Alison Kesby
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199600823
- eISBN:
- 9780191738272
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600823.001.0001
- Subject:
- Law, Public International Law
Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ...
More
Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ‘right to have rights’. This right to have rights was the right to citizenship—to membership of a political community. Since then, and especially in recent years, theorists have continued to grapple with the meaning of the right to have rights. In the context of enduring statelessness, mass migration, people flows, and the contested nature of democratic politics, the question of the right to have rights remains of pressing concern for writers and advocates across the disciplines. This book provides the first in-depth examination of the right to have rights in the context of the international protection of human rights. It explores two overarching questions. First, how do different and competing conceptions of the right to have rights shed light on right-bearing in the contemporary context, and in particular on concepts and relationships central to the protection of human rights in public international law? Secondly, given these competing conceptions, how is the right to have rights to be understood in the context of public international law? In the course of the analysis, the author examines the significance and limits of citizenship, nationality, humanity, and politics for right-bearing, and argues that their complex interrelation points to how the right to have rights might be rearticulated for the purposes of international legal thought and practice.Less
Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ‘right to have rights’. This right to have rights was the right to citizenship—to membership of a political community. Since then, and especially in recent years, theorists have continued to grapple with the meaning of the right to have rights. In the context of enduring statelessness, mass migration, people flows, and the contested nature of democratic politics, the question of the right to have rights remains of pressing concern for writers and advocates across the disciplines. This book provides the first in-depth examination of the right to have rights in the context of the international protection of human rights. It explores two overarching questions. First, how do different and competing conceptions of the right to have rights shed light on right-bearing in the contemporary context, and in particular on concepts and relationships central to the protection of human rights in public international law? Secondly, given these competing conceptions, how is the right to have rights to be understood in the context of public international law? In the course of the analysis, the author examines the significance and limits of citizenship, nationality, humanity, and politics for right-bearing, and argues that their complex interrelation points to how the right to have rights might be rearticulated for the purposes of international legal thought and practice.
Ulrich Fastenrath
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199588817
- eISBN:
- 9780191725272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588817.003.0007
- Subject:
- Law, Public International Law
This chapter conceptualizes the political theory of law as an open system of norms. Neither its elements nor the meaning of its norms are fixed. Thus, the legal order is at no time a bulk of definite ...
More
This chapter conceptualizes the political theory of law as an open system of norms. Neither its elements nor the meaning of its norms are fixed. Thus, the legal order is at no time a bulk of definite or even definable commands. Neither are the norms understood by the different actors in a uniform way, nor is the legal order free of self-contradictions. Rather, it consists of competing legal assertions that are partly decided through authoritative processes, partly in other ways, but can also exist undecided alongside each other. Nevertheless, the different actors are trying to establish their legal assertions. Due to the openness of law the validity of a legal assertion can neither be attributed in a logically compelling way to legal utterances, nor will this be the outcome of a deliberative discourse as hypothesized in Habermas' concept of communicative rationality. In fact, it is a political process which decides on the success of legal assertions. This applies to both legislative and interpretative law-making, the latter conceived as a struggle of legal assertions for becoming effective.Less
This chapter conceptualizes the political theory of law as an open system of norms. Neither its elements nor the meaning of its norms are fixed. Thus, the legal order is at no time a bulk of definite or even definable commands. Neither are the norms understood by the different actors in a uniform way, nor is the legal order free of self-contradictions. Rather, it consists of competing legal assertions that are partly decided through authoritative processes, partly in other ways, but can also exist undecided alongside each other. Nevertheless, the different actors are trying to establish their legal assertions. Due to the openness of law the validity of a legal assertion can neither be attributed in a logically compelling way to legal utterances, nor will this be the outcome of a deliberative discourse as hypothesized in Habermas' concept of communicative rationality. In fact, it is a political process which decides on the success of legal assertions. This applies to both legislative and interpretative law-making, the latter conceived as a struggle of legal assertions for becoming effective.
Louis Henkin
- Published in print:
- 1986
- Published Online:
- March 2012
- ISBN:
- 9780198255406
- eISBN:
- 9780191681592
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198255406.003.0002
- Subject:
- Law, Public International Law
International human rights have developed from many separate strands in international relations and international law, but most directly from domestic systems of rights protection. Students of the ...
More
International human rights have developed from many separate strands in international relations and international law, but most directly from domestic systems of rights protection. Students of the subject often approach the field from the domestic perspective. The fact that they approach it at all indicates that they are farsighted enough to recognize that the frequent absence of domestic-type enforcement mechanisms does not negate human rights as legal norms. This chapter offers a comparative jurisprudential perspective that provides a sound foundation on which to build. It compares the U.S. constitutional system, which is a principal human rights system, to the international system. In broad strokes, it traces the different notions of the concept of rights, their place in U.S. national political theory, the advantages and disadvantages of the U.S. conception of rights, and the role of judicial review. Teaching suggestions, syllabus, and bibliographies are provided at the end of the chapter.Less
International human rights have developed from many separate strands in international relations and international law, but most directly from domestic systems of rights protection. Students of the subject often approach the field from the domestic perspective. The fact that they approach it at all indicates that they are farsighted enough to recognize that the frequent absence of domestic-type enforcement mechanisms does not negate human rights as legal norms. This chapter offers a comparative jurisprudential perspective that provides a sound foundation on which to build. It compares the U.S. constitutional system, which is a principal human rights system, to the international system. In broad strokes, it traces the different notions of the concept of rights, their place in U.S. national political theory, the advantages and disadvantages of the U.S. conception of rights, and the role of judicial review. Teaching suggestions, syllabus, and bibliographies are provided at the end of the chapter.
John H. Barton
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780804776691
- eISBN:
- 9780804791083
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804776691.003.0004
- Subject:
- Law, Public International Law
This chapter considers the protection of freedom against today's combination of national governments and international organizations. It does so in the context of the needs associated with balancing ...
More
This chapter considers the protection of freedom against today's combination of national governments and international organizations. It does so in the context of the needs associated with balancing economy and equality. The chapter first reviews the traditional system and describes the national-level political theory principles relevant to economic and social rights. It then looks at the implications of today's globalization and the actions of the powerful international economic organizations operating in this area, and explains the appropriate changes in political principles needed for the new globalized world. These changes are detailed in four specific contexts: the survivability of the welfare state in today's world; the control of the institutions designed to assist poorer countries in their economic development; the management of the global environment; and the internationalization of regulation.Less
This chapter considers the protection of freedom against today's combination of national governments and international organizations. It does so in the context of the needs associated with balancing economy and equality. The chapter first reviews the traditional system and describes the national-level political theory principles relevant to economic and social rights. It then looks at the implications of today's globalization and the actions of the powerful international economic organizations operating in this area, and explains the appropriate changes in political principles needed for the new globalized world. These changes are detailed in four specific contexts: the survivability of the welfare state in today's world; the control of the institutions designed to assist poorer countries in their economic development; the management of the global environment; and the internationalization of regulation.
Brad R. Roth
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780199243013
- eISBN:
- 9780191697210
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199243013.003.0002
- Subject:
- Law, Public International Law
This chapter locates the problem of government illegitimacy within the range of problems addressed by political theory. It introduces the normative considerations affecting determinations of the ...
More
This chapter locates the problem of government illegitimacy within the range of problems addressed by political theory. It introduces the normative considerations affecting determinations of the legitimacy of ruling authority. It also outlines the question of legitimacy, differentiating between the problems posed by illegitimate states, illegitimate governments, and violations of irreducible duties of governance.Less
This chapter locates the problem of government illegitimacy within the range of problems addressed by political theory. It introduces the normative considerations affecting determinations of the legitimacy of ruling authority. It also outlines the question of legitimacy, differentiating between the problems posed by illegitimate states, illegitimate governments, and violations of irreducible duties of governance.
Tai-Heng Cheng
- Published in print:
- 2012
- Published Online:
- April 2015
- ISBN:
- 9780195370171
- eISBN:
- 9780190259716
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780195370171.003.0002
- Subject:
- Law, Public International Law
This chapter examines apparently conflicting international legal theories to better understand disputes about international law. It concludes that even at the level of theory, disagreements are not ...
More
This chapter examines apparently conflicting international legal theories to better understand disputes about international law. It concludes that even at the level of theory, disagreements are not purely conceptual. They are both normative and political disagreements. Every theory of international law is built on non-conceptual choices, including what facts from which to observe the phenomenon of international law and what quintessential system of law against which to compare the description of international law. Embedded in these selections are more non-conceptual choices, such as stipulations about the purpose of law, and about whether a theory of law must match the opinion of other people. Therefore, although legal theories are conceptual, they are also deeply normative as well as being political theories about morality, sovereignty, and how the world should be ordered.Less
This chapter examines apparently conflicting international legal theories to better understand disputes about international law. It concludes that even at the level of theory, disagreements are not purely conceptual. They are both normative and political disagreements. Every theory of international law is built on non-conceptual choices, including what facts from which to observe the phenomenon of international law and what quintessential system of law against which to compare the description of international law. Embedded in these selections are more non-conceptual choices, such as stipulations about the purpose of law, and about whether a theory of law must match the opinion of other people. Therefore, although legal theories are conceptual, they are also deeply normative as well as being political theories about morality, sovereignty, and how the world should be ordered.
John Yoo
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199347735
- eISBN:
- 9780199347742
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199347735.003.0003
- Subject:
- Law, Public International Law
International law currently prohibits the use of force except in self-defense or when authorized by the United Nations Security Council. Despite its claims to a long just war pedigree, this rule is a ...
More
International law currently prohibits the use of force except in self-defense or when authorized by the United Nations Security Council. Despite its claims to a long just war pedigree, this rule is a relatively new invention of the post-WWI period. This chapter traces the development of just war theory from the Roman Republic through the eighteenth century, and then the sudden reintroduction of the concept in the interwar periodLess
International law currently prohibits the use of force except in self-defense or when authorized by the United Nations Security Council. Despite its claims to a long just war pedigree, this rule is a relatively new invention of the post-WWI period. This chapter traces the development of just war theory from the Roman Republic through the eighteenth century, and then the sudden reintroduction of the concept in the interwar period
Chun-chieh Huang
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780199670055
- eISBN:
- 9780191749438
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199670055.003.0013
- Subject:
- Law, Public International Law
This chapter explores the East Asian Confucian political thought centred on Humane Governance, and their internally imbedded theoretical issues. Humane Governance is a critical core value in East ...
More
This chapter explores the East Asian Confucian political thought centred on Humane Governance, and their internally imbedded theoretical issues. Humane Governance is a critical core value in East Asian Confucian political thought. It examines the Chinese, Japanese, and Korean Confucians’ discourses on Humane Governance, employing analyses of their political thoughts and the theoretical dilemmas embedded therein. It reaches a critical conclusion that Confucian ethic remains largely internal and does not develop clear lines of external accountability. At the same time this ethic is at a personal level very demanding in terms of the concern rulers should display towards the governed.Less
This chapter explores the East Asian Confucian political thought centred on Humane Governance, and their internally imbedded theoretical issues. Humane Governance is a critical core value in East Asian Confucian political thought. It examines the Chinese, Japanese, and Korean Confucians’ discourses on Humane Governance, employing analyses of their political thoughts and the theoretical dilemmas embedded therein. It reaches a critical conclusion that Confucian ethic remains largely internal and does not develop clear lines of external accountability. At the same time this ethic is at a personal level very demanding in terms of the concern rulers should display towards the governed.
Michele Nicoletti
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780198805878
- eISBN:
- 9780191843778
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198805878.003.0016
- Subject:
- Law, Public International Law, Legal History
Carl Schmitt’s thought on international relations appears from the outset to be profoundly informed by his reflections on the philosophy of history. In this the German jurist seems to be fully ...
More
Carl Schmitt’s thought on international relations appears from the outset to be profoundly informed by his reflections on the philosophy of history. In this the German jurist seems to be fully consonant with the climate of his time, of that generation which saw the 19th century ‘concert of Europe’ crumble beneath their feet into the great tragedy of European civil war which began with the First World War. The collapse of the world order thus almost inevitably leads him to question the meaning of history and to be influenced by the ideas of the end of the world and of history, and by the symbols and metaphors connected to this theme, which have been part of Western culture for centuries.Less
Carl Schmitt’s thought on international relations appears from the outset to be profoundly informed by his reflections on the philosophy of history. In this the German jurist seems to be fully consonant with the climate of his time, of that generation which saw the 19th century ‘concert of Europe’ crumble beneath their feet into the great tragedy of European civil war which began with the First World War. The collapse of the world order thus almost inevitably leads him to question the meaning of history and to be influenced by the ideas of the end of the world and of history, and by the symbols and metaphors connected to this theme, which have been part of Western culture for centuries.
Tai-Heng Cheng
- Published in print:
- 2012
- Published Online:
- April 2015
- ISBN:
- 9780195370171
- eISBN:
- 9780190259716
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780195370171.003.0009
- Subject:
- Law, Public International Law
This chapter formulates conclusions about this book's account of the international legal system in light of the prior case studies. The justificatory theory of international law provides a framework ...
More
This chapter formulates conclusions about this book's account of the international legal system in light of the prior case studies. The justificatory theory of international law provides a framework for analysis based on theory and backed by case studies to guide but elites. It does not predict outcomes, nor does it give controlling instructions to decisionmakers. In the politics of theorizing, this account of the international legal system has political consequences if decisionmakers adopt it. It rejects a blanket disapproval of international law and so it will not resonate with trenchant exceptionalists or other scholars who radically challenge existing international power structures. International law works best when decisionmakers interpret prescriptions to balance values and the common good, within their institutional responsibilities, and in ways that other decisionmakers accept.Less
This chapter formulates conclusions about this book's account of the international legal system in light of the prior case studies. The justificatory theory of international law provides a framework for analysis based on theory and backed by case studies to guide but elites. It does not predict outcomes, nor does it give controlling instructions to decisionmakers. In the politics of theorizing, this account of the international legal system has political consequences if decisionmakers adopt it. It rejects a blanket disapproval of international law and so it will not resonate with trenchant exceptionalists or other scholars who radically challenge existing international power structures. International law works best when decisionmakers interpret prescriptions to balance values and the common good, within their institutional responsibilities, and in ways that other decisionmakers accept.
