Beyond the Law?: The Justice of Deconstruction

This paper offers a close reading of Derridas essay Force of Law that emphasises the twin strengths of a deconstructive approach to questions of law and justice -- textual analysis and political context. Derridas interest is in limit or test cases, and so he engages with the fraying edges of the law, its borders, the frontiers that are most heavily policed because they are most fragile, for example capital punishment, genocide, general strikes and terrorism. Derrida undertakes an exploration of violence through a reinterpretation of Walter Benjamins Critique of Violence. At the heart of Derridas difficult argument is a demand for justice that goes beyond the cataloguing of specific injustices, and beyond the terms of Benjamins critique. The utopian impulse that underpins Force of Law is carried over into Specters of Marx, Derridas recent explicit grappling with the legacy of Marxism. The links between these two texts by Derrida implies a sustained politics of radical commitment on the part of deconstruction, a commitment to future forms of legality and egalitarianism, a theory of justice posited upon prescience rather than precedent.     

The Turn to Imagination in Legal Theory: The Re-Enchantment of the World?

Various contemporary legal theorists have turned to ‘imagination’ as a keyword in their accounts of law. This turn is fruitfully considered as a potential response to the modern condition diagnosed by Max Weber as ‘disenchantment’. While disenchantment is often seen as a symptom of a post-metaphysical age, it is best understood as the consummation of metaphysics and not its overcoming. Law’s participation in disenchantment is illustrated by way of Holmes’ parable of the dragon in ‘The Path of the Law’, which illustrates the rationalization and demystification of law. Four ideal–typical turns to ‘imagination’ are identified: the theoretical (turning to imagination as synthesis), the progressive (imagination as empathy), the transformative (imagination as invention) and the nostalgic (imagination as attunement). Most of these turns to imagination remain complicit with disenchantment. ‘Imagination’ often appears only to be harnessed in the service of more conventional keywords of legal thought: theoreticians turn to imagination as synthesis to serve as a form of super-reason; progressives turn to imagination as empathy to make law a more effective instrument; transformatives turn to imagination as invention to serve as a form of super-will. By turning to imagination as attunement, nostalgics come closest to accepting a world that is not masterable, i.e. they come closest to accepting an enchantment that is a gift and not the product of our imaginations. Indeed, modern imaginations are themselves symptoms of disenchantment. If Weber’s diagnostic calls for a human response, it cannot be one of overcoming disenchantment by imaginative re-enchantment: it belongs integrally to enchantment to exceed any and all human capacities.     

The Advent of Preventive Criminal Law: An Erosion of the Traditional Criminal Law?

Criminal law in contemporary societies is undergoing a transformation or according to some, even a paradigm shift. The reach of criminal law is now extended to terrains that were hitherto immune to criminalization. These new forms of criminalization. in post-heroic risk societies are targeting conduct well before it causes a harm. The prime examples of this preventive criminalization. are pre-inchoate offences, crimes of possession of “innocent” objects and crimes of abstract endangerment. The common trait of these offences is that they enable the so-called preponing criminal liability (Vorverlagerung), through which the earliest of preparatory acts, neutral, everyday activities such as merely standing around or merely possessing may well fall within the reach of criminal law. This phenomenon is now taking place virtually everywhere considered by many as an erosion of the traditional post-enlightenment criminal law model. Yet, proponents of the preventive criminal law are suggesting that such laws are needed in order to avert risks (terrorist attacks, for instance) while they are at preparation phase. There is, therefore, a tension between the traditional criminal law and new security interests that pose new questions which need to be addressed by a meticulous analysis. In this article I shall try to deal with following questions: Whether these preventive offences are inherently incompatible with the rule of law? How far a law-abiding nation can go in criminalizing preparatory acts? Are there any promising constraining constitutional principles or instances that delimit preventive criminalization?     

Universal Jurisdiction of Spanish Courts over Genocide in Tibet: Can it Work?

The Audiencia Nacional has authorized investigations into actsof genocide committed in Tibet, based on complaints againstthe former President and the former Prime Minister of China.The decision is based on and implements the latest interpretationof the notion of universal jurisdiction by the Spanish ConstitutionalCourt, which does not require any direct link between the crimes,or their alleged authors or victims with Spain. Given the banin Spain on trials in absentia, the institution of criminalproceedings in this case will not lead to any conviction. Moreover,with this decision, the political viability of universal jurisdictionis, once again, put to the test. Nevertheless, criminal prosecutionof alleged genocide in Tibet might reinforce the emerging statepractice accepting the exercise of universal jurisdiction overthe most heinous crimes.     

The Territorial Jurisdiction of the International Criminal Court — A Jurisdictional Rule of Reason for the ICC?

Netherlands International Law Review - The territorial scope of the jurisdiction of the International Criminal Court was an issue which was hotly debated prior to the adoption of the Rome Statute....     

The European Court of Justice – The Need for Change in a Changing World

The article, from a speech delivered at the 11th Liverpool Law ReviewAnnual Lecture at The Law School, Liverpool John Moore's University, November 2001, before invited guests and students, considers the role and position of the European Courts in achieving the objectives of the treaties and institutions of the European Union. It examines the current position of the Court of Justice of the European Communities and the Court of First Instance of the European Communities and the implications of the structural changes introduced by the Amsterdam Treaty. The article reflects upon how the future accession to the Union of new Member States may affect that situation. It also considers how changes proposed in the Treaty of Nice, when ratified, will enable the European Courts to meet future demands placed upon them. This revised version was published online in August 2006 with corrections to the Cover Date.     

The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It?

The "compulsory jurisdiction" of the International Court ofJustice is not truly compulsory. The Court's jurisdiction isbased on the consent of the parties. States have the optionto accept or not to accept the Court's jurisdiction and cando so under terms and conditions they determine themselves.However, once a State has granted its consent, and when a disputethat falls within the scope of that consent is submitted tothe Court, the State must subject itself to the Court's jurisdiction.It is that legal obligation that is at the root of the term"compulsory".     

Can the Law Speak Directly to its Subjects? The Limitation of Plain Language

Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople have direct access to the law? The Plain English Movement (PEM) has long promoted the use of plain language in legal writing as the way to demystify the law, and many governments and private corporations have expended significant resources on drafting legislation and legal documents in plain language. This article argues that the PEM has exaggerated the capacity of plain language to render the law intelligible to the non‐lawyer, obscuring the deeper question of legal complexity by focusing solely on language and style. Using the law effectively requires expertise that goes far beyond understanding the meaning of the words used to communicate it: certain complex aspects of the law cannot be eliminated by mere simplification of language and this article demonstrates that other specialized skills are required over and above the ability to penetrate technical language. The paradigmatic illustration of the need for such skills is litigation.     

The Consistency of WTO Rules: Can the Single Undertaking Be Squared with Variable Geometry?

The diversity of countries that negotiate commitments in theWorld Trade Organization (WTO), and the distinctions betweentheir legal and constitutional systems, implies important differencesin how agreements are approved, implemented, and enforced. Althoughconsistency is among the desirable attributes to which the multilateraltrading system should strive, it cannot be achieved at the expenseof all other desiderata. Among the reasons for relaxation ofthis goal is the need to accommodate the different legal systemsand levels of economic development among Member States, as wellas the demands for flexibility in negotiations. This paper reviewsthe development and current status of the debate over consistencyin the multilateral system, with special emphasis on the perspectivesof three different sets of participants: the United States,the European Union (EU), and developing countries. In the trade-offbetween the depth and the width of the trading system, the paperasks whether WTO Members should be more interested in expandingthe scope of globally agreed rules or in securing countries’adherence to them? It explores the possible consequences forthe Doha Development Agenda (DDA) if the US Congress cannotbe convinced to make a new grant of trade promotion authority(TPA) after the current one expires. It also discusses whetherthe single undertaking should continue to shape the terms ofthe DDA. In discussing the WTO’s approach to decision-makingand the possible need for reforms thereto, the paper also considershow best and on what grounds should new issues be introducedon the negotiating agenda. The paper argues that whether ornot the DDA is conducted on the basis of a single undertaking,and with or without TPA, the multilateral trading system willcontinue to provide for less than full consistency.     

The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?

If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.     

Where is Latisha’s Law? Black Invisibility in the Social Construction of Victimhood

Laws named after specific crime victims have become increasingly common. These laws are part of a broader effort to downgrade the status and rehabilitative needs of offenders and to hear the voices and trumpet the legitimate concerns of victims—often as a means of justifying punitive crime control policies. Beyond the substantive merit of individual statutes, collectively these named laws provide a clear image of which victims warrant protection and memorialization: Victims who are vulnerable in some way, who are pursued by predatory criminals into their otherwise safe domains, and—above all—who are White. In this regard, an analysis of 51 named laws from 1990 to 2016 reveals that the vast majority of them (86.3%) honor White victims. In asking the question, “Where is Latisha’s Law?,” we seek to illuminate the virtual invisibility of African American victims and the implicit social construction of which lives matter more in American society.     

In a Violent World a Just World Makes Sense: The Case of “Senseless Violence” in The Netherlands

Recent violent incidents in The Netherlands caused nationwide debates about their purported senselessness. Building on Lerner's Just World Theory (Lerner, 1980, The Belief in a Just World. A Fundamental Delusion, Plenum Press, New York), the present experiment sought to delineate the circumstances under which violence is perceived as senseless by outside observers. Participants were more likely to perceive an act of violence as senseless and to identify with the victim when there was no opportunity to blame the victim and when the victim was uninvolved with the perpetrator. These findings suggest that acts of violence are perceived as senseless when attributional strategies fail to uphold observers' belief in a just world.     

Award for The Best Proposal Outlining a Program of Research in Jurimetrics—The Scientific Study of Law

Law and Human Behavior -     

Weber Reading Stammler: What Horizons for the Sociology of Law?

This article asks whether the two studies by Max Weber that form his Critique of Stammler are by now only marginal to a study of Weber's work, of historical interest only, given that Rudolf Stammler has long since been relegated to almost complete obscurity. Or could they still lead to a better understanding of the thought of Max Weber? This article argues that the Critique of Stammler offers a still‐relevant contribution to sociological reflection, particularly about law, and valuable guidance for distinguishing normative legal orders from empirical ones, and measuring the causal influence of the former on the latter.     

Does the 'Personal Employment Contract' Provide a Basis for the Reunification of Employment Law?

This article considers Mark Freedland's idea, at the core ofThe Personal Employment Contract, that a unified body of employmentlaw for ‘employees’ and ‘workers’ isboth feasible and desirable. It discusses the origins of thedivision between employees and the self-employed, and considerswhether the rediscovery of the worker concept in the 1990s hasprovided the hoped-for solution to problems concerning the coverageof employment legislation. More generally, it seeks to takeup Freedland's challenge to reconceptualise the employment relationshipas a ‘personal employment contract’ covering bothemployees and the dependent self-employed.     

The Uses of the Outputs of the International Law Commission in International Adjudication: Subsidiary Means or Artefacts of Rules?

This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.

     

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.