory

In the first paper of this three-part series, Harvey's ‘circuits of capital’ argument was reviewed, and was linked first to ground rent theory, and second to forms of crisis and social change in advanced, Western-style economies. In the second paper these ideas were used to reflect on the progress of the urban housing market in Melbourne from the 1930s to the 1980s. Specifically, an attempt was made first to identify significant switchings of investment between economic sectors, and forms of crisis that might have accompanied them; and second to understand significant switchings of investment between submarkets within the housing sector, their relationship to intersectoral switching, and the changing social relationships involved. In the present paper this question of changing social conditions is pursued further. It is concluded (1) that the increasingly differentiated structure of housing submarkets, apparently ‘necessary’ for continuous seesawing investment between submarkets, is dependent on shifts in incomes and behaviour of different social groupings; and (2) that the present direction of such shifts is, however, destabilising, transforming an economic crisis into a potential ‘motivation crisis’. The paper ends with some overall conclusions to this series of three papers.

The Challenges of Teaching Comparative Law and Socio-Legal Studies at Indonesia's Law Schools

2019 ◽  
Vol 14 (S1) ◽  
pp. S229-S244
Author(s):  
Herlambang P WIRATRAMAN
Keyword(s):  
Social Change ◽  
Research Methods ◽  
Legal System ◽  
Comparative Law ◽  
Law Schools ◽  
Legal Research ◽  
Legal Studies ◽  
Interdisciplinary Approaches ◽  
Source Materials

AbstractThis article addresses the role of legal research methodologies in the development of legal science and the creation of social change in Indonesia. Based on fieldwork conducted at Indonesian law schools between 2014 and 2016, this article reveals that legal research methods taught in Indonesia are starkly divided into normative-juridical and empirical-juridical approaches. Misunderstandings between adherents of these different schools of thought pose significant obstacles to the development of interdisciplinary approaches to law that span or go beyond the divide. Methodological conflicts resulting in the absence of socio-legal approaches in Indonesian law schools, coupled with outdated and limited source materials, limit the study of comparative law in Indonesia to the mere comparison of statutes and rules shorn of socio-political context. They also fail to instill awareness of the importance of considering social – on top of legal – impact in the context of Indonesia's complex and pluralist legal system.

scholarly journals Ordering Power under the Party: A Relational Approach to Law and Politics in China

2019 ◽  
Vol 6 (01) ◽  
pp. 1-18 ◽  
Author(s):  
Juan WANG ◽  
Sida LIU
Keyword(s):  
Legal System ◽  
Political Institutions ◽  
Power Relations ◽  
Legal Profession ◽  
Legal Institutions ◽  
Relational Approach ◽  
Chinese Leadership ◽  
Law And Politics ◽  
Iron Triangle

AbstractExisting scholarship of China’s legal institutions has primarily focused on individual institutions, such as the court, the police, or the legal profession. This article proposes a relational approach to the study of political-legal institutions in China. To understand the order and exercise of power by various political-legal institutions, the relational approach emphasizes the spatial positions of actors or institutions (the police, courts, lawyers, etc.) within the broader political-legal system and their mutual interactions. We suggest that the changing ideas of the Chinese leadership about the role of law as an instrument of governance have shaped the relations between various legal and political institutions. The interactions of these political-legal institutions (e.g. the “iron triangle” of the police, the court and the procuracy) further reveal the dynamics of power relations at work.

Rethinking the Role of Law in Russia

2016 ◽  
Author(s):  
Kathryn Hendley
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Everyday Lives ◽  
Red Tape ◽  
And Behavior ◽  
Attitudes And Behavior

This book has investigated whether the existence of telephone law rendered law irrelevant for Russians in their everyday lives. It has shown that Russians are not as nihilistic as usually assumed, but neither are they free of skepticism when it comes to their legal system. Their attitudes and behavior vary depending on the situation. Their primary reservation about using the courts is not concern over telephone law, but dread of the inevitable red tape and emotional turmoil that accompany litigation. This concluding chapter returns to the theoretical dilemma of how we should conceptualize legal systems like that of Russia in which law can—but does not always—matter. In particular, it considers how a dualistic legal system, in which politicized law exists side by side with law that is enforced and obeyed based on its written terms, should be evaluated in terms of the rule of law. It argues that a rethinking of the very concept of the “rule of law” in Russia is needed.

Legal Method (Interpretation)[156]

2019 ◽  
pp. 127-185
Author(s):  
Alf Ross
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Legal Authority ◽  
Legal Systems ◽  
Statutory Interpretation ◽  
Specific Subject ◽  
Legal Rules ◽  
General Account ◽  
Legal Method

This chapter focuses on legal method and aims to determine the principles of interpretation that are scientifically valid. In accordance with previous chapters, this implies that the perspective is norm-descriptive, not norm-expressive. The aim is not to establish which principles of interpretation are correct but which principles judges hold to be correct and which, as such, actually guide the courts when they apply general legal rules to specific subject matters. As with the sources of law, the ideology of interpretation varies from one legal system to another. Accordingly, the task for general legal theory can only be to explain certain factual presuppositions concerning problems of method, and to place and characterize various existing styles of method and interpretation within the framework of a general typology. Furthermore, the chapter focuses primarily on problems of method in relation to statutory interpretation which features more prominently within Continental legal systems where legislation is the predominant source of law. On the basis of a general account of semantics, the chapter proceeds by analysing three types of problems of interpretation—syntactic, logical, and semantic—and concludes by reflecting on the role of pragmatic factors in the exercise of legal authority.

Law, Crime, and Punishment in Colonial Africa

2013 ◽  
Author(s):  
Richard Roberts
Keyword(s):  
Social Change ◽  
Dispute Settlement ◽  
Legal Pluralism ◽  
Legal Institutions ◽  
Legal Systems ◽  
Younger Adults ◽  
Crime And Punishment ◽  
Social Authority ◽  
Colonial Encounter ◽  
Legal Character

Law lay at the heart of the colonial encounter. This chapter examines the ‘deep effects’ that the colonial encounter had on law in Africa and how the very ‘litigiousness’ of Africans reflects both social change and African agency. Colonial officials used law to promote both legibility and stability of African societies. In practice, however, colonial legal systems promoted conflict by imposing rules and expectations that were not widely shared or deeply embedded in African discourses of political and social authority. The chapter explores how colonial legal pluralism led to the establishment of new formal legal institutions and how litigants used the multiple arenas created by overlapping systems of dispute settlement. Even though it was designed to respect ‘custom’, the colonial legal sphere involved the seepage of metropolitan concepts and procedures into native law and practice and often led to changes in the legal character and capacity of individuals. This enabled women, younger adults, and low-status individuals to confront men and higher status individuals even in courts designed to uphold custom.

Part I General Principles, 4 Comparative Law and its Relevance to Transnational Commercial Law

2015 ◽  
Keyword(s):  
Legal System ◽  
Comparative Law ◽  
Legal Systems ◽  
Commercial Law ◽  
History Of

Comparative law plays a key role in the harmonisation of commercial law. This chapter outlines the history of comparative law and the classification of legal systems and goes on to examine the aims of comparative law, with particular reference to the enhancement of an understanding of one's own legal system, the development of transnational commercial law and the role of comparative law in transnational practice. A key part of the chapter is devoted to the purpose and methodology of comparative law. Is the objective to find common solutions or best solutions? Should the approach be formal or functional? The chapter concludes with a discussion of the problems confronting the comparative lawyer: the pitfalls of comparison, the effectivess or otherwise of legal transplants and the extent to which all those engaged in the work of harmonisation can realistically be expected to to be fully equipped as comparative lawyers.

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