ARTICLE: Postema on the Necessity of System in Common Law

Juris Diversitas is pleased to inform you about Professor Gerald J. Postema's new article:"Law's System: The Necessity of System in Common Law"

 Abstract:

T.E. Holland infamously described the common law “chaos with a full index,” and critics from Bentham to Peter Birks have criticized common law for its manifest absence of system, its disorderly collection of legal categories and miscellany of odd rules. Defenders of contemporary common law celebrate its resolute anti-theoretical stance and resistance to systematization. However, this characterization of common law, shared by defenders and critics alike, is greatly flawed. Common law is deeply and pervasively committed to system, although this commitment has not been recognized by modern positivist legal theory. Law of any jurisdiction, because of features essential to its distinctive mode of operating and because of the need to maintain its integrity, cannot ignore the demands of system. Moreover, distinctive modes of common-law reasoning presuppose and respond to the demands of system, while at the same time retaining a salutary pragmatism and wariness of global theorizing.

ARTICLE: Murdocca on Colonial Inquiries and the Politics of Testimony

A new interesting article from Canada: "'A Matter of Time and a Matter of Place’: Colonial Inquiries and the Politics of Testimony" by Professor Carmela Murdocca from York University of Toronto.

Abstract:      

Through an examination of the deaths of two young men in a detention center fire in Kashechewan, Ontario, this article examines links between legal testimony, temporality, competing forms of evidence (oral histories, visual recordings and corporeal forms of memory) and the consolidation of particular racial and historical logics through these discursive and visual fields. I argue that an analysis of testimony in colonial inquiries reveals that the relationship between everyday life and exceptional violence often restricts the development of narrative coherence between historical forms of injustice and contemporary instances of violence.

CALL FOR PAPERS: The 3rd Annual Minerva Jerusalem Conference on Transitional Justice

"Transitional Justice and Civil Society: Learning from International Experience" is the title of the 3rd Annual Minerva Jerusalem Conference on Transitional Justice, organized by the Minerva Center for Human Rights and Faculty of Law of The Hebrew University of Jerusalem. The conferance will take place in Jerusalem on May 25-26, 2014.

INTRODUCTION: The Transitional Justice Program at the Hebrew University of Jerusalem's Minerva Center for Human Rights and Faculty of Law is organizing an international conference that seeks to explore the role of civil society in developing and implementing transitional justice processes, particularly in the context of ongoing conflicts. The conference, the third in the series of Annual Minerva Jerusalem Conferences on Transitional Justice, is scheduled for 25-26 May 2014, in Jerusalem.

Recipients of this call for papers are invited to submit proposals to present a paper at the conference. Authors of selected proposals will be offered full or partial flight and accommodation expenses.

Submission deadline: 31 December 2013

BACKGROUND: Civil society has a vital, though often under-acknowledged, role in developing transitional justice mechanisms, institutions and concepts. Over the past three decades civil society organizations have set the agenda for transitional justice policies, promoted, supported and developed mechanisms and interventions, acted as advocates and critics of local and international institutions, and helped in developing the theoretical, legal and conceptual framework of transitional justice. From local grassroots organizations like the Mothers of the Plaza de Mayo in Argentina to international networks like the Coalition for the ICC, civil society organizations have been central in struggles for justice, truth and accountability across various contexts, while other civil society groups have been key actors in efforts of reconciliation, inter-community dialogue and conflict-transformation.

Indeed it is impossible to envisage the contemporary landscape of transitional justice without the role of civil society actors. At the same time there has not been sufficient academic reflection on the contribution of civil society to transitional justice, and dialogues between academia and civil society are not common enough.

The Transitional Justice Program at the Hebrew University of Jerusalem's Minerva Center for Human Rights and Faculty of Law will hold a 2-daynternational conference on 25-26 May 2014 to explore comparative and theoretical lessons and insights drawn from the experience of civil society actors. The conference will discuss the various goals and methods of civil society actors struggling for transitional justice; their interactions with formal transitional justice mechanisms; their impact, successes and failures; and the practical and ideological dilemmas and challenges they face. One of the conference's main goals is to facilitate local learning and discussion in relation to civil society and transitional justice in the Israeli-Palestinian context. The conference therefore seeks to examine in particular the roles that civil society has fulfilled and can fulfill in ongoing conflicts, and possible implementations in the Israeli-Palestinian context of theoretical, historical, and comparative insights about the role of civil society in developing transitional justice mechanisms, institutions and concepts.

TOPICS: Conference topics may include:

- unofficial civil society truth commissions and documentation projects

- the role of civil society in promoting inter-community dialogues and reconciliation

- civil society as litigation actors

- civil society and the work of international criminal tribunals

- civil society and the design, implementation and follow-up of official TJ mechanisms

- the impact of civil society and peace negotiations

- civil society and education reform

- civil society and reparations

- civil society, commemoration and memorialisation

- civil society in ongoing conflicts

- evaluation of existing initiatives in the Israeli-Palestinian context

PAPER SUBMISSION PROCEDURE: Researchers interested in addressing questions related to these or related topics are invited to respond to this call for papers with a one- or two-page proposal for an article and presentation, along with a one-page CV. Proposals should be submitted to the Minerva Center for Human Rights via e-mail: mchr@savion.huji.ac.il  no later than 31 December 2013.

Applicants should receive notification of the committee's decision by the end of January 2014. Short drafts of 7,000-10,000 words based on the selected proposals will be expected by 1 May 2014.

The Israel Law Review (a Cambridge University Press publication) has expressed interest in publishing selected full-length papers based on conference presentations, subject to its standard review and editing procedures.

CONFERENCE COMMITTEE:

Prof. Barak Medina, Hebrew University of Jerusalem (Chair)

Prof. Tomer Broude, Hebrew University of Jerusalem

Dr. Ron Dudai, Hebrew University of Jerusalem

Adv. Danny Evron, Minerva Center for Human Rights, Hebrew University of Jerusalem

Adv. Hassan Jabareen, Adalah - The Legal Center for Arab Minority Rights in Israel

Prof. Fionnuala Ni Aolain, University of Minnesota; University of Ulster

Prof. Ruti Teitel, New York Law School

BOOK: Reich on General Principles of EU Civil Law

Book:  Reich on General Principles of EU Civil Law

Intersentia Publishing has published the following:

General Principles of EU Civil Law by Norbert Reich.

 

General Principles of EU Civil Law focuses on a rapidly developing but still highly controversial area of EU law: the emergence of general principles with constitutional relevance for EU civil law, guiding its interpretation, gap filling and legality control. This study brings to light seven principles in the case law of the Court of Justice of the European Union and in the Charter of Fundamental Rights. Principles 1 to 3 on framed autonomy, protection of the weaker party and non-discrimination are now part of substantive EU law, mainly contract law. Principle 4 on effectiveness, together with the principle of equivalence, is an “old acquaintance” of EU law and has mostly to do with procedures but can also be extended to cover substantive and remedial matters. Principles 5 and 6 on balancing and proportionality are primarily concerned with methodological questions: the first has to do with judicial interpretation and application of EU civil law, the second with legal-political questions on the future of a (questionable) codified or optional EU civil law, in particular sales law. Finally, principle 7 on good faith is still an emerging principle but is gradually gaining importance.

This book will allow the reader to understand and to assess the current evolution of EU civil law in days where its autonomous character is increasingly recognised in the case law of the Court, and where the Charter is having a growing impact on its constitutional foundations.

 

JOURNAL: Jurisprudence: An International Journal of Legal and Political Thought

JOURNAL: Jurisprudence: An International Journal of Legal and Political Thought

The latest issue of Jurisprudence:  An International Journal of Legal and Political Thought (2013) 4:2,  has been published by Hart Publishing, and is available on IngentaConnect.
Contents include:
Articles

Austerity and Stability in Rousseau’s Constitutionalism

Eoin Daly
 For Rousseau, the primary function of the republican constitution is not to contain state power, but rather to cultivate certain personal dispositions and social forms through which the stability of a political order based on the general will can be realised. Thus, his constitutional projects for Corsica and Poland formulate peculiar constitutional devices aimed at fostering a distinctive vision of austerity as the social horizon of republican politics. I outline how Rousseau’s political thought translates to a peculiar conception of constitutionalism as cultivating stability conditions for the realisation of his principles of political right. In particular, I focus on how Rousseau’s conception of austerity illustrates his prescient sense of the source of inequality and domination in liberal societies, insidiously embedded in symbolic and ritual forms. I also address the limitations of austerity as a constitutional antidote to domination in liberal societies.
 

An Argument for an End to the ‘Critical’/‘Analytical’ Divide

Gavin Byrne
 The perceived split between ‘analytical’ and ‘critical’ traditions in mainstream philosophy is deeply outmoded and no longer relevant. In legal philosophy it persists. This article argues for an end to any treatment of one or other tradition as radically ‘other’. It traces the division to a misunderstanding of the philosophy of Martin Heidegger and its repercussions for normative legal theory. It demonstrates that a truly Heideggerian account of adjudication leads to similar normative conclusions to those of Ronald Dworkin. It further demonstrates that Heidegger’s conception of ‘practical philosophy’ is similar to that of John Finnis. The article concludes with some remarks about the broader implications for how we treat key figures in the history of ideas in all of our theoretical engagements.

Hans Kelsen’s Concept of the ‘Ought’
Robert Alexy
Focusing on Hans Kelsen’s concept of the ‘ought’, the main problem is whether the ‘ought’ qua obligation or the ‘ought’ qua empowerment or competence serves as his fundamental normative concept. Stanley L Paulson has adduced strong textual arguments for the thesis that the fundamental role played by empowerment represented Kelsen’s opinion ever since the late 1930s. But to accept the thesis of the fundamental character of empowerment as an interpretive thesis is not, eo ipso, to accept it as a norm-theoretic thesis. In light of this background, I take up three arguments for conceiving the modality of obligation as being at least as fundamental: the chain argument, the argument from unlawfulness, and the argument from overload. This leads to the conclusion that Kelsen’s ‘ought’ would be incomplete if it did not comprise obligation as a modality that is at least as fundamental as the modality of empowerment or competence Facets of ‘Ought’ in Kelsen’s Pure Theory of Law
Carsten Heidemann
 Any correct assessment of Hans Kelsen’s conception of Ought must take into account, first, that Kelsen’s theory evolved over some 60 years which saw several major changes of its fundamentals; and second, that the Pure Theory must basically be understood as a meta-theory of institutionalised legal science. With these provisos, Kelsen’s explanation of the Ought oscillates between two extremes: at one extreme, the legal Ought is just a formal semantic marker delimiting the realm of the law; at the other, the legal Ought might be conceived of as ‘depersonalised will’. Kelsen’s most profound and fertile explanation, however, identifies the legal norm with the normative judgment of legal science, while the Ought plays the role of a category (in a Kantian sense) vesting the judgment with normative force.

Primitive Law
Christoph Kletzer
 This paper considers an instance of Ancient Germanic Law in order to open up a new perspective on understanding the nature and functioning of our modern law. The paper claims, along Kelsenian lines, that the law should be understood as an organisation of force and an interpretation of violence. The law orders society by schematising interpretation. The law orders society not by demanding or prohibiting action, but by allowing a certain interpretation of states of affairs, ultimately, the interpretation of violence as legally irrelevant. Ultimately, the law creates peace by interpretation: by allowing us to interpret certain forms of violence as legally irrelevant, the law monopolises force and creates a coercive order that pacifies the land.

Review Symposium

Four reviews of Margaret Gilbert, A Theory of Political Obligation, with a response from Margaret Gilbert

 

Reasons and Decisions
Diane Jeske

Plural Subjects and Political Obligations
John Horton

Gilbert on Commitment and Intention

Frederick Stoutland

Gilbert on Political Obligation
Jan Narveson

 A Theory of Political Obligation: Responses to Jeske, Horton, Stoutland and Narveson

Margaret Gilbert

Reviews

The Quest for a Constitutional Perspective: A review of Poul F Kjaer, Gunther Teubner and Alberto Febbrajo (eds), The Financial Crisis in Constitutional Perspective: The Dark Side of Functional Differentiation 

Emilios Christodoulidis

Law as a Claim-Maker: A review of Stefano Bertea, The Normative Claim of Law

Bebhinn Donnelly-Lazarov

Self-Ownership, Liberal Neutrality and the Realm of Freedom: New Reflections on the Justification of Basic Income. A review of Axel Gosseries and Yannick Vanderborght (eds), Arguing about Justice: Essays for Philippe Van Parijs

Simon Birnbaum

Between Institutional and Moral Discourse: On Alexy’s Legal Philosophy. A review of Matthias Klatt, Institutionalized Reason: The Jurisprudence of Robert Alexy

John Adenitire

 4th Annual Jurisprudence Lecture 

Professor Thomas Pink will deliver the 4th Annual Jurisprudence Lecture. The lecture, entitled: 'Law and the normativity of obligation', will be chaired by Professor George Pavlakos on Friday 31st January 2014 at 6.00pm in Clement House, Room 6.02 at the London School of Economics. A reception will follow from 7pm in the Senior Common Room in the Old Building. For further information about Professor Pink’s lecture please click on the following link: http://www.hartpub.co.uk/4thJurisprudencelecture.pdf

If you haven’t already booked your place and you would like to attend the lecture please e-mail Jo Ledger at Hart Publishing jo@hartpub.co.uk or call Hart Publishing on 01865 517530. Please note that bookings have to be made with Hart Publishing by the 17^th January 2014.

 

OPPORTUNITY: FUNDING FOR POSTGRADUATE RESEARCH!!!

ALL, 

THE FOLLOWING POST PROVIDES INFORMATION ON FUNDING FOR POSTGRADUATE RESEARCH AT THE UNIVERSITY  OF LIMERICK (WHERE I TEACH). 

I'M LOOKING FOR ADDITIONAL PHD STUDENTS AND WOULD BE HAPPY TO CHAT ABOUT RESEARCH IN COMPARATIVE LAW, LEGAL HISTORY, AND LEGAL PHILOSOPHY. 

I SHOULD ALSO HAVE ADDITIONAL INFORMATION SOON ON LLM STUDY HERE.

CONTACT ME IF YOU'VE ANY QUESTIONS.

SEÁN PATRICK DONLAN

*

Funding Opportunities Postgraduate Research in the Faculty of Arts, Humanities and Social Sciences, University of Limerick, Human Rights in Ireland - The Blog. (closing date 31 January 2014):

• Faculty of AHSS Dean’s Scholarship (EU fees and maintenance)
• 10 EU Fee Waivers

Applications are invited from prospective postgraduate students to pursue a PhD in the Faculty of Arts, Humanities and Social Sciences at the University of Limerick. 

The Faculty of Arts, Humanities and Social Sciences offers a wide range of undergraduate, taught postgraduate and research based programmes for postgraduates. The Faculty comprises five academic departments/schools, ten research centres and groups  and has close links with the Irish World Academy of Music & Dance  and the University of Limerick Language Centre.

We teach 16 degree programmes in English; European Studies; French; Gaeilge; German; History; International Relations; Japanese; Journalism; Law; New Media; Politics; Public Administration; Sociology; Spanish; Teaching English to speakers of other languages (TESOL); and Technical Writing.

We also offer taught and research postgraduate programmes at Graduate Diploma, Master Degree and Structured PhD levels.

For an application form and further details, please contact: Niamh Lenahan (niamh.lenahan@ul.ie   Tel: + 353 61 202945). 

For further information on postgraduate research in the Faculty of AHSS, please contact Dr. Helen Kelly-Holmes, Assistant Dean for Research (helen.kelly.holmes@ul.ie ; Tel: + 353 61 234206)              

CLOSING DATE FOR RECEIPT OF APPLICATIONS: Friday 31 January 2014.

CONFERENCES: HUMAN RIGHTS AND GENDER WITH PROFESSOR MALEIHA MALIK

The Perelman Centre for Legal Philosophy in collaboration with the Law Faculty of the Universitè Libre de Bruxelles has announced a series of conferences on Gender and Human Rights. 









In these conferences Maleiha Malik, Professor in Law at King’s College London, will explore key contemporary issues on gender equality. 

The inaugural conference will be held on December 10, 2013 at 6 pm.

Program:

http://www.ulb.ac.be/facs/droit/docs/TassierChair.pdf

Contact: 

Mrs Sylvie Riche, administrative coordinator of the Perelman Centre: sriche@ulb.ac.be

The conferences are open to all. Free entrance.

Location and details on: www.philodroit.be