"Transnational Legal Orders" Free Download
Chapter 1, Transnational Legal Orders, Cambridge University Press, 2015
UC Irvine School of Law Research Paper No. 2015-56

TERENCE C. HALLIDAY, American Bar Foundation
GREGORY SHAFFER, University of California, Irvine School of Law

This is the introductory chapter for the book Transnational Legal Orders (CUP 2015). The chapter sets out an analytic framework for building theory and studying transnational legal orders (TLOs), and it consists of six sections. Section I defines the concept of TLOs and its three composite terms – transnational, legal, and order. Section II compares and contrasts the theory and analytic framework of TLOs with three others developed in the disciplines of political science, sociology, and law – regime theory, world polity theory, and legal pluralism. In this way, it highlights the value of developing TLO theory and using the TLO analytic framework. Section III examines the differentiated scope of TLOs along two dimensions – their legal scope and geographical scope. Section IV formulates theoretical foundations for understanding the formation, development, and change of TLOs in terms of facilitating circumstances, precipitating conditions, and the recursivity of lawmaking and implementation across levels of social organization. Section V assesses the institutionalization of TLOs along our two dimensions – normative settlement and issue alignment among one or more TLOs. Section VI examines five classes of potential impacts of variously institutionalized TLOs. The chapter creates a conceptual framework for studying both the institutionalization of legal orders across national boundaries and the ensuing implications for law and social ordering more generally.

"Legal Pluralism, Institutionalism, and Judicial Recognition of Hong Kong-China Cross-Border Insolvency Judgments" Free Download
Hong Kong Law Journal, Vol. 45(1), 2015, pp 331-350

EMILY LEE, The University of Hong Kong - Faculty of Law

Legal pluralism and institutionalism are important theoretical underpinnings for the discourses of judicial recognition under dual legal systems that coexist within one sovereign nation such as the case of China and Hong Kong. Institutionalism provides that only formal institutions (eg, constitutions, laws and treaties), unlike informal ones (eg, private contracts, traditions and customs), can facilitate judicial recognition and enforcements for insolvency creditor rights protection. Legal pluralism, however, provides for an alternative to circumventing political sovereignty issues typically associated with the making of treaties for mutual judicial recognition purposes. Under the Chinese politico-legal system, Hong Kong is a Special Administrative Region which is akin to a province; as such, Hong Kong is not qualified to sign a bilateral treaty with China. This article expounds and analyses why instituting and implementing a special arrangement (an alternative to a treaty) can help optimise the mutual enforcement of Hong Kong-China cross-border insolvency judgments and orders.

"The Evolution of Relational Property Rights: A Case of Chinese Rural Land Reform" Free Download
Iowa Law Review, Vol. 100, 2015, Forthcoming

SHITONG QIAO, University of Hong Kong Faculty of Law, Yale University - Law School
FRANK K. UPHAM, New York University School of Law

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who owns the things. To describe the evolution of property rights in China, we employ the concept of relational property. It is a concept that is heavily influenced by Joseph William Singer’s “social relations model? and Ian Macneil’s “relational contract? and, in particular, their emphasis on the determinative role of social relations in the construction of property and contract rights. The bundle of sticks metaphor is at the heart of relational property because it recognizes that property rights can be, and often are, disaggregated as they adapt to changing social, economic, and technological demands. As we show in the context of the reform of Chinese rural land, the combination of the metaphor of separable interests — the sticks in the bundle — and the dependence of property interests on social relationships can explain the evolution of property rights more accurately than a perspective that stresses a single central meaning of property.

"Assimilation Through Law: Hans Kelsen and the Jewish Experience" Free Download
(Pre-edited version) The Law of Strangers: Critical Perspectives on Jewish Lawyering and International Legal Thought (James Loeffler & Moria Paz eds., Cambridge University Press, Forthcoming)

ELIAV LIEBLICH, Radzyner School of Law, Interdisciplinary Center (IDC)

Hans Kelsen was perhaps the foremost continental lawyer of the 20th century. The founder of the immensely influential Pure Theory of Law, he is primarily remembered as a groundbreaking Austrian jurist. However, Kelsen was also a Jew, albeit an extremely assimilated one. His life story – from his early days in Vienna until his death in California – is truly representative of the tragedy of European Jewry in the 20th century. This Chapter discusses Kelsen in light of the ever-present tensions between Jewish and European identity, with particular attention to his position as an international lawyer. Focusing on the period surrounding the publication of the first edition of his Pure Theory of Law (1934), the Chapter discusses Kelsen along three interrelating themes relevant to the Jewish experience of the time. The first part situates Kelsen in relation to a key dilemma of Jewish politics: the tension between Jewish nationalism and assimilationism. It highlights the different constructions of Kelsen’s identity, and their uses by various actors. The second theme focuses on assimilationist politics in Kelsen’s jurisprudence, suggesting a reading of Kelsen’s Pure Theory which I call “assimilation through law.? The third theme pitches Kelsen’s Pure Theory of (international) law against the ideology of progress – a key idea in the thought of assimilated Jewish internationalists. As I demonstrate, although Kelsen’s Pure Theory famously claimed to be “anti-ideological,? the notion of progressivism still shines through its cold and analytic reasoning.

"Why Lawyers Fear Love: Mohandas Gandhi's Significance to the Mindfulness in Law Movement" Free Download

NEHAL A. PATEL, University of Michigan-Dearborn

Although mindfulness has gained the attention of the legal community, there are only a handful of scholarly law articles on mindfulness. The literature effectively documents the Mindfulness in Law movement, but there has been minimal effort to situate the movement into the broader history of non-Western ideas in the legal academy and profession. Similarly, there has been little recent scholarship offering a critique of the American legal system through the insights of mindfulness. In this Article, I attempt to fill these gaps by situating the Mindfulness in Law movement into the history of modern education’s western-dominated world-view. With this approach, I hope to unearth some of the deep challenges facing a mindful revolution in law that are yet to be widely discussed. In Part I, I introduce the current mindfulness movement in American society. In Part II, I summarize the current Mindfulness in Law movement and the treatment of “Eastern? thought in modern education. I also describe the three levels of change discussed in academic literature: individual, interpersonal, and structural change. In Part III, I discuss how Mohandas Gandhi exemplifies all three levels of change. In Part IV, I offer critical appreciation of the Mindfulness in Law movement by highlighting Gandhi’s insights on structural reform. I conclude that a mindful application of Gandhi’s thought suggests that satyagraha be incorporated into a constitutional framework, thus making legally protected speech out of forms of public-state dialogue that are traditionally ‘extra-legal’ and used disproportionately by marginalized populations.

"How Does the Case Law System Fit into the Ethiopian Legal System?" Free Download


Ethiopia's legal system largely belongs in the civil law system. Conversely, the case law system is a distinguishing feature of the common law system.

Recently, the Ethiopian Federal legislature has enacted a legislation which introduces a rule whereby a judgment rendered by the Cassation Bench of the Federal Supreme Court would be binding upon all subordinate courts at federal and regional levels.

This paper investigates how the case law system would fit into the Ethiopian legal system.

"Reconciling Virtues and Action-Guidance in Legal Adjudication" 

J.J. MORESO, Universitat Pompeu Fabra

In this paper I am intending to articulate an answer to the powerful particularist objection to the notion of moral and legal reasoning based in universal principles. A particular way of specifying and contextualizing the universal principles is defended. This account preserves legal and moral justification, at the end of the day, as legal and moral subsumption. After that, I shall try to show how the virtues can be reconciled with this account, what is the right place of virtues in legal adjudication. Furthermore, the place of virtues in this view is reinforced by a virtue epistemology based approach.


About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

Editor: Richard H. McAdams, University of Chicago


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Advisory Board

Law, Norms & Informal Order eJournal

Wilson-Dickinson Professor of Law, University of Chicago Law School

Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

Walter E. Meyer Professor of Property and Urban Law, Yale Law School

Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

Dean, University of Virginia School of Law

L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics

Kirkland and Ellis Professor of Law, University of Chicago - Law School

Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

Ford Foundation Professor of Comparative and Foreign Law, Yale Law School