Power, culture and method in comparative law

2009 ◽  
Vol 5 (1) ◽  
pp. 69-85 ◽  
Author(s):  
Reza Banakar

This review essay draws on a recently edited handbook by Esin Örücü and David Nelken to reflect on the methodological concerns and challenges of comparative law and sociolegal research. It argues that the contextualisation of laws should be regarded as the indispensable methodological characteristic of all comparative studies of law that aspire to transcend the understanding of law as a body of rules and doctrine. It further argues that although the cultural perspective facilitates contextualisation of the law, a cultural understanding is neither a precondition for undertaking comparative legal research nor necessarily the correct approach under all circumstances; for certain aspects of law and legal behaviour need not be conceptualised in cultural terms. The essay concludes by proposing that the combination of top-down and bottom-up approaches could provide a meta-methodological framework within which specific comparative techniques can be employed. Such a framework will enable comparatists and sociolegal researchers to account for how law interacts with, and simultaneously manifests itself at, the macro-, micro- and the intermediary meso-levels of society over time.

Author(s):  
Mette Eilstrup-Sangiovanni

AbstractMany observers worry that growing numbers of international institutions with overlapping functions undermine governance effectiveness via duplication, inconsistency and conflict. Such pessimistic assessments may undervalue the mechanisms available to states and other political agents to reduce conflictual overlap and enhance inter-institutional synergy. Drawing on historical data I examine how states can mitigate conflict within Global Governance Complexes (GGCs) by dissolving or merging existing institutions or by re-configuring their mandates. I further explore how “order in complexity” can emerge through bottom-up processes of adaptation in lieu of state-led reform. My analysis supports three theoretical claims: (1) states frequently refashion governance complexes “top-down” in order to reduce conflictual overlap; (2) “top-down” restructuring and “bottom-up” adaptation present alternative mechanisms for ordering relations among component institutions of GGCs; (3) these twin mechanisms ensure that GGCs tend to (re)produce elements of order over time–albeit often temporarily. Rather than evolving towards ever-greater fragmentation and disorder, complex governance systems thus tend to fluctuate between greater or lesser integration and (dis)order.


2020 ◽  
Vol 31 (6) ◽  
pp. 1579-1600
Author(s):  
Lien De Cuyper ◽  
Bart Clarysse ◽  
Nelson Phillips

In this study, we build on the foundational observations of Selznick and Stinchcombe that organizations bear the lasting imprint of their founding context and explore how characteristics shaped during founding are coherently carried forward through time. To do so, we draw on an ethnography of a social venture where the entrepreneurs left soon after founding. In examining how an initial organizational imprint evolves beyond a venture’s founding phase, we focus on the actions and interactions of organizational members, the founders’ imprint, the venture’s new leadership, and the external environment. The process model we develop shows how the organizational imprint evolves as a consequence of the interplay between top-down and bottom-up forces. We first find that the initial imprint is transmitted through a bottom-up mechanism of imprint reinforcement, and second, that the venture is reimprinted after the founding period through two processes which we call imprint reforming and imprint coupling. The result of this is the formation of a sedimented imprint. Our findings further illuminate that, although the initial imprint sticks, its function and manifestation changes over time.


Author(s):  
Jorge E. Viñuales

This volume examines the building blocks of environmental law across different jurisdictions. More specifically, it provides a cartography of environmental law, with a focus on its underlying logic, main arrangements and their variations, and how it is embedded within the broader legal arrangements developed to tackle other questions. In this context, this preliminary chapter provides an overview of the comparative method as it applies to the overall research project leading to the present volume. It discusses descriptive and evolutionary approaches, the conceptual approach, the functionalist approach, the factual approach, legal formants, the contextualist approach, and legal transplants. It then considers a range of methodologies proposed by comparative law experts, including the bottom-up functionalism and top-down functionalism, before explaining the methodology used for the organization of this book. The chapter concludes by summarizing a tentative structure of comparative environmental law as a single overall technology.


2020 ◽  
Vol 6 (2) ◽  
pp. 250-273
Author(s):  
Khotibul Umam

In this article the author traces the historic development of Islamic or sharia banking in Indonesia and this will be done by analysing the evolution of a series of successive laws promulgated over time.  From these laws (Law Nos. 7/1992; 10/1998 and 21/2008) we can discern, how over the years, the Indonesian government gradually accept and recognized sharia banking principles, resulting in the establishment of Sharia Banks alongside conventional Banks.  These successive laws also shows the gradual process of policy changes which involves a top-down, bottom up and again a top down approach. Through this process, Sharia Banks develops in Indonesia and has been able to meet society’s need not only for a modern banking system, but also more importantly, providing banking services in line with the sharia. 


Jurnal Akta ◽  
2021 ◽  
Vol 8 (2) ◽  
pp. 121
Author(s):  
Moh. Nurul Huda ◽  
Muhammad Ridwan Lubis

In recent times, it has become common among the public regarding the Ijarah Muntahiya Bittamlik (IMBT) contract. IMBT is a contract similar to a lease and purchase agreement. In practice in the community, these two contracts are carried out by means of renting first and ending with buying and selling. Although, in general they have similarities, these two agreements have differences that have different consequences. The research method used in this study is doctrinal legal research with a comparative law approach. The results of this study indicate that the IMBT contract has more legal certainty than the lease-purchase agreement. This is because the IMBT contract has provisions regulated in the Sharia Banking Law, the Sharia Economic Law Compilation, and PSAK No. 107 concerning Ijarah and IMBT accounting, while the lease purchase agreement is only based on the principle of freedom of contract. The implementation of the IMBT contract also has more legal certainty, considering that dispute resolution efforts can be carried out through the provisions of Article 283 and Article 284 of the KHES by carrying out sales of the disputed object. This is different from a lease-purchase agreement, where dispute resolution efforts are generally carried out through unilateral withdrawals and the agreement also contains standard clauses that have the potential to violate Article 18 of the Consumer Protection Law.


2018 ◽  
Vol 64 (3) ◽  
pp. 619-658 ◽  
Author(s):  
Sukhbir Sandhu ◽  
Carol T. Kulik

As new roles emerge in organizations, it becomes critical to understand how organizational structure can impede or enable the managerial discretion available to role incumbents. We leverage the rich context provided by the emergent role of sustainability managers to examine the interplay between the top-down forces of structure and the bottom-up influences of managerial discretion in shaping new organizational roles over time. We analyzed qualitative data collected from in-depth interviews with sustainability managers in 21 case study organizations in India and Australia, supplemented with archival and observational data. We identified three organizational configurations, with varying levels of top-down structural and bottom-up managerial discretion dynamics at play. Each configuration had different implications for the manager’s role. Our analysis suggests that the third configuration—with semi-structured formalization and a decentralized sustainability program—provided the most conducive conditions for managers to use their discretion to champion innovative sustainability initiatives. New managerial roles in the other configurations, however, do not have to be static. With the maturation of organizational programs and active championing by managers, the structuring of organizational functions and managerial roles can co-evolve. Our findings describe a process of “shaping and being shaped,” as structure and managerial discretion co-evolve over time.


2016 ◽  
Vol 53 (11) ◽  
pp. 1103-1120 ◽  
Author(s):  
W.G. Ernst ◽  
Norman H. Sleep ◽  
Tatsuki Tsujimori

Intense devolatilization and chemical-density differentiation attended accretion of planetesimals on the primordial Earth. These processes gradually abated after cooling and solidification of an early magma ocean. By 4.3 or 4.2 Ga, water oceans were present, so surface temperatures had fallen far below low-pressure solidi of dry peridotite, basalt, and granite, ∼1300, ∼1120, and ∼950 °C, respectively. At less than half their T solidi, rocky materials existed as thin lithospheric slabs in the near-surface Hadean Earth. Stagnant-lid convection may have occurred initially but was at least episodically overwhelmed by subduction because effective, massive heat transfer necessitated vigorous mantle overturn in the early, hot planet. Bottom-up mantle convection, including voluminous plume ascent, efficiently rid the Earth of deep-seated heat. It declined over time as cooling and top-down lithospheric sinking increased. Thickening and both lateral extensional + contractional deformation typified the post-Hadean lithosphere. Stages of geologic evolution included (i) 4.5–4.4 Ga, magma ocean overturn involved ephemeral, surficial rocky platelets; (ii) 4.4–2.7 Ga, formation of oceanic and small continental plates were obliterated by return mantle flow prior to ∼4.0 Ga; continental material gradually accumulated as largely sub-sea, sialic crust-capped lithospheric collages; (iii) 2.7–1.0 Ga, progressive suturing of old shields + younger orogenic belts led to cratonal plates typified by emerging continental freeboard, increasing sedimentary differentiation, and episodic glaciation during transpolar drift; onset of temporally limited stagnant-lid mantle convection occurred beneath enlarging supercontinents; (iv) 1.0 Ga–present, laminar-flowing asthenospheric cells are now capped by giant, stately moving plates. Near-restriction of komatiitic lavas to the Archean, and appearance of multicycle sediments, ophiolite complexes ± alkaline igneous rocks, and high-pressure–ultrahigh-pressure (HP–UHP) metamorphic belts in progressively younger Proterozoic and Phanerozoic orogens reflect increasing negative buoyancy of cool oceanic lithosphere, but decreasing subductability of enlarging, more buoyant continental plates. Attending supercontinental assembly, density instabilities of thickening oceanic plates began to control overturn of suboceanic mantle as cold, top-down convection. Over time, the scales and dynamics of hot asthenospheric upwelling versus lithospheric foundering + mantle return flow (bottom-up plume-driven ascent versus top-down plate subduction) evolved gradually, reflecting planetary cooling. These evolving plate-tectonic processes have accompanied the Earth’s thermal history since ∼4.4 Ga.


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