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This chapter articulates the central argument (why a new legal form for social enterprises in India, Malaysia, Hong Kong, and Singapore is needed and what it should entail); explains why the four Asian jurisdictions are selected as case studies; and examines the purposes of social enterprises and their two main business models. The chapter then provides an overview of social enterprises in the four Asian jurisdictions including: their operating domains, the drivers of the development of social enterprises, the challenges faced by them, the three main conflicts of interests afflicting them, and the legal forms used by social enterprises. Importantly, the chapter shows that the legal forms available to or used by social enterprises in the four Asian jurisdictions are unable to properly address the conflicts of interests, and thus, a new legal form is required.
The conclusion summarises the main findings of the book. The erosion of medieval hierarchies and systems of mediation made competition for material resources and status rivalries more intense after 1500. Enmity is rooted in a sense of injustice and there was a growth in distrust between those who gained from and those who lost out to the burgeoning of state power. The law shaped enmity and mediated violence, but it did not repress them altogether. Enmity was a major threat to public order because its scale and intensity was related to the struggle for social and political capital. Most significant in generating the rise in elite violence was social change and the development of a caste code in which retaliation was seen as socially acceptable and politically necessary. The social elite were the most avid consumers of the law, and they used the courts alongside violence to uphold their honour and enforce their rights: rising rates of litigation in the sixteenth century were part of the same process of contention as rising rates of homicide. And just as violence declined in the eighteenth century, so did rates of litigation. The law promoted arbitration and reconciliation at every stage of the process. But the desire of the parties to fulfil their obligations and make use of the myriad institutions of mediation was dependent on social and political circumstance.
This chapter sets out the problem of disorder faced by Louis XIV and assesses the success and failure of his attempts to deal with it. The law, at least, was not the hammer of royal absolutism. The law continued to privilege reconciliation and arbitration over punishment. Under Louis XIV there were significant attempts to rationalise the system but negotiated justice prevailed until 1789. The high rates of violence that characterised France between 1560 and 1660 do not mean that France was a lawless society. The chapter argues that some of the problems that had beset France in the mid-seventeenth century reappeared around 1700. This was followed after 1725 by the remarkable efflorescence of French civil society. It concludes by suggesting that this social equilibrium was not overthrown by Revolution in 1789, but that the Ancien Régime system of social control was already under strain by the 1780s and that rocketing levels of interpersonal violence were indicative of the ways in which the political and constitutional crisis were impacting everyday social relations.
This chapter considers the impact of the wider political environment on social relations. The word ‘quarrel’ had different meaning for early modern English people. Manners were not progressively civilised: the rise in the homicide rate between the 1570s and the 1620s came at precisely the same time that new ideas and codes of behaviour were imported from Europe. Ciceronian ideals ennobled the pursuit of private enemies in the name of the public good. In the first decades of the seventeenth century the distinction between public and private became highly charged with a moral force and potency, which drew upon classical republicanism, traditional ideas of the commonwealth and radical Calvinism. The chapter traces the fortunes of the English quarrel. It looks at the nature of the spike in violence in the period 1570-1620; assesses the role played by civil society in mediating quarrels before the civil war; reflects on what contemporary ego-documents have to say about enmity; and concludes with some speculation about the reasons for the second spike in elite violence, 1660-1720.
Communal politics is an important and still largely unexplored aspect of social and political relations under the Ancien Régime. This chapter attempts to get at the village view by means of a vendetta which has left a rich trail of archival sources. We get an invaluable and rare insight into non-elite politics before 1789 that goes beyond the standard historical conventions of peasant resistance and rebellion, shedding light on villagers’ motives, deliberations and divisions, as well as their capacity to organise, use the law and exploit the protection offered by local lords and officials. The story that emerges is not simply one of resistance to the royal fisc, centre against the periphery, or the people versus the nobility. Rather, the demands of the state after 1635 divided local society among itself and led to faction and violence within the corps politique. While in the short term these internal divisions posed a challenge to traditional local order, they paradoxically offered an opportunity for the state and its agents to intervene as arbiters, an opportunity that was realised by Louis XIV’s redeployment of the intendants after 1661.
Vendetta was a commonly used term in early modern Italy and widely viewed in as legitimate, contributing to Italy’s very high homicide rates. But vendetta has received surprisingly little attention from historians. Vendetta was not opposed to the state or the law, because it was closely associated with justice. The process of getting even did not require the spilling of blood: an injury could be satisfied in bloodless ways and medieval statutes progressively sought to deny or restrict self-help. The elaboration of more punitive courts institutionalised the system of compensation for an injury. Vendetta was a process of conflict resolution in which the state, church and community brought significant pressure to bear on the parties to renounce enmity and seek peace. This became much more difficult after 1500. The Italian Wars not only unleashed mass violence and regime change on a scale not experienced in the late Middle Ages but also led to the collapse of traditional political loyalties. The violence unleased by civil war changed the nature of faction: factional identities were henceforth forged in blood.
This chapter challenges some prevailing beliefs about the decline of violence and the rise of the English state. Neighbourliness was a ‘critical social ideal’ that underpinned social relations in early modern England. But village life was characterised by an atmosphere of contention and sometimes bitter enmity. Neighbourliness was put under strain by a population rise during the sixteenth century, as growing numbers of poor began to burden the community. Litigation did not supplant violence. The murder rate, moderate in the 1560s and 1570s, rose sharply in the 1580s and 1590s. Indictments reached a peak in the 1620s and did not fall to the levels that had prevailed in the mid-sixteenth century until the early eighteenth century. I present new evidence that the overall homicide rate in England was much higher than is usually claimed. The new pattern requires us to re-examine the effectiveness of the machinery of repression. I demonstrate that judicial records alone are insufficient for studying violence and suggest some alternative sources for capturing the history of violence and assess how that helps us to rethink the traditional narrative.
This chapter explores the ways in which law and violence were co-ordinates in the pursuit of everyday enemies. Contrary to what we might expect from Europe’s most civilised region, early modern Italy experienced rates of violence that were far higher than its neighbours. The problem was not due to lawlessness. Italy’s highly developed legal systems and bureaucratic mechanisms of state control were widely admired by contemporaries. There was not too little bureaucracy and litigation but rather too much. It remains commonplace to ascribe the early modern Italian problem of violence to a variety of cultural reasons, a hangover from the Middle Ages, a consequence of the climate or the product of so-called ‘Mediterranean’ values. But vendettas were neither inevitable nor interminable. Late medieval cities developed a panoply of judicial and extrajudicial forums for settling disputes and the ideals of police and good government were medieval in origin. This chapter takes a closer look at how the law and legal system shaped vendetta.
Feuding was a custom in many German-speaking lands well into the seventeenth century. Though the legal Fehde was criminalized in 1495, the practice continued to be widespread at the end the sixteenth century. I suggest five broad chronological patterns governing interpersonal violence. First, we see a continuation of the legal institution of the Fehde in the first half of the sixteenth century. Matters were considerably worsened by the Reformation. This was followed by a period of peace following the Religious Peace of Augsburg. But an explosion of elite violence in the third quarter of the sixteenth century, which peaked only in the 1610s, points to a third phase. There are grounds for thinking that the adoption of duelling by the elite formed part of a general pattern of rising violence in this period. The boom in litigation after 1555 is therefore indicative less of a decline than of growing social strains and conflict. The upheaval of the Thirty Years’ War altered the emotional field and privatised violence. The final phase suggests that the civil war had long-term effects and that elite violence, in particular, was only gradually brought under control during the early decades of the eighteenth century.
Violence against women in all its forms is the most shameful violation of human rights. It is a violation that continues to increase over the years despite the existence of international and national laws. Morocco is one of the countries in the world that suffers from this discrimination against women. To deal with this phenomenon, national texts intervene to establish a legal framework that respects the principle of equality between women and men such as the Constitution of 2011, The Family Code (“Moudawana”) of 2004, and the adoption in 2016 of Law No. 27-14 on the fight against human trafficking, etc. In 2018, Law No. 103-13 related to the fight against violence towards women was promulgated. It is a law which constitutes a real legislative innovation in Morocco since it will reduce or even stop a certain number of abuses experienced by women. This is what leads us to ask ourselves, is Law No. 103-13 really going to allow us to abolish the segregation between men and women? And would this law allow us to fight against all kinds of violations against women?
In this original study Stuart Carroll transforms our understanding of Europe between 1500 and 1800 by exploring how ordinary people felt about their enemies and the violence it engendered. Enmity, a state or feeling of mutual opposition or hostility, became a major social problem during the transition to modernity. He examines how people used the law, and how they characterised their enmities and expressed their sense of justice or injustice. Through the examples of early modern Italy, Germany, France and England, we see when and why everyday animosities escalated and the attempts of the state to control and even exploit the violence that ensued. This book also examines the communal and religious pressures for peace, and how notions of good neighbourliness and civil order finally worked to underpin trust in the state. Ultimately, enmity is not a relic of the past; it remains one of the greatest challenges to contemporary liberal democracy.
Social enterprises are regarded as a vital solution to the pressing problem of socio-economic inequality and play a crucial role in the delivery of public goods and services. Ernest Lim argues that social enterprises in four leading Asian jurisdictions – India, Hong Kong, Singapore and Malaysia – should have a new legal form. This entails advancing a nuanced and comprehensive framework consisting of five criteria: (1) corporate purpose; (2) directors' duties; (3) decision-making powers; (4) reporting, impact measurement and certification; and (5) distribution of dividends, assets, and tax benefits. This invaluable work demonstrates that the existing legal forms in common law Asia, the UK and the US do not properly address the various conflicts of interest affecting social enterprises. An essential read for those interested in understanding and evaluating the laws and regulations on social enterprises, as well as designing and implementing creative ones to protect and promote these important businesses.
This chapter provides the first overview of the gobierno petition-writing process. It focuses on how subjects would create and structure these documents, devoting particular attention to the contributions of many intermediary figures: formal and informal assistants, translators, and procurators, as well as notaries and others. It frames petitioning as a paper ritual emulating the vassal–ruler encounter in which the subject’s voluntad flows to the heart and mind of the monarch, and asks how these lifeless papers could come – through a scaffolded series of legal fictions – to contain this volition. Specifically, vassals might reach to the fictions of notarial truth and signatures to seal this will to manuscripts. The result was that a wide range of subjects, even illiterate ones, might partake in the petition-and-response system. Moreover, the social backgrounds of these intermediaries could be quite diverse, meaning that before these texts even reached the court this dialogue was already touched by many actants.
While it is easy to interpret the first and second of the Matthean Antitheses (5.21–30) as intensifications of the Mosaic law, it is difficult to interpret the remaining Antitheses (5.31–48) in this manner. In the history of interpretation, two main strategies have been adopted for dealing with these later Antitheses, the ‘rejected interpretation’ hypothesis and the revocation hypothesis. The ‘rejected interpretation’ hypothesis, however, is only plausible for the last Antithesis (5.43–8), which appends ‘and hate your enemy’ to the Levitical exhortation to love one's neighbour; in all other instances, the ‘thesis’ statement is either a biblical citation or a close paraphrase of one or more biblical passages. Although the revocation hypothesis has often been deployed in an anti-Jewish way, there is nothing intrinsically anti-Jewish about it; indeed, both biblical authors, such as the Deuteronomist and Ezekiel, on the one hand, and some rabbis, on the other, explicitly revise prior biblical laws while at the same time claiming to be changing nothing. Matthew does something similar when he introduces the revisionist Antitheses with a programmatic statement about the unchangeableness of the Law (5.17–20). The Matthean Jesus, then, is not ‘seconding Sinai’ but correcting it.
Paul's reference to his adaptability to different groups in 1 Cor 9.19–23 is central to recent discussions about Paul's Jewishness. This paper argues that the crucial context for Paul's metaphor of self-enslavement (1 Cor 9.19) is not to be found in anthropological passages such as Rom 6 or Gal 5, but rather in the conditions of a slave's life in antiquity. This leads to an interpretation that combines essential concerns of a Paul within Judaism perspective with those of more traditional exegesis.
As homo socius, the man lives in a community. Because the law deals with relationships between people, it is necessary to know the fundamental characteristics of these relationships, which are established in a community between people. Because all major social changes involve crowds, legislation and regulation must know how to address collectives, how they are influenced, how collective emotions are formed, and how they can effectively deal with external behavior in and between groups. This Article presents basic elements of crowds that should be included in legal decisions, especially in general ones. The Article shows potential applications of crowd elements in the law presented as a systemic arrangement of complex adaptive systems that can be reflected in the determination of public opinion through crowds. When a legal system in the right meaning of the word “system” determines public opinion and implements actions through crowds, it could be more effective and efficient and thus also more legitimate.
This article explores emotional harm in the context of the criminalization of HIV nondisclosure in Canada. With the exception of Matthew Weait in the United Kingdom, few scholars have examined what harm means in cases of HIV nondisclosure. We conceptualize the harm that follows nondisclosure as an affective response to the “HIV positive Other” and argue that law creates a legal norm about what harm is and feels like in cases of HIV nondisclosure when there is no clear consensus about how harm should be defined. Mobilizing the sociology of emotions literature, we contend that criminalizing HIV nondisclosure engages affective, moral, and criminal censure to regulate the behaviours of people living with HIV/AIDS (PLWH), thus reproducing HIV stigma and propagating emotional harm for PLWH. Canada’s response to HIV nondisclosure should instead involve a transformative justice approach that avoids the harm of criminalization and imprisonment while recognizing the emotional harm experienced by complainants.
The third chapter considers whether advocacy as it has been practised in our courts for centuries can survive the challenges which it now faces. Is Professor Richard Susskind correct in saying that because of the demands of justice and efficiency, and the opportunities offered by technological developments, oral advocates will be – and should be – “eliminated” from the legal process (save for exceptional cases) as “people do not really want you. They want the outcomes you bring”? This third chapter presents a more positive view of the future of oral advocacy.
The first chapter celebrates advocacy: that controversial legal issues are decided in court after reasoned argument in which the participants refrain (usually) from shouting, personal insults or threats, and the points on each side of the debate are tested for their relevance, their accuracy, and their strength. The art of persuasion is now less valued in politics, but it remains of central importance to law. This chapter seeks to identify the central characteristics of good and bad advocacy with the aid of examples from courtrooms here and abroad. Though none of them will identify the machine by the secret use of which it was said that the nineteenth-century advocate, James Scarlett (later Lord Abinger), “could always make the head of a judge nod assent to his propositions”.
When John Mortimer’s fictional barrister, Horace Rumpole, tells his wife, Hilda, that the principle of his profession is that “I will accept any client, however repulsive”, she responds, “That’s not a principle, that’s just a way of making money from the most terrible people”. The second chapter defends the ethics of the advocate whose task is to be argumentative, inquisitive, indignant, flattering or apologetic – as the occasion demands – on behalf of the person who pays for her voice. The advocate sets out views to which she does not necessarily subscribe, on behalf of clients for whom she may feel admiration, indifference or contempt. That the independent advocate is not to be associated with the opinions or conduct of her client is fundamental to the administration of justice. This chapter also addresses counsel’s duties to the court – often difficult to apply in practice – such as the duty not to mislead. I am often asked – more, I should emphasise, by friends than by judges – “How can you act for such terrible people?”. This chapter is my answer.