A Certain Justice: Toward an Ecology of the Chinese Legal Imagination

In this article I address the question of what Martti Koskenniemi refers to in his EJIL Foreword as Hugo Grotius’ legal imagination – the type of values he was trying to convey and the strategies he meant to pursue while constructing his idea of an international legal order. As a matter of fact, focusing on such an apparently narrow aspect is not just relevant to those with a historical interest in Grotius. It also tells us something about the inveterate relationship between international law and historiographic practices. What I want to suggest here is that the history of international law is not just an a posteriori critical reflection on the international legal order – a subgenre for lovers of intellectual escapism in search of a distraction from the many problems of the contemporary world – but, rather, that one of the many successful projects of international law was (and still is) the ambition to order the world through histories.

Imagination is a cultural competence, a faculty of mind, a capacity for comprehension, synthesis, and creativity. In times of crisis, uncertainty, and political turmoil, the need for imagination in law becomes most prominent. The legal imagination has attracted the interest of academic scholars since Boyd White published The Legal Imagination. Another seminal text is Alan Watson’s Failures of the Legal Imagination. Disarticulation is indeed the outcome of sectionalism, which the Oxford English Dictionary defines as the ‘confinement of interest to a narrow sphere, narrowness of outlook, undue accentuation of minor local, political, or social distinctions.’ The collection probes ‘the transatlantic constitution’ because it focuses attention on imagination in a common law context that seems to foster imagination as a cultural capability. The collection probes the role imagination plays in law during troubled times – both in contemporary such times and historically. The chapter also presents an overview of the key concepts discussed in this book.

This paper provides both lawyers and cinema experts with some insights about the depiction of law and criminal justice in films in Japan. In recent years, there has been an increasing interest of the Japanese movie industry towards ‘courtrooms drama’, i.e., films set in tribunals and having lawyers, judges, and prosecutors as main characters: a small ‘Golden Age’ of law as depicted in Japanese cinema. This paper (co-written by a comparative lawyer and a film studies specialist) will address this phenomenon from two perspectives: one from a legal studies and popular culture framework, analyzing how such movies reflect – and at the same time shape – the ‘legal imagination’ in Japan. The other, from film studies, focuses on technical, directorial aspects, to emphasize how authors intend to depict the law and its actors.

This paper examines several common features that animate Stuart Scheingold's The Politics of Rights and The Political Novel. In exploring the affinities between these contrasting works, the paper takes up Scheingold's engagement with the cultural imagination – the legal imagination in The Politics of Rights and the literary imagination in The Political Novel – and shows how this engagement informs Scheingold's analysis of illusion, dualism, contingency, and agency.

Today we think of land as the paradigmatic example of property, while in the past, the paradigmatic example was often a slave. In this seminal work, James Q. Whitman asserts that there is no natural form of ownership. Whitman dives deep into the long Western history of this transformation in the legal imagination – the transformation from the ownership of humans and other living creatures to the ownership of land. This change extended over many centuries, coming to fruition only on the threshold of the modern era. It brought with it profound changes, not only in the way we understand ownership but also in the way we understand the state. Its most dramatic consequence arrived in the nineteenth century, with the final disappearance of the lawful private ownership of humans, which had been taken for granted for thousands of years.

In her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin's superjudge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This paper assesses Rackley's argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley's claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolutions in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship.The paper is in four parts. Part 1 places feminist approaches to adjudication in broader theoretical context. Part 2 considers Dworkin's theory of adjudication and Rackley's critique. Part 3 sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part 4 critiques Rackley's take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.

interesting argument that existed only as prerogatives assigned by Russian state rather than as properties attached to individuals. This is an argument that could be juxtaposed with Ocko and Gilmartin s comparative ana lyses of India and China as a third variant of a pattern in which a particular kind of rights talk is associated with a distinctive of discourse. But Burbanks analysis also goes further. She shows that peasants' strategies and elites' discourse were mutually constitutive, sometimes in uneven and surprising ways. Peasants sought assistance of law from within regime of estates and, in process, they reinforced an imperial mode of thinking that associated estate based distributions of with political order.12 Because Burbank has peasant legal strategies and perceptions, as well as their institutional context, so clearly in view, she can avoid common pitfall of characterizing Russian of as shaped by conservative cultural outlook of peasants or failure of a liberal project of extending to them a vision of universal individual rights. Rather than an abstract notion of or of as concept, Bur bank's object of analysis is the framework as it existed and various social imaginaries it nurtured.13 In other words, she shows relation between legal imagination and sovereignty precisely by studying institutional change at intersection of discourse and practice. Perhaps Ocko and Gilmartin will respond that I am advocating only a differ ence in emphasis rather than a fundamentally different approach. To be con vinced, I would want to be reassured that separation within rule of law discourses of law as a system of rules and law as a medium of power is not being reproduced in dualisms within their analytic framework. Relegating institutional histories to realm of an antiquated instrumentalist approach will not advance comparative study of rule of law. Legal imagination and sovereignty are mutually constitutive on many levels, including and perhaps especially in production of legal institutions and patterns of legal conflict. It is certainly possible to study comparatively of as a concept, but in doing so we still need to keep our focus on embeddedness of constructions of of in legal politics and institutional change.

Once considered a highly specific domain, international investment law has come to the forefront of legal debates and is one of the most divisive areas of international law. Under international investment treaties, foreign investors enjoy rights, have limited obligations, and can rely on a highly efficient dispute settlement mechanism: investor–state arbitration.1 In Investment Treaties & the Legal Imagination, Nicolás M. Perrone investigates how this regime evolved from a historical perspective. The book highlights that international investment law as we know it is the outcome of the project of business leaders, bankers, and lawyers in the 1950s and 1960s. For Perrone, these figures successfully developed a legal imagination (i.e. a vision of international investment relations) that gradually shaped and still pervades international investment law. Far from celebrating this vision, Perrone successfully illuminates what this worldview has focused on (investors’ rights) and what it has silenced, marginalized, and made invisible (local communities and Indigenous peoples’ needs). He then calls for the emergence of a new, more inclusive legal vision that considers not only investors’ needs but also those of local communities to achieve inclusive, sustainable development and peaceful, just, and prosperous relations among nations.

This chapter argues that while dispelling wishful thinking is important in teaching and writing about international environmental law, it is equally important to foster legal imagination. It begins by considering three challenges in teaching international environmental law. These challenges include the lack of intellectual baselines among students, scholars, and teachers; the legal complexity of the subject; and the ‘hope’ that is often placed in international environmental law. Responding to the third of these challenges means that much of the focus in teaching in the field of international environmental law has been to dissuade wishful thinking. The chapter then shows how the focus on wishful thinking has overlooked the importance of legal imagination in international environmental law. It considers how an important aspect of fostering legal imagination is to ground it in legal reality.

In this paper we critically engage with transformative constitutionalism as a project of imagination and a response to disenchantment. Drawing on post-colonialist feminist conceptions of the law, we explore the promise of the ‘legal imagination’ and its ability to re-enchant our understanding of equality and redefine universal standards employed by the law. The critique of disenchantment is two-fold. First, the formal application of rules mandated by the law allows for the absence of thought and by extension, the absence of judgement. Hannah Arendt understands the employment of ‘pure’ scientific knowledge as possessing the means to destroy the world. Similarly, a legal tradition founded on formalism possesses the means to destroy the society it claims to protect. Second, the law’s commitment to disenchantment has entrenched a universal standard that privileges the masculine and disparages the feminine ‘other’. Indeed Drucilla Cornell argues that no known society has successfully escaped ‘symbolic traces of an ideological masculinity’. In a postcolonial context disenchantment is further entrenched by the colonial relationship that serves to marginalise all that is in conflict with the western universal. Reference will be made to Hélène Cixous’ work on dualist thinking which not only results in separating one element from another but also in arranging them in terms of an implied hierarchy which renders the one element as subordinate to the other. This hierarchal structure and the perspective that the weaker element is passive, uncivilised, colonised and female will serve as the crux of disenchantment in the community and the legal culture for the purposes of this essay. Disenchantment itself can be understood as symptomatic of a masculine tradition.

Transgender persons are strangers to the law; or put more accurately, the legal imagination is so deeply entrenched in normative gender binarism as to effectively render transsexuals a ‘freakish’ anomaly to law. This essay attempts to offer a reflection on transgenderism, law and sexual crime from a human rights and criminal law perspective. It focuses on one of the most violent types of institution in society – the prison – and asks: what are the legal imagination and practice surrounding transgender prisoners as they are linked to social and cultural transphobia? What ‘human’ rights can be practiced for a dehumanized class? It first surveys the legal predicament of transgender prisoners in the US prison system in relation to Eighth Amendment rights provided by the US Constitution. The US situation has seen cases that have importantly shed light on other jurisdictions when engaging with the combined questions of prisoners’ rights and transgender rights together. The analysis is then taken to the context of Hong Kong prisons in a modest application. In contrast to some other Asian contexts (such as Taiwan, Thailand and Indonesia), critical cultural studies of transgenderism are non-existent in Hong Kong. Meanwhile, human rights studies of the same have only emerged through the work of legal scholar Robyn Emerton. It is hoped that a rights-based approach will emerge in Hong Kong for the protection of transgender inmates from sexual violence in local correctional facilities.

ABSTRACTThis special section of Law and Humanities focuses on the 45th anniversary edition of James Boyd White’s The Legal Imagination: a book that was ground-breaking when it first appeared in 1973 (since it is generally credited as having initiated the ‘law and literature’ movement) and that remains a hugely important resource today. White’s approach to legal scholarship and education - reading law’s instruments, its rhetoric and concepts alongside, above, below and in-between literary works and criticism - opened up a new world of intellectual possibilities. Realization of these possibilities has come in the form of the growth and flourishing, not only of law and literature but also numerous other intersections of law and the humanities that owe a debt to White. This symposium brings together seven eminent scholars (and readers of The Legal Imagination) to reflect on the contribution that White’s book made and continues to make to law and humanities education and scholarship. In the order that their essays appear, the authors for this symposium are Elizabeth Mertz, Robert P. Burns, Matthew Anderson, Jack L. Sammons, Thomas D. Eisele, Linda L. Berger and Linda Ross Meyer.

Stakeholder theory has often been placed in opposition to law, primarily because of misconceptions about fiduciary law. If managers are forced to choose between law and stakeholder theory, then there is no choice, for managers must obey the law. Bringing the two disciplines together, then, strengthens the appeal of both. In addition, it assists managers in bridging the gap between theory and practice. It enables business ethicists and lawyers to frame issues according to what managers already know, and what good managers already do.It is possible to argue for the advocacy of legal imagination. Such a notion encompasses the process of challenging accepted legal interpretations in order to motivate dynamic, evolving legal analysis. The gap between business law and business practices underscores the problem that legal imagination endeavors to attack. It encourages the search for creative solutions to ongoing dilemmas.Legal imagination is not a new term within law, but it has not yet been well developed. Using legal imagination could reveal potential within the law for a legal theory of stakeholder management. Traces of such a theory exist within current scholarship. This paper explores how legal principles from contracts, torts, and property can be integrated to help develop a legal foundation for stakeholder theory.

In her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin’s super-judge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This article assesses Rackley’s argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley’s claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolution in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship. The article is in four parts. Part I places feminist approaches to adjudication in broader theoretical context. Part II considers Dworkin’s theory of adjudication and Rackley’s critique. Part III sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part IV critiques Rackley’s take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.

Foreign investors have a privileged position under investment treaties. They enjoy strong rights, have no obligations, and can rely on a highly efficient enforcement mechanism: investor–state dispute settlement (ISDS). This extraordinary status has made international investment law one of the most controversial areas of the global economic order. Unsurprisingly, its origin and evolution have been the subject of a long debate. This book adds to the discussion by showing that foreign investor rights are not the result of unpredicted arbitral interpretations, but rather the likely outcome of a world-making project realized by a coalition of business leaders, bankers, and their lawyers in the 1950s and 1960s. Some initiatives that these norm entrepreneurs planned for did not concretize, such as a multilateral investment convention, but they were successful in developing a legal imagination that gradually occupied the space of international investment law. They sought not only to set up a dispute settlement mechanism but also to create a platform to ground their vision of foreign investment relations. Tracing their normative project from the post-World War II period, this book shows that the legal imagination of the norm entrepreneurs is remarkably similar to present ISDS practice. Common to both is what they protect—such as foreign investors’ legitimate expectations—as well as what they silence or make invisible. Our canon of imagination, of adjustment and potential reform, remains closely associated with the world-making project of the norm entrepreneurs of the 1950s and 1960s.