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LEGAL SYSTEMS OF ASIA AND AFRICA

2013/2014Course Code: 155200029

www.soas.ac.uk/courseunits/155200029.htmlLLB and BA Law Programmes

Location: V111Lecture: Thursday 15.00- 17.00

Module Convener: Dr Anicée Van Engeland

Overview

This module is an introduction to the comparative study of law, based on a detailed examination of the norms, institutions and processes in major traditional and modern laws and legal system of Asia and Africa. The course covers Hindu, Chinese, African, Islamic laws and many more. It focuses on a range of issues:

● Sources of law;● Unification of law;● Law in Context;● Law and dispute processes;● Western influences on traditional legal systems.

The module is explicitly jurisprudential and deeply comparative. Students can expect to learn in considerable length about major legal theories and their dynamic interaction in different parts of the world. The course is set against the wider context of globalisation backdrop and the difficulties in upholding the rule of law.

The course will be taught over 20 weeks in the first term and second term, together with one review lecture held in the third term. Lectures will be delivered by various speakers and take place on Thursday, from 15:00 to 17:00 in V111, SOAS Vernon Square Campus. In addition, tutorials will take place every week, commencing October 7, 2012. Arrangements for tutorial timetable & allocation will be separately notified.

Staff Details

Dr Anicee Van Engeland, Course ConvenorOffice hours: Monday 15:15-16:15Wednesday 11:00-12:00

Contact infoSOASOffice 2550207 898 4646av @ soas . ac . uk http://www.soas.ac.uk/staff/staff78622.php

Jean-Philippe Dequen, Tutor<[email protected]>

Adeeba Khan, Tutor<[email protected]>

Sajjad Khoshroo, Tutor <[email protected]>

Farrah Razza, Tutor <[email protected]>

Objectives and Learning Outcomes of the Course

On successful completion of the course, students will have acquired a sound understanding of different types of legal theory and their practical application in variety of cultural and legal context. Further:

● Students will be able to handle a variety of source materials about different legal cultures and contexts, and will have developed at least a basic understanding of how those legal systems work;

● Students will be able to pinpoint the connections and tensions between different types of law-making entities and will be able to handle problem-based analytical tasks;

● Students will have developed critically important transferable skills in the analysis of primary and secondary legal sources, will have honed their expressional skills both orally and in writing, and will begin to develop their individual research skills in a variety of legal systems studied at SOAS;

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● Students will have learnt about the importance of precision in expression and documentation, and thus will have begin to develop critical skills for young lawyers and social scientists.

Assessment

1 exam (3 hours) 70%

1 essay (3,000 words) 30%

The course is evaluated by way of one three-hour formal examination, which counts for 70 per cent of the marks for the course; your exam for this course will take place on a single day during the SOAS examination period (Thursday 06 May – Thursday 3 June 2014).

In addition, the student’s coursework in the second term shall carry a weighting of 30 percent of the total marks awarded. The coursework questions will be given by the Course Convener three weeks prior to the deadline. All coursework must be submitted online; the deadline for your coursework is 17 FEBRUARY 2014 (TERM TWO).

Coursework must include references (OSCOLA) and a bibliography. You must keep the essay to a maximum of 3,000 words. Late submission will result in deduction of marks. Extensions cannot be granted by the Course Convenors or Tutors - follow the standard procedure for mitigating circumstance and use the forms available from the Student Support Office of the Faculty of Law and Social Sciences.

Please keep in mind the SOAS policy for plagiarism:http://www.soas.ac.uk/lawsocialsciences/plagiarism-statement/

There will be a practice mock essay and a practice mock exam for students to practice.

Tutorials

Tutorials start in the second week of the first term (October 7, 2012). Arrangements for tutorial allocation will be separately notified and should also be available via the School Timetable website.

Tutorials provide an opportunity for analysis and discussion with staff and other students, and your weekly class meetings are thus one of the main vehicles for enabling students to realise the learning outcomes of the course. Most of the reading materials for tutorials will be available electronically and you will receive detailed study-instructions related specifically to each weekly topic. In preparation for tutorial discussion, students should work through the questions provided under the subject matter for the week in question. Please do not forget that attendance at tutorials is recorded and students who do not attend regularly are

required to explain absences in writing. Students who fail to attend tutorials regularly may not be allowed to sit the exam.

Key Textbook: Recommended for Purchase

The following books are recommended for purchase for this course. You do not need to purchase both. Both are in the SOAS library.

Comparative Law in a Global Context: The Legal Systems of Asia and AfricaBy Werner Menski. 2nd Edition, Cambridge University Press, 2006.

The SOAS library also has an electronic copy which you can access online.

Legal Traditions of the WorldBy H Patrick Glenn. Fourth edition, Oxford University Press, 2010.

Moodle

All documents, readings, tutorials and powerpoint slides will be uploaded on Moodle.

Classroom Etiquette

The use of personal lap top computers/tablets during this class is allowed only if strictly necessary to taking notes. No internet navigation is allowed during class. Please turn off any beepers, cell phones and Ipods prior to the beginning of class. All electronic devices should be stowed out of sight. Please take care of all personal needs before the start of class—leaving to do so during class is disruptive to the entire class. Students are expected to be on time.

LSAA SYLLABUS

TERM 1

The purpose of term 1 is to introduce different theories (others will be covered in term 2) and

to the sources of the law. We will outline the different sources of the law and analyse them,

alone and in their interactions with each other: State law, customs, customary law, religion,

culture, traditions, ethics and more. The aim is to understand how those sources of the law

influence State law or how State law influences them, looking at positive examples and

negative examples (clashes between State law and customary law for example).

Week 1 (Th 03 October 2013)

Introduction

Dr Anicée Van Engeland

Summary

The topic, the course requirements, the tutorials and other administrative matters will be

covered.

During the second hour of this introductory course, you will be introduced to primary

concepts of political and legal philosophy (concept of State, rule of law, democracy…). You

will also be introduced to the concept legal systems, looking at civil law, common law,

religious law and customary law. The next step will be to introduce you to the different

sources of the law, which will be central to our approach to LSAA.

Aim

The purpose of this lecture is to clarify concepts such as State, law, parliament, rule and law

and others.

Examples

For this class, I will draw from different examples and different countries in Asia and Africa.


Introduction to Theory I: State Law and Natural Law


Summary

This lecture will be focussed on understanding the evolution of natural law and the concepts

of State law and legal positivism. This will set State law as the main reference for the module.

You can then later decide to support State law or criticize it. Yet, it is important that we have

a yardstick they refer to when comparing legal systems and measuring sources of law.

Aim

The purpose of this lecture is to clarify the concept of State law which you will rely on for the

rest of your LL.B at SOAS. It is necessary to understand the role of State law and the role of

natural law it in order to later form your own opinion with regard to other sources of law.

The following weeks (from week 5 to week of term 1 to week 8 of term 2 included) will be

devoted to looking at how the different sources of law interact with State law: do they

influence State law? Contradict State law? How does State law view those sources? Does it

integrate them or reject them? How does it integrate them? I will raise all these questions

during this session so that you can come back to them during the course.

Examples

For this class, I will draw from different examples and different countries in Asia and Africa.


Introduction to Theory II: Comparative Law

Mr Nick Foster

Summary

Nick Foster will introduce Comparative Law. In order to be able to understand different types

of law worldwide, their varying characteristics and their different roles in society, you will

need to acquire a sound grasp of the general principles underlying the study of

the differences between legal systems, the similarities they share and the interaction between

them. The study of these principles is called Comparative Law. Mr Foster will look at three

questions: What is Comparative Law? Comparative law is about similarity, difference and

interaction between legal systems. Why do we study it? We need to study it because, in

today's globalised world, it has become of great practical importance. How do you do it? In

this lecture we will also touch, very briefly, on some of the methods used.

Aim

The purpose of the lecture is to introduce you to the theory of comparative law, its importance

and its uses.

Examples

His main example will be Islamic law, but he will also use other legal systems and, in

particular, their history, to illustrate the topic.


Introduction to Theory III: Legal Pluralism

Professor Peter Leyland

Summary

This week, Professor Leyland will introduce you to another theory used in LSAA: legal

pluralism. The aim of the lecture is to explain to students that there are different sources of

law and that those sources will influence State law. He will also look at the multiplicity of

legal systems which exist within one territory (geographic zone or country).

Aim

His task will therefore to introduce the complexities of this multi-layered approach and to

study what occurs when different legal systems have to cohabit, forcing them to interact.

Examples

To do, he will rely on his expertise in South East Asia with a focus on Thailand, Indonesia

and Vietnam.


Sources of the Law I: Religion as a Source of Law


Summary

You will be introduced to a first source of the law, religion. We will analyse how religion and

law intercat, and we will look into religious law’s intercation with State law. We will also

examine how religious law exists independently from the State.

Aim

The aim is to present a first source of the law: religion. We will go through different sources

as the term progresses, relying on theories.

Examples

I will use examples drawn from Islamic law (Iran, Afghanistan, Morocco, Syria, Tunisia,

Egypt, Saudi Arabia, Malaysia, Indonesia and others) + Jewish law + Canon law

Week 6 (Th 07 November 2013)

Reading week


Sources of the Law II: Religion and the Law

Professor Martin Lau

Summary

Professor Lau will illustrate the interactions between law and religion, looking at Pakistan. He

will in particular focus on the interactions between State law, religious law and customary

law.

Aim

The purpose of this lecture is to clarify how State law influences religion and vice-versa.

Examples

Pakistan (in particular criminal law: zina and zina bil jabr)

Week 8 (Th 21 November 2013):

Sources of the Law III: Customary law I

Professor Werner Menski

Summary

Professor Menski will introduce you to the role of customary law in the legal system. He will

seize the opportunity to explain his approach to legal pluralism, looking at the kite.

Aim

The purpose of this lecture is to clarify the interactions between State law and customary law.

Examples

For this class, he will draw from different examples and different countries in Asia and

Africa.


Sources of the Law IV: Customary Law II

Professor Werner Menski

Summary

Professor Menski will introduce you to the role of customary law in the legal system. He will

seize the opportunity to explain his approach to legal pluralism, looking at the kite.

He will also introduce his new theory, MM. v. POP.

Aim

The purpose of this lecture is to clarify the interactions between State law and customary law.

Examples

For this class, he will draw from different examples and different countries in Asia and

Africa.

Week 10 (Th 05 December 2013)

Illustration I-Gender

Dr Vanja Hamzic

Summary

Dr Hamzic will illustrate the different sources of the law we have been looking at, with a

focus on the impact of religious law over State law.

Aim

The purpose of this class is to provide an example of the tensions that can arise when trying to

accommodate different sources of the law.

Examples

For this class, Dr Hamzic will mainly draw from the example of Nigeria and gender

Week 11 (Th 12 December 2013)

Illustration II-India

Mr Alex Fischer

Summary

Mr Fischer will illustrate the different sources of the law we have been looking at, with a

focus on the impact of religious law and customary law over State law.

Aim

The purpose of this class is to provide a positive illustration when trying to accommodate

different sources of the law.

Examples

For this class, Mr Fischer will mainly draw from the example of India.

WINTER BREAK

TERM 2

Week 1 (Th 9 January 2014)

Tradition and the law I

Mr Ernest Caldwell

Summary

Dr Caldwell will introduce a new source of law to the students: traditions. He will explain

how that source of law draws from customary law and religion.

Aim

The purpose of this class is to provide a theoretical background to the understanding of

traditions, looking at Chinese law

Examples

For this class, Mr Caldwell will mainly draw from the example of China (criminal law and

family law).


Tradition and the law II

Dr Sanzhu Zhu

Summary

Dr Zhu will finish our section on the different sources of the law by giving an illustration of

traditions.

Aim

The purpose of this class is to provide an example of how Chinese law is made up of

traditions, customary law and religious law.

Examples

For this class, Dr Zhu will mainly draw from the example of commercial law.


Society and the Law I

Dr Carol Tan

Summary

Dr Tan will open a new section in this course, looking at societal elements that can influence

the law. She has chosen to do focusing on access to justice for migrant workers in Hong

Kong, providing an example of access to formal and informal justices.

Aim

The purpose of this class is to give an example of how society influences the law and how the

law impacts society

Examples

For this class, Dr Tan will mainly rely on Hong Kong and will provide examples of the

different forms of access to justice.

Week 4 (Thursday 30 January 2014)

Society and the Law II

Professor Fareda Banda

Summary

Professor Banda will continue looking at societal issues and access to justice. She will look

into informal justice mechanisms and gender

Aim

The purpose of this class is to give the theoretical background needed to understand the

concept of access to justice.

Examples

Professor Banda will rely on her extensive knowledge of Africa.

Week 5 (Th 06 February 2014)

Courts, Legislation, Codes

Dr Makeen Makeen

Summary

Dr Makeen will then open yet a new chapter in LSAA, looking at how the sources of law

previously analysed are dealt with in court and how societal issues are taken into account by

courts.

Aim

The purpose of this class is to an introduction to the role of courts when it comes to

accommodating different legal sources.

Examples

Middle East and North Africa


Reading week


The role of Supreme Courts I: the case of Israel

Dr Nimer Sultany

Summary

Dr Sultany will carry on analyzing courts’ attempts to reconcile State law with other sources,

taking into account a vulnerable group: minorities. Dr Sultany will also introduce you to

Israeli law to understand the challenges the Court faces.

Aim

The purpose of this class is to illustrate the difficult task courts face when accommodating

different sources of law. The other aim is to look into a vulnerable category of people, having

previously looked at migrant workers and women.

Examples

Israel and POT


The role of Supreme Courts II: South Africa

Dr Cathy Jenkins

Summary

Dr Jenkins will conclude our analysis of the work of the Court, looking at the Supreme Court

in South Africa. Dr Jenkins will also introduce you to South African law to understand the

challenges the Court faces.

Aim

The purpose of this class is to give another example of how a Court approaches different

sources of the law.

Examples

South Africa

Week 9 (Th 06 March 2014)

Multiculturalism I

Dr Brenna Bandhar

Summary

Dr Bandhar will then have the task of shifting focus: instead of looking at Southern States

dealing with multiple sources of law, we will now investigate how Northern States deal with

them. The first case will be Canada and we will analyse the theory of “reasonable

accommodation” as an alternative to legal pluralism.

Aim

The purpose of this class is to shift focus from Africa and Asia being the majority law to

Africa and Asia being the minority law.

Examples

Canada


Multiculturalism II

Dr Samia Bano

Summary

Dr Bano will provide another illustration of the difficulty of accommodating different sources

of law in the Northern sphere (or the West), looking into another approach to conciliation via

Shari’a arbitration tribunals in the UK.

Aim

The purpose of this class is to shift focus from Africa and Asia being the majority law to

Africa and Asia being the minority law.

Examples

Shari’a Arbitration Tribunals in the UK


International Law

Professor Mashood Baderin

Summary

The concluding lecture will look into yet another challenge: the pressure of reconciling State

domestic law with international law

Aim

The purpose of this class is to demonstrate that while the State focuses on rejecting or

accommodating different local sources of law, it also has to deal with a supreme source of

law: international law.

Examples

Sudan

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Documents