Chapter 3 investigates the reasons why many Chinese companies have decided to seek cross-border listings in the past three decades. It examines a variety of relevant theories, such as legal bonding, private benefits and market fragmentation and evaluates the extent to which they may apply to the case of Chinese companies. The overseas listing of Chinese companies offers a good case study due to the apparent disparity between China’s regulatory regime and those in the listing places. However, existing empirical research shows ambiguous or, at best, weak effects of legal bonding. This calls for a closer examination of how to interpret these empirical results and why the legal bonding effect is not as strong as expected.

Despite the Chinese government’s efforts to privatize infrastructure construction through the public-private partnership (PPP) market, the majority of investors in this sector are still state-owned enterprises (SOEs). Moreover, the government that contracts for the infrastructure construction and service usually holds a significant proportion of shares in PPP projects. This chapter explains this phenomenon using the legal theory of SOEs. It finds that, in practice, the government typically retains the power to terminate PPP projects in the public interest when new circumstances arise, while the courts offer limited protection to private investors. As a result, private investors may be deterred from investing due to concerns about government opportunism. Furthermore, it observes that a judicial reform enhancing the independence of judges is associated with an increase in the proportion of shares held by private investors and a decline in shares held by SOEs and local governments. These findings suggest that a robust legal system promotes the extent of privatization by boosting the confidence of private investors.

This chapter offers a description of the method. Elaborating on the tradition of adda, the chapter explains its significance within post-colonial thought and life in India. It then explains how adda is shaped as a method in the book by drawing on and joining insights from the works of scholars who are located within the disciplines of law and/or the humanities. The chapter provides a detailed description of how diverse scholarly works of post-colonial, feminist and jurisprudential thought are brought together and then enacted as field research for this book.

Chapter 1 is a general introduction to the book. It sets out the research context, key research questions, research methodologies and other relevant information about the book. This sets the stage for the discussion of substantive topics in the following chapters.

This chapter focuses on the planned transitional justice process and its institutions in action. Thus it mainly concentrates on the Truth and Dignity Commission, how it worked and was perceived, as well as the challenges it faced. It shows that the Truth and Dignity Commission had partisan appeal from the very beginning and that its president Sihem Ben Sedrine was a polarising figure. The commission was perceived as a project that would mainly serve Ennahda and its followers. With the elections of 2014 and the changes in government that followed, the political will for seeking accountability declined further and political support for the transitional justice process dwindled. The chapter shows that the difficulties the truth commission experienced in performing its tasks and fulfilling its goals and promises were due to a combination of factors: an overburdening mandate and internal quarrels, as well as external attempts to hamper its work. But this stage also reveals that the institutionalised process developed its own dynamic that allowed it to proceed, to a limited extent, independently of actors and their political preferences. Given the truth commission’s efforts to make transitional justice public and inform and educate wider public opinion, the chapter concludes that the performance of transitional justice in Tunisia may have constitutive consequences by ‘cracking the past open’, even if it did not exactly proceed as it was initially planned. The chapter also covers the last phase of the truth commission, as well as some developments after its mandate ended.

Chapter 7 addresses changes in fundamental rights within the tension between social evolution and constitutional stability. How is constitutional thinking responding to the challenge posed to fundamental rights by non-state actors? How can we understand the increasing importance of technology for freedom of expression? These questions lie at the heart of the sociological view of fundamental rights as social institutions arising from modernisation. This perspective emphasises the function of fundamental rights and the emergence, growth, and impact of these norms, in contrast to the state-centred, mostly defensive understanding of fundamental rights that prevails in legal practice. The Swiss legal system provides an enlightening case study for the socially based expansion of fundamental rights. At the end of the 1950s, the Federal Supreme Court was a global pioneer in recognising various unwritten fundamental rights, resolving the tension between social change and constitutional stability through the imposition of strict conditions on the acknowledgement of unwritten rights. This makes it a remarkable example of how a national supreme court interprets its role as guardian of the development of fundamental rights with restraint, while appealing to social acceptance when democratic legitimacy was formally lacking.

Review of the internal and external structures of Chinese courts, discussion of the power and role of the Chinese judiciary, examination of judges (selection and qualifications) and people’s assessors, and analysis of judicial independence in China.

This volume challenges conventional interpretations by demonstrating that Hans Kelsen was far from being a purely formalist thinker. Instead, it highlights his profound and enduring engagement with the threats facing constitutional democracies. The political and institutional upheavals of interwar Europe significantly influenced Kelsen’s evolving vision of democracy, as this volume shows. His contributions to twentieth-century democratic theory include groundbreaking insights into multiparty systems, mechanisms of moderation, minority protections, and judicial review. Furthermore, Kelsen’s reflections on the crises and collapses of democracies during the 1930s remain strikingly relevant, offering valuable perspectives on contemporary challenges such as polarisation and populism. This title is also available as Open Access on Cambridge Core.

Contract and consent had important roles in early modern English labor relationships. The scholarship in social and economic history and legal studies has rarely tried to reconcile the legal framework of voluntariness with the practical unfreedom of early modern work. The Introduction proposes that the foundations of freedom of contract and the sanctity of an individual’s consent developed in the sixteenth to seventeenth centuries, in part, from the exploitative labor systems of parish apprenticeship, transatlantic indentured servitude, military impressment, and prisoner of war labor. Charity, colonization, and war were the key factors that drove masters and middlemen to reach for consent as a tool to bind people into labor. The ideology of "natural laborers" justified presuming consent in people of appropriate profiles. Moments of consenting were fraught with power imbalances, and they reinscribed social hierarchies. Contemporary examples of coerced consent show an ongoing acceptance of this pairing. The legal context, chapter summaries, and a consideration of the method of historicizing consent complete the Introduction.

This chapter advocates for Alter-Native Constitutionalism’s prioritisation of vernacular understandings of property and housing within South African law, challenging the colonial legacy of ‘lex nullius’ that undermines Black South Africans’ land claims. It critiques the uncommon law’s failure to recognise the Ntu’s historically-rooted, multigenerational land-based relationships and emphasises the interconnectedness of property and housing. The chapter uses Ntu Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation set out in Chapter 6 to critique the ways in which, in its precedents, the Constitutional Court has interpreted the property and housing clauses to the near-complete exclusion of vernacular law’s layered property rights system. It argues that courts, as part of the state, should enforce these constitutional protections using Alter-Native Constitutionalism to uphold vernacular land rights. Further, arguing that the courts must prioritise equitable housing access over strict property rights, the chapter uses the Salem case’s limited ‘sharing model’ attempts vis-à-vis restitution to show that vernacular law’s ‘access-to-occupation’ could be feasibly extended throughout South African ‘property law’ in a manner that would reduce forced evictions and balance state, ‘owner’ and beneficial occupiers’ interests. The chapter thus illustratively pushes for judicial interpretations that better reflect ordinary people’s socio-economic realities, needs and sociocultural values, as well as constitutional commitments.

Brokers and ship captains sent thousands of people from the British Isles to work in the English American colonies without indentures. These immigrants only entered written contracts after arrival. Here – and in other labor arrangements in England – the concept of “enticement” dominated. Subordinates’ consent to serve was imagined to be the result of campaigns of temptation to which they succumbed. While previous studies of enticement in early modern England have been limited to sexual seduction, at the time enticement also meant servant poaching. Claims of enticement allowed commentators to emphasize the power of personal interactions in servant procurement, instead of drawing attention to the structural conditions that made a segment of society disproportionately vulnerable to abuse by illicit brokers denounced as "spirits."