‘A Very Uncommon Case’: Representations of the Zong and the British Campaign to Abolish the Slave Trade

This paper examines the representation of the case of the Zong within the British campaign to abolish the slave trade. It traces the ways in which the case produced an iconic narrative for the movement by paying particular attention to Granville Sharp's original accounting of the event, and then to the ways in which the latter was transformed in key abolition propaganda documents. It is argued that the legal implications of the trial fell away as the Zong was appropriated, and mythologised, in its adaptation to the abolitionists' agenda.     

Insurance Litigation Involving the Zong and Other British Slave Ships, 1780–1807

The infamous Zong case played an instrumental part in the abolition movement of the late eighteenth and early nineteenth centuries, and it is well known to historians of the slave trade. Not so well known, however, are the characteristics and practices of insuring slave cargo. Also the full story of the Zong incident and the subsequent litigation in the court of King's Bench has never been told. This article first explains the manner in which the standard Lloyd's marine insurance policy was understood by ship owners and merchants. Special adaptations for slave cargo are then examined, such as the circumstances in which the loss of slave cargo would not be covered because not due to ‘perils of the sea’, and exclusions for slave insurrections. Finally, the Zong case itself is explored, as enlarged by scarce and newly-discovered documentary sources. Two surprises emerge: that the words used in the printed Lloyd's marine insurance policy did not necessarily mean what they said; and that the legal strategy employed in the court of King's Bench on behalf of the owners was seriously flawed.     

Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one‐right‐answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory.     

The Special Case Thesis. An Assessment of R. Alexy's Discursive Theory of Law

Legal Argumentation Theories seek mainly to develop procedures, criteria and principles which can guarantee a proper justification of legal propositions within modern legal systems. In doing this, those theories solicit in general an interconnection between practical reasoning and legal reasoning. This paper refers mainly to what seems currently to be the most elaborate theory of legal argumentation, that is R. Alexy's Theorie der juristischen Argumentation. Although the discussion is mainly concentrated on critical points of R. Alexy's theory, this paper's scope is slightly broader; it attempts to present an overall view of the current discursive theory of law. This is mainly performed through the critical examination of R. Alexy's Special Case Thesis, which seems to raise a handful of counter arguments on behalf of the other proponents of Legal Argumentation. In the first part the special case thesis is presented, as well as the main objections to it. In the second part the validity of the special case thesis is checked against K. Günther's model of practical discourse, which proves to be more elaborate in certain points, when compared with the corresponding model of R. Alexy. In the third part it is shown that the special case thesis can be accepted consistently only if it is combined with a normative theory of law that advocates the interconnection of the concept of law with the idea of right morality. It is further suggested that legal discourse has to be perceived as a special case of a broader moral-political discourse that “explains” or “justifies” (morally) the various restrictions that the positive legal systems impose on the legal discourse.     

Jurist in Context: William Twining in Conversation with David Sugarman

This discussion derives from extended conversations between William Twining and David Sugarman in which William talks about his latest book, Jurist in Context: A Memoir (JIC). JIC recounts the development of William's thoughts and writings, addressing topics central to his life and research. The dialogue conveys and extends the arguments on a selection of the topics addressed in the book, engaging with issues of particular interest to readers of this journal. Here, William adds a more personal commentary to his formal publications. The conversation facilitates reflection on issues such as law teaching and legal scholarship; the meaning, use, and limitations of ‘law in context’; and the role and character of jurisprudence. It also offers a fascinating window on the development of, and the struggles surrounding, legal education and academic legal thought over the second half of the twentieth century and the early part of the twenty-first.     

Thomas Craig’s Aetiology of Law and Society: Literary Dependence and Independence in the Jus Feudale

While Craig's relationship to, and emergence from, the French legal humanist tradition has always been widely recognized, this paper constitutes a deeper analysis of the specific threads connecting Craig to the humanist literature of the sixteenth century. It examines the first chapter to the Jus feudale and, by studying Craig's aetiology of law and society, assesses the literary and cultural influences on his historiographical product. It demonstrates that Craig's understanding of the earliest human society and of law's evolution was highly dependent on continental humanist literature and, above all, on the writings of Jean Bodin. Yet it also shows that Craig was capable of independent thought and rigorous critical analysis of sources. The article examines Craig's relationship to the writings of his fellow Scot and humanist, George Buchanan, whose De jure regni apud Scotos constitutes a vital intertextual frame for many aspects of Craig's thought, particularly as it relates to sovereignty, monarchy and the limits of royal power. Moreover, it will be seen that the first chapter, though seemingly an antiquarian digression, actually reflects Craig's thoughts on many significant political issues that were current in Scotland at the time he was writing.     

The Zong in the Context of the Eighteenth-Century Slave Trade

This contribution places the Zong tragedy in the wider context of the eighteenth-century Atlantic slave trade, a global business venture which from 1750 to 1807 was dominated by British ships. Evidence for ‘jettison’ within the British slave trade is examined, and the uniqueness of this aspect of the Zong case is emphasised. Attention is given to the role of the Zong hearings of 1783 in bringing together individuals who would go on to play a leading role in the British anti-slavery movement, established in 1787. Finally, this article examines the impact of the Zong incident upon eighteenth-century maritime insurance law relating to ‘human cargoes’, and on the passage of the ‘Dolben Act’ (the first Act to regulate British slave shipping) in 1788.     

Seeking Shelter in Personal Insolvency Law: Recession,Eviction, and Bankruptcy's Social Safety Net

Many legal systems understand consumer insolvency laws as social insurance, providing relief and a ‘fresh start’ to over‐indebted households who fall through gaps in the social safety net. Personal insolvency law in England and Wales in practice functions similarly, but in terms of legal principle and policy is ambivalent – sometimes emphasizing household debt relief, other times creditor wealth maximization. This article assesses, in the context of novel debt problems brought to prominence by recession and austerity, the extent to which the law has embraced personal insolvency's social insurance function. The discussion is framed particularly by the escalating United Kingdom housing crisis and the case of Places for People v. Sharples concerning consumer bankruptcy's (non)protection of debtors from eviction. The analysis illustrates how tensions between conceptual understandings and personal insolvency law's practical operation undermine the law's ability to fulfil its potential to produce positive policy responses to contemporary socio‐economic challenges.     

‘We are Jamaicans:’ living with and challenging the criminalization of homosexuality in Jamaica

Today, some 80 countries around the world have legislation criminalizing homosexuality, while those who engage in same-sex relations risk mob violence resulting from cultural intolerance. Despite this, gay rights advocacy within these countries exists. This paper examines gay rights advocacy in Jamaica – a nation which criminalizes same-sex relations and which has been identified by observers as among the most intolerant of same-sex relations. Using interviews with gay rights activists working with Jamaica’s leading gay rights organization, this paper describes the gay rights movement in a climate of repression. It begins with an overview of Jamaican sexual values, tracing its condemnation of homosexuality to a history of plantation slavery. Next, it discusses the emergence of a gay pride movement and the development of a broad-based association for all sexual orientations and identities. Finally, it examines the advocacy and activism of the Jamaican Forum for Lesbians, All-Sexuals, and Gays, a voice for Jamaica’s lesbian, gay, bisexual, and transgendered community. Throughout, the paper reveals how even an oppressed identity may find a voice and thrive despite the greatest of legal and cultural challenges.     

The Weak Reading of Authority in Hans Kelsen's Pure Theory of Law

Authority qua empowerment is theweak reading of authority in Hans Kelsen's writings.On the one hand, this reading appears to beunresponsive to the problem of authority as we know itfrom the tradition. On the other hand, it squares withlegal positivism. Is Kelsen a legal positivist?Not without qualification. For he defends anormativity thesis along with the separation thesis,and it is at any rate arguable that the normativitythesis mandates a stronger reading of authority thanthat modelled on empowerment. I offer, in the paper,a prima facie case on behalf of a stronger reading ofauthority in Kelsen. I go on to argue, however, thatthe textual evidence weighs heavily in favour of theweak reading. Both nomostatics and nomodynamics arepervasive points of view in the Pure Theory of Law,and both reflect species of empowerment as theendpoint of Kelsen's reconstructions.

     

Mos Geometricus and the Common Law Mind: Interrogating Contract Theory

Euclidian theories have it that there exist one or a small number of apex principles from which the entire fasciculus of rules of contract law can be logically deduced. Two arguments are marshalled against the Euclidian project. First, that it has been unsuccessfully attempted before – in the form of the nineteenth century contract law treatise which emulated the civil lawyer's rationalistic model, mos geometricus – cautioning us against setting much store by its present reincarnation. Second, that the common law's methodology makes it resistant to this form of theorising. Euclidian theory presupposes a picture of rules on which: a) cases involve an application of logically prior rules; b) rules are reliably identifiable by different actors in the legal system; and c) rules normatively range over an indefinite spectrum of future cases. It will be argued that the common law defies this picture of rules thus rendering Euclidian theory analytically impossible.     

The “Central Meaning” and Path Dependence: The Madison-Meiklejohn-Brennan Nexus

Justice William J. Brennan's opinion in New York Times Co. v. Sullivan is widely recognized for many reasons, including, as articulated by Professor Harry Kalven, that it put “the First Amendment right side up for the first time” by identifying its “central meaning.” That meaning is the constitutional protection of speech critical of government and its officials – speech vital in a self-governing democracy. Justice Brennan's approach was derived, in part, from the writings of James Madison, to whom the justice refers generously throughout the opinion, and Alexander Meiklejohn, to whom Justice Brennan gave credit only after the fact. This article examines the philosophical lineage from Madison to Meiklejohn to Brennan, and does so through the lens of path dependence, a perspective that advocates that history matters. A critique of path dependence emerges.     

Legislative Intentions and Counterfactu-als: Or,What One Can Still Learn from Dworkin's Critique of Legal Positivism

Riggs v. Palmer has become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue in Riggs was given by the counterfactual intention of the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More generally, what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light.     

War and International Order in Kant's Legal Thought“*

Abstract. Kant's writings on international law and especially his Toward Perpetual Peace have been interpreted both in a “statist” and a “cosmopolitan” manner. In this article it is argued that these interpretations stem from an ambiguity in those writings. In the course of proposing a resolution of this ambiguity, the first question to be examined is the extent to which war forms a part of human history and of human nature. Secondly, Kant's arguments against the realistic position and the conditions for a lasting peace are presented. An interpretation is then offered both of the proposed league of nations and of the situation that exists when such a league is still absent. According to the interpretation offered here, Kant's writings fit partly within the tradition of the “just war.”¹     

Islamic Law in Action: A Historical Discussion

This review essay engages Kristen Stilt's recent book, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (2011), in a fashion that highlights its contributions to the study of Islamic law. In particular, it underlines the methodological arguments made in the book that might help us think about Islamic legal practice in sophisticated and historically grounded ways. As elaborated in the article, these arguments have important implications for modern as well historical settings. Specifically, Stilt's discussion of “Islamic law in action” reveals the inherent flexibility of Islamic legal practice to accommodate political change. The article also discusses how further research on the topic could benefit from specific approaches and orientations.     

Thinking like a lawyer/acting like a professional: communities of practice as a means of challenging orthodox legal education

Increasingly, there is pressure upon law schools, in Australia and elsewhere, to impress upon students the significance of the ethical and professional obligations of legal practice. The recent Carnegie Report explicitly looked to law schools “to initiate novice practitioners to think, to perform, and to conduct themselves (that is, to act morally and ethically) like professionals”. Many law students, however, have little appreciation of legal ethics and any concept they may have of professionalism tends to be envisaged as applying only after graduation. In this paper, we explore the idea of a “community of practice”. Lave and Wenger, who coined the phrase, contend that “learning is conceived as a trajectory in which learners move from legitimate peripheral participant to core participant of the community of practice”. We will argue that law students should appreciate that they are entering the legal profession's community of practice and that all aspects of their conduct relevant to professionalism – not only academic integrity, but matters such as time management, teamwork, relationships with peers and staff – relate to this transition into a legal professional community. Such an approach may not only serve to impress upon students the significance of “professionalism” and ethics, but inculcate in them a sense of belonging to a professional community.     

‘Multicolored’ green criminology and climate change’s achromatopsia

While green criminology may be an effective name or label for the sub-field or perspective within criminology that considers a wide range of environmental issues, it is, in reality, a ‘multicolored green’ – a criminology that engages a spectrum of issues, that reflects the interests of some racial groups more than others, that reveals and analyzes environmental harms which disproportionately impact some racial groups more than others, and that can be approached from a number of vantage points or that can be viewed with variously tinted lenses. This article begins with an overview of climate change, including a discussion of its anticipated impacts and indicators of its already-being-felt effects. It then offers some general comments on the disproportionate impact of environmental threats and harms before turning to a discussion of the present and anticipated distributional impacts of climate change. Here, this article argues that climate change is, in effect, achromatopsic – it is color-blind, in that it affects us all regardless of skin color – but that those impacts will be distributed unevenly/unequally and that various groups are and will continue to be in different positions to adapt to climate change. This article concludes by suggesting that while the environmental harms caused by climate change are real – and the risks and threats they pose tangible and serious – climate change presents an exciting challenge for our creative potential as humans. In the process of reducing our consumption of fossil fuels and stabilizing (or, better yet, reducing) our greenhouse gas emissions, we might better assist those geopolitical regions most at risk (i.e. poor, developing countries) to become more resilient – an approach that is necessary for both the physical health of the planet and the prospects for social justice.     

HOFSTRA'S FAMILY LAW WITH SKILLS COURSE: IMPLEMENTING FLER (THE FAMILY LAW EDUCATION REFORM PROJECT)

The Family Law Education Reform Project (FLER) Final Report documented that the current doctrinally oriented family law curriculum at most law schools does not adequately prepare students for modern family law practice. FLER recommended that law school courses move from the study of cases to the study of the legal system's effect on families, and integrate the study of alternative dispute resolution and interdisciplinary knowledge. In response, Hofstra Law School has made a comprehensive attempt to implement FLER's curricular recommendations. This article discusses one major innovation – the Family Law with Skills course. Family Law with Skills is the basic course in Hofstra's revised curriculum and is designed to integrate doctrinal teaching with professional skills development. In addition to studying legal doctrine, students are required to engage in structured field observation of family court proceedings; interviewing, counseling, negotiation, and mediation representation exercises in a divorce dispute; direct and cross examination of a social worker in a child protection dispute; and drafting of a surrogacy agreement. The article describes each exercise and discusses its rationale, student reaction to the course, and lessons learned.     

Postmodern Jurisprudence: Contesting Genres

It has become a common place of contemporary legal theory, particularly postmodernist legal theory, to reject modernist jurisprudence’s assumption of law’s disciplinary autonomy. Within this enthusiasm for interdisciplinary approaches to law, what is less common is detailed analysis of precisely how interdisciplinarity is figured, rhetorically and epistemologically, in the discourse of contemporary legal theory. It is with a view to detailed analysis of this kind that this paper emerges. Its aim is to explore in detail how interdisciplinarity might be figured, and with what consequences, in the jurisprudence of postmodernity. The particular site of this exploration will be Costas Douzinas and Ronnie Warrington with Shaun McVeigh’s Postmodern Jurisprudence: the Law of Text in the Texts of law. Published in 1991, this text remains widely influential – it has become a contemporary classic in its genre. It is not the intention of this paper, however, to represent this text as exemplary. Rather, this paper intends to read this text in its particularity, to focus on its particular vision of postmodern jurisprudence. Specifically, this paper argues that Postmodern Jurisprudence figures interdisciplinarity in terms of genre; and that this understanding of interdisciplinarity is problematised by the unacknowledged contradictions between the different conceptions of genre – one associated with Jacques Derrida and the other associated with Jean-François Lyotard – which the text invokes. This paper argues that the project of postmodern jurisprudence – as title and as label – appears rather differently if it is imagined, on the one hand (following Derrida) according to the logic of the passe-partout and, on the other hand (following Lyotard), according to the logic of the differend. The paper concludes that this internal tension should at least give us pause for thought when approaching the complex phenomenon of interdisciplinarity in postmodern legal scholarship more generally.