Guilt and the origins of modern law

Abstract

Tracing the history of legal concepts from the decline of European feudalism to the Reformation, this paper examines ways in which the concept of guilt shaped the first evolution of modern law, and it claims that the early revolutionary junctures in the construction of the law were centred around specific and distinctive conceptions of guilt. It argues that, through the history of medieval and early-modern European society, the law learned positively to abstract and account for itself through internally formative exchanges over the subject of guilt, and changes in law's observation of guilt reflected a growing refinement in law's societal sensibility, in its inclusivity, in its patterns of imputation and in its positive powers of self-legitimation. Guilt formed the term around which the law enacted the necessary stages of its social adaptation and produced constructs to underwrite the requirement for general, abstracted and positively inclusive law that constitutes modern society. The ultimate result of guilt's evolution as a legal figure became visible in the fact that the law progressively intensified its positivity and inclusivity, and it amplified the legal and normative resources that it permitted modern societies to store, utilize and reproduce.     

Lavascape: legal spectacle at Kīlauea

ABSTRACT

In considering the theme “Exploring Legal Discourse: A Sociosemiotic (Re)Construction,” this paper examines the symbolic relationship between law and chaos in the changing landscape of Kīlauea Volcano on Hawai’i Island. The socio-legal dimensions of this relationship provide insight into law’s project of governance in the dynamic natural environment. Most recently, in the summer of 2018, lava spouted and then flowed from Kīlauea in over twenty-four fissures which opened up within two heavily populated residential subdivisions. Law's response to the ensuing chaos provides keen insight into the epistemological positionality of law toward nature. In an attempt to tame this enlivened lavascape of persons and lava, law asserts authority over the spectacle in the areas of sightseeing, access, and mapping. In other words, the legal spectacle of lava eruption is an attempt to jurisdictionally frame the legal imagination of human risk in this dynamic landscape through legal semiotics, legal materiality, and legal topology. However, as this paper will explore, the source of chaos is actually law itself. Attempts to manage chaos are actually attempts to manage human nature as visitation to the erupting volcanic environment is ultimately beyond law's complete control. In a larger sense, this study of Kīlauea's lavascape as a constructed legal spectacle illustrates the phenomenological framing of law's incomplete jurisdiction over kinetic environments.     

Gender,family law and citizenship in Syria

This paper explores the impact of family law on the structuring of gendered citizenship in Syria where the state's family law accords male and female citizens different legal status, thus ordering the distribution of basic rights and duties along gendered lines. Partial centralization and fragmented secularization of judicial authority relates to the accommodation of religious groups, a policy which was continued after the establishment of territorial states in the 1920s. Family law maintained its religious tenets and was included as part of the state's jurisdiction. The impact of family law on citizenship is exacerbated in that membership in religious groups is mandated and monitored by the state. Citizenship is thus mediated through a citizen's membership in a religious group where the religiously based family law applies as state law. Seen in theoretical terms, family law plays a crucial role in structuring gendered citizenship in ways that limit the legal authority of female citizens as full members of the polity. Two questions are addressed: First, how and why does family law premise gendered citizenship in Syria? Second, what characterizes the debates regarding changes within family law that surfaced after 2003 following the political regime's liberalization efforts?     

The age of apology: evidence from the Israeli public discourse

At the time of its presentation, Derrida's 'Force of law' represented deconstruction's perhaps most direct statement on the possibility of justice and its most explicit engagement with law. The ensuing responses to that paper have typically focused on deconstruction's position regarding the force and authority of law, and especially on what is taken as Derrida's theory of justice. As such, 'Force of law' is often discussed in isolation to mainstream legal philosophy or is otherwise understood to represent a radical counter to that tradition. It is possible to take a different direction, however, by considering the event of that paper's presentation and reception in relation not only to the existing disciplines of legal studies, but also to the problematic of discipline itself. Re-reading some of the work of contemporary legal philosophy in the light of that problematic may thus enable a certain questioning of the disciplinary divisions whose very institution underscores the 'radical' nature of deconstruction's 'critique' of traditional understandings of law. Such a re-reading may even allow a speculation upon a certain (trans)disciplinarity of deconstruction, reconsidering the latter's relation to traditions.     

Socialism,associations and the market

Hayek's epistemic arguments against central planning and in defence of market economies have recently been redeployed by some market-socialists against more decentralized models of non-market socialism. This paper considers the cogency of these arguments through an examination of an unpublished exchange in the socialist calculation debates between Hayek and a proponent of non-market associational models of socialism, Otto Neurath. Contrary to the standard view of the debates, Neurath shared many of the assumptions of Hayek's epistemic arguments and similarly criticized technocratic models of planning. The paper outlines Neurath's defence of associational socialism from his early role in the Bavarian revolution through his engagement in the post-war housing movements in Vienna and the unity of science movement. While Neurath's response to Hayek is not entirely successful, his proposals for associational models of socialism point to problems not just in Hayek's criticisms of non-market socialism, but also those of more recent market-socialists.     

Durkheim's ‘Two laws of penal evolution’

Two types of recent contributions to the discussion of a ‘crisis’ in law recall issues in Weimar labour law. Wolfgang Teubner and others propound a ‘reflexive law’ patterned on the multiple constitutions of collective labour law; and American ‘critical legal studies’ dismiss legal reasoning and press for frankly ‘altruistic’ policy-making in the courts. The Weimar controversy over the extent to which ‘works-community’ supercedes the legal attributes of the employment relationship as specified by the older law of contract shows, first, that the characteristic collectivism and institutionalism of the socialist labour movement's legal strategy was premissed on a complementary political conception of the organization of labour, and, second, that Socialist lawyers defended a legal discourse which was critical of prevailing doctrine but grounded in its systematizations, as essential to their struggle against the amorphous, nominally altruistic reading of the employment relationships which the German courts and then the Nationla Socialist regime imposed upon labour. Their recognition of the problems posed by deficient or excessive politicization of law makes them again important, notwithstanding their political defeats, and their survivors' disillusionment.     

Why the Devil Couldn't Beat Daniel Webster: Absolutes,Contradictions, and the Transference of American Legal Institutions

In this article I present a critique of efforts to extend the “rule of law model” to developing countries by the transfer of American legal institutions. I examine a popular American literary text, Steven Vincent Benet's The Devil and Daniel Webster, to reveal a basic contradiction between constitutionalism and democracy in American legal culture. I analyze the rule of law model as a discourse, relating the transfer of these contradictory values to unintended results of legal reform recently reported in Costa Rica. Finally, I present conclusions about how transferring the values of American legal culture through legal reforms is related to judicialization in developing countries.     

Jurisgenerative role of auditors in transnational labor governance

This article builds on the model of regulatory intermediaries by incorporating insights from the field of legal hermeneutics about the process through which the meaning of a legal rule emerges. It describes how intermediaries can take on a jurisgenerative role in the development of legal rules through their interpretation of legal rules. This role is demonstrated through an analysis of social audits from Chinese and Vietnamese factories involved in the Fair Labor Association (FLA). The analysis illustrates how the integration of fundamental labor rights into the FLA's private Code of Conduct requires auditors to develop new interpretations of the Freedom of Association as a result of uncertainties and contradictions between legal requirements at various levels, as well as with the FLA's own rules. Through this empirical analysis, the article contributes to the literature by identifying regulatory intermediaries’ jurisgenerative capacities when they monitor fundamental labor rights referenced by private governance instruments. It further highlights why legal and regulatory governance scholars need to consider the transformative effects that transnational private labor governance may have on international labor law.     

Geographies of Crime and Justice: Contemporary Transitional Justice and the Creation of 'Zones of Impunity'

This article explores some of the challenges that transnationalcrimes pose to the operation of transnational justice. By transnationalcrimes, we mean serious violations of international human rightsand humanitarian law that transcend national borders and areperpetrated by state or non-state actors. Many national andinternational legal mechanisms may only address a segment ofthese crimes, creating what we refer to as ‘zones of impunity.’This article examines how these dilemmas are unfolding in threeAfrican contexts: the possibility that Charles Taylor is triedfor crimes in Sierra Leone but not in Liberia; that only Congolese,and not Rwandans or Ugandans, face prosecution for crimes inIturi or elsewhere in the Democratic Republic of Congo; or thatJoseph Kony escapes prosecution in Uganda through being allowedamnesty or exile in Sudan. Our analytic framework considershow geography and politics affect legal responses to transnationalcrimes.     

Of Possibilities,Probabilities and Political Geography

This article explores the nature of intellectual engagement between feminist and political geographies. This exploration is based on two sources of information. The first is a short survey of feminist geographers that asks about their perceptions of political geography, the extent to which they rely on scholarship within political geography and their sense of the openness of political geography to feminist theory and arguments. The second source of information is an analysis of the contents of reviews of political and feminist geography that have been published in recent journals and textbooks. Based on this information, it seems that there is little engagement between the two sub-fields, even though a sizeable body of literature that might be labelled 'feminist political geography' has developed. Reasons for this paradox are considered.     

Domestic legislatures and international human rights law: Legislating on religious symbols in Europe

This article examines the dynamics of domestic legislatures' application of international human rights law. Specifically, this article asks the following: What factors shape how domestic legislatures apply international human rights law while they enact national law and policy? Lawmakers have a variety of motives for invoking and deliberating international law. Given these motives, the article identifies two factors — civil society actors and legal experts and the flexibility of international law — that are likely to contribute to if and how national legislatures interpret and apply international human rights law while legislating. These factors are examined through case studies on religion in schools in the United Kingdom, Germany, and France. This article argues civil society actors and legal experts and the flexibility of international law inform lawmakers' estimation of political costs related to compliance and thus how they apply international human rights law to domestic legislation.     

Dissent,Public Space and the Politics of Citizenship: Riots and the ‘Outside Agitator’

This paper presents an historical examination of a significant period in which state authority and citizenship came together around the question of dissent in the US. Drawing on congressional records, news accounts and legal documents—and deploying theories of citizenship and space—it presents an argument about how state power and geographical space came together around the question of the ‘race riots’ that swept American cities in the late 1960s. I focus in particular on how government officials and others constituted the figure of the ‘outside agitator’ as the cause of illegitimate dissent and the subject of state intervention. Such arguments about the geography of authority and dissent were themselves interventions in the politics of citizenship. More broadly, then, the paper argues for closer attention to issues of difference—and the geography of difference—in the constitution of state power.     

The rule of law and citizenship in central India: post-colonial dilemmas

This article argues that the ‘rule of law’ has become a central goal in popular struggles the world over, and it is citizenship struggles which infuse the rule of law with substantive, as against a thin procedural, meaning. This is especially true in post-colonial societies like India, with a tradition of inherited colonial law designed for subject-hood rather than citizenship, growing inequality which affects both the enactment and interpretation of law, and the violation of law by those who are meant to protect it. Demanding implementation of existing laws, breaking laws that are patently unjust whether through armed struggle or non-violent social movements, or seeking to change laws in favour of new and more democratic laws, are all major avenues by means of which people express their aspirations as citizens. However, law's mutually constitutive relation with social practice means that people enter into political and legal negotiations already constituted as certain kinds of legal subjects, which constrains their imagination in certain ways.     

Reconciling legal positivism and human rights: Hans Kelsen's argument from relativism

This article examines the conceptual relationship between legal positivism and human rights, challenging the common idea that the two are in tension or that there exists, at most, a contingent relationship between them, whereby legal positivists can only recognize the normative validity of human rights if they happen to be inscribed in positive law. To do this, I focus on the thought and writings of one of the “founding fathers” of modern legal positivism: the Austrian legal theorist and political philosopher Hans Kelsen. In the first part, I show that Kelsen's conception of legal positivism is inextricably tied to — and, indeed, logically stems from — his moral relativism. In the second, I show that this form of relativism is also the philosophical foundation for Kelsen's commitment to democracy and human rights. Finally, in the third part, I examine the specific conception of human rights that results from this relativistic foundation, contrasting it with the “natural law” version that legal positivism excludes.     

A comparative view of indigenous citizenship issues

Following the Wik decision it is being suggested that Australia ought now to revisit the translation of special legal norms formulated in international law with respect to the human rights of indigenous citizens. These have previously underpinned developments in both Australia and Scandinavia with respect to indigenous people. Recent Australian developments, particularly the struggle over indigenous property rights, exemplify the argument of O'Neill (1997) in the first volume of Citizenship Studies, which points to the absorption of civic autonomy by market sovereignty. O'Neill is correct to suggest that the dominance of market sovereignty reduces the political participation of those incapable of the competitive struggle for private affluence and that this has a squalid dimension. Central to this is the denial of the notion of community and dominance of the market. This dominance has obscured the significance of the Australian High Court's recognition of aboriginal land rights in Mabo. The decision put the incorrect application of terra nullius—or no man's land—to Australia to rights. It made it possible for the nation to contemplate indigenous sovereignty consequent upon the recognition of native title property rights. Australia's translation of those rights with the Native Title Act 1993 (Cth) looked to international law for its rationale. The rights of the Sami people have been developed in Scandinavia largely with reference to the evolution of international law on indigenous peoples. As we approach 2000, Australia cannot continue to ignore the special legal norms in international law relating to citizenship of indigenous peoples. International law informs attempts by indigenous people in modern times to regain some of what they lost in the past.     

Sovereignty, Augusto Pinochet, and legal positivism

The imperativist strand of positivism derives law from an actual person or set of persons wielding a monopoly of force. The rule-based positivism of H.L.A. Hart has more sublty identified a matter-of-fact rule of recognition in place of such a sovereign one or many. But sovereignty is not a matter-of-fact of any kind; rather it is partly the product of what I call qua arguments. I reconstruct the reasoning, in the extradition case of Augusto Pinochet in the British House of Lords, providing a focus for an account of the limits of legal positivism in the application of the principle par in parem non habet imperium. Sovereign power is interpreted through reasoning that is at its margin more moral than technically legal.     

Die Selbstbehauptung und Selbstgefährdung des Friedens als Herrschaft des Rechts

Peace is conceivable only as a legal order. According to Hans Kelsen, a legal order is by its very nature a ‘coercive order’. Thus, peace and coercion are not mutually exclusive, but refer to each other in the concept of law. In this contribution, we elaborate and problematize the paradoxical relationship between coercion and peace in theoretical and historical perspective. For this, we differentiate between arbitrary force and legal enforcement in the context of world-order politics. While we argue in favor of peace through law enforcement, we also emphasize the element of arbitrariness in the concept and historical formation of law. This is to say that the stabilization of peace through legal coercion goes hand in hand with its simultaneous destabilization. The text unfolds this dilemma with reference to the evolution of the theory and practice of legitimizing the use of force from past to present. We argue that the dilemma cannot be overcome, but it can be mitigated through the creation of a rule of law, which allows for a reflexive treatment of the tension between peace and coercion.     

Litigation and the Evolution of Legal Remedies: A Dynamic Model

In this paper we build uponexisting literature on the evolution of thecommon law. We consider a model of legalevolution in which judges have varyingideologies and propensities to extend thedomain of legal remedies and causes ofaction. Parties have symmetric stakes andare rational. Plaintiffs bring a case tocourt if the expected net return from thecase is positive. The net expected value ofthe case depends on the objective merits ofthe case, the state of the law, and theideological propensity of the judge.Plaintiffs have full control over whetherto bring a case to court. In our model, thecombined presence of differences in judges'ideology and plaintiff's case selectiongenerate a monotonic upward trend in theevolution of legal rules and remedies. This may explain the stylized fact underwhich certain areas of the law have beengranting increasing levels of remedialprotection and recognition of plaintiffs'actions.     

The secular contract: sovereignty,secularism and law in Australia

What does it mean to say that a nation-state is secular? Secular law typically begins when a state has no religious competitor for authority. For this reason, it can be said that the Australian state is secular because its authority is derived from its own laws. What makes Australian law sovereign, the highest authority within the state, is its secularity. However, given Australia's colonial heritage, it is not just the absence of religious authority, such as a state religion, that gives the state its secularity. The law's foundations in colonial violence and the extinguishment of Indigenous sovereignty as a competing authority are also a crucial way in which secular Australian law can continue to operate as the sovereign authority within the state. Using the work of Charles W. Mills, I will critically interrogate how legal and political characterisations of the law as secular work to disavow the state's racialised foundations in colonial violence in the form of a “secular contract”. In developing this notion of a “secular contract” I hope to show that secularism be must re-thought of as not simply the operation of law without religion, but also, as complicit with the ways indigenous sovereignties in (post)colonial states are negated.