Cross-cultural assumptions about perception and identity in western socio-legal frameworks

Socio-legal analysis has relied heavily on Mnookin and Kornhauser's "bargaining in the shadow of the law" and Galanter's "litigotiation" concepts. These concepts provide a framework for examining the relationship between formal legal rules and other normative sources in out-of-court activity. In this paper we explore the extent to which these frameworks' Western assumptions about individualism, conflict and the rule of law would require adaptation if they were to be used to examine such phenomena in Chinese culture or in Australian-Chinese negotiations. In particular, we focus on the "difference" between: i) China and Confucian culture; and ii) Western society in terms of the Confucian principles relating to hierarchy, harmony, collectivism and face. These principles have fundamental implications for Chinese perceptions of appropriate dispute resolution behaviour. Western researchers who omit consideration of these perceptions and neglect the defining characteristics of Chinese identity will emerge with flawed projects.

Cross-cultural issues in the supervision of a Chinese socio-legal PhD student

The purpose of this co-authored paper is to explain how culturally specific features of Chinese students impact on the processes by which they commence their socio-legal research degrees by research candidature. The presentation by the co-authors of the paper will include a simulation of the first meeting between the candidate and the supervisor. This simulation will show how specific features of Chinese culture and the Chinese education system create a massive culture shock when Chinese research students are exposed to Anglo-Australian academic culture. We will explain how the underlying principles of Chinese culture impact on the candidate‘s expectations in relation to: the role of the supervisor; the requirement of original contribution; expectations in feedback on written work and communication more generally . We will then propose strategies for reducing the impact of culture shock and improving the experience of the candidature and the performance from each party to the relationship in terms of timely completions and reduced attrition. These strategies derive from the authors‘ experience in relation to doctoral research management and cross-cultural communication.

The applicability of Western socio-legal frameworks to the study of negotiation in Chinese society

Theoretical frameworks for the examination of negotiation generated by Western academics do not easily translate to Chinese society because of fundamental differences between Western and Chinese society. Attempts to study negotiation in Chinese society and to improve negotiation between Chinese and Western business people are themselves constrained by cross-cultural differences. Extended immersion of Western academics in Chinese settings and the involvement of cross-cultural specialists is required to advance understanding of cross-cultural negotiation. There is enormous potential for improved understanding of cross-cultural dynamics and development of innovative teaching methodologies if institutional and personal cooperation can be secured. Cross-cultural negotiation as a useful tool in socio-legal framework and/or higher education administration is important especially in the current environment for the Australian education export market.

Who's afraid of the big bad fish? Rethinking what the law wishes to have

This article aims to re-evaluate the contribution of Stanley Fish to legal studies. In  "The Law  Wishes to Have a Formal existence", Fish accused the law of maintaining a formal,  positivistic self-image as principled; an activity rhat rises above processes of interpretation and of moral judgement. For this `antiformalist‘ Fish there is thus a false sense of self-sufficent closure to the law's discourse. More recently however: in discussing the practice of another profession (namely literary criticism) Fish demonstrates that the basis of aclivity per se is internal intelligibility - that is intelligibility  within a defined community. These apparent  inconsistencies are explored. Re-reading `The Law Wishes to Have a Formal Existence' one can discern errors in Fish's account of a key case and one can also find support for the  professionalism position that he subsequently articulates. It is therefore argued that  Fish's account of the general characteristics of professional practice, including legal, are of value. The implications of his account of professionalism in the law are, however, incompatible with the usual understanding of his more combative statements about the role of formal language and principle-based argument of the law.

Skills in LLB threshold learning outcomes and competency standards for entry-level lawyers – a comparison using CAQDAS

This exploratory study analysed the Threshold Learning Outcomes ("TLOs") specified in the Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010, and the Competency Standards for Entry-Level Lawyers for Practical Legal Training, as updated by the Australasian Professional Legal Education Council and Law Admissions Consultative Committee in February 2002 ("NCS"). The qualitative analysis was undertaken using the NVivo computer assisted qualitative data analysis software ("CAQDAS"), to investigate how skills were categorised and defined in each of the documents. The results were then analysed to compare the respective categorisation and definition of skills, and to point to potential complements, overlaps, conflicts, gaps, or blind spots, between the TLOs and the NCS. The findings, and the methodology adopted, might provide insights for future instructional design, content, and delivery of Practical Legal Training programs, and for future reviews of the TLOs and NCS.

Sex, culpability, and the defence of provocation

The partial defence of provocation is one of the most controversial doctrines within the criminal law. It has now been abolished in a number of international jurisdictions. Addressing the trajectory of debates about reform of the provocation defence across different jurisdictions, Sex, Culpability and the Defence of Provocation considers the construction and representation of subjectivity and sexual difference in legal narrations of intimate partner homicide. Undeniably, the most vexing exculpatory cultural narrative of our times is that of a woman 'asking for it'. This book explores how the process of judgment in a criminal trial involves not only the drawing of inferences from the facts of a particular case, but also operates to deliver a narrative. Law, it is argued, constructs a narrative of how the female body incites male violence. And, pursuing an approach that is informed by socio-legal studies, literary theory and feminist theories of the body, Sex, Culpability and the Defence of Provocation considers how this narrative is constructed via a range of discursive practices that position woman as a threat to masculine norms of propriety and autonomy. Once we have a clear understanding of the significance of narrative in legal decision-making, we can then formulate textual strategies of resistance to the violence of law's victim-blaming narratives by rewriting them.

[P]lucky Jane et al: ideal types in the legal academy?

This article started as a response to a decision by Deakin University's Law School late last year to embark upon a major recruitment of new staff. That decision caused the writer to wonder what published sources of advice were available to assist aspiring legal academics in choosing and shaping a career. To date it would seem that whilst there is no dearth of sources about what law schools should teach, or on the content and structure of the curriculum, research on the selection and formation of academics is somewhat less common. This is changing. In 2003 a short biographical study of six law teachers, based on structured interviews, was published and in 2004, a major study of the identity of 54 law teachers became available. There have also been significant studies on the particular issues encountered by female academics in the legal academy.

Asian socialism & legal change : the dynamics of Vietnamese and Chinese reform

The immense process of economic and social transformation currently underway in China and Vietnam is well known & extensively documented. Less attention has been devoted to the critical process of Chinese & Vietnamese legal change In a unique comparative approach this book analyses recent developments in the legal sphere in China & Vietnam.

Societal constructions of the psycho-legal notion of mental impairment in Victoria

This thesis explored the factors relevant to decision-making when the defence of mental impairment is raised in Victoria. Findings indicate that disorder type, crime outcome, and the relationship between victim and offender were significantly associated with verdict decisions, while offender gender did not play a significant role in responsibility decisions. The portfolio discusses the role of co-morbid psychopathology in the assessment and treatment of veterans with chronic PTSD by presenting four case histories.

A fish out of water? Legal practitioner - practitioner teacher? Bourdieu, the legal field and the scholarship of teaching in practical legal training

It is surprising to discover during early doctoral research that there is a paucity of Australian scholarship using Bourdieu’s theoretical tools in the field of law, and in the sub-field of post-graduate pre-admission practical legal training. This article introduces Bourdieu’s conceptions of habitus, field, categories of capital, symbolic violence, and misrecognition. It describes how Bourdieu applied these tools to identify structural hostility between legal academics and practitioners, and the struggles for control in the field of law. Review of three North American studies that used Bourdieu’s theories follows, involving law students’ habitus in transition, class stratification in legal education, and gender stratification in law firm partnerships. Drawing on three internally connected ‘moments’ necessary to use Bourdieu’s tools, together with four critical questions concerning teachers’ engagement with the scholarship of teaching, this article identifies new questions for investigation. These questions will frame further research to discover whether the objective structures of the practical legal training field and the habitus of legal practitioners constrains them to act as ‘fish out of water’ in the context of a scholarship of teaching.

O where are you going? O do you imagine? Reproduction and response : a reflexive sociology of scholarship of teaching and learning in practical legal training

My doctoral research studies Australian PLT practitioners’ engagement with scholarship of teaching and learning. I argue that many PLT practitioners are motivated to engage with scholarship of teaching and learning in their work. There are, however, individual and extra-individual impediments.
PLT practitioners are lawyers that teach in institutional practical legal training (“PLT”). Satisfactory completion of mandatory PLT is an eligibility requirement for admission to the Australian legal profession. The PLT requirement is additional to academic legal qualifications. PLT is undertaken at a post-graduate level with, or after, the academic law degree.
My study investigates PLT practitioners’ motivations and capabilities to engage with scholarship of teaching and learning (“SoTL”). I study organisational symbolic support for SoTL in PLT, and organisational allocation of resources to SoTL in PLT.
The study involves individual and extra-individual domains of PLT practitioners’ work. It considers how social structures (e.g. “the juridical”) are inscribed into individuals’ practices (“teaching”) and, conversely, whether practices influence social structures.
My research adopts qualitative methodologies. These involve inter-disciplinary exchanges between law, legal education, practice research, sociology of law, cultural theory, and theory and practice of teaching and learning. My theoretical framework draws on Pierre Bourdieu’s “reflexive sociology”, and Michel de Certeau’s “heterological science”.
I sourced data from documents, and semi-structured interviews with 36 Australian PLT practitioners. Documentary sources include statutory instruments, speeches, reports, practice directions, histories, and scholarly publications.
To analyse the data I adopted Kelle’s characterisation of “theoretical sensitivity”, drawing on “explicit” and “emergent” analysis strategies derived from “grounded theory”. The explicit strategies were based on my theoretical framework. The emergent strategy involved sensitivity to non-explicit concepts and theories that emerged from the data. Computer-aided qualitative data analysis software expedited these methods.
My findings to date question dominant legal structures’ readiness for change, the implications of this for teaching and learning in PLT, and in particular for PLT practitioners’ engagement with SoTL in PLT.
The espoused rationale for mandatory PLT (in statutes) is improvement for the protection of clients, the administration of justice, and to assure quality legal services. The tacit rationale is improved quality of legal education, and experiences, for lawyers-to-be. My thesis argues dominant structures in legal education impede the espoused and tacit objectives, and impede PLT practitioners’ engagement with scholarship of teaching and learning.

Legal issues: minors' decision-making capacity to refuse life-saving and life-sustaining treatment: legal and psychiatric perspectives

Laws in Belgium and the Netherlands permit euthanasia and assisted suicide for seriously ill children who experience "constant and unbearable suffering" – they have the capacity to request death by lethal injection if they convey a "reasonable understanding of the consequences" of that request. The child's capacity to understand death is therefore a prerequisite to the implementation of the request. However, modern neuro-psychological and fMRI (functional Magnetic Resonance Imaging) studies of the relationship between the neuro-anatomical development of the brain in human beings and their emotional and experiential capacity, demonstrates that both are not fully developed until the early 20s for girls and mid-20s for boys. Unlike Belgium and the Netherlands, the clinical and legal implications of the immaturity of the brain on medical decision-making of minors, in particular life and death decisions, have been implicit in the Australian courts' approach to the refusal of life-saving and life-sustaining treatment by minors. This approach is exemplified by X v Sydney Children's Hospitals Network [2013] NSWCA 320 (and a series of earlier cases).

Overcoming barriers in the criminal court system : Examining the challenges faced when interviewing legal stakeholders

This collection contributes to, advances and consolidates discussions of the range of methods and approaches in criminology through the presentation of diverse international case studies in which the authors reflect upon their experiences ...