Liberal Legalism Research Articles

Theft in Broad Daylight: Racism and Neoliberal Legality.

In this article the author examines Fitzpatrick’s foundational critique of liberal legality and racism, a theme which remained central to his decades-long excavation of modern law’s self-identity. After considering Fitzpatrick’s ‘separation thesis’, the author then turns to consider the ways in which neoliberal legality is parasitic upon liberal legal racial formations while at the same time, obscuring the foundational place of race in contemporary capitalism by subsuming material life within its modes of value extraction.

Vietnamese America: On ‘Good Refugees’, Fake News, and Historical Amnesia

Vietnamese Americans are at a crossroads: the rise of mainstream misinformation and pro-Trump sentiment in their communities is not a historical aberration, yet attempts to explain it draw exclusively upon the good refugee narrative and fail to interrogate the legacy of imperialism and liberalism that all Americans inherit.

Korea’s experimentation in legal services market liberalization: lessons learned and options for reform

ABSTRACT Korea amended the Foreign Legal Consultant Act in 2016 to fulfil its free trade agreement commitments to Phase 3 legal services market liberalization. This Phase 3 liberalization allowed foreign law firms to form Joint Venture Law Firms with Korean law firms and practice in certain areas of local laws by employing Korean-licensed lawyers. However, free trade agreement contracting parties heavily criticized the terms and conditions of Joint Venture Law Firms and argued that these would discourage foreign law firms from entering joint ventures, thus significantly undermining the effect of Phase 3 liberalization. Indeed, the Joint Venture Law Firm provisions have not been used, even after five years since Phase 3 liberalization. With this backdrop, this article examines: (1) Korea’s history and past struggles to implement the Foreign Legal Consultant Act; (2) Criticisms of the Act and their legal validity; and (3) The costs and benefits of policy options for Korea’s future legal services market liberalization. This analysis provides a foundation for discussing future regulatory reforms of the Foreign Legal Consultant Act.

Supremacy Smugglers? Islam in the Legacy of Theological Liberalism

Abstract This article interrogates the interpretation of Islam in the legacy of theological liberalism. Ernst Troeltsch (1865–1923) has been labelled the figurehead of such liberalism. Islam is a recurrent referent in his thought, running through his theological and philosophical writings. Whereas studies such as Tomoko Masuzawa’s immensely influential The Invention of World Religions contend that Troeltsch’s conceptualization of religion smuggles assumptions of the supremacy of Christianity from theological into non-theological research on religion, I argue that Troeltsch’s characterization of Islam clarifies how he both constructs and collapses the supremacy smuggling for which he is criticized. For the current controversies about Islam in the European and the American public square, Troeltsch is instructive because he captures both the problems and the promises of the theological thinking that came to be called “liberal” for the study of religion.

Constitutional Transition and the Travail of Judges: The Courts of South Korea

Professor Marie Seong-Hak Kim has written an excellent book, one that should be read by everyone interested in South Korea’s legal system, as well as those interested in the complex and multifarious roles courts play in authoritarian political regimes everywhere. Some will take issue with Professor Kim’s overall assessment, that during South Korea’s authoritarian era the courts generally performed admirably, given the political constraints under which they operated. Her arguments are clear and reasoned, however, and she refers regularly to possible counterarguments as she presents her analysis. This Review will present a general description of the book’s contents, followed by a discussion of some of Professor Kim’s specific arguments. In Chapter 1, Professor Kim places her study of South Korea within the growing scholarly literature on courts in authoritarian regimes. Korea was ruled by Japan from the early 1900s until 1945, and South Korea was then under U.S. military occupation until 1948, so South Korea’s own authoritarian period runs from roughly 1948 through 1987, a period which saw democratization and the enactment of the current constitution. In terms of typology, South Korea’s particular authoritarianism was heavily influenced by the Cold War, opposition to communist North Korea, and the country’s status as a key ally of the United States. These circumstances were reflected in an authoritarianism that generally respected private property and an expansive role for markets, despite noted efforts at industrial policy, while the political sphere included multiple parties, periodic elections, an active press, and promises that eventually democracy, the rule of law, and liberal legality would be achieved. South Korea is also among the exemplars of authoritarian legality that has successfully transitioned to democracy, and one of Professor Kim’s interests is how the behavior of the courts during the authoritarian era affected both how democratization occurred, and how law has functioned subsequently.

The Search for an Anchor: Living Constitutionalism from the Progressives to Trump

Over a century after the Progressives’ devised “living constitutionalism,” its latter day adherents have fought conservatives’ originalism to an intellectual standstill and a political rout. Bookended by discussions of three books by legal liberals (Jack Balkin, Erwin Chemerinsky, Geoffrey Stone and David Strauss) and a book and article by progressive constitutional scholars (Mark Tushnet, David Pozen and Adam Samaha), this essay argues that legal liberalism today is intellectually exhausted. In developing a “critical constitutionalism,” those to their left have better identified constitutional law and theory’s pathologies and potential. The overarching claim is that professional and ideological factors have led legal liberals to misapprehend the uses and limitations of constitutional theory. The essay concludes by suggesting legal liberals move past debates about originalism and begin to think anew about what (legal) liberalism has to offer American constitutionalism.

Drawing Contract and Polyamory Together Or: How I Found the Limits of Liberal Legality in Kimchi Cuddles Comics

AbstractPolyamory means consensual, aspirationally gender-egalitarian, non-monogamous relationships. People who engage in such relationships often seek relationship advice. This article is a critical review of a self-help webcomic and other texts in the light of contract theory. Polyamorous people often use contractual concepts to understand their relationships and how to carry them out. Applying critical contract theory, we can trace how problems typical of contractual framing in other fields play out in the poly context. At the same time, these problems are recognized and responded to by poly people, and they dynamically reinterpret core contract concepts. This article thus makes two contributions. First, it provides a study in the way legal concepts percolate out into, and are transformed by, everyday life. Second, in consolidating some ways poly people have solved old contract problems, it offers conceptual tools for the continuing project of imagining more just ways of relating.

Simango, Gwenjere and the Politics of the Past in Mozambique

The fractious history of Mozambique’s anti-colonial movement remains politically charged, just as in other post-colonial states where opposition movements have challenged the ruling party’s exclusive claim to the legacy of national liberation. This article examines the debates over the legacy of the former Frente de Libertação de Moçambique (Frelimo) vice-president Uria Simango and the Catholic priest Mateus Gwenjere, who continue to be denounced as traitors by the current Frelimo government, and of the protests against the Frelimo leadership by student exiles at the Mozambique Institute in Dar es Salaam in 1967–68. I argue that, for critics of the current government, the figures of Simango and Gwenjere represent a vision that is opposed to the direction taken by Frelimo after Simango was ousted from the leadership in 1969. The events surrounding the protests provide a basis for a narrative about the supposedly exclusive and undemocratic character of the current regime. As Frelimo remains entrenched in power through violence and patronage, the opposition contestation of the official history can be seen as an appeal for a more inclusive imagining of the nation, valorising historic Frelimo figures denigrated by the official version of history, while not challenging the centrality of Frelimo in Mozambique’s liberation.

Is John Henry Newman's Nineteenth-Century The Idea of a University Relevant in the Twenty-First Century?

Is John Henry Newman's Nineteenth-Century The Idea of a University Relevant in the Twenty-First Century? Allan Patience (bio) First published in 1852, John Henry Newman's work, The Idea of a University (henceforth The Idea), has been lauded down the years as a signal defense of what constitutes (or should constitute) a modern liberal university education. It remains in print today.1 In recent years the book has come under critical scrutiny. Newman is admonished for his English provincialism and his commitment to his Catholic faith. His views about the necessity to include theology in university curricula are written off as outdated and anti-liberal. His high Victorian prose style and misogynist defense of universities as bastions of male entitlement are easy targets for parody. His critics argue that his "idea" is principally an outdated defense of a privileged patriarchal ivory tower, aloofly distanced from the harsh realities confronting universities in the twenty-first century. His indifference to research in universities is seen as especially problematic. These criticisms, however, underestimate the nineteenth-century cultural and academic constraints within which Newman was defending what, in his time, was a radical view of a university. It was (and remains) a view that laid the foundations for future reforms. Moreover, his Catholicism is far more subtle than many of his critics appear to understand. This article aims to show that the essentials of his nineteenth-century defense of a liberal university are still relevant to the challenges facing the public university in the twenty-first century. [End Page 70] This article is divided into six sections. Section one provides a brief account of recent critiques on The Idea. Section two surveys some signal calls for university reforms advanced in the eighteenth century by scholars as diverse as Adam Smith, Immanuel Kant, and Edmund Burke, paving the way for The Idea. Section three focuses on The Idea and its arguments against Utilitarianism and a purely defensive clericalism. Given their critical force, section four addresses Professor Stefan Collini's reservations about The Idea.2 Section five briefly surveys Newman's liberal legacy extending from the nineteenth century to the present. Section six draws the article to its conclusion—viz., that The Idea still has much to offer in defense of the idea of the university today. CONTRA NEWMAN Alasdair MacIntyre has wittily summarized the growing contemporary discontent with The Idea: "To criticise contemporary universities from Newman's standpoint would be, on [his critics'] view, like blaming a jet engine for not having the excellences of a windmill."3 However, windmills are not to be sniffed at. Their "excellences" as the precursors of the wind turbines that are generating significant amounts of today's clean energy should not be forgotten. Moreover, as the discipline of the history of ideas teaches us, old ideas, like old technologies, are often the necessary precursors of new ones. Nonetheless, calls for dispensing with The Idea have been steadily increasing. In 1990, for example, J. M. Roberts stated: "As I reread the Idea it seemed to me that its doctrines were narrow, exaggerated, and likely to be sterile as sources of institutional reform."4 In 1996 Bill Readings complained that, "for Newman the teaching of secular culture is a palliative preparation for a sinful world, a world whose redemption is a matter of religious faith rather than scientific knowledge."5 Sheldon Rothblatt has even warned of Newman's "dark and dangerous side."6 In 2012, the former president of the University of Chicago declared: It is quite surprising to find how often Cardinal Newman's The Idea of a University is still invoked in writing about higher education. The belief that [End Page 71] such an idea should guide the forms and reforms of universities remains seductive even as it would appear challenged by the reality of today's intensely multitasking university.7 Meanwhile, given the contemporary context and pressures of higher education, Stefan Collini wrote: "Those who wish, nostalgically or defiantly, to cling to what they believe to be the values of the good old days tend to turn to their Newman for support and comfort. . . . I do not intend to encourage or endorse that reaction...

체코슬로바키아 ‘벨벳혁명’의 경제, 사회적 요인 분석

The purpose of this paper is to answer to the following three questions about the Czechoslovakia’s Velvet Revolution. First, for what reason, in Czechoslovakia, liberalization and democratization did not proceed step by step, but suddenly the two steps proceeded simultaneously? Second, why did the communist regime, which maintained tight control and maintained a much better standard of living and economy than other communist countries, did not stop the cry of anti-communist forces and society? Finally, can the velvet revolution be defined as a revolution in the classical sense? If so, what is the essence of the Velvet Revolution?<BR> To find the answers to the above questions, the text is organized as follows. In Section 2, I look back on the historical process of the Velvet Revolution around November 17, 1989, and explain why the revolution began on this day. In Section 3, I look for the essential factors that led to the occurrence of the Velvet Revolution in terms of economics. I emphasize that the existing research that finds the cause of the anti-communist revolution and system transformation in the socialist economic system by grasping the economy and living standard of the communist system does not apply to Czechoslovakia. In Section 4, I find the cause of the revolution in the social aspect, and above all emphasize that the legacy of democracy, liberalism, individualism, and pluralism during the interwar period was an important motive for moving away from the false life of the communist system and moving toward ‘a living in true.’ In the concluding remarks of Section 5, I summarize the causes of the Czechoslovakia’s regime transition and present which factors exerted greater influence compared to others.

성매매 문제에서 법도덕주의와 자유주의의 수렴 가능성

성매매 문제에서 법도덕주의와 자유주의의 수렴 가능성

Left turn to legalism: fact-finding inquiries as political critique in 1970s India

A defining feature of governmental abuse of power is that it is rendered invisible; official records conceal the suffering of the victim. To claim justice, activists have to first establish and document those acts of abuse. This article looks at the practice of voluntary and independent fact-finding investigations undertaken by first-generation civil rights activists in India. Such fact-finding exercises multiplied in the aftermath of the Naxalite movement (1967–1972) and the imposition of the Internal Emergency (1975–1977). The article examines the practice of fact-finding in the 1970s as a mode of activism, and what it reveals about the variegated nature of left political praxis in India. It examines the narratives I collected by conducting interviews with activists and analysing some of the earliest fact-finding reports from the period. The most distinguishing characteristic, I argue, of the practice of fact-finding in this period was that it was a hybrid of liberal legalism and left politics. This practice was a unique strategy that was liberal legalist in its form while retaining an affinity with movements on the far left that denounced ‘bourgeois’ state and law.

The Transnational Mining Justice Movement: Reflecting on Two Decades of Law Reform Activism in the Americas

AbstractThis article tracks the activism of the mining justice social movement since the late 1990s. As a starting point, this movement is conceptualized as a transnational political project that seeks to transform the terms of corporate resource extraction pursuant to the political and legal arrangements of neo-liberal economic globalization. In this context, the author reflects on the movement’s most significant human rights-oriented law reform projects in the Americas: Indigenous peoples’ right-to-consultation legislation in several Latin American countries and a series of non-judicial grievance mechanisms in Canada in response to the right to remedy norm in international law. Drawing on existing research, the author concludes that in both cases the state has responded with law and policy reforms that fall far short of achieving advocates’ objectives. The author argues that these shortcomings are due in part to the persistence of three liberal/neo-liberal ideologies in the reforms in question: formalism, voluntarism, and privatism. To better understand and explain these findings, the author turns to three critical theories of human rights legal activism: pragmatism, left critique/critical legal liberalism, and counter-hegemony. Examining the work of a range of scholars writing under the banner of each theory, the author identifies key debates and insights that may be instructive as the mining justice movement, and related social and environmental justice movements, continue to aspire towards a law reform agenda capable of addressing pressing global environmental and social justice issues.

Reversing Liberal Legality: Romania’s Path to Dictatorship, 1930–1938

Romania’s anti-liberal turn at the end of the interwar period is a useful case study for analysing the dissolution of the liberal nomos fostered by the Versailles arrangements against the background of the authoritarian takeover in Europe. In this article, I explore the legal and constitutional mechanisms at the core of the instauration of King’s Carol II dictatorship. I propose to do so by mapping the reconstruction of the concepts of legality and authority within the political and legal processes seeking to contest, challenge and ultimately reverse the liberal features of the constitutional armature of the Romanian state. Drawing on jurisprudence, political theory, and constitutional history, I seek to unearth the ideological underpinnings of this regime of power and to reflect on the nexus between law and anti-liberal projects of state-building at the end of the interwar period.

The Transnational Mining Justice Movement: Reflecting on Two Decades of Law Reform Activism in the Americas

In this article, I consolidate research that tracks the activism of the mining justice social movement from the late 1990s to present. As a starting point, I conceptualize this movement as a transnational political project that seeks to transform the terms of corporate resource extraction pursuant to the political and legal arrangements of neo-liberal economic globalization. In this context, I reflect on the movement’s most significant human rights-oriented law reform projects in the Americas: Indigenous right to consultation legislation in several Latin American countries, and a series of non-judicial grievance mechanisms in Canada, in response to the right to remedy norm in international law. Drawing on existing research, I conclude that in both cases the state has responded with law and policy reforms that fall far short of achieving advocates’ objectives. I argue that these shortcomings are due in part to the persistence of three liberal/neo-liberal ideologies in the reforms in question: formalism, voluntarism and privatism. To better understand and explain these findings, I turn to three critical theories of human rights legal activism: pragmatism, left critique/critical legal liberalism and counter-hegemony. I examine the work of a range of scholars writing under the banner of each theory in order to identify key debates and insights that may be instructive as the mining justice movement, and related social and environmental justice movements, continue to aspire toward a law reform agenda capable of addressing pressing global environmental and social justice issues.

Paradigm Shift and Scientific Revolution in the Development of Contemporary Ushul Fiqh

The phenomenon of Islamic legal liberalism in various Islamic countries often contradicts established Islamic legal norms. It is this phenomenon which then often causes polemic in the context of Muslim religious and social life. It does not mean to judge whether or not the various forms of Islamic legal liberalism exist. But philosophical things that need to be realized, that Islamic law (fiqh) is a dynamic product of thought that is built from an existing Islamic legal methodology (usul fiqh). On this basis, this study aims to find the paradigm of the development of contemporary ushul fiqh. This type of research is library research. The primary source used in this study is the thought of Wael B. Hallaq about the typology of the renewal of the contemporary ushul fiqh in his book entitled A History of Islamic Legal Theories. The theory used as the analysis theory in this study is the theory of scientific revolution from Thomas S. Kuhn. This study concludes that the stage of paradigm shift and scientific revolution, namely the drastic change from the old paradigm to the new paradigm that aims to answer the problematics that can not be solved by the old paradigm. Where in the context of the development of contemporary ushul fiqh, the normal stage of science can be seen in the development of established methods of classical ushul fiqh, as well as contemporary ushul fikih methods of religious utilitarianism. While the stage of paradigm shift and scientific revolution can be seen in the drastic change of the various classical ushul fikih methods that have been established into various methods of contemporary ushul fiqh, as well as various ushul fiqh methods of religious liberalism.

Mind the Gap

Mind the Gap

Constitutionalism and Crisis Narratives in Post-Brexit Politics

The Brexit vote has sparked renewed criticism of the United Kingdom’s ad hoc constitutional arrangements, particularly in relation to the status of popular sovereignty. While the people is politically recognised as ‘sovereign’ through the apparent unassailability of its referendum verdict, this sovereignty has no legal foundation or form – thus giving it an elusive, indefinite character. In turn, legal commentators have argued that the lack of a clear conceptual framework for constitutional referendums aggravated the political crisis that followed the vote and that the uncertain nature and authority of referendums represents a distinct source of constitutional crisis in its own right. In this article, I consider how this ‘constitutionalist critique’ of the Brexit referendum, and its ad hoc constitutional framework, reflects a particular conception of liberal constitutionalism as a bulwark against the hazards and vicissitudes of unstructured popular sovereignty. I will argue that this perspective overestimates the capacity of constitutional law to regulate expressions of popular sovereignty via referendums, that it misconceives the character and claim of popular sovereignty more generally, and that it reflects certain characteristics of liberal legalism in its stance towards politics and political contingency.

Stereotyping Religion: Comparing Clichés, ed. Brad Stoddard and Craig Martin

Stereotyping Religion is a collection of chapters aimed at dispelling popular clichés about religion in America arising primarily from the legacy of European liberalism, American Protestantism, and New Atheism. The primary intended audience is religious studies students in America (as well as religious studies professors looking for course readings). The goal of the book is to assist students and professors challenge assumptions about religion that they may have unquestioningly brought to the classroom with them – for instance, “religions are belief systems”, “religions are intrinsically violent”, or “religion makes people moral”. Each chapter is named after a cliché, making navigating the book easy. In a typical chapter, the author explains why the cliché is simplistic, how that cliché is used socially or politically, and the historical roots of the cliché. In practice, many of the themes (such as “religion is a private matter”) run through multiple chapters. While some chapters are more convincing than others, each chapter is at least likely to make the reader question their own assumptions and spur meaningful discussion.

Legacies of Liberalism

Legacies of Liberalism