Property Offences as Crimes of Injustice

The article provides an outline of the basic principles and conditions of criminalisation of interferences with others’ property rights in the context of a specific context: a liberal, social democratic state, the legitimacy of which depends primarily on its impartiality between moral doctrines and the fair distribution of liberties and resources. I begin by giving a brief outline of the conditions of political legitimacy, the place of property and the conditions of criminalisation in such a state. With that framework in place, I argue that interferences with others’ property rights should be viewed as violations of political duties stemming from institutions of distribution. I then discuss three implications of this view: the bearing of social injustice on the criminal law treatment of acts of distributive injustice; the expansion of criminalisation over the violation of distribution-related duties, which are considered criminally irrelevant under moral conceptions of criminalisation; and, finally, the normative significance of the modus operandi.     

Proprietary Estoppel and Responsibility for Omissions

The ‘acquiescence’ category of proprietary estoppel is a rare example of responsibility for pure omissions in private law. On liberal‐individualistic theories of ownership, the policy considerations against liability for nondoing are exceptionally powerful in the context of rights over land. Nevertheless, I argue that in proprietary estoppel the law is justified in imposing a duty on the right‐holder to alert a stranger when his actions are based on a mistake. Owners of property rights are under what Honoré termed a ‘special duty’ to contribute to the social good of efficient market for land by publicising their rights. This ‘duty to speak’ is however relatively weak and cannot completely suppress considerations against liability for omission. While liability in the acquiescence category can be justified in principle, the current law, in which owners who failed to correct the mistake of the relying party incur similar liability to owners who actively encouraged the other party to rely, is untenable.     

Medical and Familial Claims to Long‐Term Care: Institutional Gaps and Shifting Jurisdictions

In light of the contemporary long‐term care crisis, Sandra Levitsky's book Caring for Our Own examines why there has been no movement to secure state support for caregivers. Speaking to sociolegal and social movement audiences, Levitsky reveals how lack of collective identity, the power of family‐based ideologies, and the separation of support organizations from political ones help to repress mobilization. In this essay I refract Levitsky's findings through the lens of organizational theory and medical sociology. I argue that the social problem of long‐term care is caught in an institutional gap since it does not readily fall under the purview of either medicine or family. I also discuss the implications of lay caregivers' provision of sophisticated medical care for theories of professional jurisdictions and gatekeeping.     

The Political Rights of Anti-Liberal-Democratic Groups

The purpose of this paper is to consider whether it is permissible for a liberal democratic state to deny anti-liberal-democratic citizens and groups the right to run for parliament. My answer to this question is twofold. On the one hand, I will argue that it is, in principle, permissible for liberal democratic states to deny anti-liberal-democratic citizens and groups the right to run for parliament. On the other hand, I will argue that it is rarely wise (or prudent) for ripe democracies to exclude anti-liberal-democrats from parliamentary elections. There are at least two reasons for this. The first is related to the inherent stability of just institutions. The second is that exclusion can lead to group polarization and enclave deliberation that can engender political extremism and impair processes of interpersonal and intrapersonal deliberation in liberal democracies.     

Nozick’s Reply to the Anarchist

Central to Nozick’s Anarchy, State and Utopia is a defense of the legitimacy of the minimal state’s use of coercion against anarchist objections. Individuals acting within their natural rights can establish the state without committing wrongdoing against those who disagree. Nozick attempts to show that even with a natural executive right, individuals need not actually consent to incur political obligations. Nozick’s argument relies on an account of compensation to remedy the infringement of the non-consenters’ procedural rights. Compensation, however, cannot remedy the infringement, for either it is superfluous to Nozick’s account of procedural rights, or it is made to play a role inconsistent with Nozick’s liberal voluntarist commitments. Nevertheless, Nozick’s account of procedural rights contains clues for how to solve the problem. Since procedural rights are incompatible with a natural executive right, Nozickeans can argue that only the state can enforce individuals’ rights without wronging anyone, thus refuting the anarchist.     

Coercion and Contract at the Margins: Deportable Labor and the Laws of Employment Termination Under US Capitalism (1942–2015)

In 1917, Congress created the status of temporary labor migrant. A new kind of restricted worker born from nineteenth‐century free labor politics, employer and citizen worker demands under modern liberal capitalism, and state labor market regulation, temporary migrants have always had an employer‐dependent legal status and been subject to deportation. Yet, since 1942, changing rights and legal processes have governed migrant employment termination across sectors. By drawing on employment cases from archival and unpublished files made available to me under FOIA, and court decisions, I compare the impact of laws of employment termination on deportable laborers beginning in 1942, when government agencies planned migration, and under privatized migration after 1964. From agriculture and war to today's service and knowledge economies, I demonstrate how employment rights have always shaped deportable workers' legal status. Yet, I also show how today's rights and legal processes, in contrast to the past, hardly mitigate employer control over migrants under contemporary capitalism.     

Institutional and Political Sources of Legislative Change: Explaining How Private Organizations Influence the Form and Content of Consumer Protection Legislation

This article explores how private organizations influence the content and meaning of consumer protection legislation. I examine why California forced consumers to use a private dispute resolution system that affords consumers fewer rights, while Vermont adopted a state‐run disputing structure that affords consumers greater rights. Drawing from historical and new institutional theories, I analyze twenty‐five years of legislative history, as well as interviews with drafters of the California and Vermont laws, to show how automobile manufacturers weakened the impact of a powerful California consumer warranty law by creating dispute resolution venues. As these structures became institutionalized in the lemon law field, manufacturers reshaped the meaning of legislation. Unlike California, the political alliances in Vermont and a different developmental path led to a state‐run dispute resolution structure. I conclude that how social reform laws are designed and how businesses influence social reform legislation can increase or decrease the achievement of a statute's social reform goals.     

Plaidoyer for a Social Europe

‘It is with great sadness that his many friends learned of the passing of Fernando Vasquez, on 16 July 2020, in Porto. I met Fernando Vasquez some thirty years ago, at a time when, together with Jean‐Jacques Paris, another friend who recently passed away, and under the direction of Odile Quintin in DG V of the European Commission, he was working on building a Social Europe. That was before the European Union failed as a post‐liberal orthodoxy, driving along all Member States, in a race to the lowest social and fiscal bidder. As Frédéric Turlan reminds us, in a tribute published in the recent issue of Liaisons sociales Europe, n. 502, 23 July‐2 September 2020, Fernando Vasquez witnessed with lucidity this backsliding which has heavily contributed to the current disconnection between citizens and the European project, but it did not prevent him from relentlessly striving for more justice in the European Union. These efforts, his diagnosis, without complacency, of the current state of the Union and his most recent suggestions for ensuring both social and economic convergence under the aegis of solidarity, are retraced in his contribution to the Conference ‘Revisiting solidarity in Europe’, which was held on 18 and 19 June 2018 at the Collège de France in Paris. To honour his memory and as a testament to his commitment to a certain idea(l) of Europe, one which is true to its principles of democracy and social justice, here is the text of his contribution, a call, and his last plaidoyer, for a social Europe.’ Alain Supiot, Emeritus Professor at the Collège de France in Paris.     

Liberal Neutrality Or Liberal Tolerance?

This paper explores tensions in Ronald Dworkin's liberal theory (and liberalism more generally) about the appropriate relationship of the state to the different conceptions of the good that may be adopted by its citizens. Liberal theory generally supposes that the state must exhibit a kind of impartiality to different conceptions of the good. This impartiality is often thought to be captured by an anti-perfectionist ideal of liberal neutrality. But neutrality is often criticized as an ideal that lacks adequate theoretical support and is difficult to reconcile with liberalism's commitment to government support of various elements of a community's culture. Nonetheless, Dworkin has tried to explain systematically how his egalitarian brand of liberalism can explain the appropriateness of a particular variety of neutrality. I argue, however, that Dworkin's account of the relationship between liberalism and the good is ambiguous. I suggest that an ideal of tolerance which embraces a mild form of perfectionism fits better with the egalitarian foundations of Dworkin's liberalism than neutrality. Moreover, tolerance is an ideal through which familiar tensions about the liberal state's relationship to the good may be resolved.     

Liberalism and Its Other: The Politics of Primitivism in Colonial and Postcolonial Indian Law

Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous individuals. Yet, in both colonial and postcolonial contexts, liberal theorists and lawmakers have struggled to defend the rights and freedoms of political subjects whom they regard as “primitive,” “backward,” or “indigenous.” Liberalism thus recurrently encounters its primitive other, a face‐off that gives rise to a peculiar set of dilemmas and contradictions for political theory and law. In what ways can postcolonial law rid itself of its colonial baggage? How can the ideal of universal liberal citizenship overcome paternalistic notions of protection? How might “primitive” subjects become full and equal citizens in postcolonial societies? To explore these dilemmas and contradictions, I study the intellectual trajectory of “primitivism” in India from the construction of so‐called tribal areas in the 1870s to legal debates and official reports on tribal rights in contemporary India. Through a close reading of these legal provisions for tribal peoples and places, I explore the continuing tension between the constitutional ideal of liberal citizenship and the disturbing reality of tribal subjecthood produced by colonial and postcolonial Indian states.     

After the Critique of Rights: For a Radical Democratic Theory and Practice of Human Rights

The critique of human rights has proliferated in critical legal thinking over recent years, making it clear that we can no longer uncritically approach human rights in their liberal form. In this article I assert that after the critique of rights one way human rights may be productively re-engaged in radical politics is by drawing from the radical democratic tradition. Radical democratic thought provides plausible resources to rework the shortcomings of liberal human rights, and allows human rights to be brought within the purview of a wider political project adopting a critical approach to current relations of power. Building upon previous re-engagements with rights using radical democratic thought, I return to the work of Ernesto Laclau and Chantal Mouffe to explore how human rights may be thought as an antagonistic hegemonic activity within a critical relation to power, a concept which is fundamentally futural, and may emerge as one site for work towards radical and plural democracy. I also assert, via Judith Butler’s model of cultural translation, that a radical democratic practice of human rights may be advanced which resonates with and builds upon already existing activism, thereby holding possibilities to persuade those who remain sceptical as to radical re-engagements with rights.     

Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics

Why are liberal rights and Islamic law understood in binary and exclusivist terms at some moments, but not others? In this study, I trace when, why, and how an Islamic law versus liberal rights binary emerged in Malaysian political discourse and popular legal consciousness. I find that Malaysian legal institutions were hardwired to produce vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. By tracing the development of this spectacle in the courtroom and beyond, I show how the dueling binaries of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion were contingent on institutional design and political agency, rather than irreconcilable tensions between liberal rights and the Islamic legal tradition in some intrinsic sense. More broadly, the research contributes to our understanding of how popular legal consciousness is shaped by legal mobilization and countermobilization beyond the court of law.     

宽容意识与权利话语的逻辑转向

无论是在实践层面,还是在理论层面,宽容意识与权利话语都存在着一定的关联性。然而,现代的权利话语强调的乃是"主客二元对立"的"主体性逻辑"以及受此逻辑支配的斗争逻辑,从而在一定程度上背离了宽容意识。因此,要想让权利话语重新与宽容意识保持内在的一致性,就不得不消解权利话语的"斗争逻辑",确立以宽容意识为核心的主体间性立场。     

论受教育权的可诉性及其程度

受教育权的可诉性及其程度受到两个层次的理论和实践的深刻影响,一是国际法关于自由权和社会权的划分,二是国内法关于宪法权利和法律权利的区分。受教育权作为宪法权利,在自由权层面及形式平等方面具有直接的法律效力,具有可诉性;但在社会权层面,只有义务教育阶段的入学升学权和免费就学权具有可诉性。受教育权作为法律权利,其可诉性程度大大提高。平等主体之间的受教育权纠纷可由双方提起民事诉讼予以解决;但行政相对人向行政主体提起的行政诉讼则同样受到被侵害的受教育权性质的影响。     

Through the Back Door: Applying Theories of Legal Compliance to Illegal Immigration During the Chinese Exclusion Era

This article applies theories of legal compliance to analyze the making of this country's first “illegal immigrants”—Chinese laborers who crossed the U.S.‐Canadian and U.S.‐Mexican borders in defiance of the Chinese exclusion laws (1882–1943). Drawing upon a variety of sources, including unpublished government records, I explore the ways in which Chinese laborers gained surreptitious entry into the United States during this period and ask, what explains their mass noncompliance? I suggest that while an instrumental perspective is useful for understanding these border crossings, it overlooks other important determinants of noncompliance: normative values and opportunity structures. Specifically, the exclusion laws were widely perceived by the Chinese as lacking social and moral legitimacy, and thus not worthy of obedience. In addition, the existence of smuggling networks and liberal immigration policies in Canada and Mexico played a critical role in facilitating noncompliance. The article concludes with a discussion about the benefits and challenges of using this theoretical framework to analyze noncompliance in immigration law.     

The prohibition to abuse one's human rights: A theory

Supporters of communism, national socialism and radical Islamism, but also people who incite racial hatred or deny the Holocaust, see their rights severely curtailed by the abuse clause of Article 17 of the European Convention on Human Rights. To make sense of this provision, this paper first introduces the distinction between abusable and non‐abusable rights in order to delimit the scope of Article 17. Then, this paper suggests a “test” to spot instances of abuse of human rights by borrowing the concept of performative self‐contradiction from speech act theory. Article 17 is reconceptualised as dealing with conduct that self‐contradictorily uses rights but simultaneously denies their very idea. In this way, it becomes possible to make sense of and to unify the disparate case law that Article 17 has generated so far: it equally targets political human rights abuse, attacking liberal democracy in general; and exclusionary human rights abuse, attacking the rights of other people.     

Cultural Minority Rights and the Rights of the Majority in the Liberal State

Traditional liberalism's blindness to cultural concerns has often come under fire, while so-called “liberal multiculturalism” (Taylor and Kymlicka) has made it its business to take a good look at the place of culture within liberal law. According to them, cultural minorities should be recognized. In my opinion, however, their proposals, in fact, almost entirely preclude the possibility that cultural minorities would receive recognition within liberal society. In what follows, I explain my view of these matters and, above all, argue for a more vital understanding of cultural minorities. This will entail presenting a comprehensive view of minority rights within liberal society.     

Critical Legal Theory’s Turn to Schmitt: Not Waving but Drowning?

I examine the current enthusiasm among some academics, whom I shall broadly refer to as critical legal theorists (CLT), for the work of Carl Schmitt which has at times been accompanied by disenchantment with Emmanuel Levinas’s ethical insights. I examine the reasons for this turn to Schmitt which I attribute to the sensitivity of CL theorists to the complaint that an over-reliance on Levinas leads to a disengaged and irrelevant discourse. I contrast their antithetical approaches through their conceptions of the Other (which in Schmitt’s case is developed through his friend and enemy distinction) and explain how, together with state of exception theory; it has appeared to some CL theorists to offer a platform for exposing the liberal democratic attempt to export human rights as a violent imperialising mission. I argue that Schmitt’s thinking represents an intellectual cul-de-sac and that Levinas continues to offer a more rewarding model of critique.