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Author: Stephen Smith

Abstract

The author offers a critical examination of the provisions on purchase and sale in the Civil Code of the Russian Federation. Focusing narrowly on the text of the code, the paper starts with a broad overview of, and commentary on, the provisions and then provides a detailed article-by-article commentary on individual provisions. Potential difficulties are identified (especially with respect to transfer of ownership, remedies, and the code's attempt to blend common and civil law approaches to sale) and suggestions are offered for how the text might be clarified or, in certain cases, substantively changed. In view of the broad similarity between the provisions on sale in the Russian code and the rules on contracts of sale applicable in Western market economies generally, the paper proposes neither far-ranging criticisms nor radical reforms of the Russian law.

In: Review of Central and East European Law
Author: Stephen Smith

Abstract

The author offers a critical examination of the general provisions on contract in the Civil Code of the Russian Federation. Focusing narrowly on the text of the code, the paper starts with a broad overview of, and commentary on, the general provisions and their relation to other parts of the code, and then provides a detailed article-by-article commentary on individual provisions. Potential difficulties are identified and suggestions are offered for how the text might be clarified (and in particular simplified) or, in certaincases, substantively changed. The author contends that the general provisions provide for a legal framework that is appropriate in broad terms; however, individual articles in the provisions are not beyond criticism. The author makes clear that his criticisms and suggestions are largely at the level of fine-tuning, rather than first principle.

In: Review of Central and East European Law
Author: Stephen Smith

Abstract

The author offers a critical examination of the provisions on gift in the Civil Code of the Russian Federation. Focusing narrowly on the text of the code, the paper starts with a broad overview of, and commentary on, the provisions and then provides a detailed article-by-article commentary on individual provisions. Potential difficulties are identified (especially with respect to the notion of transfer, the repetition of articles, and the code's development of the concept of fiducia) and suggestions are offered for how the text might be clarified or, in certain cases, substantively changed. The author observes that the legal framework provided by the Russian code to regulate gift is a fundamentally sound one that broadly echoes the approach taken in other civil law jurisdictions.

In: Review of Central and East European Law
In: Novum Testamentum

Abstract

Civil war in Sudan ‐ first between the North and the South, then in Darfur ‐ extends over half a century, interrupted only by a spell of uneasy peace between 1972 and 1983. Over time, a number of analytical templates have been propounded to account for the quasi-permanent crisis. The causes for conflict in Sudan have thus been pegged to the legacy of colonialism, ethno-religious divide, Islamist terrorism, a resource war, state failure, regional conflict concatenation, genocide, and a “turbulent state paradigm” (Alex de Waal). This article takes stock of the various frameworks offered for explanation both in academic writing and the broader media discourse on Sudan. The critical assessment provides for a rehearsal of available scholarship and leads to three interlocking conclusions: (1) the translation of local/national conflict into relevant international language is a form of reciprocal resource mobilization; (2) conflict analysis, and with all the more reason conflict management, are always part of the unfolding crisis they strive to come to terms with; and (3) conflict analysis ought to be predicated on an “uncertainty principle” akin to the one postulated by Werner Heisenberg for quantum physics, because the momentum of a conflict and its analytical fixation inexorably escape each other.

In: International Negotiation

This essay argues that comparative law is not and never will be a distinctive academic discipline. Various counter-arguments based on the alleged distinctiveness of comparative law’s (1) subject-matter, (2) methodology, (3) challenges, and (4) aims are identified and rejected. The essay concludes by arguing that comparative scholars should embrace the ordinariness of their scholarship. To the extent that comparative law is associated with a particular subject-matter, method, challenge, or aim its value will always be a matter for debate. By contrast, if comparative scholarship is just ordinary scholarship with more data (as I argue), its value is undeniable.

In: European Journal of Comparative Law and Governance

Abstract

It now appears likely that Thomas Lubanga Dyilo will be the first person tried before the International Criminal Court. In 2006, the Pre-Trial Chamber of the ICC authorized the issuance of a warrant of arrest for Lubanga, the leader of a military organization in the Democratic Republic of the Congo. In so doing, the Pre-Trial Chamber examined the ICC Statute's admissibility requirements for cases and held that only cases that meet a prescribed standard of "aggravated gravity" are admissible before the Court. In this article, the author argues that the Pre-Trial Chamber's Lubanga decision will have several long-term negative consequences on the ability of the ICC to fulfil its mandate. As a direct result of the Chamber's decision on gravity, the ICC will be unable to replicate many of the successes and advances made in international justice by the International Criminal Tribunals in the former Yugoslavia and Rwanda.

In: International Criminal Law Review

Abstract

The essay explores the efforts of intellectuals and political parties to use class discourse to understand the social realities of China in the twentieth century. It begins by looking at vocabularies of social description in the late-imperial period—simin, “mean people” and guan—and suggests that these continued to influence later understandings of class. It proceeds to look at the use of jie as a category to map the changing social landscape of China in the early twentieth century and suggests that it continued to be influential as a counter to the Marxist concept of class (jieji), promoted by the Chinese Communist Party from the 1920s. The central part of the essay looks at the attempts of Mao Zedong to apply a Soviet-influenced set of class categories to the messy realities of China, especially in the countryside. The essay discusses how these categories were applied during land reform and then used to remake the social identities of the citizens of the PRC. It goes on to discuss the increasing politicization of class discourse from the late 1950s and the application of ‘bad’ class labels to sizeable minorities. It ends by looking at the gradual abandonment of Marxist class discourse in recent decades and the attempt to promote the ideal of the ‘middle class’ as a way of encouraging social harmony.

In: The Making of the Human Sciences in China