Policy Implications

This last chapter, Chapter 8, looks at larger issues of economic sanctions. Reitz and Klingele, the reporters of the Model Penal Code argued that economic sanctions are unprincipled (they violate legal standards and discriminate against the poor), unsuccessful (they are generally unpaid and, as presently constituted, do not meet the purposes of sentencing), and are unending (local and state governments are continuing to impose economic sanctions and other legal financial obligations in order to meet budgetary needs). Also, in the final chapter the author discusses how the existing research can be used to inform policy, particularly regarding questions of whether there should be different types of economic sanctions, what those types should be, and what amounts of economic sanctions should be imposed. These policy arguments are based on the assumption that the law and courts should be concerned about victims, offenders, and the community.

Rebel Jurisdiction, Due Process, and Tamil Tiger Justice

Chapter 3 examines the implication of a broad requirement of due process for rebel courts, taking as a case study the judicial system put into place by the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka. The LTTE launched an armed insurgency against the government of Sri Lanka in the early 1980s, eventually controlling nearly 40 percent of national territory. The LTTE developed an independent civil administration which included a state-like court structure with seventeen distinct courts at trial, appeal, and supreme court levels. The group also enacted comprehensive civil and criminal codes, as well as other important pieces of legislation. The chapter takes this exceptionally sophisticated insurgent court system to interrogate the concept of rebel jurisdiction, exploring the foundations in public international law of the extent and limits of territorial, subject-matter, and personal jurisdictions of rebel law and courts. The analysis then turns to the thorny issue of due process requirements that must be met under international humanitarian and human rights law to consider as fair a trial before a rebel court. The precise content of the requirement of a fair trial under international law does vary in situations of emergency like international and non-international armed conflicts. In addition, legal standards must be adjusted to reflect the nature of non-state courts and the particular contextual challenges faced by rebel governance in conflict zones. On that basis, each applicable due process guarantee is analysed to determine the precise requirements it imposes on rebel justice.

Explaining power and authority in international courts

It has recently been suggested that the study of international legal life should take an ‘empirical turn’: a turn which has often focused on how patterns of authority emerge and operate in relation to international courts. In what follows it is argued that this empiricism fails to distinguish (for the purposes of sociological inquiry) authority from various other concepts such as power or consensus in the study of international law and courts. This is because this method focuses only on overt signs, such as observable action or statements of intention, and at the level of the sign these concepts are not obviously distinguishable. However, one solution to this problem, which is to collapse socially significant and distinct categories such as authority and consensus into a broad category of ‘power’, requires the adoption of an implausible and inconsistent view of agency in explanations of legal authority. By contrast, and in line with the long-standing interpretivist tradition in sociological and legal method, we claim that in order to interpret the observable signs of compliance to international legal rules and principles as indicative of authority, consensus, or power, it is necessary to interpolate an account of the reasons which give rise to the compliance we observe. This, in turn, explains why international legal doctrine, as an axiological structure, gives rise to the behaviour of its addressees, such as state officials.

Environmental liability litigation could remedy biodiversity loss

Many countries allow lawsuits to hold responsible parties liable for the environmental harm they cause. Such litigation remains largely untested in most biodiversity hotspots and in response to leading drivers of biodiversity loss, including illegal wildlife trade. Yet, liability litigation is a potentially ground-breaking conservation strategy to remedy biodiversity harm by seeking legal remedies such as species rehabilitation, public apologies, habitat conservation and education, with the goal to make the injured parties “whole”. However, most countries face a lack of precedent cases, limited expert guidance and the gap between legal practitioners and scientists. We propose a simplified framework for developing conservation lawsuits across countries and conservation contexts. We explain liability litigation in terms of three dimensions: 1) defining the harm that occurred, 2) identifying appropriate remedies to that harm, and 3) understanding what remedies the law and courts will allow. We illustrate the framework via a hypothetical lawsuit against an illegal orangutan trader in Indonesia. We highlight that conservationists’ expertise is essential to characterizing harm and identifying remedies, and could more actively contribute to strategic, science-based litigation. This would identify priority contexts, target defendants responsible for egregious harm, propose novel and meaningful remedies, and build new transdisciplinary collaborations.

Bandits, Collaborators, and Wives and Concubines

Chapter 6 provides concrete cases in criminal and civil justice to flesh out the effects and defects of the reforms during the Republic (1912–1949). For criminal justice, it looks into how robbers and bandits were punished under a special law reminiscent of the imperial-era precedents and how Chinese collaborators working for the Japanese occupiers during the war (1937–1945) were prosecuted and punished after the war (1946–1949). For civil justice, the chapter focuses on marriage and divorce and the issue of concubines, showing the movement toward gender and marital equality and the agency of women in pushing for such changes and in using the law and courts to pursue their own interests.

Nutricula causidicorum

The Roman imperial system of law, courts and jurisdiction was a sphere in which the Roman empire exercised a profound impact on the society and culture of its provinces. In Roman Africa, law and courts were central to what it meant to be and become ‘Roman’. This was the case both in the sense of adopting Roman legal forms and institutions, and also in the sense of adopting a Roman model of elite education, where training in forensic rhetoric and pleading in the courts was instrumental for the making of successful careers in politics and administration. This chapter examines the development and professionalization of legal and forensic activity in Roman Africa, from the establishment of the Principate to the age of Augustine (c.31 BCE–435 CE). Key topics that are addressed include: career structures, the typology and social profile of ‘lawyers’ (advocates, legal consultants, assessors, judges, notaries), the place of law in the rhetorical curriculum, profession and professionalization as analytical categories.

The Tragedy of the Judiciary: An Inquiry into the Economic Nature of Law and Courts

This Article explores the economic nature of law and courts as an explanation for the world’s endemic court congestion problem. The economic theory of goods and services is used to demonstrate that law has a dual nature—coercion and compliance—and that law as coercion is actually a club good that requires a complementary good to be useful, courts. But because courts are private goods in nature, the bundled product will behave as a private good. However, the unrestricted implementation of access-to-justice policies with the objective of increasing the people’s access to courts will transform the bundled product into a common pool resource. The counterintuitive result of this transformation is that granting unrestricted access to justice might actually prevent people from accessing their rights—the tragedy of the judiciary. Two policy implications are explored: The importance of legal certainty for the tragedy mitigation, and the potentially adverse selection problem resulting from court congestion.