Precedents and Chinese Judges: An Experiment

We experimentally study the decision-making process of judges in China, where judges are specifically prohibited from citing prior decisions as the basis for their judgments, and where, in past surveys, most judges explicitly stated that precedent played at most a marginal role in their decisions. In an experiment resembling real-world judicial decision making, we find, however, that precedent seems to have a significant influence on the decisions of the participating Chinese judges. Indeed, judges spend more time reading prior cases than statutes, and they typically read precedents before they access the statutes. On the other hand, judges rarely mention the precedent in their reasons. Our findings suggest that the Chinese judiciary operates much more similarly to its homologues in the United States and elsewhere than their written opinions and much folklore would suggest.

Comparing Islamic and International Laws of War: Orthodoxy, “Heresy,” and Secularization in the Category of Civilians

This Article investigates how contemporary laws of war rationalize civilian deaths. I concentrate on two specific legal constructions in warfare: the definition of civilian/combatant and the principle of distinction. (The categories of civilian and combatant should be understood as dialogically constitutive and not entirely distinct. In addition, the category of “civilian” is a modern one and premodern legal sources often do not use one term to refer to noncombatants.) I focus on two significant parties in contemporary warfare: al-Qāʿidah (aka Al-Qaeda) and the U.S. military. Al-Qāʿidah diverges from orthodox Islamic law on these two legal issues, while remaining within the Islamic legal tradition. To scrutinize the nature of this divergence, I compare al-Qāʿidah’s legal reasoning to the legal reasoning of the U.S. military. I demonstrate that the U.S. military diverges from orthodox international law in ways that parallel how al-Qāʿidah diverges from orthodox Islamic law. Specifically, both the U.S. military and al-Qāʿidah elide orthodox categories of civilians and expand the category of combatant, primarily by rendering civilians as probable combatants. Based on this comparative analysis, I argue that the legal reasoning of al-Qāʿidah (and other militant Islamist groups) is as secular as it is Islamic; I call this fusion secularislamized law.

A Colonial Legal Laboratory? Jurisprudential Innovation in British India

In this Article, I examine jurisprudence textbooks and related works written in British India in the late nineteenth and early twentieth centuries. Some of the jurisprudential works from India were not merely summaries of the leading English books, but were different from English works in three senses. First, the gap between English theories and Indian legal realities led some authors to question key English notions about the nature and development of law. Second, some of the works produced in India were more influenced by Continental and American legal theories than the equivalent English textbooks. Sometimes this was due to the fact that the authors of these works had some Continental training, and sometimes the non-English influence reflected a wider anticolonial nationalist move away from English culture. Finally, the influence of nationalism also led some Indian legal scholars to create a unique genre of jurisprudential works: Texts that used Western jurisprudential theories to describe the main features of Hindu (and, to a lesser extent, also Islamic) law. These unique aspects of colonial jurisprudential works illustrate a broader phenomenon: the fact that legal scholars in imperial peripheries such as India were not always simply passive receivers of ideas produced at the center of empires, but in some cases created works containing interesting jurisprudential insights. The notion that India was a “legal laboratory” in which legal scholars experimented with new ideas has already been discussed in the literature, largely based on examples taken from the fields of legislation (the codification of English law in nineteenth-century India) or forensic science. This Article explores the extent to which India was also a site of jurisprudential innovation.

A Tale of Two Countries: Divorce in England and Prussia, 1670–1794

Why did two leading European countries (Prussia and England), which at first sight appeared to have much in common, enact radically different divorce legislation during the eighteenth century? This Article takes a close look at each country’s reforms, their legislative history, and their likely effects in an effort to tease out what motives lay behind them. And by connecting the legal changes to the countries’ sociopolitical and intellectual structures, it goes on to explain why the reforms were so different. The Article’s findings are relevant not only for the history of the law of divorce, but also for the broader issue of what forces play a role in the evolution of the law. Today, few would doubt the proposition that there are social and ideological “causes” of legal development. However, what these causes are and in what combination they have to be present for a legal change to occur are questions that are rarely examined in any detail.

Private Takings of Land for Urban Redevelopment: A Tale of Two Cities

In 1999, both Hong Kong and Singapore brought into force legislation that permitted a supermajority of apartment owners within a building development that met certain statutory criteria to force a minority of dissenters to sell the development as a whole. Both territories did so because, as land-scarce cities, it was considered that the redevelopment of aging buildings was an urgent imperative. In so doing, although they claimed to be following other jurisdictions, both Hong Kong and Singapore broke new ground in pioneering the private takings of land among common law jurisdictions. These developments have proven controversial in both territories, although the controversies have differed because of differences in implementation and historical background in both cities, despite their shared past as British colonies in Asia. This Article compares the two regimes to each other as well as to a more mature regime permitting private takings of shares in mergers and acquisitions law to highlight the lessons to be learned in order to prevent abuse.

Informal Institutional Elements as Both Preconditions and Consequences of Effective Formal Legal Rules: The Failure of Constitutional Institution Building in Hungary

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.

Through a Glass, Darkly: Artificial Intelligence and the Problem of Opacity†

As computer programs become more complex, the ability of non-specialists to understand how a given output has been reached diminishes. Opaqueness may also be built into programs to protect proprietary interests. Both types of systems are capable of being explained, either through recourse to experts or an order to produce information. Another class of system may be naturally opaque, however, using deep learning methods that are impossible to explain in a manner that humans can comprehend. An emerging literature describes these phenomena or specific problems to which they give rise, notably the potential for bias against specific groups. Drawing on examples from the United States, the European Union, and China, this Article develops a novel typology of three discrete regulatory challenges posed by opacity. First, it may encourage—or fail to discourage—inferior decisions by removing the potential for oversight and accountability. Second, it may allow impermissible decisions, notably those that explicitly or implicitly rely on protected categories such as gender or race in making a determination. Third, it may render illegitimate decisions in which the process by which an answer is reached is as important as the answer itself. The means of addressing some or all of these concerns is routinely said to be through transparency. Yet, while proprietary opacity can be dealt with by court order and complex opacity through recourse to experts, naturally opaque systems may require novel forms of “explanation” or an acceptance that some machine-made decisions cannot be explained—or, in the alternative, that some decisions should not be made by machine at all.

The Question of Comparison

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.