Bettina Lange

Summary: This article discusses the Nuffield inquiry report "Law in the Real World: Improving our Understanding of How Law Works’. It suggests that the report matters not just because of the many policy recommendations it puts forward for the development of empirical legal research. It makes also important reading because it constructs a particular account of socio-legal and in particular empirical legal research in the UK. The article highlights three issues which are central to the picture presented in the report. It suggests that further debate concerning theses issues – especially in a comparative context – can also help to move the socio-legal enterprise forward. These three issues are the relationship between theoretical and empirical research, a tension between openness and closure among the different disciplines involved in socio-legal research, and finally the relationship between institutions and individuals in advancing socio-legal studies.

Angela Melville

Summary: Law Reform Commissions are permanent bodies which operate in common law countries, and are charged with the task of recommending law reform. The Commissions conduct research into the need for law reform, and it appears this research is guided by a common set of broad principles. A comparison of the ways in which the New Zealand Law Commission and the recently defunct Law Commission of Canada put these principles into practice reveals that different Commissions use different approaches when putting these principles into practice. These different approaches reflect the ways in which the role of law within society and the role of the Law Commissions in shaping the law are conceived. For some Commissions, legal reform is a technical process driven by a desire for increased efficiency and effectiveness. For other Commissions, legal reform is seen as directing, rather than merely reflecting, social and legal norms, and is self-consciously aimed towards achieving the goals of social justice.

Alexy Buck

Summary: Over recent years, there has been an increased interest among UK policy-makers in ‘law in the real world’. Both quantitative and qualitative empirical legal research on how legal process, outcomes or structures work is required to satisfy this demand. There is also a focus on citizens’ experience of the law and on ‘consumers’ of the justice system. Recent social research projects commissioned by government, in particular the English and Welsh Civil and Social Justice Survey, will be used to exemplify the importance attached to research in evidence-based civil justice policy-making, and the importance of the citizen and ‘consumer’ perspective. Some differences in the approach taken in Germany will be highlighted throughout the article, and discussion points for a British-German comparison will be raised in the conclusion.

Christopher May

Summary: Although there have always been some scholars in International Political Economy (IPE), who have acknowledged the importance of (international) law, even in recent writing on global governance the actuality of legal structures is often unexamined, and the valorisation of the ‘rule of law’ accepted relatively uncritically. Thus, while certainly there has been a frequent examination of parts of the global legal regime (international law in various sectors, or issue areas) few if any scholars have attempted a more general account of the ‘rule of law’ as it relates to IPE. This article develops a research agenda for establishing a more robust and detailed account of law in IPE, focussing on the ‘rule of law’ as a crucial entry point for IPE-based analysis to fruitfully engage with legal scholars. The article begins to lay the ground work for a multi-disciplinary account of the international rule of law, that would question the sometime casual reification of law, and seek to understand why increasingly the ‘rule of law’ is seen as a master value of the global system.

Social Regulation in the Air Transport Industry – An Examination of Regulation 1107/2006 concerning the Rights of Disabled Persons and Persons with Reduced Mobility when travelling by Air

Eliza Varney

Summary: The regulation of the air transport industry has implications for individuals not just in their capacity as consumers, but also as citizens. Transport goes beyond the mere provision of an economic service and enables us to be actively involved in economic and social life. It is, therefore, surprising that in the current framework for regulating the air transport industry, economic regulation seems to have the predominant voice, while social regulation is not given significant emphasis. Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility (PRM) when travelling by air appears to redress the balance in favour of social regulation. In Recital 1, the measure emphasises the citizenship rights of disabled persons and PRM. Yet, the provisions of the Regulation fail to reflect the tone of the preamble. The provisions make no reference to the need to respect the dignity of disabled persons and PRM. Instead, the measures concentrate on the provision of services to disabled persons and PRM, and on ensuring that airline operators do not discriminate against these passengers. This paper suggests that by failing to make any specific reference to “dignity” in the body of the Regulation, the measure does not protect effectively the values inherent in the notion of citizenship, such as equality of citizenship. By providing a framework in which airlines are required to refrain from discriminating on the basis of disability and age, the EU does not necessarily succeed in promoting equality.

Diana Ziegleder

Summary: Economic crime seems to be of increasing concern to business companies themselves. Their responses to economic crime reflect not only civic and legal pressures but also an increasing awareness for certain risks. This article reports findings from a comparative study (USA and Germany) on internal company processes of preventing and sanctioning economic crime, which was part of a more comprehensive study. It is based on an in-depth analysis of company documents presenting business ethics or codes of conduct. It explores different codified strategies of in-house reaction to economic crime. The focus is on the company as a moral actor and its commitment, as well as on corporate approaches towards implementing this commitment through codified regulations.

Anne-Maree Farrell

Summary: This article examines the political dynamics structuring conflict over the ethics and regulation of human embryonic stem cell research (hESC) at EU level. It is argued that the key to effective governance in relation to such research requires, first, political consensus as to what constitutes ethically acceptable boundaries; and second, coherent and comprehensive regulation to facilitate public trust and manage potential risks. An examination of the parameters of ethical debate over such research reveals that entrenched opposing views along the deontological-utilitarian divide have prevented the achievement of political consensus. This has resulted in regulation that is less than comprehensive in relation to risk management, and the boundaries of what is ethically acceptable lack clarity and legal force. In the circumstances, EU governance of hESC research is likely to remain limited in its effectiveness, particularly with regard to regulation. Any improvements in this regard are likely to occur on an incremental basis, and will necessarily be contingent upon achieving a greater degree of political consensus in the area than has been possible to date.

Thomas Scheffer and Kati Hannken-Illjes

Summary:In this paper we will look into different conceptual frames for the comparative study of courtrooms – interactional and epistemic. Accordingly, we offer two rounds of comparing English Crown Courts and German Landgerichte (translated here as District Courts) – with an emphasis on the last round. We will argue that courts appear in greater diversity once we take into account their roles in processes of knowing. The comparisons are grounded in two ethnographic studies on the micro-formation of criminal cases, conducted in England and in Germany.

Sindiso Mnisi

Summary: This paper traces the relationship between state law and indigenous systems in South Africa from its incipience, and argues that living customary law has been systematically ignored or inaccurately applied. In it, I advocate a paradigm shift as being fundamental to developing the theories, methods and standards adopted in consideration of customary law. I use the law of succession as a vehicle for displaying the clash of state and customary law and, herewith, expound the process by which this tension came about. In conclusion, I argue that a paradigm shift allowing for customary law to be understood within its own functioning and value system, rather than in a manner imposing western notions of society, culture and progress is necessary. This will enable the reunion of the South African legal order and reincorporation of customary communities into the national project.

Thomas and Javier García-Fronti

Summary:Our examination of changes in the period leading up to the Argentine debt exchange and after, reveals that with Collective Action Clauses (CACs), the sovereign debt market is increasingly reliant on good faith as a standard of fair dealing to ensure fair and orderly debt restructurings in the future. Unlike the entrenched, enforceable, doctrinal good faith in domestic jurisdictions such as the U.S., the norm relied on in the sovereign debt market is a contextual open norm similar to the notion of Treu und Glauben, section 242 BGB of the German civil code. It is not a legal rule with specific requirements that need to be fulfilled. This paper reveals that reliance on a contextual, open norm is evidence of a shift in the framework that regulates sovereign debt restructurings: a shift from enforcement to voluntary compliance. Further, we argue that in the absence of a multilateral, regulatory, framework that embeds good faith as a specific standard of fair dealing, this reliance will exacerbate not solve the problem of sovereign debt restructurings.

Noel Whitty

Summary:Risk and human rights discourses have become dominant features of the UK criminal justice arena. However, there has been little critical scrutiny of the ways in which these discourses relate to each other. In this article, I focus on different accounts of the case of Anthony Rice, a 48-year old ex-offender who committed a murder in August 2005 whilst under the joint supervision of English probation and police services. Drawing upon official reviews by the Inspectorate of Probation and the UK Parliament Joint Committee on Human Rights, as well as media coverage, I use the Rice case to problematise some common assumptions about the relationship between risk and human rights.