The One-System View and Dworkin’s Anti-Archimedean Eliminativism

Many of Dworkin’s interlocutors saw his ‘one-system view’, according to which law is a branch of morality, as a radical shift. I argue that it is better seen as a different way of expressing his longstanding view that legal theory is an inherently normative endeavor. Dworkin emphasizes that fact and value are separate domains, and one cannot ground claims of one sort in the other domain. On this view, legal philosophy can only answer questions from within either domain. We cannot ask metaphysical questions about which domain law ‘properly’ belongs in; these would be archimedean, and Dworkin has long argued against archimedeanism. The one-system view, then, is best understood as an invitation to join Dworkin in asking moral questions from within the domain of value. Finally, I argue that Dworkin’s view can be understood as a version of ‘eliminativism’, a growing trend in legal philosophy.

     

Who’s Afraid of Property Rights? Rights as Core Concepts,Coherent, Prima Facie,Situated and Specified

Natural property rights are widely viewed as anathema to welfarist taxation, and are pictured as non-contextual, non-relational and resistant to regulation. Here, I argue that many of the major arguments for such views are flawed. Such arguments trade on an ambiguity in the term ‘right’ that makes it possible to conflate the core concept of a right with a situated or specified right from which one can read off people’s actual legal entitlements and duties. I marshal several arguments demonstrating this conflation. In particular, I examine the right to free speech, where contextualization and responsiveness to the requirements of other rights are assumed as a matter of course. I conclude that the existence of one natural right does not foreclose the existence of other natural rights. Arguments for or against welfare rights must be assessed, at least to some extent, independently of the assertion of a natural property right.     

Islamo-Arabic Culture and Women’s Law: An Introduction to the Sociology of Women’s Law in Islam

The present paper addresses the mutual relationship between society and law in shaping women’s law in Islam from the perspective of the sociology of law. It analyzes the role of pre-Islamic social, political, and economic structures in the Arabian Peninsula in modeling women’s law and highlights some customary laws which were rejected or revived and integrated in Islamic jurisprudence. In this regard, the paper reviews issues such as polygyny, rights to inheritance, marriage, the process of testimony and acceptable forms of evidence in legal matters, diyya (blood money), the exclusion of women from the judiciary and the system of issuing fatwa (legal opinion), natural right of guardianship (wilāya) of underage children after divorce, and regulations related to the veil. Finally, referring to the manner of the Prophet of Islam, the paper suggests that ?urf (custom) can be considered as a source of Islamic legislation alongside other commonly known sources of fiqh (Islamic jurisprudence).     

‘Catching’ and ‘Targeting’: Risk‐Based Policing,Local Culture and Gendered Practices

The aim of this article is to explore cultural and practical aspects of the growing use of information and communication technology (ICT) in policing. By using empirical research on policing in Norway, the focus will be on how ICT is used as a crime prevention instrument in everyday police work and culture. The transition, which the new technologies mediate, will be explored by focusing on concepts of risk and materialization of risk‐based policing at the practice level in two cases: 1) a special unit fighting serious and organized crime utilizing proactive policing methods, police informers, crime profiling and databases, and 2) a police station focusing on low‐level crime by using a problem‐oriented policing model, transmitting responsibility for personal security onto identified ‘problem‐owners’.1 ‘Problem‐owner’ is a notion used by the police in the two cases. It is referring to the POP‐model, and whom they identify as important to participate in the risk‐management. According to Wright (: 121): “Partnership refers to a purposeful relationship between the police and the public or between the police and other agencies in the field.” Based on an examination of risk phenomena as contextual, embedded in practice and cultural settings, various stories about risk management will be told. The stories reflect different control strategies in the crime control discourses, and point to how risk‐based technologies are shaped and adapted in occupational culture and practice. The article illuminates the importance of studying the empirical complexity ICT is used in, and looks towards, to paraphrase O'Malley and Palmer (), ‘firewalls of resistance’ in the local occupational culture, that are preventing full integration of risk tools.     

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.

     

Asian Criminology’s Expansion and Advancement of Research and Crime Control Practices

Inspired by Professor Jianhong Liu’s article entitled “Asian Criminology—Challenges, Opportunities, and Directions,” published in 2009 in the Asian Journal of Criminology, I attempt to document the expansion of Asian criminology in terms of the numbers of journal articles published, but also to encapsulate some of the unique contributions of original articles published in the Asian Journal of Criminology. To document the expansion of Asian criminology in terms of journal articles, I used the academic search engine, the ISI Web of Science, to identify criminology articles across a variety of Asian countries and time. This led to distinguishing between more traditional criminology and crime control (TCCC) articles and articles focusing on violence against women/children and on trafficking (VAWCT). Second, because it is not yet part of the ISI Web of Science, I read all of the original articles in the Asian Journal of Criminology to account for how Asian criminology is advancing the larger discipline of criminology. The ISI Web of Science data document the rapid expansion of Asian criminology. Some of the specific Asian Journal of Criminology articles are used to exemplify specific examples of how Asian criminology is advancing the field of criminology worldwide through theoretical, methodological and framing designs, and crime control practices.     

‘Inequality of Goods and Lands’ in Mortgaged Democracies: Paradigms and Effects of Global Comparative Law

Liverpool Law Review - The article reappraises the law’s ‘egalitarian commitment’ in an era of global inequality. It upholds that such an egalitarian predicament scarcely squares...     

‘Burqa Avenger’: Law and Religious Practices in Secular Space

The current debate over the hijab is often understood through the lens of a ‘clash of civilizations’ between a tolerant ‘secular’ ‘West’ and a chauvinist ‘religious’ ‘East’. The article argues that this polarization is the result of a specific secular semiotic understanding of religion and religious practices which is nowadays embedded in western law. In my analysis, secular’s normative assumptions, played around the control of women’s bodies and the definition of religious symbols in the public sphere, work as a marker of ‘citizenship’ and ‘racialized religious belonging’. Through women’s bodies, western/secular law creates a link between gender, religion, ethnicity and belonging which forms a specific law and religious subject. Thus, secularism emerges not as the separation between private and public, state and religion, but as the reconfiguration of religious practices and sensitivities in the public secular space through the control of the visible.     

Legal Argumentation and Justice in Luhmann’s System Theory of Law

The paper reconstructs Luhmann’s conception of legal argumentation and justice especially focussing on the aspects of contingency and self-referring operative closure. The aim of his conception is to describe/explain in a disenchanted way—from an external, of “second order” point of view—the work on adjudication, which, rather idealistically, lawyers and judges present as being a matter of reason. As a consequence of some surface similarities with Derrida’s deconstructive philosophy of justice, Teubner proposes integrating the supposed reductive image of formal justice described by Luhmann with the ideal conception of justice presented by Derrida. Here this kind of attempt is rejected as epistemologically wrong. In addition, Luhmann’s theory is argued to have other shortcomings, namely: the failure to understand the pragmatic function of principles, and the incapacity to describe the current legal questions linked with cultures and legal pluralism, which characterise our society.     

Regional Innovation Systems: The Integration of Local ‘Sticky’ and Global ‘Ubiquitous’ Knowledge

The paper examines how firms in three regional clusters in Norway dominated by shipbuilding, mechanical engineering and electronics industry, respectively exploit both place-specific local resources as well as external, world-class knowledge to strengthen their competitiveness. From these case-studies we make four points: (1) Ideal-typical regional innovation systems, i.e., regional clusters surrounded by supporting local organisations, is rather uncommon in Norway. (2) External contacts, outside of the local industrial milieu, are crucial in innovation processes also in many SMEs. (3) Innovation processes may nevertheless be regarded as regional phenomena in regional clusters, as regional resources and collaborative networks often have decisive significance for firms' innovation activity. (4) Regional resources include in particular place-specific, contextual knowledge of both tacit and codified nature, that, in combination, is rather geographically immobile.     

Imperial Metaphors and Native Savagery: Law’s Imagery,Crime and Empire

For all of law’s emphasis on its originary claims, this article argues that modern law has always been heavily dependent on categories and a set of images and metaphors for constituting identities. The presence of a racialised Other in the written, verbal and visual form all reveal striking parallels in the metaphorical forms used in the categorisation of people in temporality. In essence, law’s commitment to principles of universality and equality, is practically sustained only by the reinvented and rationalized exclusions of racial particularity, and hierarchies of otherness, which are variously exotic, dangerous and irredeemable. What is clear from this binary division is that the processes of criminalizing the unruly heathens, the wayward savages and the lower strata in the early nineteenth century, was part of a process of knowledge production which drew heavily upon key images of morality and of pathology. Such a stratum, as in the parallel process in the colonies amongst the criminal savages, was anxiously understood through a proliferation of stereotypes and labels imbued with this threatening menace. This article further explores how this imagery was policed and disciplined, and also opens up the possibility to assess how these images impart the same mythic forces in the ongoing acts of violence and specters of postcolonial imperialism that persist in its new global forms. This article aims, to reveal that legal forms and identities, far from being stable in their construction, are inherently unstable, and remain forever in an ambivalent relationship to the things being constructed and those engaged in the construction.     

What’s Inside and Outside the Law?

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.     

Afrazul’s murder: Law and love jihad

Jindal Global Law Review - In December 2017, Shambhu Lal Raigher (a Hindu), brutally killed a Muslim labourer named Afrazul Khan in Rajasthan, without any immediate or individualised cause. The...     

Levinas’s Contribution to the Law of Hospitality

Liverpool Law Review - This article examines the ethical thinking of Levinas, from which Derrida’s Law of Hospitality is derived, to see if it is sustainable in the face of Badiou’s...