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Journal articles on the topic 'Socio-legal theory'
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Lacey, Nicola. "Normative Reconstruction in Socio-Legal Theory." Social & Legal Studies 5, no. 2 (June 1996): 131–57. http://dx.doi.org/10.1177/096466399600500201.
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Murray, Jamie. "Complexity Theory & Socio-Legal Studies." Liverpool Law Review 29, no. 2 (August 2008): 227–46. http://dx.doi.org/10.1007/s10991-008-9042-9.
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Cotterrell, Roger. "Theory and Values in Socio-legal Studies." Journal of Law and Society 44 (October 2017): S19—S36. http://dx.doi.org/10.1111/jols.12047.
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Febbrajo, Alberto. "For a socio-legal theory of risk." SOCIOLOGIA DEL DIRITTO, no. 2 (December 2009): 69–82. http://dx.doi.org/10.3280/sd2009-002005.
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- This article aims to offer an overview of some contributions to a socio-legal theory of risk. Starting from the presupposition that risk is a concept that plays a central role in sociological as well as in legal theory, it underlines the thesis that, from the point of view of the general system theory, the application of three different strategies of risk-management can be recognised in the legal system: a substantial strategy, which comprises shielding a core of legal contents from the risk of sudden and drastic changes; a social strategy, whereby risks are externalised by creating virtual figures (legal persons) which relieve "natural" persons from those risks that are particularly severe and hard to sustain in the sphere of economic activity; and a temporal strategy, in which risks are diluted by implementing procedures, i.e. sequences of operations, featuring relevance criteria of their own and by a time-frame that, to a certain extent, can be pre-determined. Moreover, in every advanced legal system, there is a need for tools for reducing or avoiding the risks produced by the current legal strategies for risk absorption. One of the main learning processes concerning the risks produced by law is democracy, which is also in turn exposed to risks. Because the present situation features profound changes in the structure of world society as a whole, which dramatically transform the types of risks confronting the legal system, the concept of law oriented to an imperativistic approach is no longer adequate. Instead, it needs to be based on a communicative approach, according to which the treatment of risks trespasses on the borders of the individual state and takes on a cultural and communicative, rather than a practical, dimension, characterised by symbolic legitimisation, virtual effectiveness and increased openness
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Ashford, Chris. "Bareback sex, queer legal theory, and evolving socio-legal contexts." Sexualities 18, no. 1-2 (February 2015): 195–209. http://dx.doi.org/10.1177/1363460715569130.
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Gessner, Volkmar. "Towards a socio-legal theory of contractual risk." SOCIOLOGIA DEL DIRITTO, no. 2 (December 2009): 83–92. http://dx.doi.org/10.3280/sd2009-002006.
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- This paper deals with the risk of opportunism the usual risk in economic exchanges. Breach of contract is probably the most common event in daily life and has therefore attracted research and debates in many disciplines of the social sciences. This discussion deals with the current knowledge of the ways in which societies are coping with the risk of opportunism, distinguishing between three approaches with ascending degrees of complexity: theories of institutional support of contractual exchanges, theories of relational trust and theories of social systems of trust. As demonstrated in Fig. 1 these theories are chosen among many other competing approaches. Rather than being replaced by institutional economics or economic sociology, socio-legal knowledge is a necessary and valuable ingredient for theories of contractual risk. Without our knowledge of the protection of property rights in a particular society, of choices between formal and informal modes of conflict resolution made by business people or consumers, of obstacles in court proceedings and of problems when a lawyer is consulted, our neighbour disciplines come to either over-optimistic conclusions as regards institutional trust or to oversimplified models as regards personal trust and relationships.
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Hendry, Jennifer, Naomi Creutzfeldt, and Christian Boulanger. "Socio-Legal Studies in Germany and the UK: Theory and Methods." German Law Journal 21, no. 7 (October 2020): 1309–17. http://dx.doi.org/10.1017/glj.2020.83.
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AbstractThis Special Issue considers the situated and contextualized development of socio-legal, or law and society, scholarship within two materially different legal and academic cultures, namely Germany and the United Kingdom, with a view to achieving a better understanding of why and how such differences in understanding and practice have arisen. The contributions are grouped into three themes. The first reflects upon the influence of institutional contexts and scholarly traditions in terms of the development of those approaches that come under the banner of socio-legal studies. The second features contributions that adopt a comparative perspective in terms of selected areas of law, pointing to notably different approaches taken in Germany and the UK, and considering the development of these respective situations. The third looks at the key contemporary trends, theoretical applications, and methodological approaches taken within both countries’ socio-legal academic contexts.
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Cotterrell, Roger. "Leon Petrażycki and contemporary socio-legal studies." International Journal of Law in Context 11, no. 1 (March 2015): 1–16. http://dx.doi.org/10.1017/s1744552314000330.
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AbstractThe work of the Polish–Russian scholar Leon Petrażycki from the early decades of the twentieth century holds a strikingly paradoxical position in the literature of juristic and socio-legal scholarship: on the one hand, lauded as a supremely valuable contribution to knowledge about the nature of law and, on the other, widely neglected and little known. This paper asks how far Petrażycki's theories, expressed in writings by and about him available to an international readership, can provide insight for contemporary socio-legal studies – not as historical background but as living ideas. How far can his work speak to current issues and inform current debates? What obstacles stand in the way of this? Why have few international scholars engaged with his theories despite their rigour and originality? The paper starts from this last issue before addressing the others. It argues that Petrażycki's radical legal theory offers strikingly distinctive resources for rethinking issues about the role of law in multicultural societies, the nature of developing transnational law, and the significance of law as an aspect or expression of culture.
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Mant, Jess. "Working Politically: Combining Socio-Legal Tools to Study Experiences of Law." German Law Journal 21, no. 7 (October 2020): 1464–80. http://dx.doi.org/10.1017/glj.2020.78.
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AbstractThis Article provides a novel insight into how earlycareer scholars in the UK may combine different theoretical tools in their research, and the implications that this may have for the socio-legal discipline. This Article draws upon the author’s experience of combining theoretical tools from different schools of thought: Feminist legal theory, Bourdieusian theory, and Actor Network Theory, within the context of recent research into experiences of those representing themselves in family court hearings in England and Wales. Combining these theories for the first time, this Article explores the difficulties, tensions, and benefits of combining tools within socio-legal research and reflects upon the influence of the pedagogical and institutional resources that characterize the socio-legal research environment in the UK. This Article argues that the task of combining different tools provides scholars with the opportunity to work politically, because the process of reconciling tensions between different approaches requires researchers to reflect upon the worldviews that underpin their selected theories. In this sense, it argues that combining different theories within socio-legal research is a political activity, because researchers are required to reflect not only on how theoretical choices may contest, expand, or develop dominant assumptions that characterize socio-legal scholarly traditions.
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Dean, Meryll. "Legal transplants and jury trial in Japan." Legal Studies 31, no. 4 (December 2011): 570–90. http://dx.doi.org/10.1111/j.1748-121x.2011.00197.x.
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Alan Watson's theory of legal transplants was pioneering and innovative. It moved comparative law beyond ideas of legal families and legal systems by providing both a tool and a metaphor for examining hybrid, or mixed, legal systems. However, socio-legal comparativists in particular criticised his approach because of its failure adequately to acknowledge the importance of legal culture in transplant theory. As a hybrid legal system Japan provides an operative laboratory of comparative law. This paper examines jury trial to evaluate Watson's theory. It concludes by offering a new threefold categorisation of legal transplants.
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Pykhalova, A. "Socio-Legal Conditionality and Classification of Abuse of Procedural Rights." Bulletin of Science and Practice 7, no. 7 (July 15, 2021): 266–69. http://dx.doi.org/10.33619/2414-2948/68/34.
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The article examines the cause of the institution of abuse of law, examines the classification of abuse of law in accordance with the norms of current legislation and the main provisions of the legal science of the Russian Federation. The article deals with the problems of theory and practice that arise when making court decisions in civil cases based on the application of the norm of Article 10 of the Civil Code of the Russian Federation. Special attention is paid to the acts committed by plaintiffs, defendants, and third parties in connection with the implementation of a particular procedural right, which, in turn, are most often found in practice.
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Eller, Klaas Hendrik. "Comparative Genealogies of “Contract and Society”." German Law Journal 21, no. 7 (October 2020): 1393–410. http://dx.doi.org/10.1017/glj.2020.84.
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AbstractSince contracts form a basic institution of every legal order, the interdisciplinary orientation of concepts of contracts reveals socio-legal inclinations of a legal order more broadly. Contrasting the UK and US Common Law of contracts with developments under German law, this Article examines the relation between normative and social science approaches, notably rooted in economics, economic sociology, and social theory in the genealogy of contract law. A shared leitmotif over the 20th century has been the drive to account for the societal embeddedness of contract. However, conceptualizations of “Contract and Society” differ considerably between legal orders in their disciplinary ingredients and design. In the US, and to a lesser extent also in the UK, the rather continuous reception of legal realism has paved the way for broad interdisciplinary perspectives on contract law, ranging from classical socio-legal, empirical work (e.g., Macaulay), economics (e.g., Williamson), sociology (e.g., Powell), and critical theory (e.g., Kennedy) to today’s landscape, where essentially instrumental and ideal-normative theories compete. Alternatively, in Germany, where the realist heritage was more ephemeral, the transformations of contract law were processed from within legal discourse and foremost in their effects on private autonomy as conceptualized, for example, in German idealism, discourse theory and critical theory. Similarly, the “constitutionalization” of contract law—even if championed for fostering private law’s reflexivity—has, for the most part, defied a socio-legal orientation. Finally, the Article highlights the path dependencies with which these different starting points translate in current debates around the role of contract in transnational governance.
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Schultz, Ulrike. "Gender in Socio-Legal Teaching and Research in Germany." German Law Journal 21, no. 7 (October 2020): 1345–61. http://dx.doi.org/10.1017/glj.2020.86.
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AbstractGender in socio-legal teaching and research in Germany is a story of impediments, hindrances, and of singleperson initiatives—my personal history being a part of this. But it is also a story of influences upon the impulse and inspiration to undertake socio-legal work. My Article is therefore influenced by (feminist) standpoint theory (Harding 1991). Germany has had a very conservative family culture and, over the past decades, many of the legal regulations that infringed upon women have had to be adapted, in what was quite a tedious political process, to comply with the German Constitution’s gender equality clause. Only in the past decade has gender awareness in law faculties increased and gained acceptance, usually as a result of greater focus on diversity issues, and anti-discrimination legislation. Obstacles have resulted from a lack of cooperation between the actors in social sciences and law, as well as in academia and gender equality practice, and a lack of understanding between more conservative and more progressive women. Socio-legal research was, and is, needed to deliver empirical evidence and provide theoretical foundations for cultural and legal changes as societies progress towards gender equality. Socio-legal teaching is needed to alert lawyers to necessary change, to enable them to undertake informed critique, and to prepare them to act. There are, however, marked deficits in socio-legal teaching and research on gender. In spite of an increased political acceptance, gender equality is still mainly a women’s project.
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van Aaken, Anne. "Experimental Insights for International Legal Theory." European Journal of International Law 30, no. 4 (November 2019): 1237–62. http://dx.doi.org/10.1093/ejil/chaa009.
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Abstract Insights from experimental psychology and economics have rarely been applied to the study of international law and never to the study of international legal theory. This article applies them to socio-legal international theory that has grosso modo two important background paradigms with several variants: rationalist and constructivist. In both paradigms, the interest in understanding and explaining international law by uncovering causal mechanisms in international cooperation and compliance and in asking how cooperation is sustained in a system as decentralized as international law is paramount. In both, fundamental assumptions regarding the behaviour of actors are made. However, regardless of the theoretical standpoint, both fall short of experimental evidence about their behavioural assumptions. The article uses experimental evidence provided by public good games as a conceptualization of how social order is constructed and upheld in systems without central authority such as international law. It aims to illuminate the behavioural basis of important building blocks of international cooperation and law by discussing the preferences of states and strategic interaction, reciprocity, sanctions, communication and trust as well as consent and legitimacy, reflecting on what the experimental insights teach us on the assumptions of rationalist and constructivist approaches to international legal theory. These experiments are one means to test behavioural assumptions in international legal theory.
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Roy, Shubhangi. "Theory of Social Proof and Legal Compliance: A Socio-Cognitive Explanation for Regulatory (Non) Compliance." German Law Journal 22, no. 2 (March 2021): 238–55. http://dx.doi.org/10.1017/glj.2021.5.
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AbstractChallenging the assumption of perfect legal knowledge, this Article employs social psychology to better understand how individuals make decisions about legal compliance under imperfect information conditions. It adapts the informational aspects of “social influence conception of criminal deterrence” to regulatory compliance at large. However, it conceptualizes social influence as more than just “visible deterrence.” Social Psychology helps us to understand who, how many, and what kind of behaviors constitute adequate social proof to guide an individual’s decision on compliance. Additionally, the interaction of social proof and legal compliance is considered within a dynamic framework in relation to specific rules and across the system. Within this framework, compliance/non-compliance cascades across different rules and can create a perception about legal compliance at large, which in turn guides initial expectations with respect to new laws. Over time, this can create high/low compliance equilibriums within which societies operate. Understanding this informational role that social influence plays in legal compliance can further our understanding of what motivates compliance, the potency of the expressive functions of law in societies operating within different compliance equilibriums, and inform policy discussions on how to improve compliance—both voluntary and through sanction/incentives.
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Javier Treviño, A. "Theory and Methods in Socio-Legal Research. Edited by Reza Banakar and Max Travers." Law & Society Review 41, no. 2 (June 2007): 493–94. http://dx.doi.org/10.1111/j.1540-5893.2007.00305.x.
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Suchkova, E. L. "The concept of research of psychology of group legal consciousness of convicts." Psychology and Law 8, no. 2 (2018): 101–12. http://dx.doi.org/10.17759/psylaw.2018080208.
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The article presents the concept of the study of psychology of group legal consciousness of convicts, developed on the basis of the integration of private scientific theory of legal consciousness with modern socio-psychological approaches to the study of psychology of large social groups. Appeal to the methodology of social representation allows to identify and describe the specifics of the content of social representations, which are structural components of the psychology of group legal consciousness of convicts, as well as to analyze their key functions. The use of the subjective approach and the theory of deformation of social relations makes it possible to study the laws of formation and deformation of the psychology of group legal consciousness of convicts. It is concluded that the integration of these approaches makes it possible to study the psychology of group legal consciousness of convicts as a complex socio-psychological phenomenon consisting of a set of mental representations produced and shared by the community in the legal sphere, as well as to identify patterns of formation and deformation of its content.
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Ukhanov, Anton. "The problem of legal regulation of digital reality as a challenge to the general theory of law." Advances in Law Studies 8, no. 5 (June 4, 2020): 33–41. http://dx.doi.org/10.29039/2409-5087-2020-8-5-33-41.
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The article analyzes the problem of legal regulation of new public relations arising in the era of digitalization as a challenge to the system of legal knowledge. You substantiate the position that the socio-political and legal processes observed at the present stage, the defining trend of which is digitalization, force researchers not just to take the usual measures to regulate emerging relations, but to qualitatively review the most profound philosophical and theoretical legal conventions and assumptions of jurisprudence. The main part of the work highlights potential areas for revision.
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Berg, L. N. "Theory of state and law on legal influence." Journal of Law and Administration, no. 1 (July 28, 2018): 43–53. http://dx.doi.org/10.24833/2073-8420-2018-1-46-43-53.
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Introduction. The article analyzes the legal impact as a systemic structure. The main emphasis is on the possibility of its recognition as an artificially natural open complex system, which requires revision of the theoretical and legal concepts of the phenomenon under study, its structure and the place in the theory of state and law.Materials and methods. The methodological research is based on general scientific and special methods of knowledge of legal impact as a system, including analysis, synthesis, analogy, generalization, comparison. The use of the system approach allowed revealing the dynamic nature of the legal impact, the element-by-element nature of changes in the legal system and in society.Results of the study. The identification of a special quality of legal impact – its system, requires the use of systematic methodology. In this case, there is an opportunity to reveal the potential of legal impact, taking into account not only its normative core, but also the multi-factor interaction with the external environment, culture, socio-economic reality, forms of legal and psychological impact.The arguments in favor of a systematic approach in the theory of state and law, without denying the instrumental approach, contain statements about the interdisciplinary nature of the legal impact, new opportunities for a detailed study of the intensive relationships and interactions between its elements as a system, to approach the solution of problems about the composition and legal nature of such elements.Discussion and conclusion. In theoretical and practical studies of the nature of legal impact, it is important to find and characterize its complex system levels, series and elements in a timely manner, which expands the horizons of not only its understanding, but also increases efficiency through the expansion of forms of legal impact in the improvement of national legislation. In this context, further research on the theory of state and law is extremely necessary: the study and description of the legal statics, the dynamics of the legal system, their methodological justification give a new impetus to the representation of legal reality experiencing dynamic changes.
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Bondaruk, T. I. "Law and its interpretation in the context of cultural and historical process." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 125–28. http://dx.doi.org/10.33663/2524-017x-2021-12-20.
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The article attempts to substantiate the approach to law as a socio-cultural phenomenon as decisive for its interpretationтin the historical process. P. Bourdieu’s formula «law is cultural capital» is offered as a starting point. Attention is drawn to law as a socio-cultural phenomenon, legal values as cultural and spiritual values, legal tradition, etc. Attention is drawn to some provisions of Dvorkin’s interpretive theory regarding the conditionality of the content of legal norms by political (strategies pursued by legislators through norms) or moral (principles implemented by judges in resolving conflicts in society) factors. It is concluded that to interpret the law in historical retrospect, when it comes to mastering the legal experience of a society accumulated over the centuries, the most productive, considering and researching law as a socio-cultural phenomenon. Culture, the core of which is values, as a collective programming of consciousness, which distinguishes members of one group or type of people from another (according to G. Hofstede), which includes law, determines the level of implementation and collective life of people in society / state, their social integration and social reproduction in general during a certain historical period. Keywords: law, socio-cultural phenomenon, cultural-historical process, interpretation.
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Kozinnikova, Ekaterina. "Censorship as a subject of police and legal theory." Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2020, no. 1 (April 8, 2020): 18–23. http://dx.doi.org/10.35750/2071-8284-2020-1-18-23.
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The article examines the institution of «press police» in the police law of the Russian Empire, as well as measures taken to tighten censorship in the late XIX – early XX century, as one of the ways to neutralize the socio-political situation in the country. The author analyzes the views of the most prominent Russian police officers: I. E. Andrievsky, N. N. Belyavsky, V. F. Deryuzhinsky, V. V. Ivanovsky, and I. T. Tarasov on the problem of restricting the rights and freedoms of the population, including freedom of speech and the press, under the conditions of the emergency legal regime of an exceptional situation. The author describes the significance of the exceptional position as a way to eliminate the extreme socio-political situation in the state, as well as a means of political prevention of the revolutionary threat to the state system. It is concluded that Russian state experts, in General, who advocated the development of the system of rights and freedoms of the population, in an extreme situation recognized the need to take measures to tighten censorship and restrict freedom of speech, however, in practice, this measure, even in conjunction with other protective measures, could not solve the problem of preserving the existing state system.
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Pahlawan MP, H. Muhamad Rezky, and Chessa Ario Jani Purnomo. "Problematika Fungsi Hakim Pengawas dan Pengamat Dalam Sistem Peradilan Pidana Indonesia: Tinjauan Studi Socio-Legal." Sang Pencerah: Jurnal Ilmiah Universitas Muhammadiyah Buton 6, no. 2 (August 27, 2020): 107–17. http://dx.doi.org/10.35326/pencerah.v6i2.709.
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In this study, the author considers 3 (three) reasons that are considered important such as philosophical aspects, aspects of criminal law theory, and political aspects of national criminal procedural law after describing 5 (five) previous legal scientific studies related to the implementation of supervisory judges and observers in the criminal justice system. This study aims to reflect on the legal principles of the kimwasmat institution and build models and patterns of implementing the kimwasmat institution. This research intends to answer 2 (two) legal issues: firstly, what are the legal principles contained in Article 280 of the KUHAP. Secondly, what is the model and pattern of implementation of the supervisory and observer judge institutions based on Article 280 of the KUHAP. This legal research uses the socio-legal research method, the materials of which are the results of interviews of judges in deliberate district courts, study of court official documents, relevant laws and regulations to legal issues, legal theory and social science theories. This study found, firstly, the function of kimsmat based on the principle of legal certainty and the principle of benefit which seeks to be married into the principle of certainty which is useful based on Pancasila. Finally, the classical bureaucratic model and the institutional model as well as the aspects of state administration to explain the management and control functions of the authority of the kimwasmat become the basis for the court to carry out criminal objectives.
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Mima, I. V. "Ideological manifestations of Christian-legal traditions in the legal system." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 195–99. http://dx.doi.org/10.33663/2524-017x-2021-12-33.
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The process of development of various directions of objective scientific analysis of problems of the theory of the state and law is investigated; the analysis of transformational processes of Christian-legal traditions in the legal system is carried out. The author argues that the Christian legal traditions are a unique religious and social value, because they embody the fundamental principles of civilized organization of religious relations in society, their regulatory requirements. Christian legal traditions generalize national law at the level of the legal space, reflect the unity of the legal system, which fixes the legal individuality and identity of the country, which affects the formation of the national idea. The author notes that in modern society, Christian legal traditions, Christian legal traditions appear as a legal category, a phenomenon of legal culture, an element of the legal system and a component of the succession of law, which captures generalized legal experience, legal memory, legal knowledge and legal ideas. passed down from generation to generation as acceptable ways of organizing society, models of formation of the legal system, order in law, hierarchy of values in law, etc. The point of view that Christian-legal traditions can be characterized from the standpoint of traditionalism and modernism is substantiated. Socio-historical heritage is a liability of past traditions and a basis for the formation of new traditions. In general, modern society is characterized by the action of real Christian legal traditions, which combines authentic and non-authentic Christian legal traditions and socio-historical heritage in ensuring the heredity of social development with its previous stages. Authenticity is determined by the preconditions for the formation of Christian legal traditions in society, arising from the laws of the stages of its development. Inauthentic Christian legal traditions are created artificially and act as declared social norms that have not yet confirmed their value nature in the course of social practice. They are most often observed in societies undergoing transformational periods of their existence, during which there is a need for new methods of regulating social relations and means of community unification. Such Christian legal traditions can be used to fill gaps in the mechanism of social and normative regulation of social relations by connecting the past with new conditions and needs. In addition, Christian-legal traditions occupy an important place in the socio-normative organization of modern society, and during the historical process of development of society the content of Christian-legal traditions was influenced by ideological, cultural and socio-economic deformations of society. Christian-legal traditions as religious-normative principles ensure the realization of Christian-legal ideals and values in religious relations, their indisputable status in public life. Keywords: legal system, Christian-legal traditions, legal heritage, traditionalism and modernism, legal culture, legal consciousness, authentic and non-authentic Christian-legal traditions.
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Vedeneev, Yu A. "Legal Theory: Between Dogmatic Heritage and the Language of New Analytics." Lex Russica, no. 4 (May 2, 2019): 31–55. http://dx.doi.org/10.17803/1729-5920.2019.149.4.031-055.
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The article is devoted to analyzing conceptual shifts in the description and explanation of the phenomenon of law. The subject of the science of law constitutes the category of changing mental, linguistic and conceptual forms of its existence and expression. The development of the science of law is subject to the cultural and historical logic of evolution both as a phenomenon of law and the language of reasoning regarding law. The evolution of the phenomenon of law and the evolution of the science of law take place in a complex and dynamic environment of institutional and conceptual changes and mutual influences. Legal reality as a social fact and the concept of the fact exists within the cultural and historical boundaries of the interaction between the language of legal practice and the language of legal theory.Understanding of legal reality as a linguistic reality (phenomenon) requires the development of mental models (epistems) that allow us to identify the most significant aspects of manifestations of legal reality in a variety of socio-cultural contexts of its linguistic — institutional (practical) and conceptual (theoretical) — expression. The current agenda covers the formation of the general body of the theory of jurisprudence per se, or jurisprudence of the judiciary. Its analytical basis forms theoretical history of the legal science presented in various cultural and historical forms and expressions of the legal knowledge.
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Romashov, Roman Anatolevich. "Legal thinking in the context of linear and cyclical politogenesis." Russian Journal of Legal Studies 6, no. 3 (April 1, 2020): 15–22. http://dx.doi.org/10.17816/rjls19115.
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On the basis of a refined definition of legal thinking, its features are determined in relation to socio-historical time and national culture. It is proposed to perceive this phenomenon as a specific mental process of modeling laws of law-making and law-realization activities carried out within the framework of national and international legal cultures and based on axiomatic factors characteristic of these cultures.
The specificity of perception of political genesis within a linear and cyclical history is shown. The ratio of circular and spiral development cycles is considered, with emphasis on the wave theory of social development of E. Toffler.
Based on the provisions of this theory, a hypothesis of pluralistic multicultural legal thinking is constructed, which presupposes an equal, free dialogue between representatives of various social systems that coexist in modern times, but are in dichronic sociohistorical times. Being capable of moving from one social system to another, carriers of various types of legal thinking, thereby demonstrating their ability to travel not only in space, but also in socio-historical time, adaptation to which occurs in relative independence from the will of states, as well as from national traditions.
Analyzed structural and substantive features of legal thinking in the context of changing socio-historical cycles (waves).
It is noted that linear and cyclical legal thinking cannot exist in isolation from each other. However, representing different perspectives of the perception of legal reality, the models in question act as parallel planes, each of which sets its own parameters of perception, measurement, and evaluation of the state and law.
The modern world, having ceased to be bipolar, is becoming multicultural. At the same time, the recognition of a person, his rights and freedoms as a universal global legal value means that any person, regardless of his social and legal status, is a valuable legal phenomenon a subject of law.
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Hernández-Hernández, Tania P. "The Spanish Translation of Les Leçons de chimie élémentaire: On the Legal Status of Translation and its Various Values." Comparative Critical Studies 16, no. 2-3 (October 2019): 201–15. http://dx.doi.org/10.3366/ccs.2019.0327.
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Throughout the nineteenth century, European booksellers and publishers, mostly from France, England, Germany and Spain, produced textual materials in Europe and introduced them into Mexico and other Latin American countries. These transatlantic interchanges unfolded against the backdrop of the emergence of the international legal system to protect translation rights and required the involvement of a complex network of agents who carried with them publishing, translating and negotiating practices, in addition to books, pamphlets, prints and other goods. Tracing the trajectories of translated books and the socio-cultural, economic and legal forces shaping them, this article examines the legal battle over the translation and publishing rights of Les Leçons de chimie élémentaire, a chemistry book authored by Jean Girardin and translated and published in Spanish by Jean-Frédéric Rosa. Drawing on a socio-historical approach to translation, I argue that the arguments presented by both parties are indicative of the uncertainty surrounding the legal status of translated texts and of the different values then attributed to translation.
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Hardianto, Danang. "REORIENTATION TOWARDS THE NATURE OF JURISPRUDENCE IN LEGAL RESEARCH." Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada 26, no. 2 (November 11, 2014): 340. http://dx.doi.org/10.22146/jmh.16044.
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This article is used to distinguish a deepest understanding between normative and empirical legal research. The jurisprudence is characteristically sui generis or ‘be on one’s own’, it contents norms and its scope, namely legal dogmatic, legal theory, and philosophy of law, is used to solve legal issues or problems.Otherwise the empirical science armed with its methodology,especially in connection with the sociology of law and called with the socio-legal research, describes merely the legal phenomena. Therefore, this article chiefly criticize the failing of the sociology of law to solve legal issues or problems for legal practice or legal scholarship. Artikel ini digunakan untuk membedakan sebuah pemahaman yang mendalam diantara penelitian hukum normatif dan empiris. Ilmu hukum bersifat sui generis atau hanya untuk jenisnya sendiri. Ilmu hukum mengandung norma dan ruang lingkupnya, yaitu dogmatik hukum, teori hukum, dan filsafat hukum, digunakan untuk memecahkan isu atau masalah hukum. Sebaliknya ilmu sosial, terkait dengan sosiologi hukum dan disebut dengan penelitian socio-legalhanya menggambarkan gejala-gejala hukum. Oleh karena itu, secara tegas artikel ini mengkritisi kegagalan sosiologi hukum untuk memecahkan isu atau masalah hukum baik untuk kebutuhan praktik maupun akademisi.
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BARKOV, Aleksey V., Yana S. GRISHINA, Yulia G. LESKOVA, and Olga A. SEROVA. "Growth of Socio-Entrepreneurship Role of Universities in Economic and Legal Space of Russia: Issues of Theory and Practice." Journal of Advanced Research in Law and Economics 9, no. 3(33) (June 30, 2018): 876. http://dx.doi.org/10.14505/jarle.v9.3(33).10.
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Topicality of the studied problem is caused by the goal of formation of the legal model for participation of Universities in innovational entrepreneurship and growth of their socio-entrepreneurship role in economic and legal space of Russia. The purpose of the research consists in determining the peculiarities of the legal status of University in Russia, which combines three missions: educational, research, and entrepreneurial, which are related to social entrepreneurship. The scientific methods used in this research include analysis, synthesis, comparison, generalization, rather-legal method, and method of literal and systemic interpretation of the norms of law. Results: the study presents the authors’ offers for successful realization of the project ‘Universities as centers for space of innovations’, conducted in Russia, which includes the conclusions on change of the civil and legal status of Universities and minimization of commercialization in their activities. The materials of the paper have practical value for specialists in the sphere of economic and law and persons who conduct scientific research in the sphere of legal regulation of Universities’ activities, as well as persons involved in legislative activities.
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Chiu, Man-Chung. "Harmonizing the Resistance, Resisting the Harmony: A Critical Discourse on the Reconstruction of Indigenous Theory of Gender Justice in Hong Kong." Asian Journal of Social Science 36, no. 1 (2008): 79–103. http://dx.doi.org/10.1163/156853108x267576.
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AbstractIn Hong Kong, even though the Bill of Rights Ordinance (the localized version of ICCPR), Sex Discrimination Ordinance and a series of legal reforms were enacted and introduced respectively in 1991 and 1994, gender discrimination in legal discourse still persists. Chinese customary law, which only recognises the male's right to build small houses in the New Territories, remains an exception under the Sex Discrimination Ordinance; and the oppression of (female) sex workers is not yet recognized. Some politicians argue that discrimination is inherent in the Han-Chinese culture of harmony, which is impossible to understand from the Euro-American individual-centric perspective of gender equality. They further quote Daoist YIN-YANG cosmology where YANG/Male/Masculinity is supreme; and Confucian Constant Virtues where women are marginalized as examples showing that Han-Chinese culture, where harmony is hegemonized, cannot tolerate or accept gender equality. This paper adopts a critical perspective in examining the above arguments and points out not only that a “pure” version of patriarchal socio-legal culture in the name of harmony hegemony does not exist, but (indigenous) culture should always be meticulously and critically represented in order to reproduce “justice”. I would also argue that it is possible to scrutinize and explore the spaces of resistance within the Hong Kong Han-Chinese socio-legal culture, where foreign theories of gender justice/equality and related legal reforms can be examined.
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Chiaramonte, Xenia. "Social Movements and the Legal Field: Becoming-Constituent." Max Planck Yearbook of United Nations Law Online 22, no. 1 (October 7, 2019): 376–93. http://dx.doi.org/10.1163/18757413_022001015.
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The relationship between social movements and the legal field is controversial and complex. This paper begins by recognizing that the concept of social movement does not belong to legal doctrine and then synthetically reconstruct the relevance of it for a legal understanding. In fact, even if this concept is not formally taken into account by constitutions or by legal codes, a socio-legal approach underscores the need for the comprehension and inclusion of collective phenomena into legal theory. First, the paper explores the way in which ‘social movement’ has been taken up and translated in the legal field through the concept of social change and constitutional change. Second, this research goes through various cases in which social movements use law strategically, from the phenomenon of cause lawyering to the litigation strategy. Finally, it stands for a theoretical understanding of the role of social movements in legal theory as a lively expression of ‘becoming-constituent’.
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Chiarello, Elizabeth. "Contextualizing Consequences: A Socio-Legal Approach to Social Movement Outcomes in Professional Fields." Mobilization: An International Quarterly 18, no. 4 (December 1, 2013): 429–51. http://dx.doi.org/10.17813/maiq.18.4.d0645433x5272652.
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Social movement consequences have become an increasingly important area of study, but the current literature overlooks implementation and treats law, organizations, and culture as separate areas of inquiry. This study offers a new perspective on consequences by taking a socio-legal approach that considers how law is constructed and enacted in professional fields and how legal and professional logics intersect to influence professional decision making. Drawing on ethnographic interviews, surveys, and content analysis about the Emergency Contraceptive Pill (ECP) conflict in pharmacy, I find that professional logics largely supersede legal ones to influence decision making and that organizational positioning and perceived policy affect collective goods distribution. These forces diminish the power of pro-choice and anti-abortion laws as professionals interpret, construct, and ignore the law in daily practice. The concluding discussion emphasizes the importance of considering professionals as targets of social movement action, reconceptualizing collective goods and implementation, and using field theory as methodology.
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Merry, Sally Engle. "Further Book Reviews : Roger Cotterell, Law's Community: Legal Theory in Sociological Perspective. Oxford: Clarendon Press; Oxford Socio-Legal Studies, 1995, 382 pp." Social & Legal Studies 6, no. 4 (December 1997): 584–86. http://dx.doi.org/10.1177/096466399700600417.
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Husa, Jaakko. "Language of Law and Invasive Legal Species – Endemic Systems, Colonisation, and Viability of Mixed Law." Global Journal of Comparative Law 9, no. 2 (June 19, 2020): 149–82. http://dx.doi.org/10.1163/2211906x-00902001.
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The article asks what is the significance of language for the viability of an endemic mixed legal system. The analysis applies the ecological conceptualisation of endemism and explains how invasive species colonise an endemic mixed system. It is argued that the process of displacing takes place in a manner similar to the process of colonisation of the lifeworld as explained in Habermas’ theory of communicative action. It is also argued that a socio-linguistic infrastructure is needed to ensure the use of minority legal language under the influence of the surrounding bigger legal culture. The argument is tested with four illustrative cases allowing theory building. The cases addressed are Hong Kong, Scotland, Quebec, and Louisiana. The article concludes that language itself is not the cause of legal cultural colonisation. Language, if common to both a smaller and a bigger legal culture, is the medium through which invasive legal species are carried.
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Palekha, Roman R., Valery P. Belyaev, Valery P. Kanishchev, Larisa L. Solovyova, and Neonila A. Turanina. "Legal Impact Theory in the Context of an Integrative Approach to Understanding Law." Cuestiones Políticas 37, no. 64 (May 14, 2020): 101–10. http://dx.doi.org/10.46398/cuestpol.3764.08.
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The theory of legal impact from the perspective of an integrative approach to understanding law, is a progressive theoretical and methodological toolkit with a high potential of heuristically mastering of various legal phenomena. This theory understood within the framework of an integrative approach, allows us to consider its legal nature, content and essence as fully and thoroughly as possible, which creates favorable conditions for achieving the criteria of scientific research, such as: comprehensiveness, objectivity, and historicism. It is the integrative approach that makes it possible to fully realize such a fundamental principle of scientific research as unity in diversity, to study the nature of the legal impact comprehensively and deeply, as a complex socio-legal phenomenon, determined by various factors of public life. The methodological ground of the examination depends on the utilization of different general logical procedures and techniques for logical information, just as specific logical strategies – recorded legitimate, formal-lawful, relative lawful and interpretative. Results showed that law isn't reducible to the arrangement of lawful standards, it is a lot more extensive and progressively various, which is related with its source, bearer and vehicle - a man, with his intentionally solid willed nature and passionate mental motivations.
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Varga, Csaba. "Theory of law. Legal ethnography, or the theoretical fruits of inquiries into folkways." SOCIOLOGIA DEL DIRITTO, no. 1 (July 2010): 81–101. http://dx.doi.org/10.3280/sd2010-001004.
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Encounters - Disciplines -The lawyerly interest - Law and/or laws - Conclusion. Rechtliche Volkskunde is distinguished from legal anthropology, and the latter from both legal ethnology and legal pluralism, as well as from research on aboriginal law, claiming the first three to be law-related parts of non-legal disciplines, in contrast to Ethnologischer Jurisprudenz and anthropology of law, taken as directions within the field of jurisprudence. For the time being, none of the first has erected its own theories, nor has socio-ethnography interfered with legal theorising. Since Ehrlich and Weber realised that laws may prevail independently of the states' "Westphalian duo", a number of attempts at both extending and narrowing the law's usual remit has been tested. Considering the pendulum movement between monism and pluralism in a historical perspective, renaming what is at stake by altering the terminology is not and should not be a primary issue. As formulated by the author a quarter of a century ago, "Law is (1) a global phenomenon embracing society as a whole, (2) able to settle conflicts of inter- ests that emerge in social practice as fundamental, while (3) prevailing as the supreme controlling factor in society".
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Budaev, A. M. "The President and Local Government in Russia: The Theory and Practice of Interaction." Actual Problems of Russian Law 15, no. 12 (December 30, 2020): 41–47. http://dx.doi.org/10.17803/1994-1471.2020.121.12.041-047.
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Since the adoption of the current Constitution of Russia that established the constitutional foundations of the implementation of state power and local self-government in the Russian Federation, more than 25 have passed. This period was saturated from the point of view of the formation of the legal framework of socio-political and socio-economic relations in our country. The analysis shows that local self-government is one of the basic characteristics of the Russian model of democracy. On the other hand, in recent years it is impossible not to mention the tendency to increase the efforts of federal authorities, and first of all the head of state, to maximize the involvement of local authorities of self-government in a unified political and legal field of the State. This is largely justified by the need to provide every resident of the country with equal opportunities for a comfortable and safe life. The paper formulates the author’s view concerning the changes that are taking place; and at the same time, it is proposed to continue scientific discussions regarding the development of local self-government—an institution of a modern civilized democratic state that is necessary for us all.
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Coral-Diaz, Ana Milena. "Harms of secondary recognition in the Context of sociopolitical conflicts: Three factors for their exclusion from Transitional justice legal discourse." Novum Jus 14, no. 2 (July 1, 2020): 85–101. http://dx.doi.org/10.14718/novumjus.2020.14.2.4.
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This work seeks to explain why feminist theory has said transitional justice legal discourse has notrecognized the totality of harms women experience in the context of socio-political conflicts. To doso, it analyzes three factors responsible for international law and the Western construction of thefemale body as dualist and essentialist. Based on this analysis, it establishes that harms not usuallyrecognized by this legal discourse are considered “harms of secondary recognition,” since they donot form part of the typical legal figures that precede the experience itself.
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Macdonald, Roderick A. "Custom Made—For a Non-chirographic Critical Legal Pluralism." Canadian journal of law and society 26, no. 2 (August 2011): 301–27. http://dx.doi.org/10.3138/cjls.26.2.301.
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AbstractContemporary shifts in legal pluralism theory (from weak, intra-state pluralism to strong, extra-state pluralism and from socio-scientific to critical legal pluralism) have raised important new questions about law as a normative phenomenon. This article argues for the significance of implicit and inferential legal norms. It begins by considering a movement of thought—evangelicalism—that subordinates the implicit and informal to the explicit and authorized. The essay then outlines the principal features of a non-chirographic legal pluralism and explores how regimes of written rules are consistently made over by those whose conduct they are presumptively meant to govern.
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Viljanen, Mika. "Actor-Network Theory Contract Theory." European Review of Contract Law 16, no. 1 (April 7, 2020): 74–94. http://dx.doi.org/10.1515/ercl-2020-0005.
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AbstractFirms increasingly use complex hybrid governance structures to manage value generation networks. Empirical evidence demonstrates that the structures contain soft, “enforcement-challenged” contractual devices. Existing contract theories, however, fail to recognize and explain how these soft contract devices work as legal devices. The article seeks to address this failure.The article uses a conceptual innovation by Schepker et al to construct an actor-network theory (ANT) inspired contract theory. Schepker et al argued that contracts are best understood as often concurrently serving safeguarding, coordination, and adaptation goals. The article argues that combined with ANT the functional contracting frame allows us to recognize that contracts work and gain efficacy in multiple ways. To understand how the soft, “enforcement-challenged” contract devices work, the article traces the efficacy mechanisms the devices perform and enact.The tracings lead the article to propose an ANT contract theory that builds on three intertwined ideas: 1) contract devices have no core efficacy networks but multiple parallel efficacies, 2) contracts should be understood as bricolage collages of small-scale contractual point intervention devices that each deploy and rely on their own efficacy mechanisms and patterns, and 3) the force of contract resides in the socio-material assemblages contracts are capable of creating and sustaining.
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Hammerslev, Ole, and Mikael Rask Madsen. "The return of sociology in Danish socio-legal studies: a survey of recent trends." International Journal of Law in Context 10, no. 3 (September 2014): 397–415. http://dx.doi.org/10.1017/s1744552314000172.
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AbstractThis paper surveys recent trends in the development of the sociology of law in Denmark. The overall argument of the paper is that, currently, the sociology of law in Denmark is marked by a striking sociological and more specifically institutional and empirical turn. This new direction in scholarship suggests not only a renewed research focus on the institutional dimensions of law but it also – and very differently from work from the 1980s and 1990s – suggests a re-orientation towards sociology more generally. A clear consequence of this return to the sociological core of the sociology of law has been an empirical orientation towards how law is practised, how legal institutions work and, as part of that, how the legal profession takes part in both legal change and transformations of state and society. This new research relies not only on general sociological theory and method but also on the more specific elite sociology, sociology of professions and sociology of knowledge.
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Cywiński, Zbigniew. "Tradycja petrażycjańska w polskiej socjologii prawa albo o tym, co zyskaliśmy, nie odwołując się do Ehrlicha." Studia Iuridica 74 (July 30, 2018): 99–133. http://dx.doi.org/10.5604/01.3001.0012.2293.
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The goal of the presented paper is to show the qualities of Polish sociology of law that arise from how it formed and developed under the influence of a particular theoretical inspiration – the theory of Leon Petrażycki – specifically the ways that tradition has been influencing the direction of studies, as well as the descriptions of legal reality. According to the author, that influence is not limited to direct references, but has a broader scope that is expressed in an approach to analyzing the social context and functions of legal phenomena. To further emphasize the originality of Polish sociology of law, the article explains the differences between selected elements of Petrażycki’s theories and the proposals of Eugene Ehrlich. The problems that were undertaken by both scholars, and are still important to socio-legal studies, were presented from that point of view. Furthermore, the paper emphasizes the elements of Petrażycki’s works that did not appear elsewhere in early socio-legal thought. The study field is crucially narrowed by not orienting it towards analyzing and comparing initial ideas of Petrażycki and Ehrlich. Rather, it aims to analyze the possible influence of different views on differentiating the subjects of studies as well as their goals. In particular, the paper draws attention to the way Polish scholarship uniquely perceives the problematics of the social nature of legal phenomena, legal pluralism, the relationship between law and state (and especially legal phenomena unrelated to the state), legal culture and the usefulness of law as an instrument of social change. This is the perspective from which the paper presents selected Polish research projects and socio-legal analyses. The paper chiefly attempts to show a very particular quality of Polish sociology of law: the affirmation of legal phenomena that forms the basis for critique of faulty and socially dysfunctional official law.
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Jovanov, Rastko, and Marija Velinov. "Constitutive justice and human rights." Filozofija i drustvo 30, no. 4 (2019): 478–92. http://dx.doi.org/10.2298/fid1904478j.
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In order to show the validity of here proposed conception of social ontology and its advantages over descriptive theories of social reality, which in the analysis of the socio-ontological status of human rights find only legally understood normativity as present in social reality, we will first (1) lay out Searle?s interpretation of human rights. In the second step, we will (2) introduce the methodical approach and basic concepts of our socio-ontological position, and explain the structure of the relationship between justice, law, morality, social institutions and collective intentionality. At the end (3) we will show how our theory of social ontology is better than Searle?s legal positivism in examining the ontological status of human rights. At the end, (3) we show in what ways such a theory of social ontology more intuitively and with wider arguments explains the ontological status of institution of human rights than Searle?s legal positivism.
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Guibentif, Pierre. "Law in the semi-periphery: revisiting an ambitious theory in the light of recent Portuguese socio-legal research." International Journal of Law in Context 10, no. 4 (December 2014): 538–58. http://dx.doi.org/10.1017/s1744552314000305.
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AbstractThere is currently no mechanism – no journal, no learned society – somehow integrating Portuguese sociology of law, despite a considerable academic production. In an attempt to appreciate globally and substantially this production, this paper takes as a starting point the theory of semi-periphery formulated by Boaventura de Sousa Santos in the 1980s, and revisits the findings of socio-legal research carried out in Portugal over the recent decades in the light of that theory. The conclusion that can be drawn from this exercise is that the theory of semi-periphery – provided it is upgraded in order to better take into account features of recent processes of globalisation – still supplies a valuable framework for the reflection on the social, economic and political conditions that favour uses of the law as a tool for human groupings to govern themselves.
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Cotterrell, Roger. "Access To Justice, Moral Distance And Changing Demands On Law." Windsor Yearbook of Access to Justice 36 (September 18, 2020): 193–209. http://dx.doi.org/10.22329/wyaj.v36i0.6420.
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This paper reflects theoretically on the concept of access to justice – focusing in turn on each of its limbs – the idea of justice and that of access. ‘Justice’ is considered here not philosophically but socio-legally in terms of a spectrum of types of justice-demands made in relation to law. The idea of ‘access’ is analysed by drawing on socio-legal theory concerned with the remoteness of lawmakers from citizens. The aim is to put the concept of access to justice into a wide theoretical context that highlights changing demands on law and new socio-legal conditions – especially those associated with contemporary multiculturalism and the increasingly significant transnational dimensions of law. The paper argues that these demands and conditions make such a wide view timely and necessary. It proposes that an analysis of relations of law and solidarity taken from Durkheimian sociology can help in clarifying the possibilities and limits of state receptiveness to access to justice demands.
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Davtyan, Yuliya Aleksandrovna. "On the existence of tax liability." Налоги и налогообложение, no. 1 (January 2021): 95–111. http://dx.doi.org/10.7256/2454-065x.2021.1.34097.
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The subject of this research the normative legal acts that regulate social relations emerging as a result of violation of financial legislation of the Russian Federation and determine unlawfulness of the act and penalties for its commission, grounds and mechanism of legal liability, as well as the established law enforcement practice and the existing legal doctrine. This theoretical-legal research is dedicated to examination of the essence and content of the category of tax liability. The study of tax liability as an apparent phenomenon of the Russian socio-legal reality is conducted via dissection of the indicated conceptual category with consideration of the existing contradictory doctrinal views on this phenomenon, as well as the accumulated socio-legal experience. The relevance of this research is substantiate by the range of opinions underlying the doctrinal foundation of legal liability as a scientific category of financial law and general theory of law. The scientific novelty consists in the fact that the conclusion made in the course research on the autonomy of tax liability within the system of legal liability of in the Russian law allowed correlating the constitutive characteristics of legal liability with the characteristics of its particular case – tax liability. The conducted analysis and scientific reflection on the reviewed concepts became a derivative of the conclusion on the autonomy of tax liability within the system of legal liability in the Russian law.
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Caywood, Clarke L., and Ivan L. Preston. "The Continuing Debate on Political Advertising: Toward a Jeopardy Theory of Political Advertising as Regulated Speech." Journal of Public Policy & Marketing 8, no. 1 (January 1989): 204–26. http://dx.doi.org/10.1177/074391568900800114.
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The authors propose that political candidate advertising as a unique form of political speech is in jeopardy of losing its constitutional protection under the First Amendment. Despite the growth of political advertising as a political marketing technique and new legal freedoms for commercial advertising, the paper develops a “jeopardy theory” from seven socio-political variables which independently and cumulatively threaten political advertising's protected status.
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Bhatia, Vijay K. "Interpreting law in socio-pragmatic space." Semiotica 2017, no. 216 (May 24, 2017): 109–30. http://dx.doi.org/10.1515/sem-2015-0079.
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AbstractUnlike any other form of professional communication, legal discourse, especially in a legislative context, is unique in the sense that it is full of contradictions. Firstly, it is highly depersonalized, as its illocutionary force is independent of any specific writer or reader, and yet it is meant to address a diverse range of audiences. Secondly, it is meant for ordinary citizens, but is written in a style that is meant only for legal specialists. Thirdly, although its primary function is to assign rights and impose obligations to act or prohibit action, it is written in a highly nominal style (language of thinking) rather than verbal style (language of doing). And finally, legislative provisions are meant to be “clear,” “precise,” “unambiguous,” on the one hand, and “all-inclusive,” on the other, which can be seen as a contratdiction in terms. Most of these seeming contradictions make it difficult for the various stakeholders, which include specialists as well as non-specialists, to manage “socio-pragmatic space” in the construction and, more importantly, interpretation of such provisions, particularly when they are interpreted in broadly socio-political contexts. Drawing on some of the contradictory interpretations of certain sections of the Basic Law, widely regarded as the mini-constitution of Hong Kong, this paper will identify and discuss key theoretical issues emerging from a diversity of meanings attributed to somewhat innocuous legislative constructions, which precipitated the “Occupy Central” movement, largely popularized as the symbolic “Umbrella Movement.” The paper thus attempts to highlight two rather different aspects of interpretation of legal meaning, one in the court of law for the negotiation of justice, and the other in wider socio-political and public domains where law is interpreted broadly with wider social implications.
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Duderija, Adis. "A Case Study of Patriarchy and Slavery: The Hermeneutical Importance of Qurʾānic Assumptions in the Development of a Values-Based and Purposive Oriented Qurʾān-sunna Hermeneutic." HAWWA 11, no. 1 (2013): 58–87. http://dx.doi.org/10.1163/15692086-12341239.
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Abstract It is the task of this paper to argue that the development of a new Qurʾān-sunna hermeneutic (and therefore Islamic legal theory) which hermeneutically privileges an ethico-religious and purposive approach to a Qurʾānic interpretation (based on ethically objectivist nature of ethical value) has the potential to engender a gender symmetrical Islamic law. In order for this to be achieved, it is argued further, that the hermeneutical importance of the mirroring of the various socio-cultural and ethico-moral assumptions prevalent in the Qurʾān’s revelatory milieu in the actual Qurʾānic text itself must be taken into account as evident in those passages pertaining to the patriarchal nature of socio-legal aspects of gender dynamics and existence of slavery, especially female concubinage. Additionally, in the first part of the paper, I briefly discuss one reason why I consider the classical Islamic scholarship failed to explore the hermeneutical significance of these assumptions and therefore did not engender a Qurʾānic hermeneutic and Islamic legal theory that hermeneutically privileges an ethico-religious and purposive based approach to interpretation of Qurʾān and sunna. I refer to this process as a hermeneutical shift from a Qurʾān-sunna interpretive dialogical approach to that of a sunna-ḥadith episteme.
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Wright, Samuel. "The practice and theory of property in seventeenth-century Bengal." Indian Economic & Social History Review 54, no. 2 (April 2017): 147–82. http://dx.doi.org/10.1177/0019464617695604.
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This study reconstructs the connected history of socio-economic and intellectual practices related to property in seventeenth-century Bengal. From the perspective of socio-economic practices, this study is concerned with the legal transfer of immovable property between individuals. From the perspective of intellectual practice, this study is concerned with how property was understood as an analytical category that stood in a particular relation to an individual. Their connected history is examined by analysing socio-economic practices exemplified in a number of documents detailing the sale and donation of land and then situating these practices within the scholarly analysis of property undertaken by authors within the discipline of nyāya—the Sanskrit discipline dealing primarily with ontology and epistemology. In the first section of the essay, I undertake a detailed examination of available land documents in order to highlight particular conceptions of property. In the second section of the essay, I draw out theoretical issues examined in nyāya texts that relate directly to the concepts expressed in the land documents. In the third and final section of the essay, I discuss the shared language and shared concepts between the documents and nyāya texts. This last section also addresses how the nyāya analysis of property facilitates a better understanding of claims in the documents and what nyāya authors may have been doing in writing about property.
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Banakar, Reza. "Having one's cake and eating it: the paradox of contextualisation in socio-legal research." International Journal of Law in Context 7, no. 4 (November 11, 2011): 487–503. http://dx.doi.org/10.1017/s1744552311000267.
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Traditional doctrinal scholarship provides an important service to practising lawyers by analysing legal rules and decisions, clarifying ambiguities within rules, structuring them in a logical and coherent manner and describing their interrelationship (Chynoweth, 2008). The systematisation and formulation of the law in terms of doctrine creates a conceptual basis for constructing a legal context that helps to determine which rules should be applied in a particular situation. In this sense, doctrinal studies emerge out of the study of legal texts (or black-letter law), which are generated by legislature, courts and other legal authorities, and feed back in to legal practice once they are used in deciding cases. The method of doctrinal research, being functional to legal practice, dominates academic law and legal education. Notwithstanding its role in supporting legal practice, the doctrinal approach is criticised for conveying a normatively closed image of law (Cotterrell, 1995, pp. 50–53), for constructing the legal context narrowly, for presenting the legal system as a body of rules which can be studied in isolation from the broader societal context of the legal system by the exegesis of authoritative texts (Bradney, 1998, p. 76; Vick, 2004), for ‘not being self-conscious about its assumptions’ (Twining, 1999, p. 44) and for cultivating what Geoffrey Samuel (2009) calls the ‘authority paradigm’. Internally, i.e. from the standpoint of the legal system and its functionaries, this paradigm (or legal context) is produced by way of self-reference and normative closure, continually reaffirming the authority of legal sources such as legal texts, previous legal decisions and/or legislation, and prioritising definitions and methods based on what William Twining called the ‘practical insider attitudes’ (Twining, 2000, p. 129; for a discussion, see Banakar, 2003, p. 8). Externally, i.e. from the standpoint of policy-makers and citizenry, it is upheld through the threat of violence against non-compliance, backed by the authority of the modern state. The authority paradigm's normative closure and its dependency on coercion encourage ‘rigidity and introspection rather than an open-minded attitude to academic methods and pursuits’ (Samuel, 2009, p. 432). It fosters an understanding of the law as a system, which exists independently of societal forces. In order to escape the intellectual constraints of the authority paradigm, many academic lawyers turn to social theory and social sciences, which in contrast to law are based on the ‘perspective of enquiry’ (Samuel, 2009; see also Banakar, 2009b). These scholars place the law in the broader sociocultural context of the legal system and study legal phenomena in relation to societal forces, which are the prerequisite for the existence of the legal system and the production of the narrow legal context of the law. However, such an evasive strategy often comes at a price.