February 2018 GlobaLex Issue Now Live

By Lucie Olejnikova

The February 2018 issue of GlobaLex is now live, featuring four articles. We are pleased to bring you two new articles and two great updates. GlobaLex is an electronic publication dedicated to foreign, international, and comparative law research.

An Introduction to International Fisheries Law by Abdullah Al Arif at http://www.nyulawglobal.org/globalex//International_Fisheries_Law.html

Abdullah Al Arif is a Senior Lecturer at the Department of Law, Daffodil International University, Bangladesh. He is currently on study leave and writing his doctoral thesis on ‘Achieving Sustainable Marine Fisheries in Bangladesh: A Legal and Policy Analysis’ at Macquarie Law School, NSW, Australia. He has recently published an article entitled ‘Legal Status of Maximum Sustainable Yield Concept in International Fisheries Law and Its Adoption in the Marine Fisheries Regime of Bangladesh: A Critical Analysis’ in the International Journal of Marine and Coastal Law.

International Humanitarian Law by Thamil Venthan Anathavimayagan at http://www.nyulawglobal.org/globalex//International_Humanitarian_Law.html.

Thamil Venthan Ananthavinayagan holds an LL.M. from Maastricht University, The Netherlands and has submitted his PhD with the National University of Ireland, Galway. He is currently a lecturer for international law, international humanitarian law, and international criminal law at Griffith College, Dublin. Prior to joining Griffith College, he was a Fellow and research assistant at the Irish Centre for Human Rights in Galway, Ireland. Thamil has also studied civil/public and criminal law in Germany at the universities of Bonn and Marburg, with particular focus on international law.

UPDATE: Guide on Researching Chinese Mass Media Law by Alex “Xiaomeng” Zhang at http://www.nyulawglobal.org/globalex//China_Mass_Media_Law1.html.

Alex Zhang is the Head of Public Services and Lecturer in Law at Stanford Law School, USA. She received a B.A. in Philosophy and a Chinese Law Certificate from Nanjing University, China, and an M.A. in Philosophy from Tulane University. She attended the University of Kansas Law School earning her J.D. with a certificate in International Trade and Finance Law in 2006. She also received an M.S.I from the University of Michigan, School of Information in 2009. Before joining Stanford, Alex was a senior Foreign, Comparative, and International Law Librarian and Adjunct Professor of Law at University of Michigan Law School, USA.

UPDATE: Legal Information Institutes and the Free Access to Law Movement by Graham Greenleaf, Philip Chung, and Andrew Mowbray at http://www.nyulawglobal.org/globalex//Legal_Information_Institutes1.html.

Graham Greenleaf AM is Professor of Law & Information Systems at UNSW Australia, and Co-Founder, AustLII. Dr Philip Chung is Associate Professor of Law at UNSW Australia and Executive Director, AustLII. Andrew Mowbray is Professor of Law and Information Technology, University of Technology, Sydney (UTS), and Co-Director, AustLII.

 

For more articles, see http://www.nyulawglobal.org/globalex//index.html.

From the Reference Desk: Can You Do That? Filing Amicus Curiae Briefs in Other Countries

By Lora Johns

Slovakia“I would like to see an amicus brief filed by Alliance Defending Freedom in Slovakia.”

Before I got this question, it had never even occurred to me that Americans might want to—or even could—file friend-of-the-court briefs in other countries’ courts.

In this case, Alliance Defending Freedom—a group vehemently opposed to marriage equality for same-sex couples—wanted to file a brief in the Constitutional Court of Slovakia, which in 2014 was about to consider a petition on a proposed referendum to define marriage as heterosexual only to bar same-sex couples from adopting children, among other questions. Over 400,000 Slovak citizens signed the petition supporting the referendum. Slovak President Andrej Kiska asked the Constitutional Court to review the measure because the country’s constitution forbids holding a referendum to change “fundamental rights and liberties.”

What struck me is that the Slovak legal system is a “continental” civil-law legal system in which only statutes are technically recognized as sources of law—not the kind of common-law system we have in the States. The judicial system is very different from ours; the courts of first instance have no juries, but rather “lay judges”—regular people who serve as judges alongside one professional judge. The Constitutional Court is a strange creature as well. Subject to standing requirements, it reviews the constitutionality of any legislation, among other things, but its jurisdiction is very selective. In this case, the President asked the Constitutional Court to evaluate whether holding a referendum on same-sex marriage would violate the Constitution. The Court eventually ruled that the referendum could proceed; however, the referendum failed to pass in 2015 due to low voter turnout.

The interesting question here from a legal research standpoint, though, is that amicus brief. The ADF sent it as a letter to the Chair of the Constitutional Court (predsedníčka Ústavného súdu Slovenskej republiky). The cover letter claims ADF has “special consultative status” (osobitný konzultačný status) at the Economic and the UN Social Council and “full accreditation” with the EU Fundamental Rights Agency, the European Union, and the Organization for Security and Co-operation in Europe. It also states that it has intervened in dozens of cases before the European Court of Human Rights.

To me, the form and addressee of the letter and the recitation of reasons why the court should take the attached brief under consideration indicated that they were not de rigeur in a civil law jurisdiction like Slovakia’s. I was curious, so I did a little research.

Amicus briefs have a history dating back to Roman Law, and while they are mostly a creature of common law jurisdictions—especially the United States—they make appearances in international adjudicatory bodies as well. This can be tricky, as many courts restrict participation in suits to parties only. However, the uptick in cases dealing with issues of broad interest—like human rights and environmental causes—means that more non-governmental organizations want to air their opinions in venues like the International Court of Justice, the European Court of Justice, the European Court of Human Rights, and the Inter-American Court of Human Rights. See Dinah Shelton, “The Participation of Nongovernmental Organizations in International Judicial Proceedings,” 88 Am. J. Int’l L. 611 (1994).

It is easy enough to research these amicus briefs—standard procedures for researching cases in the ICJ, the ECHR, and other major courts usually suffices. But what’s more interesting is the acceptance of amicus briefs—like ADF’s—in civil-law courts that do not traditionally accept them. As distinct from rapporteurs publics or Vertreter des öffentlichen Interesses, who have a long tradition in France and Germany respectively of providing neutral research to the courts, more civil law jurisdictions are warming to the American style of amicus—a person or organization very much interested in the overarching policy surrounding the dispute, but with no concrete stake in the outcome of the particular case.

NGOs helped blaze the trail for the acceptance of amicus briefs by courts that, unlike common-law tribunals, had not used them before. See Steven Kochevar, Comment, “Amici Curiae in Civil Law Jurisdictions,” 122 Yale L.J. 1653 (2013). Some courts, especially those in Latin America, have formally adopted rules and procedures for accepting amicus briefs. (That is good news for those of us who may be called upon to find them.) In antitrust cases, the European Union requires its member states’ national courts to accept the “written observations” of certain governmental authorities. Individual jurisdictions—for instance, France and Poland—have gone further, welcoming amici in cases on a wider range of subject matters.

Other courts, however, have no formal procedures for submitting amicus briefs—though that hasn’t stopped would-be amici from trying (and often succeeding). These briefs are more difficult to research, not only because they span such a wide ideological spectrum, but also because of the informality with which they are offered and accepted. Recall that the ADF’s brief was sent as a personal letter to the chief judge of the Constitutional Court of Slovakia.

The increasing influence of international law and the pressure to conform national standards to international ones (e.g., the EU’s practice) might, in part, explain why more civil-law jurisdictions are accepting these non-standard filings. Whether or not it is a salutary trend for NGOs to wield increasing influence upon national courts is a topic that inspires much debate and diversity of opinion. But to even get to the point of discussing the pros and cons, you need to find the briefs in the first place to know what you’re dealing with. Here are some strategies that have worked for me:

  • In jurisdictions that have adopted formal submission rules, there are likely to be indicia of filing. Having a document number, or even a docket number, is an enormous help when you’re researching in unfamiliar jurisdictions.
  • In jurisdictions that don’t have formal submission rules, you may need to trawl through the news sites and legal journals of the local bar associations. GlobaLex is helpful for orienting yourself to this literature.
  • If you know that you’re looking for a brief from a particular NGO, chances are decent that they will have published the brief on their own website along with a press release describing the case. For example, you can read the Mental Disability Advocacy Centre’s brief to the Czech Constitutional Court and the International Trademark Association’s numerous foreign amicus briefs on their websites.
  • INTA has put together a handy chart on filing amicus briefs in Latin American jurisdictions. Helpfully for researchers, it indicates which courts do and do not accept amici and at what level (e.g. Supreme Court only).
  • Of course, you can always find foreign governments’ amicus briefs in the U.S. Supreme Court, for comparison’s sake—but you already know how to do that.

From the Reference Desk

By Lora Johns

chimp

Image via Pixabay

Do chimpanzees have habeas corpus rights?

I admit I did not have a snappy response at the ready when I opened a patron’s email asking whether apes have “personhood rights,” accompanied by an NBC News article about an animal lawyer in New York. “I understand that two cases from Argentina — in 2014 and 2016 — have dealt with the rights of animals and whether habeas corpus can apply to them,” asked the patron. “Is there someone in the Library who can check Argentine legal materials to see if the decisions are available?”

The news article my patron had included with his request dealt with a chimpanzee named Tommy, a former animal actor. His lawyer Steven Wise has been fighting since 2013 to have courts in New York recognize Tommy’s habeas corpus rights as a way to protect his right to proper treatment (Tommy had been beaten by trainers and living in a cage without sufficient enrichment).

Buried deep in the article was a reference to Judge María Alejandra Mauricio of Argentina who, in November 2016, ruled that a chimpanzee named Cecilia was a “nonhuman legal person” with “inherent rights.” Two years earlier, the same judge deemed that an orangutan named Sandra also had “personhood” rights. Both animals were transferred to a sanctuary in Brazil to live out their lives as autonomously as possible.

Armed only with the judge’s name, the two years, and the fact that the case occurred in Argentina, I went digging. Happily, the NBC article linked to a BBC article about Sandra (the orangutan), mentioning that she lived in the Buenos Aires zoo. It also mentioned the name of the legal group representing her – AFADA.

I speak and read Spanish, meaning I had an easier time navigating the thicket of legal documents than if I were armed only with Google Translate and a prayer. I first searched Google to see if any Spanish news sources had reported on the cases (and whether they would point me to the correct court). A contemporaneous article about Cecilia announced that she had won her case and been transferred to a sanctuary in Brazil. Another article described Sandra’s successful habeas case as “unprecedented on a worldwide level” and – very helpfully – mentioned the court where the ruling was made – Sala II of the Cámara de Casación Penal, a federal court that deals with extraordinary remedies. Yet another article described the cause of actionamparo– another excellent breadcrumb.

Having thus greatly expanded my arsenal, I found not only the 2014 and 2016 rulings, but a related 2015 ruling as well. The hint about the court made it very easy to find documents using Argentina’s Judicial Information System. Sure enough, the rulings gave a detailed explanation, complete with expert testimony, of the hardships Sandra and Cecilia had suffered in captivity and why the judge thought they were entitled to rights as nonhuman beings. Cecilia and Sandra will get to live out the rest of their lives in wildlife sanctuaries, free of cages and cruelty. The Nonhuman Rights Project has provided a translation of Cecilia’s winning judgment if you, like me, are fascinated and want to read more.

All in all, it looks like our simian cousins are enjoying increasing legal rights from Buenos Aires to New York.

Here are some helpful resources if you, too, find yourself researching Argentine law:

  • GlobaLex’s Argentina page provides a high-level overview of the Argentine court system. In essence, to research cases there, you should know at minimum where it originated geographically and the subject matter of the case.
  • Even if you don’t have all the information, the Judicial Information Center allows searches using some other criteria.
  • The website of Argentina’s court system, Poder Judicial de la Nacion, is a good source of legal documents if you already have some information to go on.
  • For non-Spanish speakers who use Chrome, the Google Translate Chrome plug-in makes it very easy to translate words and sentences just by highlighting them.
  • Learn about certain (fascinating!) legal mechanisms that exist in Argentina but not the U.S., including courts of cassation, which hear appeals but do not reexamine facts, only reviewing the law, and the action of amparo, an extraordinary remedy found in many Latin American jurisdictions that protects any basic individual right, implicit or explicit, that a person believes is being violated by another law.

Teaching Foreign Customary Law: Tips and Tricks

By Susan Gualtier

Researching foreign customary law can be a difficult process, so it is no surprise that many FCIL librarians struggle with how to teach this topic to law students.  Nonetheless, in my experience, it is a topic that students enjoy and that most have not previously encountered.  I was fortunate enough to experience the customary law research process as a student in the Georgetown University Law Center’s Women’s Human Rights Clinic in 2002, which included a fact-finding mission to Tanzania funded by a USAID grant.  My participation in the clinic was a life-changing experience that I was happy to revisit when I entered the law library profession in 2011.  However, teaching customary law in a classroom setting, without the opportunity to work with and speak to people who are subject to these laws, presents some challenges.  Having now taught this topic at both Louisiana State University, as part of my own FCIL research course, and at the University of Pennsylvania, as a guest lecturer, I offer the following thoughts on how to approach teaching this difficult topic.

  1. It is difficult for students to visualize customary law systems. Because most students will not have traveled to countries with customary law systems, and almost certainly will not have done legal work there even if they have visited, it can be difficult for them to visualize the customary law process, or even the people to whom customary law applies.  The wide variety of countries and regions practicing customary law, as well as the variability of customary law itself and of those who apply and enforce it, can also make it difficult to imagine and to explain.  I believe that it is important not to make customary law sound too “primitive” or to stereotype those to whom it applies.  I have found that photos (of courthouses, villages, or local attorneys, for example) can help illustrate the larger context in which customary law is applied.  If the course schedule provides enough time, a well-places documentary like Invoking Justice can help students to visualize customary and other unfamiliar legal systems.
  2. Some students will struggle to recognize customary law as a legitimate legal system. While the topic of customary law has generally been well-received by my students, I can remember two or three who struggled to accept that customary law is a fully formed type of legal system on par with common law, civil law, and religious law systems.  I believe that this stems from either the tendency to view customary law as primitive or outdated, or the objection to customary laws as necessarily discriminatory.  Both can be discussed in the classroom while at the same time emphasizing customary law’s depth and complexity as a legal system.  While customary laws can indeed be discriminatory, I have found that a thoughtful discussion of how they can be discriminatory and of why specific laws developed the way they did refocuses the students’ attention on the complexity of customary law systems and of the customary law research process.  It also helps to point out the history of customary law in Europe and how it affected and grew into the common law and the earliest civil codes.
  3. It helps to offer a case study. When I taught customary law at LSU, I had the luxury of giving the topic an entire class session, which allowed for a more in-depth discussion of customary law in practice in addition to an overview of the research process and resources.  As background reading, I asked my students to read a law review article, Tamar Erez, Inheritance Law in Tanzania: The Impoverishment of Widows and Daughters, 7 J. Gender & L. 599 (2006), describing the work of my women’s human rights clinic at Georgetown.  Articles offering case studies on customary law research are in abundance in databases like HeinOnline.  Though I have in the past assigned an article relating directly to my own experience, I did so because I could speak to it with first-hand knowledge.  More recent articles, and articles on a variety of different countries and regions, are certainly available.  Even without class time to discuss a case study in detail, offering one as background reading can help the students to approach the lecture with the beginning of an understanding of how customary law is practiced in real life.  As an alternative, a case study can be offered as suggested reading for any students who find the topic of customary law interesting or who wish to explore it in their final projects or in their writing seminars or clinics.

    GoT Meme

  4. It can help to include a pop culture reference. I like to use the Dothraki in Game of Thrones.  While we do not see a tremendous amount of their legal system in the books, and even less in the tv series, we do repeatedly hear reference to rules and laws of Dothraki life, followed by characters stating that “it is known.”  A simple meme has been enough to offer a visual for those of my students who have read the books or watched the show.
  5. The students will have to use their imaginations. Realistically, most research students will never encounter customary law in their doctrinal classes or in practice.  This does not mean that it is not worth teaching.  However, some allowance will need to be made for the fact that they are not going to have the experience of interviewing people about how the law is applied on the ground.  Nonetheless, I try not to limit my research problems or examples to the narrow topics that they might encounter as practitioners here in the United States, or that they can research in their entirely using secondary sources.  Asking them to imagine the questions they would ask or the obstacles that they anticipate in the research process can be as instructive as having them locate concrete sources.
  6. A solid in-class or take-home assignment can make or break the class. A good research assignment in customary law will encourage the students to imagine on-the-ground research, as well as to find useful sources from their own location, which helps them to see that customary law topics are approachable and able to be researched.  I generally revert to a human rights question, because I have the most experience there, and because it is generally interesting to most of my students.  For my first customary law lecture at Penn, I used the following problem as a post-class assignment, which combined elements of both customary and Islamic law:

Imagine that you are part of a small group of human rights attorneys and are just beginning a project involving intestate succession in Kenya.  Your project will focus primarily on the inheritance rights of women and of children deemed to be “illegitimate.”  You will eventually be traveling to Kenya on a grant-funded fact-finding mission, but for now, you must gather as much information as possible on the country’s legal system, the laws in force, and the application and enforcement of those laws.

Create a research plan that will allow you to begin drafting a report on which to base your fact-finding mission.  Which sources will you consult?  Which issues do you think will need to be fleshed out through interviews or other research when you arrive in Kenya?

If you have time, look at some of the websites that we have discussed and try to find some preliminary information on both the religious and customary laws in Kenya and how they treat questions of inheritance.  Identify, if possible, any issues that you think may arise from Kenya’s mixed legal system.

This problem allowed the students to explore all of the potential sources that I had covered in class, as well as to imagine real-life factors that might complicate the laws’ application, identify possible research difficulties, and begin brainstorming questions for interviews or for additional research based on what they found during their preliminary searches.  When putting together research problems, I often start with the U.S. State Department’s Human Rights Reports, which frequently identify human rights issues arising out of customary law.  I then build my problem from there to incorporate other resources, as well as any complicating real-life factors or relevant statutes or international issues, if I am going to include them in the problem.

  1. Much of your teaching can take place while giving feedback. The feedback phase is a chance to see what the students have absorbed and the sources to which they have gravitated, and to offer additional insight into the complex area of customary law, particularly when it comes to possible next steps beyond secondary source and internet research.  When I assigned the above research problem, I let the students know that it was complicated and asked them not to spend more than approximately one hour on it.  The students all did very well, and all identified a majority of the sources that I expected them to find.  However, the feedback phase was a valuable opportunity not only to highlight the easy-to-find sources that we covered in class, but to talk about some sources that were more difficult to find.  I also discussed how these sources could help the researcher to identify potential problems with application, enforcement, and choice of law, and to anticipate questions that would need to be explored during future stages of the research process.  (For a copy of my written feedback on this assignment, please feel free to contact me directly.)

Customary law may be a difficult topic to approach as a research instructor, but I believe that students enjoy it and that it should be included in any class that purports to cover foreign legal research.  I have had a surprising number of students choose customary law topics for their final projects in my research courses, always with great success.  I hope that this post will build upon recent AALL programming and existing guides on customary law research, and help my colleagues to approach this topic not only as researchers, but as instructors, as well.

If you are interested in customary law, please join the Customary and Religious Law Interest Group (CARLIG) on My Communities.  We look forward to hearing your thoughts and questions!

Spain Fractured: Some Thoughts on the Catalonian Crisis

By Julienne E. Grant

La Rojigualda

La Rojigualda: the official flag of Spain

I began a still ongoing love affair with Spain when I was 19.  It started one night in a 2nd class train compartment in August 1981. I was travelling from Paris to Madrid to begin my year of study abroad, and the Guardia Civil stormed in after midnight at the French-Spanish border demanding passports. I somehow found this whole scene romantic.  I also recall joyously poking my head out of the train window at dawn as the Spanish landscape flew by, drenched in that wonderful saffron hue that seems to only be part of the color spectrum of Spanish sunrises.  When I arrived in Madrid, I was young, without much life experience, and my classroom Spanish bore no trace of the Castilian accent that I would later acquire.  During the next ten months, I ventured to almost every corner of Spain—living life to the fullest, a willing participant in what Spaniards now nostalgically refer to as La Movida.  I was hooked.

As much as I was enjoying my foray into Spanish culture, however, I became acutely aware that there were disconcerting undercurrents flowing beneath the surface of Spanish society. Spain’s democracy at that time was young and fragile, and the rule of law tenuous;  the nation had just emerged from the Franco dictatorship (1939-1975), and the country’s 1978 Constitution was less than three years old when I landed in Madrid.  Lieutenant Colonel Antonio Tejero had briefly commandeered Spain’s Congress of Deputies with a pistol just six months before my arrival.  One month after I started classes, Pablo Picasso’s politically charged painting, Guernica, returned to Spain from the U.S. (Picasso had mandated that his masterpiece not be brought back to Spain until democracy was restored in his homeland).  The Guardia Civil escorted the piece from the Madrid airport, and it was then displayed behind bulletproof glass in a building just three blocks from my apartment.  Many Spaniards wondered if the painting’s homecoming was premature.

LEstelada

L’Estelada: the unofficial, pro-independence flag of Catalonia

As I personally witnessed, the early post-Franco years tested the strength and overall viability of Spain’s emerging democracy, and its newly-minted constitutional and institutional framework. That framework is again being challenged, almost 40 years later, in the streets of Catalonia.  Although Catalonians have always demonstrated a striking sense of autonomy (and have vied for independence before), the tension between this intensely proud northeastern region and the Spanish central government has reached a critical point.

On October 27, the Parlament de Catalunya approved a unilateral Declaration of Independence, which prompted the Spanish Prime Minister, Mariano Rajoy, to sack members of the Government of Catalonia. Mr. Rajoy also dissolved the 135-member Parliament, and set new regional elections for December 21.  And for the first time since the popular approval of the 1978 Constitution, the Spanish government invoked Article 155 –the “nuclear option”–which empowers it (upon approval of the Senate) to “take all measures necessary” if an autonomous community “acts in a way that is seriously prejudicial to the general interest of Spain.” Armed with Article 155, the Rajoy administration retracted Catalonia’s devolved powers and imposed direct rule. Reports yesterday morning (October 30) indicate that some of the deposed members of the Catalonian government, including Carles Puigdemont, have fled to Brussels to escape sedition charges.

Whether Catalonia’s unique regional attributes, including its language, warrant such an arduous and punishing attempt at nationhood, I can’t say. What I can say, however, is that the Catalonian government’s recent efforts to pave the way to independence have been illegal under current Spanish law.  For years, Mr. Rajoy’s Partido Popular, the two Rajoy administrations, and the Catalonian government have been fighting in the Constitutional Court over the validity of “right to decide” legislation.  And for years, the Constitutional Court has determined those regional laws are unconstitutional.  This holding from the Court’s December 2, 2015 judgment (on Catalonia’s Resolution 1/XI) perhaps sums up the Court’s jurisprudence most suitably: “An Autonomous Community’s Parliament cannot set itself up as a source of legal and political legitimacy, unlawfully taking matters into its own hands in order to violate the constitutional system on which its own authority is based.”

The Constitutional Court was no different in its approach to the Rajoy government’s challenge to Law 19/2017 (September 6, 2017), which set the stage for Catalonia’s controversial Oct. 1 Referendum on Self-Determination. After suspending the Law on September 8, the Court ultimately struck it down in a unanimous October 17 decision, effectively voiding the October 1 vote. As reported by El País on Oct. 17, the Court opined that the Law “‘encroaches upon state powers on referendum-type consultations, and violates the supremacy of the Constitution, national sovereignty and the indissoluble unity of the Spanish nation.’” As the Court noted, under the Spanish Constitution (Article 92.1), “referendums may only be held at the national, not regional, levels” (El País, Oct. 17). The opinion also addressed the Parliament of Catalonia’s attempt to legitimize the Referendum based on “international legislation and jurisprudence” (Law 19/2017). The Court didn’t buy that argument either.  The idea that international law applies in Catalonia’s case has also been debunked by numerous international and Spanish scholars, including the Spanish Association of Professors of International Law and International Relations.

La Senyera

La Senyera: the official flag of Catalonia

The fact of the matter is that the Catalonian secessionists don’t have the law on their side. Almost 40 years ago, Catalonians themselves signed on to a Constitution that is “based on the indissoluble unity of the Spanish nation, the common and indivisible country of all Spaniards” (Article 2), and as confirmed by the Constitutional Court, does not sanction a regional plebiscite on independence. Nor does the Constitution allow an autonomous community, such as Catalonia, to unilaterally declare independence, as it did on Friday.

For the moment, at least, it appears that Mr. Rajoy’s administration has bought some time by calling for early elections. With some of the hard-core secessionist politicians “out of town,” citizens of Catalonia will hopefully have a chance to sort things out politically and select a new Parliament—its composition representing a current and accurate picture of what the majority of Catalonians want. (According to CNN, “A new poll suggests that political parties backing independence would not win a majority if elections were held today” (October 30, 2017)). That is not to say, however, that the 1978 Constitution itself does not need to be tweaked to prevent a crisis like this from occurring again.

As a devout Hispanophile, watching this drama unfold has been heartbreaking. The crisis is tearing the country apart, and it’s damaging Catalonia’s economy, as businesses flee and tourists stay away. Whatever the next few weeks and months bring, Spain does not need to move backwards; Picasso’s Guernica is finally on display now in Madrid unshielded. It is time for the country’s politicians to work together to compromise and utilize the law and its malleability to ensure that the nation continues to move forward.

 

Book Review: The Philosophy of Customary Law

By Susan Gualtier

philsophyofcustomarylawJames Bernard Murphy, The Philosophy of Customary Law (Oxford University Press, 2014). 160 p. Hardcover $83.00.

As someone with more than a passing interest in customary law, I looked forward to reading The Philosophy of Customary Law, by James Bernard Murphy, Professor of Government at Dartmouth College.[i]  In this book, Murphy posits that custom must be analyzed in terms of “two more basic logical concepts: convention and habit.”[ii]  He then offers a historical overview of four philosophers who have examined the concept of custom (Aristotle, Suárez, Bentham, and James C. Carter), highlighting how each built upon or reacted to his predecessors’ work.  Murphy includes a brief epilogue at the end of the book, in which he offers a few of his own thoughts on customary law.  Unfortunately, although the premise of the book seemed promising, I was disappointed in the execution.  Murphy largely ignores the legal framework for understanding customary law, and is more interested in the theory of human behavior more generally. He reaches no useful conclusions regarding customary law, at least from a practical standpoint, and it is unclear what this book can contribute to the discussion of customary law.

Despite its title, The Philosophy of Customary Law deals relatively little with customary law as we know it.  Most of the discussion of contemporary customary law occurs in the book’s introduction, where Murphy entirely ignores tribal, indigenous, and other customary law systems, instead minimizing the importance of customary law to that of a “gap-filler” only occasional referenced by Western common law courts in situations where no written law applies.  International custom merits a single paragraph in the introduction.  Murphy waves away the need to describe or differentiate for the reader the specific ways in which custom can comprise or inform the law.[iii]  Similarly, he dismisses what most of us will recognize as a critical element of establishing customary law, whether international or domestic: the subjective requirement that states or individuals observe a custom because they believe or intend it to have the force of law (“Instead of distinguishing the objective usage from the subjective attitudes of participants, I propose to distinguish the habitual (individual) dimension of custom from the conventional (social) dimension of custom.”[iv]).

It is unclear whether, by so openly dismissing the basic framework of customary law analysis, Murphy intends to create a groundbreaking new way of thinking about customary law, or if he simply cares more about philosophizing than about the practicalities of legal analysis and application.  I hoped that the four main chapters of the book, each of which deal with a different philosopher and/or school of philosophical thought, might shed more light on his purpose and provoke me to think differently about customary law.  The first chapter focuses on Aristotle and his distinction between ethos, which might be characterized loosely as habit or second nature, and nomos, which might be characterized as either convention or law–and more specifically, according to Murphy’s etymological analysis, “convention stemm(ing) from an act of deliberate stipulation.”[v] Noting Aristotle’s identification of nomos with logos (reason), Murphy states, “As applied to custom, Aristotle’s close identification of nomos and logos seems odd. … Customs seem to arise from human conduct but not from any deliberate design.”[vi]  But is that the case?  Murphy seems to see “deliberate design” as a process limited in time – a transaction rather than an evolution.  It is arguably not very difficult to see the connection between ethos and logos if you consider the subjective requirement that participants in a customary law system believe that a custom constitutes a legal requirement or intend for it to do so.  It is Murphy who has severed the connection between reason and custom, and who then seems to take issue with Aristotle’s use of nomos to describe both social convention and law.  Murphy cites enough commentators that I (not being a student of philosophy myself) believe him when he states that Aristotle’s language is often unclear.  However, I was struck by what seemed to be a resistance to the idea that the development of custom could be intentional or rational, which seems to indicate a limited perception of, or perhaps a limited respect for, the richness and potential efficacy of customary law.

This resistance carries into the second chapter, which begins with the statement that “customs are not in general deliberately made.”[vii]  This chapter describes the work of Francisco Suárez, particularly in relation to that of his predecessor, Thomas Aquinas, and seems primarily to take issue with Suárez’s belief that law “expresses the will of the lawgiver.”[viii]  Again, however, much of the argument seems to originate with a limited view of customary law.  Murphy cannot reconcile Suárez’s definition of “law” with his understanding of custom, because he cannot see the individual participants as the lawmakers (“Only an author can form an intention to communicate and customs usually have no author”[ix]), and because he rejects the idea that the participants, either individually or as a group, can exercise reason, intent, or will (“Because customs are not designed or made by any one person, what kind of will or intention do they signify?  No one wills custom into being as a legislator might will a statute into being.  Customs simply arise will-nilly.”[x]).

The final two chapters offer more of the same, although Murphy seems to settle into a more traditional definition of customary law, including its subjective element, during his critique of Bentham.  Nonetheless, he returns to the ideas of “habit” and “convention” toward the end of the chapter in order to conclude that Bentham failed to adequately grasp the concept of custom (“What is largely missing in Bentham’s account is a description of how conventions become habitualized and how habits become conventionalized: the essential nature of custom never comes into focus … customs rest upon a real relation between individual habits and social conventions.  Hence, customs escape the net of Bentham’s logic.”[xi]).  The book ends with a brief epilogue, in which Murphy offers a few of his own reflections on the relationship between custom and law.  However, his primary argument here has little to do with customary law.  Instead, he concludes with the notion that written law should become a matter of custom (or, more specifically, “habit” – or second nature – if we are to use Murphy’s framework.)  In Murphy’s view, “it is better to conform to good laws by customary habit, than by constant recourse to lawyers.”[xii]  This is a fine statement, indeed, but one that, as a conclusion to a book on the topic of customary law, contributes little, if anything, to the field.

It is probable that I simply disagree with Murphy that custom can or should be analyzed through the concepts of habit and convention – or perhaps the book just does not explain how doing so adds to the discussion.  Rather than clarifying or broadening our understanding of customary law, the attempt to boil custom down to these two concepts would seem to limit our ability to work with custom as a legal concept or to form any useful framework for its analysis – an irony, since Murphy states in his epilogue that “[o]ur philosophers of law rightly understand that the puzzles about customary law arise mainly because of inadequate conceptions of custom.”[xiii] Murphy’s purpose appears to be disagreement with previous thinkers for the sake of disagreement (an approach which, incidentally, leads to most of my frustration with the field of philosophy in general).  It is also possible that this book was an academic exercise rather than a sincere attempt to contribute to the study or practice of customary law.

What has always interested me about customary law is how it operates “on the ground” – how it changes and evolves, how it differs based on geography and culture, and how external factors can assist with or complicate its application.  Given that my interest is practical rather than philosophical, I am clearly not the intended audience for Murphy’s book.  Those with a background in legal philosophy might find this book interesting, but it has little relevance to the practicalities of researching or practicing customary law.

[i] James Bernard Murphy, The Philosophy of Customary Law (2014).

[ii] Id. at xiii.

[iii] Id.

[iv] Id.

[v] Id. at 9.

[vi] Id. at 10.

[vii] Id. at 23.

[viii] Id. at 28.

[ix] Id. at 25.

[x] Id. at 41.

[xi] Id. at 87.

[xii] Id. at 124.

[xiii] Id. at 117.

AALL 2017 Recap: Cuban Law and Legal Research: A Snapshot During the Deshielo

By Caitlin Hunter

PanelDuring this year’s AALL conference I enjoyed the opportunity to attend “Cuban Law and Legal Research,” a panel discussion by Jorge R. Piñon (Director, Latin America and Caribbean Energy Program, University of Texas at Austin), Julienne E. Grant (Reference Librarian/Foreign & International Research Specialist, Loyola University Chicago School of Law Library), Marisol Florén Romero (Assistant Director for Library Services & Foreign & International Law, Florida International University), and Teresa M. Miguel-Stearns (Law Librarian and Professor of Law, Yale Law School Lillian Goldman Library.) The three librarians explained the theoretical structure of Cuban law, which Piñon tempered with his own practical experiences on the ground promoting trade between Cuba and the U.S.

Government StructureCuba is a civil law country and, more importantly, a socialist legality, where law is an instrument for moving society to socialism and communism. The basic government structure is established by the Constitution of 1976 and includes four branches:

  • The National Assembly of People’s Power, a legislative body that issues laws (leyes) and agreements (acuerdos) and is nominally Cuba’s highest authority;
  • The People’s Supreme Court, the highest judicial body;
  • The Office of the Attorney General, responsible for enforcing the laws; and
  • The Council of Ministers, an executive body that issues decrees (decretos) and is roughly analogous to the U.S. cabinet.

Except for the Council of Ministers, each branch has both provincial and municipal lower levels. Someone bringing a case would file it in a People’s Municipal Court, appeal to a People’s Provincial Court, and finally appeal to the People’s Supreme Court. Correspondingly, in addition to the national Office of the Attorney General, there are also Municipal and Provincial Attorney Generals. The legislative branch has not only Provincial and Municipal Assemblies, but also People’s Councils consisting of delegates elected down to the neighborhood level.

However, Piñon observed, you can rip up the formal chart and throw it out the window. Real power is actually held by much smaller groups. Within the People’s Supreme Court, only the smaller Governing Council issues binding decisions, in the form of instructions (instrucciones), agreements (acuerdos), and opinions (dictámenes.) Both the National Assembly and Council of Ministers also have smaller councils that are responsible for decision-making when they are not in session. The Council of State consists of 31 delegates from the National Assembly, issues decree-laws (decretos-leyes), and handles international treaties (tratados internacionales). The Executive Committee of the Council of Ministers consists of an unfixed number of ministers and issues resolutions (resoluciones). These smaller bodies wield considerable power because the National Assembly meets only two weeks a year and receives its marching orders from the Council of State when it does meet. Raúl Castro is the President of both the Council of State and the Council of Ministers. Regardless of the organizational chart, Castro and the Cuban Communist Party hold the real power.

Sources of LawCuban laws are difficult to find due to a lack of publishers and the government’s low commitment to transparency. There is no Lexis, Westlaw, or CLII Cuba. Government websites are here today, gone tomorrow and not necessarily accurate or intuitive to use. Cuba’s Gaceta Oficial posts Cuban laws in rar format, an old school competitor to the zip file that requires special software to decompress. The Gaceta includes codified Cuban law, but the codes aren’t up-to-date and there are differences even between the HTML and PDF versions posted on the Gaceta’s website. The problem is not restricted to online access. The government’s Instituto Cubano del Libro reviews all books and only authorizes a handful of publishers (e.g. ONBC) to print short runs that quickly sell out. During a recent book-buying trip to Cuba, Miguel-Stearns struggled to find something as simple as the current commercial code and spent hours waiting outside a bookstore while the Uruguayan publishers serving as intermediaries haggled for the handful of books available. Nevertheless, resources on Cuban law are expanding. For years the Supreme Court’s website was routinely down and nearly impossible to access, but following a recent reworking, it is now (usually) up and filled with useful information about the court and its rulings.  Other useful websites are the government-sponsored Granma and EcuRed; the independent Translating Cuba and Havana Times; and Cuba Trade Magazine, which focuses on the growing trade between the U.S. and Cuba.

Piñon believes that promoting trade between the U.S. and Cuba is key to both countries’ interests. Castro is now in his mid-eighties and has failed to identify a sufficiently charismatic, popular successor. Additionally, Cuba is heavily dependent on subsidies from Venezuela, which will end as soon as Maduro’s government falls. The imminent power vacuum could leave Cuba vulnerable to drug cartels. However, if the U.S. helps Cuba build a stable economy now, Americans and Cubans alike can benefit from the buying power of Cuban consumers and the contributions of the well-educated and entrepreneurial Cuban workforce. The Cuban government understands that it cannot continue to support hundreds of thousands of government workers once the Venezuelan subsidies end and is actively pushing both foreign investment and small businesses, such as B&Bs. For their part, American corporations are eager to access Cuban workers and markets and don’t care about the property the Cuban government seized from them decades ago. (Piñon quipped that most American companies would happily settle with Cuba for a dollar–and if Cuba does not have a dollar, they will reach into their pockets and give it the dollar.) The current re-freezing of Cuban relations has nothing to do with Cuba and everything to do with domestic U.S. politics. American politicians support the embargo because they fear losing support for their own policies from colleagues such as Marco Rubio, who in turn fear losing the votes of their Cuban exile constituents. It is up to us to counter this pressure and lobby the politicians who represent us to oppose the embargo.

All of the speakers were passionate and knowledgeable about their subjects and I wished this had been a deep dive so I could have heard everything they had to share. Happily, however, the presenters have also extensively documented their work elsewhere, including on this blog. Grant’s detailed travelogue of the Latin American Law Interest Group’s trip to Cuba is a special highlight. The presenters also provided an extensive handout, documenting and expanding on their presentation. Finally, I’ll be keeping an eye out for the Latin American Law Interest Group’s full guide to Cuban law, forthcoming in the month’s issue of the International Journal of Legal Information.