Separation of powers or, more exactly, the rule of law, due process or, in Europe, the right to a fair trial influence the institutional setting of antitrust or regulatory authorities and law enforcement. An increased role given to specific regulation or antitrust in order to tackle some fundamental issues posed by the concentration of economic-political power does not go without independent and impartial decision-making from an institutional and procedural, a personal or a financial and lobbying perspective.

This chapter examines when goods become owned. It starts with the traditional Demsetz model and then considers cases of nonlinear transaction costs.

Summary: Amidst high default rates, how did moneylenders recover unpaid loans? They had two options. One was to recover loans informally through private negotiations with borrowers. The other was to execute written contracts and revert to courts to enforce these contracts. This chapter analyses the history of courts as well as land laws, contract laws and credit surveys to examine the costs incurred by lenders to enforce different types of contracts in the unregulated market. Judicial proceedings were expensive in colonial India and often exceeded the size of loans. The chapter records a loan upgrading process in which lenders attached different types of contracts depending on the stage of default and reimbursed the costs of enforcing these contracts by charging higher interest rates. For small loans in high-risk areas, enforcement was through private negotiations and conditions harsh. These findings suggest an inverse relationship between transaction costs and equity in credit markets.

The twenty-four accessible and thought-provoking essays in this volume present innovative new scholarship on Japan’s modern history, including its imperial past and transregional entanglements. Drawing on the latest Japanese and English-language scholarship, it highlights Japan’s distinctiveness as an extraordinarily fast-changing place. Indeed, Japan provides a ringside seat to all the big trends of modern history. Japan was the first non-Western society to become a modern nation and empire, to industrialize, to wage modern war on a vast scale, and to deliver a high standard of living to virtually all its citizens. Because the Japanese so determinedly acted to reshape global hierarchies, their modern history was incredibly destabilizing for the world. This intense dynamism has powered a variety of debates and conflicts, both at home and with people and places beyond Japan’s shores. Put simply, Japan has packed a lot of history into less than two centuries.

People with a wide range of mental health and neurodevelopmental conditions are found amongst criminal justice populations, and many present with co-occurring disorders. These may include other neurodevelopmental conditions, substance use disorders or physical health conditions. It is now standard practice to use a pathways approach to organise and deliver services, and journeys taken by many people within criminal justice systems lend themselves to this, at least in theory. Basic requirements of this approach include police custody and prison reception screening, providing organised multidisciplinary care and introducing appropriate interventions as part of individual care plans. There is much we still do not know about vulnerable people in prisons, and service provision remains far from optimal. In particular, insufficient specialist provision means that many people with neurodevelopmental conditions are not identified appropriately, and do not have their needs met as they should. Further, in the absence of support, the presentations of some people render them vulnerable to specific aspects of prison life.

The Spanish judiciary thrived on complexity. Judges in the Americas worked within multiple court systems with interwoven jurisdictions and could consult seven different overlapping law codes when considering their decisions. This chapter covers the relevant judicial institutions in the context of the late eighteenth century.

All three of the prime suspects in the Dongo investigation have previous experience with serious accusations. They show their understanding of the justice system with different levels of sophistication and with their aggressive or evasive responses to Emparan’s questions. Finally, faced with bloodstains on each of their belongings and the pressure of face-to-face confrontations, Quintero, Blanco, and Aldama can no longer avoid the truth. They admit that they all killed on the night of October 23, 1789, but not before Emparan’s court collects more evidence and the judge calls them in for several sessions of questioning.

This chapter examines courts in Asia as cultural symbols, social organizations, and political battlegrounds. As cultural symbols, courts are often embedded in religions, colonial legacies, and local norms. These cultural symbols are found in both informal tribunals and more institutionalized religious and secular courts. As social organizations, courts are intertwined with bureaucratic hierarchies, political influences, and the career trajectories of judges. This is particularly salient in civil law jurisdictions across Asia. As political battlegrounds, courts provide a space for the judicialization of politics as well as a soil for judicial corruption. The readings also examine the complexity of judicial decision-making in different national contexts. In addition, the readings highlight the nature and impact of judicial reforms, which take place amid broader political and social changes in both democratic and authoritarian contexts and can lead to tensions as well as encourage new alliances.

Nowithstanding the powers of arbitral tribunals and emergency arbitrators to grant interim measures, it is generally recognized that there are compelling reasons to give parties access to national courts to grant interim relief even where the parties have subjected their disputes to arbitration. This Chapter analyses interim relief by state courts, including their powers, limitations, and types measures state courts will grant.

How can improving the collection, sharing, and analysis of data make the civil justice system more accountable to other government institutions, participants in the justice system, and the public at large? We tackle this question from three angles. First we show how accountability can create opportunities for civil justice reform. Drawing on work in other social spheres on large datasets, we identify three lines of research that court data could inform: the extent that structural racism and other biases shape processes and outcomes; the impact of lack of representation on litigants’ experiences and outcomes; and the antecedents and consequences of court involvement for poor people. A second focus is the obstacles that prevent us from increasing our store of knowledge about civil justice problems. These obstacles include: the lack of good data, legal barriers to obtaining data, and real and perceived institutional risks to sharing data. Finally, we report on our efforts to design and build a civil justice data commons (CJDC) addressing these barriers in order to provide fast and frictionless access for policy research as well as operational insights for courts and civil justice institutions to improve equity and service delivery.

This chapter surveys constitutional design for territorially divided societies, with special application to the Middle East. Federalism, which is a standard part of the toolkit in other parts of the world, has rarely been attempted or sustained in the region. Decentralization holds more promise, and although many of the attempts so far have been ineffective, it would help a good deal. Special autonomy, in which one or more regions of a country enjoy authority over certain subjects, could work for certain areas as well. Another set of tools, categorized as rights, redistribution, and representation, operates at the level of the central government. Whatever arrangements are chosen, there is a need for institutional guarantors of the constitutional bargain over territory: courts and international actors can play this role. The chapter concludes that mechanisms providing voice are superior to those facilitating exit, and that a combination of representation and decentralization may be sufficient in many cases.

Many of the formulas dealing with conflict highlight formal courts and judicial processes. Others represent extrajudicial settlements. In this respect they match, though in an entirely lay context, the picture of early medieval dispute settlement visible in other sources. They make particularly clear, however, that judicial and extrajudicial settlements were points on a complex and intertwined continuum. They also tell us that people – both litigants and authority figures – could manipulate and abuse judicial processes for their own purposes. The formulas are particularly interested in interpersonal violence. We find men assaulting each other on the road and taking each other’s property. We find men killing others for a variety of reasons. Those who committed homicide not only negotiated the payment of the required blood price, but actually paid it – and had their payment recorded in a security that protected them from any further trouble. Women too are accused of homicide, sometimes by poison or sorcery but sometimes by more active means. In the end, the formulas suggest that a culture assuming a right to personal violence was alive and well in the Carolingian period, despite strenuous efforts especially by Charlemagne and Louis the Pious to regulate it.

The second power of the police is used to collect evidence and people, either summarily or by warrant, and present them to a magistrate for adjudication, principally in matters of criminal law. The traditional model assumes the purpose is to establish guilt and determine the appropriate punishment, with the result being incarceration and the harmful and disruptive consequences that often follow from it. A broader conception considers that the law is what signals the government’s legitimate interest in regulating a behavior owing to its risks and consequences, or the manner in which it violates rights, and these statutes are what empower the police to operationalize the government’s interest. This does not mean, however, that the necessary response should always be punitive; it can instead be linkage to care, treatment, or other interventions that address behavior. The chapter closes by observing that the criminal law is nonetheless what empowers the police to act in response to behaviors regardless of the consent or intentions of others, and if the government wishes to retain this ability while shifting crisis response away from police, it will need to solve the puzzle of how actors not empowered by the criminal law can otherwise decisively represent the government’s regulatory interests regarding individual behavior.

This case study aims to investigate whether and in what ways the relations between the EU and its Member States and South Korea can be used to strengthen opportunities to appropriately regulate and remedy human rights violations in the Korean electronics industry. This study first determines the relevant social forces and historical factors in Korea. This is an essential key to a contextualised understanding of how so-called electronics chaebols are structured. Afterwards, the relevant legal commitments in the Framework and free trade agreements between the EU and Korea are discussed. These agreements lay a foundation for deeper transnational social network relations. A landmark dispute about the freedom of association and the right to collective bargaining in Korea under the Free Trade Agreement is analysed. Finally, this case study determines to which extent people in Korea can use justice institutions when they allege that their rights have been infringed by electronics corporations. All relevant mechanisms are evaluated. An arbitration case between the Korean NGO Sharps and Samsung is discussed. Ten Korean experts have been interviewed to write this case study.

The sixth chapter examines the relationship between coutumiers as texts that describe custom, and custom in practice. The difficulty with discussing this is that the coutumiers only begin to be cited in court records at the very end of the thirteenth century and very rarely even then. This was not unusual for the lay courts of northern France in this period, which cited ‘custom’ and not lawbooks or specific precedents. I discuss the relationship between the coutumiers and representations of practice – as filtered through its documentary record-keeping – in two ways. On one level, this chapter shows how at least some people were thinking about court cases that they presided over, took part in, witnessed or heard about. On another, this chapter demonstrates how the coutumier represents practice differently from other remaining records and how coutumier authors used what they saw in practice to extract principles and articulate general rules. Through the coutumiers, we can see how individual actors reshaped specific cases and transactions into general principles, and those general principles into a body of customary law.

This chapter examines the role that the Indian judiciary has played in advancing climate action and environmental governance. This chapter traces the judiciary’s contributions through a few landmark judgements and its relationship to varieties of environmentalism in India. India’s environmental movement, and the lawyering that supports it, oscillates between environmentalism of the poor and exclusionary conservation, where the human rights of forest-dwelling and other local communities are often violated. Moreover, though the judiciary in India has been a site of progressive environmental jurisprudence, it has nonetheless produced jurisprudence that violates the human rights of vulnerable communities. The judiciary is very often left to choose between the two competing strains of environmentalism and responding to the needs of development. These pressures, I argue, will shape the decisions the judiciary is likely to make in the context of climate change. Yet, this chapter ultimately argues that courts can play an important role in climate change governance if they adopt a more sensitive approach to questions of climate justice.

In recent years, nations around the world have faced a veritable crisis of ineffective government. Basic governmental functions – preventing private violence, resolving disputes through lawful means, providing an infrastructure to enable people to meet their most elementary needs for shelter, nutrition, transportation, communication, education – go unmet. In some countries, these basic functions are met but longer-term governance issues languish, and government is perceived to be unresponsive in ways that some believe contribute to political backlashes, including those against minority groups. These failures in governance are also perceived to have contributed to a global upsurge in authoritarianism and a concomitant decline in democracy.1

Moreover, the basic freedoms protected in many democratic constitutions – freedom from state-sanctioned torture and from punishment or coercion without fair process; freedom of expression, of religion, of movement; freedom from invidious discrimination; enjoyment of property without arbitrary government interference; free exercise of the suffrage – cannot exist, in an organized society, without government effective enough to control itself and its agents and otherwise to secure the protection of those rights.

Medicolegal experts often struggled to discern whether a suspicious death was caused by poisoning or natural causes, particularly during cholera epidemics, and faced difficulties in detecting traces of poison in cadavers. Changing understandings of the absorption of poisons in the body and the advent of new techniques, including the Marsh apparatus test, presented possibilities for demonstrative evidence of poisoning and revealed the dangers of flawed forensic expertise. Some doctors, scientists, jurists, writers, and other commentators issued warnings about the high sensitivity of the Marsh test, the possibility of numerous sources of contamination, and the problem of incompetent practitioners operating beyond the bounds of their knowledge and training. Nonetheless, the prevalence and nature of poisonings shifted over the course of the nineteenth century, largely in response to the evolution of scientific knowledge. However, public battles over the state of scientific and medical knowledge in poisoning trials raised concerns that the very means by which forensic doctors sought to establish their authority might undermine it.