Volume 10, Issue 2

The article explores the thoughts of the German philosopher and sociologist Jürgen Habermas by emphasizing his communicative action theory. The article first explores his communicative action theory by discussing his distinctive social rationalization and dualistic conceptualization of modern society as comprising both a life-world and a system. After discussing Habermas's reconceptualization of modern society as comprising a distinguishable life-world and system, the article then directs attention to the function of law or a legal system in his unique reconceptualization of modern society. When discussing the function of law or a legal system, the article discusses the issues of juridification processes, legal validity and legitimacy of law. While doing so the article also addresses modern problems of social order and modern forms of cultural and social disarray. The article concludes by summarizing the discussion of the function of law or a legal system in light of Habermas's democratic theory, which is the source of his normative statement of legitimate law. All of this eventually allows for the presentation of certain conclusions about the function of law in modern society.

While technology and globalization continue to pervade every aspect of the world, the scope for the sustenance of national or regional culture is rapidly disappearing. This paper will seek to use the lessons and experiences obtained through the controversies in the use of Direct Broadcasting Satellites in its more initial years and apply the same to the Internet to assess its effect on the culture of developing States.The eventual thesis proposed here argues that the freedom of information upheld through technology, and the human right to culture need not be seen as perpendicular interests, but that the latter may be secured by its active participation in the market place of ideas (or cultures) i.e. by its projection rather than protection. Further, by drawing analogies with the evolution of principles for the protection of the environment, this paper offers a psychological framework for the development of a larger normative standard on which developing nations can base their struggle to correct the existing technological imbalance and demand technology transfer and knowledge sharing as a matter of right and thereby ultimately, competitively project their culture.

The key-importance for the understanding of all his successive work that Koskenniemi ascribes to his 1989 seminal inquiry into the structure of the international legal argument justifies that this article opens with an explanation of the main theses of Koskenniemi's pathbreaking From Apology to Utopia at the time of its re-issue with a new Epilogue. Its doctrinal emplacement as the book which “managed to convey to a wide audience the challenging, but hitherto rather mysterious message of CLS for international law" invites an inquiry into the internal dynamics of Koskenniemi's disciplinary renovating impact as part of a critical international legal movement, the precedents and main characteristics of which, must be searched in the work of a number of international legal scholars in the 80s'. In further examining the author's own deep introspective journey into the archetypes that nurture the international lawyer's self-sustaining intellectual mythology, it is argued that Koskenniemi's work champions a profoundly ethical-oriented awakening call addressed to his contemporary doctrinal counterparts. No discontinuity or rupture exists in Koskenniemi's opus, no renunciation and less oblivion of the baggage of his 90s' insights, but rather an evolving transference and application of them in connection to his so-doctrinally vaunted “culture of formalism". In examining the latter by reference to a number of Koskenniemi's essays, this appears to be both a consistent and realistically emancipatory perspective of international law when this is seen as a historically contingent ideological framework. An application of Koskenniemi's interpretative lenses to the doctrinal divide brought about by the aftermath of 9/11 and the Iraq war and an examination of the current strengthening of an international constitutionalist debate in international legal doctrine gives way an assessment of the relationship between the critical Newstream's epistemological and normative challenges to traditional international law and Koskenniemi's defence of a philosophically inclusive emancipatory tool against the “managerial mindset" and the related risk of de-formalization brought about by the current evolution of international law towards IR grounded vocabularies.

The American influence on the legal education in Israel has been significantly increased during the last three decades. Many faculty members gained their post-graduate education in American law schools. This phenomenon emerged out of both economic and cultural considerations. The result is an importation of research and teaching practices as well as the importation of theories and values. This process has significant influence on the Israeli legal system. The legal scholarship turns to be more universal and less local. English turns to be the main language of the legal academic discourse. The focus of the academic legal research is gradually concentrating on American contents and American materials. These phenomena have negative influences on the interaction of academy and legal practitioners in Israel. Moreover, theories that emerged in an American environment are percolated from the academic world to policy makers and judges. These policies have been applied as a solution for local and unique Israeli problems. The unique characteristics of the Israeli situation are neglected. Three examples to the latter are brought from the field of judicial cases concerning land policy. The first is the influence of the Brown v. Board of Education precedent on Israel policy with regard to allocation of land resources to minorities in a Jewish state. The second is the influence of American theories concerning indigenous people and distributive justice on the privatization of agricultural land in Israel. The third is the influence of American theories of distributive justice and social responsibility on the attitude of the Israeli legal world to land expropriations. These three examples show that the influence of the American education may go beyond the legal sphere and have a significant influence on basic political interior problems of foreign nations. Thus, the Israeli case may be a prism of a modern way of colonialism – a legal colonialism. This kind of superpower influence on small friendly nations is not exercised by military or economic pressure, but by an export of academic education. It may be noticed in Obama's insight that "American values are America's great export to the world."

Hicks, Thomas and Habib have alleged that Australian intelligence and law enforcement personnel were complicit in their torture while detained in the custody of Egypt, Pakistan and the United States. Following a review of Articles 4, 5 and 6 of the Convention against Torture and Australian law concerning complicity in torture, this article argues that there are several significant substantive and procedural obstacles which collectively make it unlikely that the officers concerned will be prosecuted in Australia. Contemporary legislative amendments suggest that Australia did not consider the prohibition against torture as then implemented under Australian law to apply extraterritorially to cover the conduct of Australian officials abroad. The circumstances moreover suggest that exercising jurisdiction over Australians claiming to be victims of torture was not considered appropriate. Recent Australian jurisprudence indicates that, notwithstanding Article 15 of the Convention, admissions derived from torture may have been used against claimed torture victims during proceedings and for the purposes of gathering intelligence. The article proposes that, consistent with international trends, an investigation conducted by the Inspector-General of Intelligence and Security could exonerate the intelligence services, provide useful guidance for officers dealing with Australians detained overseas, improve inter-State intelligence-sharing arrangements and alleviate the risk of being found complicit in torture.

In this article we try to answer the questions of why and when judicial constitutional review comes about as a matter of fact in some countries (as in Belgium and South Africa) but does not seem able to get off the ground in others (as in the Netherlands). More generally phrased: under what conditions is judicial constitutional review actually introduced in a particular jurisdiction? These are questions with a politico-sociological dimension, and what is striking is the extent to which these have remained underexposed in the wealth of research on the theme of judicial constitutional review. Here we will attempt to address these questions, and we will do so by outlining the political genesis and development of judicial constitutional review in Belgium and South Africa and also by checking these histories against a number of explanatory models or theories derived from political science. It turns out that the introduction of judicial constitutional review cannot simply be ascribed exclusively to the covert strategies of a particular societal class that wants to protect its value systems (as R. Hirschl argues), but might just as well be the result of a concrete systemic need of a tangible political system. Our main aim is to make suggestions for a reorientation of the theories concerned, especially by putting 'grand social theorizing' against legal dynamics, and to try to bring the two perspectives together.

Within Europe in recent years there have been two pressure points for reform of the law governing secured transactions. The first pressure point arises out of the desire by some to create a European Civil Code, a common law for Europe as you will, and this Civil Code (or Common Frame of Reference as it is now less contentiously termed) is envisaged as extending to security rights over property. The second pressure point stems from lobbying to promote the merits of Article 9 of the American Uniform Commercial Code as the basis for European (and indeed International) harmonisation of the law of secured transactions. Behind the second point is the view that Article 9 is normatively superior to other systems and that, irrespective of national frontiers, the law should converge towards the best model. This paper suggests that these theories fail to take adequate account of the "path-dependent" nature of legal development. They also fail to pay sufficient regard to the role of national lawyers and other interest groups in the reform process. To illustrate my thesis, the English experience with an attempted transplant of Article 9 is singled out for discussion.The paper begins by examining the case that is being made for a European Civil Code and its extension to security rights over property. I suggest that the argument for such a code can only be understood in the context of a desire to promote an ever closer European Union. It is essentially a political, rather than an economic or a social project. The economic case, at best, is unproven. Insofar as the lack of uniformity of secured transaction laws across European frontiers is seen as presenting an obstacle to intra-community trade, there is no particular evidence of such a hindrance that needs removing by a European Civil Code. Moreover, such a code would substantially limit the scope for national autonomy and potentially fruitful experimentation at the local level.The paper then looks at theories of convergence and path dependency in the corporate and commercial law sphere. The English example provides an illustration of how a jurisdiction may successfully resist a transplant from a supposedly normatively superior system. The English example is also highlighted as illustrating the importance of lawyers and legal doctrine in shaping and muting the reform agenda.

This essay investigates some of the similarities and differences between United States and Chinese law through a series of discussions between a fictional U.S. lawyer (Mr. West) and his Chinese colleague (Ms. Zhong). It derives inspiration from the memorable fictional dialogue between Professor Comparovich and his inquiring friends in Schlesinger's classic Comparative Law. The discussions begin with the analysis of two cases litigated in the United States and in China. They both raised the issue of the existence and scope of the duty of owners of premises to protect their tenants or guests from the risk of being injured by a third person who is, in most cases, an intruder. This topic is chosen as it provides an instructive occasion to understand the oddities and similarities in one legal system from the perspective of the other legal system.The essay does not aim to provide encyclopedic coverage of the duty to protect under either U.S. or Chinese law. Rather, it creates an interactive exchange between the two legal systems and thus promotes a better mutual understanding of both legal systems.The U.S. case is Kline v. 1500 Massachusetts Avenue Realty Corporation, 141 U.S. App. D.C. 370; 439 F.2d 477 (U.S. App. 1970). Tenant Kline sued her landlord after an intruder assaulted her in the common hallway of her apartment building late at night. The Chinese case is Wang Liyi & Zhang Lixia v. Galaxy Hotel (2000). In this case an intruder robbed and murdered a guest in a Shanghai hotel. The victim's parents sued the hotel for an apology and compensation.

Drawing on the Foucauldian concept of governmentality it is possible to set up an analysis of the great transformations undergone by the modern and western concept of representation. In a globalized world the politico-juridical vocabulary of modernity seems to be unusable to represent both emergent subjects and their claims. Class action taken as a juridical form is a powerful tool to rethink both the subjects and their claims beyond the horizon of modern politics. My aim is to show a way of politicizing legal procedures so that they can “produce” a subject capable to confront global challenges. In a class action the subject of the action does not pre-exist to the action itself. It is rather the collective interest that produces the subject of the action, which ontologically exists only at the time of the claim, and disappears, or it is transformed, at the end of the action. The transformational effect that occurs within the area ranging from a total absence of subjectivity to the creation of a collective subject equipped of strong though absolutely contingent predicates, makes the class action a real technique of legal subjectivation. The becoming-subject produced by the action does not reside in pre-existing subjective qualities, but it helps to determine them while it unfolds: needs and interests are articulated in a recognizable subjective formation only if they gain the legal threshold of collective claiming. This ontological point of view permits to show the degree of adhesion which class action performs compared to the quality of contemporary forms of life.

In the last few years European legislators have shown an increasing interest in group litigation, stimulated by the political pressure coming from consumer associations, the public at large and the European Union. The European devices, however, are very different, with a few interesting exceptions, from the internationally most famous group action model: the American class action. The European legal systems tend to restrict the power to sue to selected subjects, such as associations, they prefer the opt-in mechanisms to determine who will be bound by the judgement, and they restrict the application of the group action devices to only a few legal fields. The most common explanation for these differences refers to the pressures coming from powerful industrial lobbies worried by large classes of consumers represented by greedy lawyers, the very epitome of the so-called American “litigation culture.”The purpose of this article is to focus on the resistance against the class action offered by the European legal tradition itself. The article focuses in particular on two closely-related elements: the “hierarchical” distribution of power among the various actors of the legal systems and the tendency to regulate the market ex ante. These factors favour group litigation models that are deprived of the tremendous transformative power of the American class action.The cautious European approach has a few advantages. For instance, it avoids the bitter ethical issues that quite often afflict the American class action bar. This comfort, however, comes at a price that is seldom discussed. The European legal culture prevents legislators from paying appropriate attention to important functions of civil litigation, such as deterrence. Moreover, the continental European inclinations present the seductive but false idea of a world where the law can be grasped by the common man and where democratically elected officials have full control over the rules governing the community. The contribution of the courts flies under the radar of public opinion and public debate. From a democratic perspective this is undesirable as the public should be informed about the most important policy choices and about who is in charge of making them. “Stronger” group action devices could bring to the spotlight of media attention the work of the courts and the role of civil litigation. Secondly, the improved access to justice would help many social issues which today are “hidden” to emerge, providing precious feedback to the legislator.