04 September 2014

JUORNAL ANNOUNCEMENT: Transnational Legal Theory (Volume 5, Issue 2)

A new issue of Transnational Legal Theory (Volume 5, Issue 2)  by Hart Publishing 

Click here to access this issue online

Legality as Relative Institutionalisation: MacCormick’s Diffusionism and Transnational Legal Theory
Maksymilian Del Mar
Abstract: This paper offers a reconstruction of the late Neil MacCormick’s institutional theory of law in light of his commitment to the diffusion of power. The paper argues that insofar as we are considering MacCormick’s legacy for transnational legal theory, it is best to marginalise what some have termed his ‘transition’ from radical pluralism to pluralism under international law. From the perspective of his commitment to the diffusion of power, the papers in which MacCormick discusses those issues are seen to have more in common, ie they both attempt to create and sustain a theoretical space in which the relationship between Member State and European institutions is a horizontal one (and thus one in which neither side can be said to be supreme so as to make the other subordinate). MacCormick’s commitment to the diffusion of power is here linked with the nourishment he drew from the thinkers of the Scottish Enlightenment, and especially David Hume. Finally, his institutional theory of law is reconstructed as an account of ‘legality as relative institutionalisation’, this being an account that, inter alia: (1) treats legality as an emergent phenomenon (and is thus able to capture the inchoate and emerging forms of legality that arguably characterise the transnational); and (2) keeps track of the experience of ordinary persons, which not only respects the difficulty in distinguishing between ordinary persons and officials in the realm of the transnational, but also enables scrutiny of the gap between decision-making and those it most affects.

Towards a Natural Law Foundationalist Theory of Universal Human Rights
Anthony Robert Sangiuliano
Abstract: The contemporary literature on the philosophy of human rights features a clash between two opposing theoretical paradigms. The first paradigm, called Functionalism, grounds the nature of human rights in their practical or political significance. The second paradigm, called Foundationalism, grounds the nature of human rights in a pre-political substratum of moral thought to which positive legal-political institutions ought to conform. What tends to make the first paradigm more appealing is that it avoids the problem of grounding human rights in moral considerations that may be ethnocentric and thus not acceptable to all peoples everywhere. This paper makes a case for a version of Foundationalism called Natural Law Foundationalism, which has often been overlooked in the contemporary literature. It argues that Natural Law Foundationalism is a promising view because it is capable of confronting the ethnocentricity problem more effectively than other versions of Foundationalism. It also argues that the view can deliver on its promise because its main tenets have sufficient philosophical defensibility.

What We Talk About When We Talk About International Constitutional Law
Christine Bell
Abstract: Everyone is talking about international constitutional law: but several different conversations seem to be going on. A first conversation concerns how international law is developing its own constitution, and a second how domestic constitutional law is internationalising under supranational and transnational pressures. The article adds a third conversation concerning how international law regulates the framing of new or revised polities and their constitutional orders, which has largely been an outlier due to its lack of clear disciplinary frame as either international law or constitutional law. The article explores whether these different conversations, often assumed to be part of a common field of study, in fact talk to each other. Are they one or many? In conclusion it is suggested that the ‘lonely third’ conversation makes explicit a converging consensus across all three conversations, revolving around the idea that constitutional orders in either the domestic or international domain are shaped and made normative by the dialectical interaction between them. This converging consensus not only links all three conversations, but stands to re-work our conception of constitutional foundations in more traditional settled domestic contexts.

Judicial Comparativism and Legal Positivism
Bosko Tripkovic
Abstract: The article explores the relationship between the use of foreign law in courts and legal positivism. The point of departure is Jeremy Waldron’s notion that foreign consensus is our law; such law exists outside of a legal system, depends on its moral merits and hence brings some of the central positivist commitments into question. The article maintains that even if foreign consensus were our law, this would not undermine legal positivism, and—moreover—that foreign consensus is actually not our law. In so doing, it advances an account of foreign law as a facultative theoretical authority that is best explained by the positivist idea of judicial law making.

Review Essay
Re-Evaluating Shareholder Primacy in the Post-Crisis Context: A View from Comparative Political Economy—Review Essay on Richard Mitchell, Anthony O’Donnell, Shelley Marshall, Ian Ramsay and Meredith Jones, Law, Corporate Governance and Partnerships at Work
Dezso Farkas

03 September 2014

BOOKS' ANNOUNCEMENT: New titles from Ashgate Law and Legal Studies

The Ashgate Research Companion to Islamic Law

The Ashgate Research Companion to Islamic Law
Edited by Rudolph Peters, University of Amsterdam, The Netherlands and Peri Bearman, Harvard University, USA
August 2014 • 356 pages 
Hardback • 978-1-4094-3893-9 • $144.95 / £85.00 • more...

Reconceptualising Penality
Reconceptualising Penality
A Comparative Perspective on Punitiveness in Ireland, Scotland and New Zealand
Claire Hamilton, Queen's University Belfast, UK
Advances in Criminology
August 2014 • 252 pages 
Hardback • 978-1-4094-6316-0 • $124.95 / £70.00 • more...

Developing Restorative Justice Jurisprudence
Developing Restorative Justice Jurisprudence
Rethinking Responses to Criminal Wrongdoing
Tony Foley, Australian National University, Australia
International and Comparative Criminal Justice 
August 2014 • 262 pages 
Hardback • 978-1-4094-6533-1 • $124.95 / £70.00 • more...

Regional Human Rights Systems
Regional Human Rights Systems
Volume V
Edited by Christina M. Cerna, Georgetown University Law Centre, USA
The Library of Essays on International Human Rights
August 2014 • 592 pages 
Hardback • 978-1-4094-3911-0 • $350.00 / £185.00 • more...

ARTICLE: What’s the Law Got to Do with Corruption in Indonesia? A Case Study for Systems Theory

A new article by Samuel Chan from the new issue of Global Jurist:

What’s the Law Got to Do with Corruption in Indonesia? A Case Study for Systems Theory

CALL FOR PANELS: IUAES Inter-Congress 2015

The IUAES Inter-Congress 2015, Re-Imagining Anthropological and Sociological Boundaries is going to be held on 15-17 July 2015, at the Thammasat University, Bangkok, Thailand. The Call for Panels is now open.
Please visit the congress web-site for the “Panel proposals submission guidelines” and further details on the Inter-congress:http://socanth.tu.ac.th/iuaes2015/. The main conference theme is divided into 10 sub-themes. Panel proposals should focus on at least one sub-theme. Deadline: The Call for Panels will close on 30 September 2014.


A new issue of the  ISLAMIC LAW & LAW OF THE MUSLIM WORLD eJOURNAL was just published, as follows the table of contents:

Jamhari Makruf, Universitas Islam Negeri Jakarta, International Cooperation
Iim Halimatussa'diyah, Universitas Islam Negeri Jakarta - Faculty of Social and Political Sciences

Rayan Haykal, Université Saint-Joseph de Beyrouth

Fevzi Esen, Yalova University

Raj Bhala, University of Kansas - School of Law
Shannon B. Keating, New Markets Lab

Muhammad Munir, International Islamic University, Department of Law

Justice (R) Dr. Munir Ahamd Mughal, Punjab University Law College, Superior Law College, LIMIT Law College, Lahore

WORKSHOP: Iglp workshop, deadline for partecipants' applications

The Institute for Global Law and Policy (IGLP) at Harvard Law School invites to apply to participate in the 2015 Workshop in Doha, Qatar, from January 2-11, 2015.

IGLP: The Workshop is an intensive residential program for doctoral and post-doctoral law scholars and junior faculty. The aim of The Workshop is to strengthen the next generation of scholars by placing them in collaboration with their global peers as they develop innovative ideas and alternative approaches to issues of global law, economic policy, social justice and governance.

Sponsored by the Qatar Foundation and hosted by Hamad bin Khalifa University, the Workshop brings together more than 100 young scholars and more than 50 senior and junior faculty from around the world for serious research collaboration and debate.While in residence in Doha, participants review current scholarly developments, reconsider canonical texts and network with colleagues from across the world. Intensive writing workshops offer participants the opportunity to receive valuable feedback on their own research from their peers and more senior colleagues in small group settings.

The deadline for applications is September 12, 2014. Learn more and apply here today: http://www.harvardiglp.org/iglp-the-workshop/

ARTICLES: Philosophy of law eJournal

Two new, interesting articles from the last issue of the Philosophy of law eJournal:

Preface in Kafka's Law: "The Trial" and American Criminal Justice (University of Chicago Press, 2014)
Northwestern Public Law Research Paper No. 14-35

ROBERT P. BURNSNorthwestern University - School of Law
Email: r-burns@law.northwestern.edu
Justice Kennedy famously claimed that Kafka's great work, "The Trial," expressed the reality of the American criminal justice system, at least from the defendant's point of view. This essay, the first sections a book just released by the University of Chicago Press, first summarizes the book's argument that the Justice got it just right, and then provides a close reading of "The Trial." This reading agrees with Hannah Arendt's view that the novel is centrally about institutional issues of justice and that it provides an "organizational gothic" vision of contemporary bureaucratic governance in criminal procedure.

6 Duke Forum for Law & Social Change 31 (2014)
U of Houston Law Center No. 2014-A-75

JORDAN J. PAUSTUniversity of Houston Law Center
Email: jpaust@central.uh.edu
The evident split in Kiobel has, in the words of Justice Kennedy, left open a number of significant questions regarding proper elaboration and explanation of the extraterritorial reach of the Alien Tort Statute. Among these are whether a presumption against extraterritoriality should apply and, if it is used, whether inconsistent and ambiguous criteria are preferable in deciding when it is displaced. Extraterritoriality of some sort has been affirmed, but there is an evident lack of consensus on rationales, doctrines, and criteria.
For this reason, its is important to reconsider what the full set of early cases and opinions of Attorneys General add for proper decisionmaking regarding the statute’s evident reach; what is compelled by adequate awareness of the nature of the law that is expressly incorporated by reference and its jurisdictional attributes and substantive grasp; how congressional endorsement of the Filartiga line of cases should displace a judicially-created presumption as well as supposed “foreign relations” concerns and provide needed guidance; how the Charming Betsy rule supplements the need to interpret the statute consistently with universal jurisdiction and responsibility as well as human rights of access to courts and to an effective remedy under international law; and how the rationale in the Bowman exception to a presumption of non-extraterritoriality supports that requirement. This article provides a basis for such an inquiry. Part III identifies evident misconceptions in some of the opinions and is organized into eight areas.