Search Results

Incorporating Indigenous Law

Jacob T. Levy

in The Multiculturalism of Fear

Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally ... More

Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally distinct ways of establishing rights that are known to the general law, such as marriage and property rights; customary incorporation, which directly applies and enforces the customary rights, privileges, and duties associated with the relevant legal tradition; and self‐government, which grants legal status to the group to make, and revise, its laws on a territorial basis. Hybrid forms have often represented hypocrisy on the states’ part, according to indigenous peoples, the burdens of all these and the benefits of none. The inalienability of indigenous land against a generally common‐law background is such a hypocrisy.Less

7 Blood and Soil, Place or Property: Liberalism, Land, and Ethnicity

Jacob T. Levy

in The Multiculturalism of Fear

Improving Evaluation of Boilerplate: A Proposed Analytical Framework

Margaret Jane Radin

in Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

This chapter proposes an analytical framework for improving the evaluation of boilerplate. It begins with a discussion of questions for evaluating boilerplate rights deletion schemes; for example, ... More

This chapter proposes an analytical framework for improving the evaluation of boilerplate. It begins with a discussion of questions for evaluating boilerplate rights deletion schemes; for example, whether all of the rights granted and/or maintained by the state are appropriately considered default rules. It then describes three elements of analysis that can help illuminate how boilerplate waivers should be evaluated: the nature of the right in question and whether that right is alienable; the quality of consent by a recipient; and the extent of social dissemination of the rights deletion. It also examines the effect of nonconsent or market-inalienability on any purported contract, as well as the kinds of rights that are or should be subject to market-inalienability or partial market-inalienability in the presence of problematic consent. Finally, it explores political rights and interests, along with basic human rights and interests.Less

Royal Bastardy and Dynastic Crisis

Matthew Gerber

in Bastards: Politics, Family, and Law in Early Modern France

The political dimensions of bastardy were most evident in the public controversy stemming from Louis XIV’s attempt to declare his extramarital offspring capable of inheriting the French throne. The ... More

The political dimensions of bastardy were most evident in the public controversy stemming from Louis XIV’s attempt to declare his extramarital offspring capable of inheriting the French throne. The Affair of the Princes, which erupted shortly after the king’s death in 1715, resulted in the publication of more than forty political pamphlets, most of which concluded that Louis XIV had transgressed a principle of dynastic succession according to which the French crown passed independently of human will. Like the inalienability of the royal domain, this principle had been developed to safeguard public interests from the private passions of particular kings, much as customary inheritance laws were designed to protect children from spendthrift parents. In the wake of the Affair of the Princes, Louis XV refused to publicly acknowledge his extramarital offspring. Anxiety over royal sexuality and political corruption nevertheless continued in the eighteenth century, though it was now targeted on royal mistress rather than extramarital offspring.Less

Legislative Balancing through Intergovernmental Bargaining

Erin Ryan

in Federalism and the Tug of War Within

Chapter Seven proposes a more modest modification to the anti-commandeering rule, requiring judicial deference to consensual state-federal legislative bargaining over federalism entitlements. ... More

Chapter Seven proposes a more modest modification to the anti-commandeering rule, requiring judicial deference to consensual state-federal legislative bargaining over federalism entitlements. Constitutional federalism directives can be viewed as default rules that confer jurisdictional entitlements to state and federal actors, but the normative entitlement of a legal rule is always matched with an infrastructural component that designates how and whether the normative entitlement may be shifted. This chapter explores the extent to which federalism doctrine allows consensually negotiated exchange of these entitlements—such as waiver of Eleventh Amendment state sovereign immunity, or state waiver of enumerated powers limitations when accepting spending power deals conditioned on federal policies. It advocates more uniform use of the Calabresi and Melamed “property rule” remedy rule that enables bargaining with entitlements, rather than the inalienability or liability rule alternatives. When the Rehnquist Court created the anti-commandeering entitlement that states hold against Congress (in partially invalidating the Low-Level Radioactive Waste Policy Act in New York v. United States), it did not allow for consensual intergovernmental bargaining to shift the entitlement. Using New York as a case study, the chapter proposes that Tenth Amendment entitlements be harmonized with the rest of federalism doctrine to enable consensual legislative bargaining. Leaving the normative part of the anti-commandeering rule in place while enabling states to bargain with their entitlement would yield new possibilities for balanced interjurisdictional governance while retaining the most protective aspects of the rule. The bilateral nature of the exchange ensures that the negotiated balance reflects the interests of both state and federal actors. It also taps unique legislative resources for values-balancing in the fact-intensive policymaking contexts where legislatures outperform courts. By incorporating state and federal judgment, intergovernmental bargaining is preferable to the unilateral federal assertions of power or deference to state prerogative that characterize traditional political safeguards.Less

Rethinking the theory of legal rights

Jules L. Coleman

in Markets, Morals, and the Law

This chapter examines the classical liberal theory of rights, which holds that rights protect or secure a domain of autonomy. To have a right is to have control or liberty over that to which one is ... More

This chapter examines the classical liberal theory of rights, which holds that rights protect or secure a domain of autonomy. To have a right is to have control or liberty over that to which one is entitled. Guido Calabresi and others working within an economic framework have argued that rights can be secured either by property rules or by liability rules. Property rules secure rights by entitling people who hold rights both to exclude others from making use of protected property and to transfer protected property on terms agreeable to them. Liability rules secure rights by giving non-entitled parties the freedom to take what right owners possess provided they compensate ex post. There is an apparent conflict, then, between liability rules and the classical liberal conception of rights. The chapter offers a way of thinking about legal rights in which both prima facie plausible claims must be abandoned.Less

The multifaceted noun

Alexandra Y. Aikhenvald

in The Languages of the Amazon

In many Amazonian languages, nouns can be synthetic, and morphologically complex. We start with a snapshot of noun structure and noun categories. We then turn to tense, and other aspects of ... More

In many Amazonian languages, nouns can be synthetic, and morphologically complex. We start with a snapshot of noun structure and noun categories. We then turn to tense, and other aspects of non-spatial setting expressed on nouns. In many Amazonian languages, noun distinguish past and future. In Carib languages, past and future on nouns is associated with possession. Across most Amazonian languages, nouns can be divided into possession classes, depending on how close the possessive relationship is. Nouns fall into obligatorily possessed (typically including kinship terms and body pasrts), and optionally possessed. Some items — such as sun, moon, or a cockroach — can never occur in possessive constructions.Less

Culture Cult: Ritual Circulation of Inalienable Knowledge and Appropriation of Cultural Knowledge (Central and NW Australia)

Barbara Glowczewski

in Indigenising Anthropology with Guattari and Deleuze

After recalling the international context of the contemporary claims to cultural property, Glowczewski discusses the concept of inalienability which, in central and north western Australia, surrounds ... More

After recalling the international context of the contemporary claims to cultural property, Glowczewski discusses the concept of inalienability which, in central and north western Australia, surrounds the ritual circulation of sacred objects and the cults of which they are a part, including rituals of colonial resistance. Afterwards she examines the elaboration of a culture centre which involved in the 1990’s the representatives of a dozen Aboriginal languages and organisations based in the coastal town of Broome; this initiative reflected an attempt to control the representation given of their cultures and to claim the reappropriation of their objects (in Museums) and knowledge in a process of cultural repatriation and political affirmation. First published in 2002.Less

Dignity as an Eschatological Concept

David Walsh

in Understanding Human Dignity

An eschatological concept is one we live within and therefore can never fully comprehend. Human dignity names what cannot be named. Rather than a claim to status it really marks the capacity to ... More

An eschatological concept is one we live within and therefore can never fully comprehend. Human dignity names what cannot be named. Rather than a claim to status it really marks the capacity to surrender all claim to status. Dignity is the flash of transcendence that is the epiphany of the person, the gift of self-presentation that is itself never fully presented. Rather than thinking of this as the core of the person we must acknowledge that persons are always more than any imputed core. This is what the language of rights has sought to affirm. That is, that within a world of limits, persons alone are inexhaustible. Each person is the whole of reality, as we perceive in the persons we love.Less

The Limits of Marketability

Desmond Fitz-Gibbon

in Marketable Values: Inventing the Property Market in Modern Britain

The Victorian land preservation movement is not normally considered an institution of the property market. If anything, efforts to restrict the development of land could be seen as forms of social ... More

The Victorian land preservation movement is not normally considered an institution of the property market. If anything, efforts to restrict the development of land could be seen as forms of social defense against the pressures of the market. As this chapter argues, however, the reality is more complicated. Taking as its starting point the National Trust Act (1907), and its unprecedented clause granting its namesake institution with the power to declare certain land "inalienable," this chapter argues that the act of defining the limits of the property market was itself part of a process that further extended forms of nineteenth-century commercial real estate practice. The origins of land preservation often begin with the commons preservation movement, and the society established in 1865 to protect common land from further enclosure. What began as a legal strategy to protect customary rights, however, soon evolved into an argument for the direct purchase of land rights, to be held in perpetuity on behalf of the nation. Robert Hunter, a prominent leader in both the Commons Preservation Society and the National Trust, thus devised a plan for limiting the reach of the market by embracing its fundamental principles of ownership and exchange.Less

Rethinking Property: A Biocultural Approach

Sanjay Kabir Bavikatte

in Stewarding The Earth: Rethinking Property and the Emergence of Biocultural Rights

This chapter argues that it is not property that should determine personhood or peoplehood, but the other way round. It explores how the emergence of biocultural rights asks for a fundamental rethink ... More

This chapter argues that it is not property that should determine personhood or peoplehood, but the other way round. It explores how the emergence of biocultural rights asks for a fundamental rethink of property jurisprudence itself. It notes that the very notion of personhood, and hence the juridical subject in liberal democracies, is based on an assumption that a right to property is integral to what we understand as a person. The chapter seeks to answer the question regarding the moral limits of commodification. The chapter also attempts to clarify what our understanding of personhood or ‘human flourishing’ should be, to enable us to distinguish between personal property that should not be commodified and fungible property that can be.Less

Conclusion

Renata Ago

in Gusto for Things: A History of Objects in Seventeenth-Century Rome

This chapter sums up the key findings of this study on the historiography of material culture and the history of objects in seventeenth-century Rome. It suggests that a person’s relationship with his ... More

This chapter sums up the key findings of this study on the historiography of material culture and the history of objects in seventeenth-century Rome. It suggests that a person’s relationship with his possessions and the singularly complex relationship between ownership and use of things distinguished the material culture of this period. It also contends that the preservation and collection of objects was equivalent to constructing a genealogy and aspiration to inalienability.Less

A Rights of Personality Database

Charlotte Waelde and Niall R Whitty

in Rights of Personality in Scots Law: A Comparative Perspective

Chapter 11 analyses the results of a survey in which contributors from 12 jurisdictions answered legal questions raised in eight case- studies. Differences exist both between and within the Civil law ... More

Chapter 11 analyses the results of a survey in which contributors from 12 jurisdictions answered legal questions raised in eight case- studies. Differences exist both between and within the Civil law and Common law traditions. Civil law systems and some “mixed systems”, eg South Africa, have regimes of personality rights. Common law countries do not. As originally conceived personality rights protected only personal attributes of individuals. This conception has had to be modified because certain personal or dignitary interests such as a person’s name, image or voice, may be capable of commercial exploitation and may therefore acquire a patrimonial or economic aspect. The Survey illuminates the relationship between the dignitary and patrimonial or economic aspects of personality attributes. On this matter the structure of the Civil law systems based on generalised rights differs considerably from the structure of the Common law systems which are based on specific (equitable and tortious) wrongs. Furthermore, in Civil law systems consent to use of an individual’s image, and the circumstances in which consent can be waived for a fee, are the first stages in the development of commercial (patrimonial) rights in image whereas in the Common law, consent seems relatively unimportant. Rather, the analysis in the Common law focuses on how specific wrongs can be extended in order to protect both dignitary and commercial interests in an individual’s image and similar indicia of identity.Less

The Exchange Economy?

Paul Sillitoe

in From Land to Mouth: The Agricultural "Economy" of the Wola of the New Guinea Highlands

This chapter looks at the exchange economy in the Was Valley, where it touches upon the presence of scarcity not in land, capital, and labor, but in items that are in short supply (e.g. diamonds). It ... More

This chapter looks at the exchange economy in the Was Valley, where it touches upon the presence of scarcity not in land, capital, and labor, but in items that are in short supply (e.g. diamonds). It looks at specific behaviors within the Was Valley that are considered as economic and stresses that the Wola participate more often in social exchange of objects than in purchase transaction (the latter being the activity market societies do often). This chapter also contains sections on the domains of exchange and subsistence, the level of locally produced wealth, the conversion of surplus items into exchangeables, and the production spheres. The last sections in the chapter centers on the inalienability issue, Marxism, and the individual and society antinomy.Less

An Analytical Framework for Legal Evaluation of Boilerplate

Margaret Jane Radin

in Philosophical Foundations of Contract Law

This chapter develops an analytical framework that could help legal analysts make better decisions about boilerplate in the context of rights deletions deployed by firms against consumers. A great ... More

This chapter develops an analytical framework that could help legal analysts make better decisions about boilerplate in the context of rights deletions deployed by firms against consumers. A great deal of mass-market boilerplate—such as hidden lists of terms that recipients have no idea exist—should not be treated as contractual, and should be regulated by other means. But when courts treat boilerplate as contractual, this chapter encourages them to adopt a better analysis. Two particular features of current doctrine might be improved. The procedural/substantive requirement in unconscionability doctrine is misapplied when a judge ignores the nature of the right based on her conclusion that the quality of consent is adequate, because some rights are market-inalienable. Also, the notion of reasonable expectation should be avoided because it engenders a mischievous positive/normative ambiguity, and seems to license a conclusion that the more something is imposed on people, the more it is permissible.Less

Popular Liberty, Princely Government, and the Roman Law in Hugo Grotius’ De Iure Belli ac Pacis

Daniel Lee

in Popular Sovereignty in Early Modern Constitutional Thought

The chapter investigates Grotius’ use of the Roman law to articulate a concept of popular sovereignty. Using categories derived from the Roman law of persons, Grotius develops a concept of popular ... More

The chapter investigates Grotius’ use of the Roman law to articulate a concept of popular sovereignty. Using categories derived from the Roman law of persons, Grotius develops a concept of popular sovereignty that requires both the absence of dependence, as in the republican theory of liberty, as well as active rights of self-government. However, as Grotius explains, a free people may transfer some of those rights to an intermediary, such as a prince, without also compromising their sovereignty. One surprising result from this analysis is the view that, in special circumstances, a people may remain free even while under the government of a prince.Less

The Structure of Property Law

Jesse Wall

in Being and Owning: The Body, Bodily Material, and the Law

This chapter aims to identify the ‘structural’ (or ‘doctrinal’) features of property law, compare these features with other branches of law, and consider how these features have been applied to the ... More

This chapter aims to identify the ‘structural’ (or ‘doctrinal’) features of property law, compare these features with other branches of law, and consider how these features have been applied to the use and storage of bodily material. Since property rights are exclusive rights, property rights are exercisable against an open-set of persons, actionable per se, and impose duties of non-interference. This set of features can explain why there is pressure on the common law to recognize property rights in bodily material: to pull the entitlements in bodily material behind an ‘exclusionary boundary’. Additionally, since property rights are also rights that can exist independently of the particular rights-holder, they impose corrective remedial duties and are transferable. This set of features can begin to explain why there are limits to the appropriate application of property law: not all rights regarding an object or resource can exist independently of the rights-holder.Less