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- Author or Editor: George Mousourakis x
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The changes in the legal universe that have been taking place in the last few decades have increased the potential value of different kinds of comparative law information and thereby urged new objectives for the comparative law community. The comparative method, which was earlier applied in the traditional framework of domestic law, is now being adapted to the new needs created by the ongoing globalization process, becoming broader and more comprehensive with respect to both its scope and goals. Associated with this development is a growing interest in the question of transferability or transplantability of legal norms and institutions across different cultures, especially in so far as current legal integration and harmonization processes require reasonably transferable models. This paper critically examines the issue of transferability of laws with particular attention to the theory of legal transplants propounded by Professor Alan Watson, one of the most influential contemporary comparatists and legal historians. It is submitted that the element of relativity imposed by the special relationship of the law to its socio-cultural environment must be taken into consideration when the comparative method is applied. However, the view held by some scholars that legal transplants are impossible betrays an exaggeration of cultural diversity as it contradicts the teachings of history and is at odds with recent trends towards legal integration in certain world regions.
This article examines the question of criminal liability in terms of the theoretical distinction between justification and excuse. By contrast with German and other continental criminal law systems, the distinction has not played a significant part in the development of criminal law doctrine in common law jurisdictions. Over the past twenty years, however, there has been a growing interest in the benefits of this approach to conceptualising criminal liability, manifested by the considerable literature on justification and excuse and the frequent references to the distinction in judicial decisions and legislative enactments. Although the distinction has been given a great deal of attention in common law countries in recent years, attempts at a systematic classification of criminal law defences on this basis run up against serious difficulties. These difficulties have much to do with the fact that elements of both justification and excuse often appear to overlap in the moral basis of a legal defence. It is argued that, notwithstanding these difficulties, the theory of justification and excuse offers a viable model, which can achieve and maintain coherence among criminal law defences and facilitate understanding and acceptance of criminal law and its presuppositions.
Legal historians have observed that many legal norms have remained in force for a long time, yet the great degree of social change would prima facie also entail legal innovations. But there have been fewer than expected Can one construct a general theoretical framework for assessing explanations concerning legal change and legal stability? Further, can such a framework be constructed from the perspective of comparative law? It may perhaps be argued that comparative law is not sufficient for constructing such a theory, a general analysis of society is also needed. But even if concrete conditions, and cause and effect relations cannot be entirely explained by an abstract scheme, it is at least reasonable to hope that such a scheme may clarify some of the basic concepts at work and enhance insights into the nature and progress of law. The first part of this paper considers the nature and scope of comparative law and identifies different approaches to the subject adopted by contemporary comparatists. In the second part, the problem of legal change is discussed from the standpoint of a particular theoretical perspective represented by Professor Alan Watson, one of the most productive post-War comparatists and legal historians.
Abstract
Over the past few decades, a novel approach to crime and conflict resolution has been gaining ground around the world. ‘Restorative justice’ revolves around the notions that crime is primarily a violation human relationships; the chief aim of the justice process should be to reconcile those most directly affected by the offending behaviour while addressing the injuries they suffered; the resolution of crime-related conflicts demands a positive effort on the part of victims and offenders and the assumption of responsibility by the community. Restorative justice is not a new concept – It was a prevalent justice model in early civilizations in Europe and Asia and remains so among many indigenous communities around the world. This paper outlines the broad philosophy of restorative justice, comments on the differences between restorative justice and other prevailing conceptions of justice and identifies the constitutive elements necessary for a restorative justice practice. The paper then considers contemporary restorative justice practices, presenting information on guiding principles, procedures and goals and identifying concerns that need to be addressed in the design and implementation of such practices.
