Ingo Venzke
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199657674
- eISBN:
- 9780191753114
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199657674.003.0002
- Subject:
- Law, Public International Law, Philosophy of Law
This chapter develops theoretical perspectives on how the practice of interpretation makes international law. It first rejects orthodox legal positivism’s assumption that law can be found in the norm ...
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This chapter develops theoretical perspectives on how the practice of interpretation makes international law. It first rejects orthodox legal positivism’s assumption that law can be found in the norm text and illustrates how semantic change challenges the normative construction according to which subjects can only be bound with their consent. Once they make a commitment, the content of such a commitment is no longer in their hands alone. The chapter identifies shortcomings of theoretical approaches that have shifted their attention towards lawmaking in communicative practices and connects to developments in linguistic theory as well as sociology to introduce a concept of practice that supersedes old divides. The chapter cuts to the core of semantic struggles in law by discussing the exercise of power and authority in legal interpretation and closes by introducing the main actors in international legal discourse.Less
This chapter develops theoretical perspectives on how the practice of interpretation makes international law. It first rejects orthodox legal positivism’s assumption that law can be found in the norm text and illustrates how semantic change challenges the normative construction according to which subjects can only be bound with their consent. Once they make a commitment, the content of such a commitment is no longer in their hands alone. The chapter identifies shortcomings of theoretical approaches that have shifted their attention towards lawmaking in communicative practices and connects to developments in linguistic theory as well as sociology to introduce a concept of practice that supersedes old divides. The chapter cuts to the core of semantic struggles in law by discussing the exercise of power and authority in legal interpretation and closes by introducing the main actors in international legal discourse.
Cristina E. Parau
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780197266403
- eISBN:
- 9780191879593
- Item type:
- book
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197266403.001.0001
- Subject:
- Law, Legal Profession and Ethics
Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational ...
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Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational networking empowered a minority of elite Judiciary revisionists to entrench their institutional template in Eastern European constitutions, setting these transitional democracies on a trajectory toward a global trend of the judicialization of politics. The first, crucial step in that process is traced: the formal disempowerment of democracy through Judiciary revisions that ordinary people and politicians in Central and Eastern Europe little heeded. The causal nexus converging on this outcome is explained. Why it matters is because the revisionist template reorients that most venerable of non-majoritarian institutions beyond adjudication of the guilt or innocence of subjects of state power under legal certainty – the classical role of modern courts – toward the improvisation of public policy, with or without the consent of the majority of the governed, by ‘finding’ it in constitutions; the unique legitimacy of which derives from the prior ratification of a supermajority. The question of who shall have the final disposition of contested constitutional meaning – the Executive, Legislature, Judiciary, the People, or All of these – implicates sovereignty itself and whom it shall rest on: the last word is sovereign for practical purposes. The interdisciplinarity of this study will appeal to a wide audience: scholars of law and politics and socio-legal studies, social scientists researching elite transnationalism and European integration beyond the EU, even institutional design practitioners.Less
Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational networking empowered a minority of elite Judiciary revisionists to entrench their institutional template in Eastern European constitutions, setting these transitional democracies on a trajectory toward a global trend of the judicialization of politics. The first, crucial step in that process is traced: the formal disempowerment of democracy through Judiciary revisions that ordinary people and politicians in Central and Eastern Europe little heeded. The causal nexus converging on this outcome is explained. Why it matters is because the revisionist template reorients that most venerable of non-majoritarian institutions beyond adjudication of the guilt or innocence of subjects of state power under legal certainty – the classical role of modern courts – toward the improvisation of public policy, with or without the consent of the majority of the governed, by ‘finding’ it in constitutions; the unique legitimacy of which derives from the prior ratification of a supermajority. The question of who shall have the final disposition of contested constitutional meaning – the Executive, Legislature, Judiciary, the People, or All of these – implicates sovereignty itself and whom it shall rest on: the last word is sovereign for practical purposes. The interdisciplinarity of this study will appeal to a wide audience: scholars of law and politics and socio-legal studies, social scientists researching elite transnationalism and European integration beyond the EU, even institutional design practitioners.
Jonas Christoffersen and Mikael Rask Madsen (eds)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199694495
- eISBN:
- 9780191729782
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694495.001.0001
- Subject:
- Law, Public International Law, Human Rights and Immigration
This book provides the first comprehensive analysis of the rise and subsequent development of one of the most striking supranational judicial institutions ever created. The book brings together ...
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This book provides the first comprehensive analysis of the rise and subsequent development of one of the most striking supranational judicial institutions ever created. The book brings together leading scholars and practitioners to cast new light on the substantial jurisprudence and perpetual political reform of the Court. The broad analysis based on historical, legal, and social scientific perspectives provides new insight into the lasting institutional crisis of the ECtHR and identifies the lessons that can be learned and taken into account in the shaping of the future of the European Convention on Human Rights and Fundamental Freedoms. The European Court of Human Rights is in many ways an unparalleled success. The European Convention took its own unique path under the leadership of the Strasbourg Court that embarked, during the 1970s, on the development of a more progressive jurisprudence. In the post-Cold War era, it went from being the guarantor of human rights solely in Western Europe to becoming increasingly involved in the transition to democracy and the rule of law in Eastern Europe. Now the protector of the human rights of some 800 million Europeans from forty-seven different countries, the European system is once again deeply challenged — this time by a massive caseload as well as the Member States’ increased reluctance towards the Court.Less
This book provides the first comprehensive analysis of the rise and subsequent development of one of the most striking supranational judicial institutions ever created. The book brings together leading scholars and practitioners to cast new light on the substantial jurisprudence and perpetual political reform of the Court. The broad analysis based on historical, legal, and social scientific perspectives provides new insight into the lasting institutional crisis of the ECtHR and identifies the lessons that can be learned and taken into account in the shaping of the future of the European Convention on Human Rights and Fundamental Freedoms. The European Court of Human Rights is in many ways an unparalleled success. The European Convention took its own unique path under the leadership of the Strasbourg Court that embarked, during the 1970s, on the development of a more progressive jurisprudence. In the post-Cold War era, it went from being the guarantor of human rights solely in Western Europe to becoming increasingly involved in the transition to democracy and the rule of law in Eastern Europe. Now the protector of the human rights of some 800 million Europeans from forty-seven different countries, the European system is once again deeply challenged — this time by a massive caseload as well as the Member States’ increased reluctance towards the Court.
Mona Lena Krook
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195375671
- eISBN:
- 9780199871605
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195375671.003.0005
- Subject:
- Political Science, Comparative Politics
This chapter examines campaigns for party quotas in Sweden and the United Kingdom. Before quotas, both countries had relatively similar levels of female representation. In Sweden, advocates pressed ...
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This chapter examines campaigns for party quotas in Sweden and the United Kingdom. Before quotas, both countries had relatively similar levels of female representation. In Sweden, advocates pressed parties to adopt recommendations and targets in the 1970s and 1980s but radicalized their demands over the course of the 1990s, eventually gaining commitments from most parties to alternate between women and men on their candidate lists. In the UK, a major party adopted a quota in the early 1990s, which was later declared illegal on the grounds that it violated anti-discrimination law. Following a period of legal ambiguity, MPs reformed the law to allow but not require parties to pursue positive action in candidate selection. This has since led to significant variations among parties in terms of their recruitment of women. As such, women now constitute 47% of MPs in Sweden but only 20% of MPs in the UK.Less
This chapter examines campaigns for party quotas in Sweden and the United Kingdom. Before quotas, both countries had relatively similar levels of female representation. In Sweden, advocates pressed parties to adopt recommendations and targets in the 1970s and 1980s but radicalized their demands over the course of the 1990s, eventually gaining commitments from most parties to alternate between women and men on their candidate lists. In the UK, a major party adopted a quota in the early 1990s, which was later declared illegal on the grounds that it violated anti-discrimination law. Following a period of legal ambiguity, MPs reformed the law to allow but not require parties to pursue positive action in candidate selection. This has since led to significant variations among parties in terms of their recruitment of women. As such, women now constitute 47% of MPs in Sweden but only 20% of MPs in the UK.
Alison Kesby
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199600823
- eISBN:
- 9780191738272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600823.003.0006
- Subject:
- Law, Public International Law
Focusing on the work of the French philosopher Jacques Rancière, Chapter 5 examines the right to have rights in terms of the politics of human rights—of the rightless taking up, claiming, and ...
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Focusing on the work of the French philosopher Jacques Rancière, Chapter 5 examines the right to have rights in terms of the politics of human rights—of the rightless taking up, claiming, and enacting denied rights. The subject of rights is the limitless subject of politics. This is a performative understanding of the right to have rights in that the excluded confer a ‘place in the world’ on themselves. While Rancière seeks to overcome exclusions from the subject of rights, it is argued that his account is not itself immune from exclusion. Finally, the chapter examines the implications of Rancière’s work for international human rights law.Less
Focusing on the work of the French philosopher Jacques Rancière, Chapter 5 examines the right to have rights in terms of the politics of human rights—of the rightless taking up, claiming, and enacting denied rights. The subject of rights is the limitless subject of politics. This is a performative understanding of the right to have rights in that the excluded confer a ‘place in the world’ on themselves. While Rancière seeks to overcome exclusions from the subject of rights, it is argued that his account is not itself immune from exclusion. Finally, the chapter examines the implications of Rancière’s work for international human rights law.
Ingo Venzke
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199657674
- eISBN:
- 9780191753114
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199657674.001.0001
- Subject:
- Law, Public International Law, Philosophy of Law
The texts of international law cannot talk — they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive ...
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The texts of international law cannot talk — they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive narrative suggesting that sovereign states make the law that constraints them, the book shows that in many and most constellations the contents of legal commitments is the product interpretation which shifts meanings and makes law. In the practice of interpretation actors compete over what the law really says and contribute to its making. What then matters in such discourse is an actor’s semantic authority — the capacity to find acceptance for interpretative claims and the ability to establish new reference points for legal discourse. The book identifies the practice of interpretation as a significant space of international lawmaking and draws specific attention to the increasing weight of international institutions in the struggle for the law. Past theoretical approaches come down with significant shortcomings in understanding interpretation as a bounded practice that has both the capacity to create as well as the faculty to control. The book leans on developments in linguistics and builds on semantic pragmatism to overcome old divides and to offer a fresh account of how the practice of interpretation makes international law. Its analytical ambition is paralleled by a discussion of the strong normative implications that immediately arise once received understandings of interpretation and sources doctrine are debunked as myopic and powerless in relation to semantic changes. The book thus closes with a discussion of the bittersweet taste of justice in legal argument, tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders the possibilities of democratic justification of semantic authority in a normative pluriverse.Less
The texts of international law cannot talk — they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive narrative suggesting that sovereign states make the law that constraints them, the book shows that in many and most constellations the contents of legal commitments is the product interpretation which shifts meanings and makes law. In the practice of interpretation actors compete over what the law really says and contribute to its making. What then matters in such discourse is an actor’s semantic authority — the capacity to find acceptance for interpretative claims and the ability to establish new reference points for legal discourse. The book identifies the practice of interpretation as a significant space of international lawmaking and draws specific attention to the increasing weight of international institutions in the struggle for the law. Past theoretical approaches come down with significant shortcomings in understanding interpretation as a bounded practice that has both the capacity to create as well as the faculty to control. The book leans on developments in linguistics and builds on semantic pragmatism to overcome old divides and to offer a fresh account of how the practice of interpretation makes international law. Its analytical ambition is paralleled by a discussion of the strong normative implications that immediately arise once received understandings of interpretation and sources doctrine are debunked as myopic and powerless in relation to semantic changes. The book thus closes with a discussion of the bittersweet taste of justice in legal argument, tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders the possibilities of democratic justification of semantic authority in a normative pluriverse.
Ernest J. Weinrib
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199665815
- eISBN:
- 9780191748622
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199665815.003.0008
- Subject:
- Law, Philosophy of Law, Law of Obligations
This chapter returns to the claim adumbrated in Chapter 1, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the judicial roles, it ...
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This chapter returns to the claim adumbrated in Chapter 1, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the judicial roles, it elucidates the public nature of corrective justice when actualized in an operating system of private law. By considering the relationship between the formalist idea of private law and the concrete particularity of the social life that private law governs, it shows how private law can be autonomous without being detached from social reality, and how corrective justice can become public without being political. The autonomy of private law refers to its self-regulation as it realizes the distinctive rationality immanent to it. Corrective justice is non-political because, unlike distributive justice, it involves the choice of no external purposes. The chapter concludes by discussing the ways in which private law so conceived is both determinate and indeterminate, stable and variable.Less
This chapter returns to the claim adumbrated in Chapter 1, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the judicial roles, it elucidates the public nature of corrective justice when actualized in an operating system of private law. By considering the relationship between the formalist idea of private law and the concrete particularity of the social life that private law governs, it shows how private law can be autonomous without being detached from social reality, and how corrective justice can become public without being political. The autonomy of private law refers to its self-regulation as it realizes the distinctive rationality immanent to it. Corrective justice is non-political because, unlike distributive justice, it involves the choice of no external purposes. The chapter concludes by discussing the ways in which private law so conceived is both determinate and indeterminate, stable and variable.
Michal Bobek
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199680382
- eISBN:
- 9780191760280
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199680382.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Comparative Law
The last two decades have witnessed an exponential growth in debates on the use of foreign law by courts. Judges are said to increasingly rely on inspiration from outside of their national legal ...
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The last two decades have witnessed an exponential growth in debates on the use of foreign law by courts. Judges are said to increasingly rely on inspiration from outside of their national legal systems for solving purely domestic cases. This book puts similar claims to the test in relation to the highest national jurisdictions, i.e. supreme and constitutional courts, in Europe today. How often and why do judges choose to draw inspiration from foreign materials in solving domestic cases? The book addresses these questions from the empirical as well as the theoretical angle. Empirically, the genuine use of comparative arguments by the national highest courts in five European jurisdictions is examined: England and Wales, France, Germany, Czech Republic, and Slovakia. On the basis of comparative discussion of the practice and its national theoretical underpinning in these and partially also in other European systems, an overreaching theoretical framework for the current judicial use of comparative arguments is offered.Less
The last two decades have witnessed an exponential growth in debates on the use of foreign law by courts. Judges are said to increasingly rely on inspiration from outside of their national legal systems for solving purely domestic cases. This book puts similar claims to the test in relation to the highest national jurisdictions, i.e. supreme and constitutional courts, in Europe today. How often and why do judges choose to draw inspiration from foreign materials in solving domestic cases? The book addresses these questions from the empirical as well as the theoretical angle. Empirically, the genuine use of comparative arguments by the national highest courts in five European jurisdictions is examined: England and Wales, France, Germany, Czech Republic, and Slovakia. On the basis of comparative discussion of the practice and its national theoretical underpinning in these and partially also in other European systems, an overreaching theoretical framework for the current judicial use of comparative arguments is offered.
Mikael Rask Madsen
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199694495
- eISBN:
- 9780191729782
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694495.003.0003
- Subject:
- Law, Public International Law, Human Rights and Immigration
Some of the most decisive developments in European human rights law took place in the mid to late 1970s when the ECtHR embarked on crafting what is now known as its dynamic human rights doctrine. ...
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Some of the most decisive developments in European human rights law took place in the mid to late 1970s when the ECtHR embarked on crafting what is now known as its dynamic human rights doctrine. Against the background of an analysis of the original development of European human rights as ‘legal diplomacy’, this chapter raises the question of how the considerable change of the Court of the mid to late 1970s came about and which social, political, and legal conditions facilitated it. The chapter addresses both the structure and agency of the ECtHR and their transformations over the period 1959–79. The chapter challenges existing explanations by suggesting a relational and, thus, structural connection between the agency of the ECtHR and its surroundings as a framework for explaining the transformation of the Court.Less
Some of the most decisive developments in European human rights law took place in the mid to late 1970s when the ECtHR embarked on crafting what is now known as its dynamic human rights doctrine. Against the background of an analysis of the original development of European human rights as ‘legal diplomacy’, this chapter raises the question of how the considerable change of the Court of the mid to late 1970s came about and which social, political, and legal conditions facilitated it. The chapter addresses both the structure and agency of the ECtHR and their transformations over the period 1959–79. The chapter challenges existing explanations by suggesting a relational and, thus, structural connection between the agency of the ECtHR and its surroundings as a framework for explaining the transformation of the Court.
Mark A. Graber
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199943883
- eISBN:
- 9780199369799
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199943883.003.0008
- Subject:
- Law, Constitutional and Administrative Law
Constitutions work by constraining, constructing, and constituting politics. Constitutions constrain politics when citizens and governing officials subordinate their policy preferences to ...
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Constitutions work by constraining, constructing, and constituting politics. Constitutions constrain politics when citizens and governing officials subordinate their policy preferences to constitutional norms. Constitutions construct politics when citizens and governing officials follow the rules that determine whose policy preferences and constitutional understandings at any time are the official law of the land. Constitutions constitute politics when citizens and elected officials are socialized in ways that lead them to internalize constitutional values and regard constitutional processes as the only legitimate means for resolving legal and policy disputes. The common obsessive focus on constitutional constraints ignores alternative means by which the Constitution of the United States works to protect fundamental rights and limit government, disregards entirely how the Constitution of the United States promotes vital constitutional purposes that cannot be reduced to legal norms, and provides an impoverished account of the constitutional crises that have wracked American constitutionalismLess
Constitutions work by constraining, constructing, and constituting politics. Constitutions constrain politics when citizens and governing officials subordinate their policy preferences to constitutional norms. Constitutions construct politics when citizens and governing officials follow the rules that determine whose policy preferences and constitutional understandings at any time are the official law of the land. Constitutions constitute politics when citizens and elected officials are socialized in ways that lead them to internalize constitutional values and regard constitutional processes as the only legitimate means for resolving legal and policy disputes. The common obsessive focus on constitutional constraints ignores alternative means by which the Constitution of the United States works to protect fundamental rights and limit government, disregards entirely how the Constitution of the United States promotes vital constitutional purposes that cannot be reduced to legal norms, and provides an impoverished account of the constitutional crises that have wracked American constitutionalism
John Lechte and Saul Newman
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780748645725
- eISBN:
- 9780748689163
- Item type:
- book
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748645725.001.0001
- Subject:
- Political Science, Reference
Most commentators agree that human rights today are in crisis. Virtually everywhere one looks, there is violence, deprivation and oppression, which human rights norms – prominent as they are in the ...
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Most commentators agree that human rights today are in crisis. Virtually everywhere one looks, there is violence, deprivation and oppression, which human rights norms – prominent as they are in the global order – seem powerless to prevent. This book investigates the roots of the current crisis through the thought of Italian philosopher, Giorgio Agamben. While Agamben is critical of human rights, he nevertheless opens up crucial thresholds and lines of enquiry – biopolitics, the sovereign state of exception, and ‘bare life’ – which human rights theory and practice must come to grips with. The authors contend that any renewal of the human rights project today must involve breaking decisively with the traditional coordinates of Western political thought, which has come to see politics in terms of the activity of sovereign states and law-making – and as confined to the public domain. Instead, it must affirm an alternative political ontology based around notions of statelessness, inoperativeness, and the realization of the freedom and community that we already live. This alternative politics of human rights is developed through innovative approaches to language, gesture, and the image, and through key encounters with not only with Agamben, but also Arendt, Esposito, Bataille, Nancy and Benjamin.Less
Most commentators agree that human rights today are in crisis. Virtually everywhere one looks, there is violence, deprivation and oppression, which human rights norms – prominent as they are in the global order – seem powerless to prevent. This book investigates the roots of the current crisis through the thought of Italian philosopher, Giorgio Agamben. While Agamben is critical of human rights, he nevertheless opens up crucial thresholds and lines of enquiry – biopolitics, the sovereign state of exception, and ‘bare life’ – which human rights theory and practice must come to grips with. The authors contend that any renewal of the human rights project today must involve breaking decisively with the traditional coordinates of Western political thought, which has come to see politics in terms of the activity of sovereign states and law-making – and as confined to the public domain. Instead, it must affirm an alternative political ontology based around notions of statelessness, inoperativeness, and the realization of the freedom and community that we already live. This alternative politics of human rights is developed through innovative approaches to language, gesture, and the image, and through key encounters with not only with Agamben, but also Arendt, Esposito, Bataille, Nancy and Benjamin.
Jonas Christoffersen and Mikael Rask Madsen
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199694495
- eISBN:
- 9780191729782
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694495.003.0001
- Subject:
- Law, Public International Law, Human Rights and Immigration
The introduction argues for including the study of the ECtHR in general scholarship on international judicial institutions. The ECtHR provides a key case as to understanding the evolution of ...
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The introduction argues for including the study of the ECtHR in general scholarship on international judicial institutions. The ECtHR provides a key case as to understanding the evolution of international law over the last half century. Providing a short overview of the evolution of the ECtHR, the introduction situates the book's individual chapters in respect to the book's overall objectives of answering the key questions related to what made the ECHR system develop in its particular fashion: what facilitated and impeded this process, and how this trajectory will impact on the future development of the Court in light of its current legitimacy crisis.Less
The introduction argues for including the study of the ECtHR in general scholarship on international judicial institutions. The ECtHR provides a key case as to understanding the evolution of international law over the last half century. Providing a short overview of the evolution of the ECtHR, the introduction situates the book's individual chapters in respect to the book's overall objectives of answering the key questions related to what made the ECHR system develop in its particular fashion: what facilitated and impeded this process, and how this trajectory will impact on the future development of the Court in light of its current legitimacy crisis.
Narendra Subramanian
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780804788786
- eISBN:
- 9780804790901
- Item type:
- book
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804788786.001.0001
- Subject:
- Law, Family Law
The distinct personal laws that govern the principal religious groups are a major aspect of Indian multiculturalism and secularism, and support specific gendered rights in family life. Nation and ...
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The distinct personal laws that govern the principal religious groups are a major aspect of Indian multiculturalism and secularism, and support specific gendered rights in family life. Nation and Family is the most comprehensive study of the public discourses, processes of social mobilization, legislation, and case law that formed India's three major personal-law systems, which govern the Hindus, the Muslims, and the Christians. It is the first to systematically compare Indian experiences to those in various other countries that inherited personal laws specific to religious group, sect, or ethnic group. Subramanian shows why India's postcolonial policy makers changed the personal laws they inherited less than the rulers of Turkey and Tunisia but far more than those of Algeria, Syria, and Lebanon, and increased women's rights, contrary to the trend in Pakistan, Iran, Sudan, and Nigeria since the 1970s. He demonstrates that discourses about the nation, its cultural groups, and its traditions interact with features of state-society relations and influence the pattern of multiculturalism, the place of religion in public life, and the forms of family regulation. The study shows that the greater engagement of political elites with initiatives among Hindus and the predominant place they gave Hindu motifs in nationalist discourses shaped Indian multiculturalism, secularism, and family law, contrary to current understandings. In exploring the significant role of communitarian discourses in shaping state-society relations, public policy, and legal institutions, it takes “state in society” approaches to comparative politics and political sociology in new directions.Less
The distinct personal laws that govern the principal religious groups are a major aspect of Indian multiculturalism and secularism, and support specific gendered rights in family life. Nation and Family is the most comprehensive study of the public discourses, processes of social mobilization, legislation, and case law that formed India's three major personal-law systems, which govern the Hindus, the Muslims, and the Christians. It is the first to systematically compare Indian experiences to those in various other countries that inherited personal laws specific to religious group, sect, or ethnic group. Subramanian shows why India's postcolonial policy makers changed the personal laws they inherited less than the rulers of Turkey and Tunisia but far more than those of Algeria, Syria, and Lebanon, and increased women's rights, contrary to the trend in Pakistan, Iran, Sudan, and Nigeria since the 1970s. He demonstrates that discourses about the nation, its cultural groups, and its traditions interact with features of state-society relations and influence the pattern of multiculturalism, the place of religion in public life, and the forms of family regulation. The study shows that the greater engagement of political elites with initiatives among Hindus and the predominant place they gave Hindu motifs in nationalist discourses shaped Indian multiculturalism, secularism, and family law, contrary to current understandings. In exploring the significant role of communitarian discourses in shaping state-society relations, public policy, and legal institutions, it takes “state in society” approaches to comparative politics and political sociology in new directions.
Mugambi Jouet
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780520293298
- eISBN:
- 9780520966468
- Item type:
- book
- Publisher:
- University of California Press
- DOI:
- 10.1525/california/9780520293298.001.0001
- Subject:
- Political Science, American Politics
Americans are far more divided than other Westerners over basic issues, including wealth inequality, health care, climate change, evolution, the literal truth of the Bible, apocalyptical prophecies, ...
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Americans are far more divided than other Westerners over basic issues, including wealth inequality, health care, climate change, evolution, the literal truth of the Bible, apocalyptical prophecies, gender roles, abortion, gay rights, sexual education, gun control, mass incarceration, the death penalty, torture, human rights, and war. The intense polarization of U.S. conservatives and liberals has become a key dimension of American exceptionalism—an idea widely misunderstood as American superiority. It is rather what makes America an exception, for better or worse. While exceptionalism once was largely a source of strength, it may now spell decline, as unique features of U.S. history, politics, law, culture, religion, and race relations foster grave conflicts and injustices. They also shed light on the peculiar ideological evolution of American conservatism, which long predated Trumpism. Anti-intellectualism, conspiracy-mongering, radical anti-governmentalism, and Christian fundamentalism are far more common in America than Europe, Canada, Australia, and New Zealand. Drawing inspiration from Alexis de Tocqueville, Mugambi Jouet explores American exceptionalism’s intriguing roots as a multicultural outsider-insider. Raised in Paris by a French mother and Kenyan father, he then lived throughout America, from the Bible Belt to New York, California, and beyond. His articles have notably been featured in The New Republic, Slate, The San Francisco Chronicle, The Huffington Post, and Le Monde. He teaches at Stanford Law School.Less
Americans are far more divided than other Westerners over basic issues, including wealth inequality, health care, climate change, evolution, the literal truth of the Bible, apocalyptical prophecies, gender roles, abortion, gay rights, sexual education, gun control, mass incarceration, the death penalty, torture, human rights, and war. The intense polarization of U.S. conservatives and liberals has become a key dimension of American exceptionalism—an idea widely misunderstood as American superiority. It is rather what makes America an exception, for better or worse. While exceptionalism once was largely a source of strength, it may now spell decline, as unique features of U.S. history, politics, law, culture, religion, and race relations foster grave conflicts and injustices. They also shed light on the peculiar ideological evolution of American conservatism, which long predated Trumpism. Anti-intellectualism, conspiracy-mongering, radical anti-governmentalism, and Christian fundamentalism are far more common in America than Europe, Canada, Australia, and New Zealand. Drawing inspiration from Alexis de Tocqueville, Mugambi Jouet explores American exceptionalism’s intriguing roots as a multicultural outsider-insider. Raised in Paris by a French mother and Kenyan father, he then lived throughout America, from the Bible Belt to New York, California, and beyond. His articles have notably been featured in The New Republic, Slate, The San Francisco Chronicle, The Huffington Post, and Le Monde. He teaches at Stanford Law School.
Rod Morgan
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9780199565955
- eISBN:
- 9780191701948
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565955.003.0004
- Subject:
- Law, Criminal Law and Criminology
This chapter extends the analysis in which David Downes and the author engaged in their joint essay on ‘law and order’ politics over three editions of the Oxford Handbook of Criminology. In doing so, ...
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This chapter extends the analysis in which David Downes and the author engaged in their joint essay on ‘law and order’ politics over three editions of the Oxford Handbook of Criminology. In doing so, it reflects on developments since the new millennium. It also suggests as the starting point Prime Minister Blair's pronouncement that the excesses to be laid at the door of the liberal 1960s are now to be tackled head on. This represents, it argues, the latest effort by New Labour finally to expel the Old Labour ‘skeletons in the cupboard’, as David and the author termed it, thereby preventing the Tories from recovering their traditional stronghold to the ‘law and order’ right of Labour. It is stated that the rules of the game have indeed changed, and are radically changing. The autumn 2005 ‘rules’ debate has of course been placed on a much more bitter argument about whether the 2003 invasion and subsequent occupation of Iraq was and is justified, and whether those events have made the world and Britain a more dangerous place.Less
This chapter extends the analysis in which David Downes and the author engaged in their joint essay on ‘law and order’ politics over three editions of the Oxford Handbook of Criminology. In doing so, it reflects on developments since the new millennium. It also suggests as the starting point Prime Minister Blair's pronouncement that the excesses to be laid at the door of the liberal 1960s are now to be tackled head on. This represents, it argues, the latest effort by New Labour finally to expel the Old Labour ‘skeletons in the cupboard’, as David and the author termed it, thereby preventing the Tories from recovering their traditional stronghold to the ‘law and order’ right of Labour. It is stated that the rules of the game have indeed changed, and are radically changing. The autumn 2005 ‘rules’ debate has of course been placed on a much more bitter argument about whether the 2003 invasion and subsequent occupation of Iraq was and is justified, and whether those events have made the world and Britain a more dangerous place.
Alan Brudner
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199592807
- eISBN:
- 9780191767944
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592807.003.0002
- Subject:
- Law, Constitutional and Administrative Law, Legal History
This chapter describes the “crisis of private law” to which the book’s argument responds. The crisis consists partly in the immersion of private in public law, partly in the bifurcation of ...
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This chapter describes the “crisis of private law” to which the book’s argument responds. The crisis consists partly in the immersion of private in public law, partly in the bifurcation of transactional law into right-based and good-centred legal paradigms. These frameworks compete inconclusively for control of transactional law and, standing in hostile opposition, seem to turn law’s rule into politics by other means. The chapter introduces the idea of dialogic community and suggests that the opposing paradigms of transactional law can be reconciled within it. It also suggests that dialogic community can reconcile a passive description of transactional law’s internal unity with a critical judgment of that unity, thereby avoiding an uncritical deference to transactional law’s special morality, on the one hand, and a reductive justification of that morality, on the other.Less
This chapter describes the “crisis of private law” to which the book’s argument responds. The crisis consists partly in the immersion of private in public law, partly in the bifurcation of transactional law into right-based and good-centred legal paradigms. These frameworks compete inconclusively for control of transactional law and, standing in hostile opposition, seem to turn law’s rule into politics by other means. The chapter introduces the idea of dialogic community and suggests that the opposing paradigms of transactional law can be reconciled within it. It also suggests that dialogic community can reconcile a passive description of transactional law’s internal unity with a critical judgment of that unity, thereby avoiding an uncritical deference to transactional law’s special morality, on the one hand, and a reductive justification of that morality, on the other.
Timothy Macklem
- Published in print:
- 2015
- Published Online:
- April 2015
- ISBN:
- 9780198735816
- eISBN:
- 9780191799785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198735816.003.0005
- Subject:
- Law, Philosophy of Law
The roles played by reason, will, and imagination in securing the operation of law vary from legal domain to legal domain. Occasionally, as in certain rules of the road, the very presence of law ...
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The roles played by reason, will, and imagination in securing the operation of law vary from legal domain to legal domain. Occasionally, as in certain rules of the road, the very presence of law renders rival courses of action rationally ineligible. More often, as in the case of crimes such as theft, there may well be good reason to do other than the law requires, and enforcement must accordingly be invoked. However, force is rarely sufficient and often inapt. It requires the support of social and political imagination. What is more, these exercises of imagination have a special role to play in the project of creating a life in common in circumstances of diversity. Only through them is it possible to shape attitudes as well as actions. This chapter explores the mechanisms and the politics of imaginative appeals, judicial and legislative; what they make possible; and what price they exact.Less
The roles played by reason, will, and imagination in securing the operation of law vary from legal domain to legal domain. Occasionally, as in certain rules of the road, the very presence of law renders rival courses of action rationally ineligible. More often, as in the case of crimes such as theft, there may well be good reason to do other than the law requires, and enforcement must accordingly be invoked. However, force is rarely sufficient and often inapt. It requires the support of social and political imagination. What is more, these exercises of imagination have a special role to play in the project of creating a life in common in circumstances of diversity. Only through them is it possible to shape attitudes as well as actions. This chapter explores the mechanisms and the politics of imaginative appeals, judicial and legislative; what they make possible; and what price they exact.
James B. Jacobs
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780195176582
- eISBN:
- 9780199850020
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195176582.003.0004
- Subject:
- Law, Criminal Law and Criminology
This chapter analyzes the politics that led to the passage of the Brady Law. It assays the politics of the Brady Law, illuminating the time, effort, and political circumstances required to pass even ...
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This chapter analyzes the politics that led to the passage of the Brady Law. It assays the politics of the Brady Law, illuminating the time, effort, and political circumstances required to pass even modest federal gun control legislation. On the one hand, the Brady Law could be cited for the proposition that reasonable, albeit modest, federal gun control is politically possible. On the other hand, the tortuous road that the Brady Law's proponents had to traverse and the negative political fallout for the Democrats could be cited for the proposition that passage of even modest gun control takes monumental effort plus luck and imposes heavy political costs.Less
This chapter analyzes the politics that led to the passage of the Brady Law. It assays the politics of the Brady Law, illuminating the time, effort, and political circumstances required to pass even modest federal gun control legislation. On the one hand, the Brady Law could be cited for the proposition that reasonable, albeit modest, federal gun control is politically possible. On the other hand, the tortuous road that the Brady Law's proponents had to traverse and the negative political fallout for the Democrats could be cited for the proposition that passage of even modest gun control takes monumental effort plus luck and imposes heavy political costs.
Mark A. Graber
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199943883
- eISBN:
- 9780199369799
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199943883.003.0001
- Subject:
- Law, Constitutional and Administrative Law
Constitutionalism is more than the study of constitutional law or constitutional interpretation. Students, teachers, citizens, and even legal practitioners must consider a broader range of questions ...
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Constitutionalism is more than the study of constitutional law or constitutional interpretation. Students, teachers, citizens, and even legal practitioners must consider a broader range of questions when thinking about the actual and desirable impact of constitutionalism in the United States: What is a constitution? What purposes do constitutions serve? How should constitutions be interpreted? How should constitutional disputes be resolved? How are constitutions, ratified, changed, and repudiated? What are the universal and distinctive features of a constitution? How do constitutions work? What is the relationship between constitutional decision-making and ordinary politics? The study of constitutionalism also requires an understanding of basic constitutional design. The study of American constitutionalism, by comparison, largely takes the constitutional design of 1787 for granted and explores questions raised by the construction of that particular regime.Less
Constitutionalism is more than the study of constitutional law or constitutional interpretation. Students, teachers, citizens, and even legal practitioners must consider a broader range of questions when thinking about the actual and desirable impact of constitutionalism in the United States: What is a constitution? What purposes do constitutions serve? How should constitutions be interpreted? How should constitutional disputes be resolved? How are constitutions, ratified, changed, and repudiated? What are the universal and distinctive features of a constitution? How do constitutions work? What is the relationship between constitutional decision-making and ordinary politics? The study of constitutionalism also requires an understanding of basic constitutional design. The study of American constitutionalism, by comparison, largely takes the constitutional design of 1787 for granted and explores questions raised by the construction of that particular regime.
Andrea Bianchi
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780198725114
- eISBN:
- 9780191792533
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198725114.003.0007
- Subject:
- Law, Public International Law, Philosophy of Law
The chapter addresses the origins of the Critical Legal Studies movement with a view to reconstructing the conditions for its emergence as a movement of radical reform. The marked political character ...
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The chapter addresses the origins of the Critical Legal Studies movement with a view to reconstructing the conditions for its emergence as a movement of radical reform. The marked political character of the law, and its unavoidable indeterminacy, are some of the recurrent themes of the movement that have been later imported into international law by a ‘New Stream’ of international law scholars. The questions discussed include: What are the consequences of the indeterminacy thesis? Are there limits to a deconstructivist approach? What is the audience addressed by this particular strand of scholarship? Can a critical project be at the core of a discipline and be turned into its very identity? Issues of style and a certain tendency by its adherents to be self-referential and use cryptic language are also examined. Finally, the impact of critical theory on the self-image of the profession of international lawyers is highlighted.Less
The chapter addresses the origins of the Critical Legal Studies movement with a view to reconstructing the conditions for its emergence as a movement of radical reform. The marked political character of the law, and its unavoidable indeterminacy, are some of the recurrent themes of the movement that have been later imported into international law by a ‘New Stream’ of international law scholars. The questions discussed include: What are the consequences of the indeterminacy thesis? Are there limits to a deconstructivist approach? What is the audience addressed by this particular strand of scholarship? Can a critical project be at the core of a discipline and be turned into its very identity? Issues of style and a certain tendency by its adherents to be self-referential and use cryptic language are also examined. Finally, the impact of critical theory on the self-image of the profession of international lawyers is highlighted.
