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Article

Nuno Garoupa

Law and economics is an important, growing field of specialization for both legal scholars and economists. It applies efficiency analysis to property, contracts, torts, procedure, and many other areas of the law. The use of economics as a methodology for understanding law is not immune to criticism. The rationality assumption and the efficiency principle have been intensively debated. Overall, the field has advanced in recent years by incorporating insights from psychology and other social sciences. In that respect, many questions concerning the efficiency of legal rules and norms are still open and respond to a multifaceted balance among diverse costs and benefits. The role of courts in explaining economic performance is a more specific area of analysis that emerged in the late 1990s. The relationship between law and economic growth is complex and debatable. An important literature has pointed to significant differences at the macro-level between the Anglo-American common law family and the civil law families. Although these initial results have been heavily scrutinized, other important subjects have surfaced such as convergence of legal systems, transplants, infrastructure of legal systems, rule of law and development, among others.

Article

Fabio Tronchetti

China has made remarkable achievements in the space sector and has become one of the most relevant players in the outer space domain. Highlights of this process have been the deployment in orbit of the first Chinese space station, Tiangong-1, on September 29, 2011, and the landing of the Yutu rover on the lunar surface on December 14, 2013. While technological developments have occurred at such a rapid pace, the same cannot be said of the regulatory framework governing Chinese space activities, which still lays at its infant stage. Indeed, unlike other major spacefaring countries, China lacks a comprehensive and uniform national space legislation; as of now, China has enacted two low-level administrative regulations addressing the issues of launching and registration of space objects. With the growth of the Chinese space program, such a lack of structured national space law is beginning to show its limits and to raise concerns about its negative impact on business opportunities and the ability of China to fully comply with international obligations. One should keep in mind that international space treaties (China is part to four international space law treaties) are not self-executing, thus requiring states to adopt domestic measures to ensure their effective implementation. Importantly, Chinese authorities appear to be aware of these issues; as stated by the Secretary-General of the Chinese National Space Administration (CNSA) in 2014, national space law has been listed in the national legislation plan, and the CNSA is directly engaged in such a process. However, questions remain as to how this drafting process will be conducted and what legal form and content the law will have. For example, China could either decide to proceed with a gradual approach, consisting in the adoption of laws addressing selected issues to be eventually assembled into one single law or to directly move to the adoption of one comprehensive law. In any case, if enacted, a Chinese national space law would represent an important step in the advancement of the Chinese space program and in the progress of international space law as such.

Article

P.J. Blount

The use and exploration of space by humans is historically implicated with international and national security. Space exploration itself was sparked, in part, by the race to develop intercontinental ballistic missiles (ICBM), and the strategic uses of space enable the global projection of force by major military powers. The recognition of space as a strategic domain spurred states to develop the initial laws and policies that govern space activities to reduce the likelihood of conflict. Space security, therefore, is a foundational concept to space law. Since the beginning of the Space Age, the concept of security has morphed into a multivariate term, and contemporary space security concerns more than just securing states from the dangers of ICBMs. The prevalence of space technologies across society means that security issues connected to the space domain touch on a range of legal regimes. Specifically, space security law involves components of international peace and security, national security, human security, and the security of the space environment itself.

Article

Carlos Amunátegui Perelló

According to the tradition, during the early Republic (451–450 bce), during the Struggle of the Orders, a commission was set up to make the laws for the Romans. After two years, the results of the commission’s work were published on twelve boards of wood, perhaps bronze. These were known as the “Twelve Tables.” Tradition says they became fundamental to Rome’s institutional frame. Unfortunately, this is not easy to prove, for the text was lost during the early Middle Ages. The reconstructed versions are due to the casual quotes of historians, jurists, and antiquarians from later times, who happened to call upon its authority while discussing other subjects. The Humanists (16th century ce) made several attempts to reconstruct it, and the versions now available are due to their efforts. Scholarship has debated almost every aspect of the text, from its origin, to its scope, its contents, and its grammar. Only a few conclusions are widely held. Most scholars believe the document was written during the 5th century bce under the influence of Greek models. Its importance seems to lie in the fact that it managed to merge law and legislation in a way that put statutes at the centre of the Roman legal system.

Article

actio  

Thomas Rüfner

In Roman law, the word actio refers to a civil lawsuit. At first sight, it seems obvious that actio derives from the verb ago, which has the basic meaning “to drive,” “to urge,” or simply “to act.” The Roman jurists themselves clearly regarded ago as the verb corresponding to the noun actio and meaning “to conduct a lawsuit” (cf. Festus, Gloss. Lat. 21, l. 15, s.v. agere). Hence, actio may be explained as referring to the claimant urging the judge (and/or the adversary) to do something,1 or simply to the claimant’s actions in court.2 Some scholars have proposed different etymologies. It seems possible that actio is not a derivative of ago (“to drive, to urge”), but of a root agjō meaning “to speak” (cf. the verb aio), and that the word was only later associated with ago.3 Alternatively, it has been argued that ago and aio have a common root that, in the context of archaic law, refers to a performative utterance which affects the Roman citizens collectively.

Article

Benedikt Eckhardt

senatus consultum Iuventianum is the modern designation for a senate decree passed on March 14, 129ce, in reaction to a legal case decided by Hadrian. The name is derived from P. Iuventius Celsus, one of the consuls who brought in the motion and a legal expert thought to be responsible in large part for the senatus consultum’s content. Ulpianus (15 ad ed., D. 5.3.20.6–21) preserves the text and gives a lengthy commentary, including discussion of treatments by other jurists of the 2nd and early 3rd century. While both the unity of the text (6a–d) and the authenticity of individual parts have been doubted in earlier scholarship, recent discussions tend to accept Ulpian’s text as it stands.1The regulation concerns the question of how compensation was to be made if an inheritance had been falsely claimed and then sold by the illegitimate possessor. The senatus consultum Iuventianum introduces two distinctions, one moral and one temporal.

Article

Bruce Cronin

Treaties are agreements between sovereign states, and occasionally between states and international organizations. Treaties can include conventions, covenants, charters, and statutes, all of which are legally binding under international law. There are two main types of treaties: bilateral and multilateral. Bilateral agreements are concluded by a limited number of states (usually two), and typically address a narrow set of issues that are unique to specific parties and particular circumstances. Multilateral treaties, on the other hand, establish generalized principles of conduct that apply to a wide range of states without regard to the future particularistic interests of the parties or the strategic exigencies that may exist in a particular occurrence. Treaties can serve a wide variety of functions: ending wars and establishing conditions for peace; creating new international organizations or alliances; generating new rules of coexistence and cooperation; regulating a particular type of behavior; distributing resources; and initiating new rights and obligations for future relations. No single organization or agency has the authority to enforce treaty commitment. Rather, treaties can be enforced in at least two ways. First, states can use diplomatic, economic, and/or military coercion. Second, some treaties establish their own enforcement mechanisms; for example Chapter VII of the United Nations Charter grants enforcement authority to the Security Council.

Article

The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. Understanding this process will allow scholars, students of the Court, and Court watchers alike to gain a better understanding of the way in which the justices conduct their business and to come to terms with some of the most important legal and political decisions in our nation’s history. Combining a theoretical account of Supreme Court decision-making with an examination of its internal decision-making process illuminates this opaque institution.

Article

Sara Bannerman

Copyright is a bundle of rights granted to the creators of literary, artistic, and scientific works such as books, music, films, or computer programs. Copyright, as one of the most controversial areas of communication law and policy, has always been the subject of political contention; however, debates surrounding the subject have reached new levels of controversy since the 1990s as a result of the new formats of creative works made possible by digital media, and as a result of the new practices of authorship, creativity, consumption, collaboration, and sharing that have arisen in light of networking and social media. Technological change has not been the only driving force of change; social and political change, including changing concepts of authorship, the recognition of the rights of women and indigenous peoples, and the changing structures of international relations and international civil society, have also been reflected in copyright law. Copyright policymaking has become an increasingly internationalized affair. Forum-shifting has contributed to the proliferation of regional and international copyright policymaking forums under the rubric of stand-alone intellectual property institutions such as the World Intellectual Property Organization (WIPO), as well as under institutions dedicated more broadly to international trade negotiations. Communication scholars and others have contributed extensively to the field of copyright and intellectual property law. Communication scholars have made significant contributions in examining the cultural significance, political economy, history, and rhetoric of copyright, drawing on diverse fields that include cultural studies and critical political economy. Communications scholars’ influence in the field of copyright scholarship has been significant.

Article

Benedikt Eckhardt

Senatus consultum Pegasianum is the name used by Gaius (2.256, 258, 286a) and the Institutes of Justinian (2.23.6-7) for a decree by the senate on fideicommissa, passed in the consulate of L. Cornelius Pusio and the jurist Plotius Pegasus, most likely in 72 ce (but dated to the time of Hadrian in some earlier scholarly literature).1 Gaius does not preserve the text, but gives a substantial report about its content. Some references to the decree, but not to its original designation are also preserved in the Digest; due to Justinianic modifications, the relevant content is there attributed to the earlier senatus consultum Trebellianum.The senatus consultum Pegasianum was one of several attempts to solve problems created by Augustus’ decision to make fideicommissa actionable like legacies. In 41 bce, the lex Falcidia had limited the amount to which an inheritance could be reduced through legacies: Heirs were allowed to keep a quarter of the inheritance, no matter how many legacies the testator had made to others.

Article

State responsibility can be examined from the moral, legal, and political perspectives. Historically, state responsibility was the subject of extensive work by the International Law Commission, which was carried out over 40 years (1956–2001). While the Commission’s work was terminated in 2001 with no binding conventions or treaties resulting from it, many of its final articles have become references in international and domestic tribunals. However, the Commission was unable to establish obligatory arbitration between states, to agree on penalties for international crimes, or to establish any formal legal structure with which to oversee legal state responsibility. Differences between domestic jurisdiction and international jurisdiction limit definitive, formal legal state responsibility. The United Nations, the International Court of Justice (ICJ), and the International Criminal Court (ICC) all deal with state responsibility, but all reflect, to different extents the role of international politics in state responsibility. The permanent members of the UN Security Council have veto power. All United Nations member states are members of the ICJ. However, only 74 of them recognize the compulsory jurisdiction of the ICJ and the ICC tries individuals, not states. The use of “illegal but legitimate” to justify military intervention in the Balkans was an example of how states creatively avoid following the legal limits of their responsibility. The decision of the ICJ in the Nicaragua v. United States case also showed the importance of the role of politics in a judicial process and the difficulties of defining the limits of a state’s responsibilities. The very question of state responsibility in international politics reflects the importance of states and interstate international politics. States are the primary subjects of international law. However, issues such as climate change and the environment go beyond mere state responsibility and push the boundaries of the statist paradigm to larger global responsibilities erga omnes as well as actors above and below the state levels.

Article

Andrew M. Riggsby

“Crime” lacks a fully agreed definition across modern societies, but competing versions tend to stress notions like punishment, protection of public or collective interests, and a pervasive role for the state in proceedings. Over time the Romans used a series of different procedures (successively, trial before the assemblies, by specialized juries, or by imperial inquisitors) to try most of their offences that would be more or less recognizably criminal today. Substantively, the core of this group were offences against the state in an institutional sense (e.g., sedition, electoral malpractice, abuse of public office, forgery). Over time it also came to include an increasing number of (personal) crimes of violence. Some core modern criminal offences such as forms of theft and forgery of private documents came to be grouped in with these only at a very late date and incompletely. “Moral” offences that are treated as criminal more sporadically today (e.g., use of intoxicants, gambling, prostitution) were not criminalized. Penalties in earlier periods included fines, civic disgrace, and exile; later periods introduced finer differentiation of penalties, as well as execution. Imprisonment was not a formal penalty.

Article

Myles Lavan

An enactment (probably an edict) of Caracalla dating to 212 or early 213 that granted Roman citizenship to all or almost all free inhabitants of the empire who did not already have it. It is so called because constitutio is the technical term for an imperial decision and Caracalla’s name was M. Aurelius Severus Antoninus.

Both Cassius Dio (78[77].9.5) and Ulpian ( Dig. 1.5.17) record that Caracalla granted citizenship to everyone in the Roman empire. Several later texts misattribute the act to emperors of better repute. The constitution itself may survive in Greek translation as the badly damaged first text on a famous papyrus held at the University of Giessen ( PGiss. 40). Following several decades of controversy, the identification is now widely accepted, though there remain several phrases in the papyrus that are hard to reconcile with this hypothesis. In any case, the lacunose text is so fraught with interpretive difficulties that it can provide little independent information about Caracalla’s grant.

Article

Biblical laws are found mainly in the Pentateuch (i.e., the first five books of the Hebrew Bible). The laws are linked to the figure of Moses, who is depicted as having received them directly from God in order to transmit them to the people of Israel during the years in the Wilderness after being released from slavery in Egypt. Biblical laws are thus presented as being of divine origin. Their authority was further bolstered by a tradition that they were included in covenants (i.e., formal agreements made between God and the people as recorded in the books of Exodus and Deuteronomy). Similar claims of divine origin were not made for other ancient Near Eastern laws; their authority flowed from kings, who issued the laws, although these kings might also be seen as having been placed on their thrones through the favor of the gods. The biblical law collections are unlike other ancient Near Eastern “codes” in that they include sacral laws (i.e., governing cult, worship, and ritual, as well as secular laws: namely, governing civil, and criminal behaviors). This mingling of sacral and secular categories is the likely reason both for the many terms used to denote the laws, as well as for the unexpected number of formulations in which they are presented. The formulations used in biblical law can be classified as “casuistic” or “non-casuistic.” They are not equally distributed in the books of the Pentateuch nor are they equally used with secular and sacral laws. While there are similarities in content between secular laws found in the Hebrew Bible and laws found in the ancient Near Eastern law “codes,” the latter do not exhibit a comparable variety in the numbers of law terms and formulations. The Hebrew Bible tended to “blur” the differences between the law terms and their formulations, ultimately to the point of subsuming them all under the law term torah (“teaching”) to describe the totality of the divinely given laws in the Pentateuch. Biblical studies in general and Pentateuchal studies in particular are challenged by the fact that manuscripts contemporary with the events described have not survived the ravages the time. Scholars must therefore rely on looking for “clues” within the texts themselves (e.g., the laws cited by the prophets, the reform of Josiah, the teaching of torah by Ezra, and evidence for customs and customary laws found in books of the Hebrew Bible outside of the Pentateuch).

Article

Helen Dancer

African law and justice systems in the early 21st century are the result of over a thousand years of religious and cultural influences and political change on the continent. As customary and Islamic laws became reinterpreted and formalized by colonial states, women experienced the effects of successive periods of religious and political conquest as an entrenching of patriarchal control in the family and personal law sphere. The 20th century saw African women’s resistance rise from the grass roots as an important force for national liberation. African women’s legal activism grew after political independence and African women lawyers were part of global feminist movements. In the wake of dramatic political changes across Africa, Latin America, and Eastern Europe, the global sphere of rights post-1989 became an enabling frame for women’s legal activism. Political transitions to multiparty democracy, the liberalization of African economies, and a wave of constitutional reforms strengthened women’s rights and gender equality guarantees. The 1980s and 1990s saw the founding of regional and pan-African women’s legal activist organizations, including the Action Committee of Women Living Under Muslim Laws and Women in Law and Development in Africa as well as the adoption of the Maputo Protocol on the Rights of Women in Africa in 2003. In the 21st century, while social, economic, and legal inequalities persist in spite of many gains for women’s rights, some African women lawyers have risen to occupy the highest echelons of the judiciary in several countries and in international courts.

Article

Antony W. Dnes

Economists increasingly connect legal changes to behavioral responses that many family law experts fail to see. Incentives matter in families, which respond to changes in legal regulation. Changing incentive structures linked to family law have largely affected marriage, cohabitation, and divorce. Economic analysis has been applied to assess the causes of falling marriage rates and delays in marriage. Much analysis has focused on increases in divorce rates, which appear to respond to legal changes making divorce easier, and to different settlement regimes. Less work has been done in relation to children but some research does exist showing how children are impacted by changes in incentives affecting adults.

Article

Olavo de O. Bittencourt Neto and Daniel Freire e Almeida

The article provides an overview of the Brazilian legal framework for space-related activities, highlighting the main legal instruments and their most relevant provisions. Domestic regulatory initiatives are appraised and contextualized through the review of specific provisions and legal instruments. The Brazilian space program’s normative structure is acknowledged, considering national space policy and applicable legislation. Brazil regulates national space activities through a myriad of regulations and edicts, forming a broad—although fragmented—body of rules. Considered an emerging space power, Brazil has a long-standing and ambitious space program, involving artificial satellites, launch centers, and the eventual development of a national launch vehicle. However, a domestic, general space law, as required by the Federal Constitution of 1988, still awaits to be enacted. The latest developments at the Brazilian Space Agency indicate that it might not be too long for such a federal law to materialize. The importance of a national space law for the implementation of international obligations as well as to ensure legal certainty for governmental and non-governmental national space activities is increasingly realized by space-faring nations. The Brazilian space legal framework represents a relevant case study toward the identification of appropriate legal mechanisms for the regulation of national space activities, taking into account international principles and local perspectives.

Article

Domestic courts play an important role in the adjudication of international law, including international human rights law. The relationship between international and domestic law has often been characterized as a continuum between monism and dualism. In a monist system, international law is automatically a part of domestic law, and a conflict between the two is resolved in favor of international law. In a dualist system, domestic law is superior to international law within the domestic legal system, while international law is superior to domestic law within the international legal system. A conflict between domestic law and international law is thus not always resolved in the same way in both systems. In addition, one of the areas with the most active use of international law in a domestic legal system is under a theory of universal jurisdiction. Universal jurisdiction most often involves both the incorporation of international law into a domestic legal system and the assertion outward (extraterritorially) of domestic judicial system. Universal jurisdiction arose initially in the context of criminal prosecutions, but is also found to some extent in civil litigation, particularly in the United States. Under the principle of universal jurisdiction, a state may assert jurisdiction over an offender regardless of the nationality of the offender or victim, the place of commission of the wrongful act, or any other link to the state asserting jurisdiction.

Article

Risa L. Goluboff and Adam Sorensen

The crime of vagrancy has deep historical roots in American law and legal culture. Originating in 16th-century England, vagrancy laws came to the New World with the colonists and soon proliferated throughout the British colonies and, later, the United States. Vagrancy laws took myriad forms, generally making it a crime to be poor, idle, dissolute, immoral, drunk, lewd, or suspicious. Vagrancy laws often included prohibitions on loitering—wandering around without any apparent lawful purpose—though some jurisdictions criminalized loitering separately. Taken together, vaguely worded vagrancy, loitering, and suspicious persons laws targeted objectionable “out of place” people rather than any particular conduct. They served as a ubiquitous tool for maintaining hierarchy and order in American society. Their application changed alongside perceived threats to the social fabric, at different times and places targeting the unemployed, labor activists, radical orators, cultural and sexual nonconformists, racial and religious minorities, civil rights protesters, and the poor. By the mid-20th century, vagrancy laws served as the basis for hundreds of thousands of arrests every year. But over the course of just two decades, the crime of vagrancy, virtually unquestioned for four hundred years, unraveled. Profound social upheaval in the 1960s produced a concerted effort against the vagrancy regime, and in 1972, the US Supreme Court invalidated the laws. Local authorities have spent the years since looking for alternatives to the many functions vagrancy laws once served.

Article

Political scientists—primarily in the discipline’s international relations subfield—have long studied international law. After considering how political scientists and legal scholars define international law, this article identifies five stages of political science research on international law, including the current interdisciplinary international law and international relations (IL/IR) stage, and it reviews three trends in political science research that constitute an emerging sixth stage of interdisciplinary scholarship: a law and world politics (L/WP) stage. First, moving beyond the “IL” in IL/IR scholarship, international relations scholars are increasingly studying domestic law and domestic courts—not only their foundational role in supporting international law and international courts but also their direct role in core areas of international relations, including international conflict and foreign policy. Second, moving beyond the “IR” in IL/IR scholarship, political scientists are adapting their research on international law to the broader world politics trend in political science by studying types of law—including extraterritoriality, conflict of laws, private international law, and the law of transnational commercial arbitration—that govern the transnational activity of private actors and can either support or hinder private global governance. Third, moving beyond the domestic-international divide, political scientists are increasingly rejecting “international law exceptionalism,” and beginning to take advantage of theoretical convergence across the domestic, comparative, and international politics subfields to develop a better general understanding law and politics.