Following the successful publication of his first volume4 of essays intitled FOREIGN LAW AND COMPARATIVE METHODOLOGY professor Markesinis continues his quest for the best way of presenting foreign law to Common law readers. This second volume thus contains essays on methodology: the horizontal application of human rights; the tortious liability of statutory bodies; the growing impact of human rights law on our law of torts; the differing approaches to problems raised by action for wrongful life and wrongful birth; differing judicial styles and what they can tell us about a foreign system, as well as the growing use of foreign law by British judges in their judicial and extra judicial work. These essays, along with their rich bibliographical references, will provide much food for thought to practitioners in these above-mentioned areas of the law as well as teadhers and researchers in the fields of public law, foreign law and legal methodology.

In recent years, controversy has surrounded the role of top government lawyers in the United States and the United Kingdom. Allegations of bad lawyering and bad ethics in public office over the 'torture memos' in the United States and the political pressure placed on the Attorney-General in the United Kingdom to approve the legality of the Iraq war, have seen these relatively obscure group of government lawyers thrust into the public debate. Unlike its Anglo-American contemporaries, Australia's chief legal adviser, the Solicitor-General, has remained largely out of the public eye. This collection provides a rare and overdue insight into a fundamental public institution in all Australian jurisdictions. It provides a historical, theoretical, practical and comparative perspective of this little known, but vitally important, office at a time when the transparency and accountability of government has taken on an increased significance. Of interest to anyone interested in the integrity of government, the book will be particularly useful to government, political parties and the academy. It will also be a valuable reference work to those working towards a redefinition of the role of top government legal advisors.

This comparative analysis considers the differing approaches to important areas of law in England, France and Germany. In particular, constitutions, sources of law, rights against the state to prevent abuse of power, and rights of private individuals and organisations against each other in tort and contract are examined and compared, and the system of courts is also considered.

Updated and revised, each sub-topic is introduced with the relevant material in the English system, allowing easy comparison and assimilation of the other systems. The text includes translations of relevant French and German codal material, and references to relevant cases from all of the jurisdictions. This new edition includes constitutional changes in France and the United Kingdom, in particular the new procedure for challenging existing legislation before the Conseil constitutionnel. It examines the consequences of the Lisbon Treaty, as well as other recent codal and legislative changes. Comprehensive and topical, the text explores a wide variety of new case law on issues such as: preventive detention; the use of evidence obtained by torture; the balance between suppression of terrorism and personal freedom; the internet; email monitoring; artificial reproductive techniques; use of global positioning systems (GPSs), deoxyribonucleic acid (DNA) and closed-circuit television (CCTV); the wearing of religious clothing (such as the headscarf) and symbols (such as the cross); circumcision; methods of crowd control; the prevention of human trafficking; the preservation of privacy, especially for celebrities; and the legality of pre-nuptial agreements and success fees for lawyers.

Designed for students on comparative law courses, this textbook will also prove valuable to students who are familiar with English law, but require a readily comprehensible introduction to French or German law.

Is the Death Penalty Dying? provides a careful analysis of the historical and political conditions that shaped death penalty practice on both sides of the Atlantic from the end of World War II to the twenty-first century. This book examines and assesses what the United States can learn from the European experience with capital punishment, especially the trajectory of abolition in different European nations. As a comparative sociology and history of the present, the book seeks to illuminate the way death penalty systems and their dissolution work, by means of eleven chapters written by an interdisciplinary group of authors from the United States and Europe. This work will help readers see how close the United States is to ending capital punishment and some of the cultural and institutional barriers that stand in the way of abolition. Yet, more than that, this book shows how the death penalty has helped define the political and cultural identities of both Europe and the United States.

Human population genetic research (HPGR) seeks to identify the diversity and variation of the human genome and how human group and individual genetic diversity has developed. This book asks whether developing countries are well prepared for the ethical and legal conduct of human population genetic research, with specific regard to vulnerable target group protection. The book highlights particular issues raised by genetic research on populations as a whole, such as the potential harm specific groups may suffer in genetic research, and the capacity for current frameworks of Western developed countries to provide adequate protections for these target populations. Using The People's Republic of China as a key example, Yue Wang argues that since the target groups of HPGR are almost always from isolated and rural areas of developing countries, the ethical and legal frameworks for human subject protection need to be reconsidered in order to eliminate, or at least reduce, the vulnerability of those groups. While most discussion in this field focuses on the impact of genetic research on individuals, this book breaks new ground in exploring how the interests of target groups are also seriously implicated in genetic work. In evaluating current regulations concerning prevention of harm to vulnerable groups, the book also puts forward an alternative model for group protection in the context of human population genetic research in developing countries. The book will be of great interest to students and academics of medical law, ethics, and the implications of genetic research.

This book examines the role and impact of EU, international human rights and refugee law on national laws and policies for integration and argues for a broad understanding of the relationship between integration and the law. It analyses the legal foundations of integration at the international and regional levels and examines the interaction of national, EU and international legal spheres, highlighting the significance of these dimensions of the relationship between integration and the law. The book draws together these central themes to enhance our understanding of the connections between integration and the law. It also makes specific recommendations for the development of holistic, human-rights based approaches to integration in EU Member States. The book will be of value to academics and researchers working in the areas of immigration, and refugee law, as well as those interested in cultural diversity both from a legal and sociological perspective.

U.S. Supreme Court justices are studied publicly, but scant attention is generally paid to the judges who function daily in other courts of the world. Trends in the Judiciary: Interviews with Judges Across the Globe assembles a collection of interviews conducted by international scholars and researchers. It provides an insider s perspective of how members of the worldwide judiciary cope with significant legal developments and the issues they face in criminal and procedural law.

The subjects of these interviews administer justice in Australia, Austria, Bosnia-Herzegovina, the Republic of Slovenia, Canada, India, and the United States. Representing a variety of cultures, political environments, and economic systems, the interviewees each discuss their background, education, and career; their judicial role; the major changes and challenges they have experienced; and the relationship between theory and practice. In addition to the candid observations of the interview subject, each chapter provides a brief portrait of the national judicial system and court in which each judge serves.

Continuing the work of the International Police Executive Symposium (IPES) and the CRC Press series "Interviews with Global Leaders in Policing, Courts, and Prisons," the book enhances readers understanding of the judiciary and opens a dialogue between scholars, researchers, and practitioners. It is a major contribution to the study and practice of judging around the world.

This book takes bold steps in forming much-needed philosophical foundations for restorative justice through deconstructing and reconstructing various models of thinking. It challenges current debates through the consideration and integration of various disciplines such as law, criminology, philosophy and human rights into restorative justice theory, resulting in the development of new and stimulating arguments. Topics covered include the close relationship and convergence of restorative justice and human rights, some of the challenges of engagement with human rights, the need for the recognition of the teachings of restorative justice at both the theoretical and the applied level, the Aristotelian theory on restorative justice, the role of restorative justice in schools and in police practice and a discussion of the humanistic African philosophy of Ubuntu. With international contributions from various disciplines and through the use of value based research methods, the book deconstructs existing concepts and suggests a new conceptual model for restorative justice. This unique book will be of interest to academics, researchers, policy-makers and practitioners.

While in the past family life was characterised as a "haven from the harsh realities of life", it is now recognised as a site of vulnerabilities and a place where care work can go unacknowledged and be a source of social and economic hardship. This book addresses the strong relationships that exist between vulnerability and care and dependency in particular contexts, where family law and social policy have a contribution to make. A fundamental premise of this collection is that vulnerability needs to be analysed in a way that gets at the heart of the differential power relationships that exist in society, particularly in respect of access to family justice, including effective social policy and law targeted at the specific needs of families in mutually dependent caring relationships. It is therefore crucial to critically examine the various approaches taken by policy makers and law reformers in order to understand the range of ways that some families, and some family members, may be rendered more vulnerable than others. The first book of its kind to provide an intersectional approach to this subject, Vulnerabilities, Care and Family Law will be of interest to students and practitioners of social policy and family law.

This book traces the emergence and transformations of asbestos compensation to explore the wider issue of to what extent legal systems have converged in the era of globalization. Examining the mechanism by which asbestos compensation is delivered in Belgium, England, Italy and the United States, as well as the cultural forces and actors which contribute to its emergence and transformations, the book advances our understanding of how law operates within cultural norms, routines, and institutional relations of capitalist societies. With material gathered from 50 interviews and from primary and secondary sources, the author considers law as a cultural phenomenon, national styles of legal culture and the convergence and divergence of legal cultures, and law as a form of institutionalized power.

This book is about environmental and climate legal protection in the energy transition. The Paris Agreement has a binding commitment of holding the global temperature increase to 2 DegreesC while pursuing efforts to limit it to 1.5 DegreesC. To cope with the negative effects of climate changes and mitigate greenhouse gas emissions, one of the primary responses has been the deployment of renewable energy sources, transiting from fossil fuels to sustainable electricity production. However, renewable energy sources can also cause significant environmental impacts. Wind energy, for instance, can impact biodiversity, such as birds and bats, killing them when colliding with turbines and affecting their migration and nesting. This results in conflicts in environmental law. This book questions whether, in the energy transition, the generation of electricity from renewable sources to protect the climate is compatible with the protection of the environment, both interests in environmental law. To address this question, this book follows a legal-environmental perspective and assesses the common problem of solving those internal environmental conflicts in Brazilian and German law to understand and compare whether and how both legal systems solve the conflicts by compatibilizing the protection of the climate with other environmental interests. The legal analysis focuses on land-use planning and environmental licensing, assessing similarities and differences, and evaluating the results, identifying what one country can learn from the other.

This book considers the issue of free speech in transitional democracies focusing on the socio-legal developments in the Czech Republic, Hungary, and Poland. In showing how these Central and Eastern European countries have engaged with free speech models imported from the Council of Europe / EU and the USA, the book offers valuable insights into the ways States have responded to challenges associated with transformation from communism to Western democracy. The book first explores freedom of expression in European and American law looking particularly at hate speech, historical revisionism, and pornography. It subsequently enquires into the role and perspectives of those European (mandatory) and US-American (persuasive) models for the constitutional debate in Central and Eastern Europe. The study offers an original interpretation of the "European" model of freedom of expression, beyond the mechanisms of the Council of Europe. It encompasses the relevant aspects of EU law (judgments of the Court of Justice and the harmonised EU instruments) as mandatory standards for courts and legislators, including those in transitional countries of Central and Eastern Europe. The book argues for de-criminalisation of historical revisionism and pornography, and illuminates topics such as genocide denial, the rise of Prague and Budapest as Europe's porno-capitals, anti-Semitism and anti-Gypsyism, religious obscurantism and homophobia, virulent Islamophobia, and the glorification of terrorism. The research methodology in this study combines a descriptive case law assessment (comparative constitutional, public international, and EU law) with a normative critique stemming from post-structuralist scrutiny, rhetoric, postmodern legal movements, legal history, history of ideas, and art criticism. This book will be of interest to students and scholars of, comparative constitutional law, law and society, human rights and European law as well as political philosophers.

What is the place assigned to religion in the constitutions of contemporary States? What role is religion expected to perform in the fields that are the object of constitutional regulation? Is separation of religion and politics a necessary precondition for democracy and the rule of law? These questions are addressed in this book through an analysis of the constitutional texts that are in force in different parts of the world. Constitutions are at the centre of almost all contemporary legal systems and provide the principles and values that inspire the action of the national law-makers. After a discussion of some topics that are central to the constitutional regulation of religion, the book considers a number of national systems covering countries with a variety of religious and cultural backgrounds. The final section of the book is devoted to the discussion of the constitutional regulation of some particularly controversial issues, such as religious education, the relation between freedom of speech and freedom of religion, abortion, and freedom of conscience.

A book series devoted to the common foundations of the European legal systems. The Ius Commune Europaeum series includes comparative legal studies as well as studies on the effect of treaties within national legal systems. All areas of the law are covered. The books are published in various European languages under the auspices of METRO, the Institute for Transnational Legal Research at Maastricht University. This book discusses the impact of EU law on selected national legal systems. The authors analyse how the civil procedure system of their country has reacted to increasing Europeanisation and influence of EU law. They identify significant changes and disseminate the reasons for particular developments and the further implications of EU law on the civil procedure.Europe is in a period of increasing Europeanisation of civil procedure. Procedural elements of EU law are based on decentralised enforcement, leaving enforcement and procedural issues to the Member States. Consequently, there is vast amount of EU case law that is relevant for national procedural law. The supremacy of EU law and, inter alia, the requirements of effectiveness and equivalence may be relevant for several topics of national civil procedural law, for example ex officio application of EU law, enforcement, insolvency proceedings, evidence, etc. Both EU legislation and doctrinal changes in EU case law touch upon various topics of the procedural law of the Member States. In a concluding chapter, a more comprehensive comparison between the countries represented in the book is made. Which doctrines, which pieces of legislation or features in legislation pose problems for national civil procedure? Are some legal systems or topics more prone to integrate European rules, and are others more resistant to changes? This book displays the Europeanisation of national civil procedure law and helps to understand this development from the perspective of Member States.

The promulgation of the Fifth French Republic Constitution in 1958 marked the end of a complex constitutional history that has since 1789 seen more than twenty constitutions and five Republics. Lasting now for more than fifty years, the Fifth Republic Constitution has proven to be the right settlement for the French people; a consensual text.

However, while offering the appearance of stability, the Fifth French Republic Constitution has often been reconsidered and changed, not least in the year of its fiftieth anniversary, when the Constitution was 'modernised'. These dynamics of the Fifth Republic Constitution are neither a recent matter nor entirely the result of the successive constitutional amendments. Instead, the history of the Constitution has involved the resurgence of repressed archaic elements from the ancient regime, while the social, economic and environmental contexts have penetrated not only the text itself but more extensively its spirit, and behind it, the philosophy and our perception of the Republic.

In Dynamics in the French Constitution, David Marrani questions the foundations of the French Fifth Republic. In using specific themes, current and traditional debates, contemporary and archaic factors, that have enlightened the road of long lasting Republic, the book explores some of the changes of the last fifty years and the tensions that are present within the constitutional text. In combining theoretical concepts of constitutional law with key contemporary and historical developments, such as the European integration, the response to environmental challenges, the practice of human rights and the pillars supporting French republicanism, this book offers varied and creative tools for a better understanding of the Republic of today.

Over the past three decades, the victim movement worldwide has agitated for an enhanced role for victims in the criminal justice system. In this book Heather Strang argues that, despite some progress towards that goal, structural as well as political factors may mean that victims have won as much as they are likely to gain from conventional justice processing. She asks whether restorative justice can offer them more justice than they receive from the formal court-based system. Drawing on a five-year study of the impact of a restorative justice programme on victims of both property and violent crime, Strang presents empirical evidence to show that the restorative alternative of conferencing more often than court-based solutions has the capacity to satisfy victims' expectations of achieving a meaningful role in the way their cases are dealt with as well as delivering restoration, especially emotional restoration, from the harm they have suffered.

Now in its second edition, this textbook presents a critical rethinking of the study of comparative law and legal theory in a globalising world, and proposes an alternative model. It highlights the inadequacies of current Western theoretical approaches in comparative law, international law, legal theory and jurisprudence, especially for studying Asian and African laws, arguing that they are too parochial and eurocentric to meet global challenges. Menski argues for combining modern natural law theories with positivist and socio-legal traditions, building an interactive, triangular concept of legal pluralism. Advocated as the fourth major approach to legal theory, this model is applied in analysing the historical and conceptual development of Hindu law, Muslim law, African laws and Chinese law.

As religious polarisation in society deepens, political actors and policy-makers have begun to struggle with questions on the role of the dominant religion and how religion influences constitutional commitments and development. By focusing on Indonesia, Malaysia and Sri Lanka, Constitutions, Religion and Politics in Asia demonstrates how constitution-making and the operation of constitutional arrangements involving religion cannot be separated from the broader political dynamics of society. Although constitutions establish legal and political structures of government institutions and provide tools for rights protection, they do not operate in a vacuum divorced from the games of power and the political realities surrounding them. Here, Shah sets out how constitutions operate and evolve, and demonstrates how constitutional provisions can produce unintended consequences over time. A vital new source of scholarship for students and scholars of law and religion, and comparative constitutional law, and those interested in issues of constitutionalism and legal and political history in Asia.

Set against the backdrop of the recurring waves of financial scandal and crisis to hit Canada, the US, the UK, and Europe over the last decade, this book examines the struggles of securities enforcement agencies to police the financial markets. While allegations of regulatory failure in this realm are commonplace and are well documented in policy and legal scholarship, James Williams seeks to move beyond these conventional accounts arguing that they are based on a limited view of the regulatory process and overlook the actual practices and dilemmas of enforcement work. Informed by interviews with police, regulators, lawyers, accountants, and investor advocates, along with a wealth of documentary materials, the book is rooted in a uniquely interdisciplinary social science perspective. Peering inside the black box of enforcement, it examines the organizational, professional, geographical, technological, and legal influences that shape securities enforcement as a distinctly knowledge-based enterprise. The result of these influences, Williams argues, is the production of a very particular vision of financial disorder which captures certain forms of misconduct while overlooking others, a reflection not of incompetence or capture but of the unique demands and constraints of the regulatory craft. Providing a very different, and much needed, account of the challenges faced by regulators and enforcement agencies, this book will be of enormous interest to current research on enforcement, regulation, and governance both within and beyond the financial realm.

This book is the first to address the multi-faceted influence of the global financial crisis on the national constitutions of the countries most affected. By tracing the impact of the crisis on formal and informal constitutional change, sovereignty issues, fundamental rights protection, regulatory reforms, jurisprudence, the augmentation of executive power, and changes in the party system it addresses all areas of the current constitutional law dialogue and aims to become a reference book with regard to the interaction between financial crises and constitutions. The book includes contributions from prominent experts on Greece, Hungary, Iceland, Ireland, Italy, Latvia, Portugal, Spain, the UK, and the USA providing a critical analysis of the effects of the financial crisis on the constitution. The volume's extensive comparative chapter pins down distinct constitutional reactions towards the financial crisis, building an explanatory theory that accounts for the different ways constitutions responded to the crisis. How and why constitutions formed their reactions in the face of the financial crisis unravels throughout the book.

Transitional Justice, Judicial Accountability and the Rule of Law addresses the importance of judicial accountability in transitional justice processes. Despite a general consensus that the judiciary plays an important role in contemporary governance, accountability for the judicial role in formerly authoritarian societies remains largely elided and under-researched. Hakeem O. Yusuf argues that the purview of transitional justice mechanisms should, as a matter of policy, be extended to scrutiny of the judicial role in the past. Through a critical comparative approach that cuts through the transitioning experiences of post-authoritarian and post-conflict polities in Latin America, Asia, Europe and Africa, the book focuses specifically on Nigeria. It demonstrates that public accountability of the judiciary through the mechanism of a truth-seeking process is a necessary component in securing comprehensive accountability for the judicial role in the past. Transitional Justice, Judicial Accountability and the Rule of Law further shows that an across-the-board transformation of state institutions - an important aspiration of transitional processes - is virtually impossible without incorporating the third branch of government, the judiciary, into the accountability process.

For most of the past two hundred years or more - the grand era of national constitution-making - founding fathers and constitutional scholars alike seem to have focused more sharply on questions of legislative power than they have on executive power. Executive power, by contrast, they worried much less about and sought to delimit less thoroughly. The scope of executive power and its accountability are however endemic problems, which arise within federal and non-federal states. Nor are these issues unique to common law constitutional orders. Problems concerning the nature and delimitation of executive power also arise in civil law jurisdictions and in the European Union. Despite the historical constitutional focus on legislative power, it is executive authority which seems in the early 21st-century to be the more threatening. This book addresses two sets of questions that are under-researched in constitutional scholarship. What is the proper scope of executive authority, how is executive power delimited, and how should it be defined? How is executive authority best held to account, politically and legally? These questions are both descriptive and normative and they are addressed accordingly in each of the chapters by leading public lawyers from a variety of jurisdictions. The book examines executive power in the United Kingdom from a British and from a distinctively Scottish perspective. There are chapters on the four common law jurisdictions of Australia, New Zealand, Canada, and the United States; on the four civil law jurisdictions of France, Germany, Italy, and Spain; and on the European Union. This insightful comparative perspective allows themes to be drawn together, and lessons extracted on the nature of executive power and its accountability.

This handbook provides a toolbox of definitions and typologies to develop a theory of multilevel constitutionalism and subnational constitutions. The volume examines systems with subnational entities that have full subnational constituent autonomy and systems where subnational constituent powers, while claimed by subnational governments, are incomplete or non-existent. Understanding why complete subnational constituent power exists or is denied sheds significant light on the status and functioning of subnational constitutions. The book deals with questions of how constitutions at multiple levels of a political system can co-exist and interact. The term 'multilevel constitutionalism', recognized as explaining how a supranational European constitution can exist alongside those of the Member States, is now used to capture dynamics between constitutions at the national, subnational and, where applicable, supranational levels. Broad in scope, the book encompasses many different types of multi-tiered systems world-wide to map the possible meanings, uses and challenges of subnational or state constitutions in a variety of political and societal contexts. The book develops the building blocks of an explanatory theory of subnational constitutionalism and as such will be an essential reference for all those interested in comparative constitutional law, federalism and governance.

This book discusses legal rules for three functional commercial conflict situations under the laws of the U.S.A., mainly analyzing the U.C.C., the Bankruptcy Code, Common Law and Equity. In this context, the term conflict situation is meant to address a certain type of conflict arising between certain parties - e.g. buyer, seller, creditors of buyer or seller, or other types of third parties, like former title-holders to the goods - having certain colliding interests in the same property. The three conflict situations addressed in this book are the protection of a buyer in the seller's insolvency, the protection of a seller in the buyer's insolvency, and the conflict between a person formerly entitled to the goods and a good faith acquirer.

This innovative volume explores issues of law enforcement cooperation across borders from a variety of disciplinary perspectives. In doing so it adopts a comparative framework hitherto unexplored; namely the EU and the Australsian/Asia-Pacific region whose relative geopolitical remoteness from each other decreases with every incremental increase in globalisation. The borders under examination include both macro-level cooperation between nation-states, as well as micro-level cooperation between different Executive agencies within a nation-state. In terms of disciplinary borders the contributions demonstrate the breadth of academic insight that can be brought to bear on this topic. The volume contributes to the wider context for evidence-based policy-making and knowledge-based policing by bringing together leading academics, public policy-makers, legal practitioners and law enforcement officials from Europe, Australia and the Asian-Pacific region, to shed new light on the pressing problems impeding cross-border policing and law enforcement globally and regionally. Problems common to all jurisdictions are discussed and innovative 'best practice' solutions and models are considered. The book is structured in four parts: Police cooperation in the EU; in Australia; in the Asia-Pacific Region; and finally it considers issues of jurisdiction and due process/human rights issues, with a focus on regional cooperation strategies for countering human trafficking, organised crime and terrorism. The book will be of interest to both academic and practitioner communities in policing, criminology, international relations, and comparative Asia-Pacific and EU legal studies.