Liberal Law Research Articles

KERENSKY AS THE PHANTOM OF THE 1917 RUSSIAN REVOLUTIONS. THROUGH THE EYES OF RUSSIAN WRITERS AND POETS

Vladimir Kantor is examining the tragic and life-changing situation in Russia in 1917, the year of two revolutions, when Russian literature found itself in search of a new hero who could lead the country out of the catastrophe. Starting from March 1917, many writers believed they had found such a person in Aleksandr Kerensky. Russian poets and writers in unison hailed Kerensky as the new Napoleon, who would rein in the Russian revolt just like Napoleon did with the French one. Kerensky was aware only of the positive implications of this comparison. The article reveals the politician’s true role through comparative analysis of characterizations by his contemporaries.He began to live up to the phantom and act in the way that his admirers expected from him, losing his identity in the process. He surrounded himself with prominent figures, appointing the famous Social Revolutionary, terrorist and writer Boris Savinkov as his war minister. As the army commissar for ideology he selected Fyodor Stepun, a writer and philosopher. Most prominent artists from that period were all commissioned to paint Kerensky’s portrait. According to Stepun, Kerensky’s speeches were typified by an almost Schillerean ecstasy.But it was his most liberal law system that spelled doom for Russia and himself. The French National Convention rested upon terror and the guillotine, while Kerensky issued a decree abolishing the death penalty in Russia. In war times, amid raging banditry and with a disintegrating army, this decree proved to cause more irreparable damage than some of Peter I’s most ill-advised laws, and Kerensky used to hold Peter in high esteem. He relied on the power of rhetoric, which had propelled him to prominence during the February revolt, but the times had changed. He was nicknamed ‘negotiator-in-chief’, yet his skills were no longer effective with the mob. The mob was waiting for a show of strength and an order.

Testing a Beckerian-Arrowian Model of Political Orientation Discrimination on the U.S. Law Professor Labor Market: Measuring the 'Rank Gap,' 2001-2010

There are comparatively few conservative and libertarian law professors on U.S. law school faculties. Why is this? One possible explanation is discrimination based on political orientation. This paper tests this using a model of discrimination based on the work of Nobel Prize-winning economists Gary Becker and Kenneth Arrow in order to measure the “rank gap” — the difference in the ranking of a hiring law school based on one’s political orientation after controlling for other predictors of that ranking (clerkships, publications, the law school one graduated from, etc.). The paper, using matching statistical methods, finds that upon comparing conservative/libertarian law professors hired from 2001-2010 with equally-credentialed liberal law professors, conservatives/libertarians end up, on average, at a law school ranked 12-13 spots lower (i.e., less prestigious). (See pages 36-37.) This rank gap is not uniform, being more moderate with the top 75 schools, non-existent with schools 76-100, and the largest with the lowest-ranked schools. (See page 40.) The paper finds a similar “rank gap” for law professors whose political orientation was unknown or moderate compared to their liberal peers. Thus, while there may be other mechanisms causing the dearth of conservative/libertarian law professors in the legal academy, those who do make it in the door appear to experience discrimination based on political orientation. The paper also discusses the harms that a lack of conservative/libertarian law professors causes. Namely, legal scholarship suffers from an echo chamber; law students, particularly liberal ones, may not sufficiently learn how to make or counter conservative and libertarian arguments; and law and policy is not as strong as it could be without conservative/libertarian critiques and perspectives. (See part I.A, pages 5-11.)

Between Flexibility and Precarity

The recent economic crisis has increased the demand for atypical, flexible work patterns. Czech lawmakers have thus been under a continuous pressure by employers to adopt more liberal labour laws. Any increase of flexibility in labour relations, however, increases the risk of worsening the conditions of employees and deepening of precarity in labour relations. The article focuses on the current legal regulation of flexible forms of work under Czech law, and attempts to evaluate to which extent these patterns represent a welcomed option for both employers and employees, and to which extent they trigger the risk of precarious work. The author describes legal instruments such as agreements on performance of work outside employment relationship, fixed-term employment, part-time employment, employment through temporary work agency and remote working. Particular attention is paid to illegal work issues and related proceedings against employers. In summary, the author concludes that the increase of flexibility in labour relations has had positive consequences in many aspects, but also debates potential issues and challenges arising of the legal regulation for workers.

The Offence of Terrorist Financing; Why Does It Go Wrong?

The international convention on terrorist financing and Western-backed international organisations have found the financing of terrorism serious enough to criminalise it as an independent offence. While the offence has a preparatory nature, its criminalisation as an independent offence expands the boundary of criminal liability beyond existing notions of criminalisation. This article examines the justifiability of the terrorist financing offence with regard to the principles and values on which liberal criminal law is based. Liberal criminal law has been chosen because the idea of the criminalisation of terrorist financing was issued and developed mainly by Western liberal States. The article narrowly discusses the issue in the context of Anglo-American criminal law.

LA BANCA DE EMISIÓN ANDALUZA EN PERSPECTIVA NACIONAL (1856-1914)

ABSTRACTThis article attempts to establish a quantitative revision of issuing banks created in Andalusia in the middle of nineteenth century founded as a result of liberal banking laws in 1856, comparing with those of similar dimension in other Spanish provinces. Possible causes of their soon extinction are discussed, like the financial worldwide crisis in the 1860s, the monopoly issue granted to the Bank of Spain in 1874 and the specific circumstances of regional banking. The article tries also to evaluate the performance of Bank of Spain branches, since 1875 until 1914, in those Andalusian places where issue banks were independent before and in relation to the fluctuations of the regional economy in that period.

Classical Liberal Criminal Law

This essay, written for a festschrift for Richard Epstein, argues that classical liberals should support robust constitutional protections in criminal matters. It specifically highlights the need for robust Eighth Amendment review.

Medical cannabis legalization and state-level prevalence of serious mental illness in the National Survey on Drug Use and Health (NSDUH) 2008–2015

Although research has established a link between cannabis legalization and use, and cannabis use and mental health, the relationship between medical cannabis legalization and mental health remains uncharacterized. This analysis investigated the relationship between state medical cannabis laws (restrictive, i.e. covering a narrow set of medical conditions; or liberal, i.e. covering a broad range of medical conditions), whether the law permits patients to petition their physician to approve medical cannabis use for specific medical conditions, and state prevalence of serious mental illness (SMI) in the National Survey of Drug Use and Health 2008–2015. In a covariate-adjusted meta-regression, liberal laws were significantly associated with higher prevalence of SMI (Coeff = 0.003, SE = 0.001, p < .001). Restrictive laws (Coeff = 0.001, SE = 0.001, p = .285) and the ability to petition physician approval (Coeff = −0.001, SE = 0.001, p = .140) were non-significant. When added to the model, state past-year cannabis use was significantly associated with higher prevalence of SMI (Coeff = 0.037, SE = 0.015, p = .018), liberal laws remained significant (Coeff = 0.002, SE = 0.001, p = .015), and restrictive laws (Coeff = −0.0001, SE = 0.001, p = .945) and the ability to petition a physician (Coeff = 0.001, SE = 0.001, p = .290) remained non-significant. Medical cannabis laws are likely related to state mental health, and a higher prevalence of cannabis use partially explains this relationship.

Defining Responsibility: Printers, Politics, and the Law in Early Republican Mexico City

Abstract This article explores how printers and their collaborators shaped the implementation and interpretation of freedom of the press laws in early republican Mexico City. Far from passive reproducers of texts written by elites, printers and other behind-the-scenes actors facilitated republican politics by navigating legal categories such as responsibility and authorship that were defined by liberal law yet under debate and unevenly enforced. Focusing on the production, dissemination, and fallout over a controversial 1840 promonarchist pamphlet written by the Yucatecan senator José María Gutiérrez Estrada, the article uncovers a trio of collaborators, especially the young “printer citizen” Ignacio Cumplido, who undermined official efforts to consolidate state authority over political speech and deployed high-minded liberal principles as political strategy. By shifting focus from the pamphlet's well-reasoned arguments to its places of production, reception, and regulation, the article provides insight into how freedom of the press was implemented, manipulated, and debated on the ground.

교양법학 교육을 통한 기초질서 인식 변화 연구

교양법학 교육을 통한 기초질서 인식 변화 연구

РЕАКЦИЯ ЛИБЕРАЛЬНЫХ КРУГОВ АНГЛИИ НА ОБРАЗОВАНИЕ АВСТРО-ВЕНГРИИ В ОСВЕЩЕНИИ ГАЗЕТЫ “THE MORNING POST” (1867 Г.)

The reaction of the liberal circles of England to the formation of the dual monarchy of Austria-Hungary in 1867 is considered. The material, on which the study is based, was the Bri- tish newspaper “The Morning Post”, which expressed the interests of the middle class of the bourgeoisie and was the so-called “megaphone” of the Liberal party of Great Britain. Analysis of the newspaper material showed that in the British newspaper the most often raised and considered Austria-Hungary issues are the following: 1) the personality of Emperor Franz Joseph I; 2) the reorganization of the political system of Austria-Hungary on the basis of liberal laws; 3) the adoption of the Constitution of 1867 and the subsequent domestic changes. The study of the journalistic material led to the conclusion that the British liberals met very positively the formation of Austria-Hungary, because in its original form the reforms carried out by the Austrian government were a vivid example of the liberal ideology defended by the liberal community of Great Britain. Nevertheless, the emotionally expressive tone of newspaper articles shows that British liberals, having accepted the changes taking place in Austria-Hungary positively, were not always able to give an objective assessment of what was happening, so the newspaper often does not talk about the real problems of Austrian society.

Discordias y solidaridades: los preceptores de primeras letras en Puebla (1820-1860)

La creación de la escuela pública mexicana, a partir de la era independiente, requirió la participación de los preceptores de primeras letras quienes se encargarí­an de forjar a los nuevos ciudadanos mexicanos. La presente investigación indaga cómo actuaron los preceptores en las escuelas públicas sufragadas por el Ayuntamiento de la ciudad de Puebla después de que se disolvió su gremio, en un estado que brindó ciertas facilidades y tí­mida infraestructura para la educación. Se muestra la serie de tensiones que tuvieron lugar entre el Ayuntamiento y los mismos preceptores durante varias décadas del siglo xix, tensiones que llevaron al grupo a construir solidaridades, especialmente en coyunturas adversas como la intervención norteamericana y los embates estructurales de las Leyes de Reforma.

The challenge of articulating human rights at an LGBT ‘mega-event’: a personal reflection on Sao Paulo Pride 2017

This paper brings together Critical Event Studies (CES) and a reflexive/narrative autoethnographic approach in order to stimulate a debate around the commodification of public space, and the management of mega-events of dissent. This is achieved using the example of the researcher’s participation in the 2017 Sao Paulo Pride. Sao Paulo Pride is one of the largest LGBT demonstrations in the world. However, corporate interests in the event have commodified dissent in order to commercialise ‘otherness’, and the city has absorbed the demonstration into its cultural offer as a global brand. The confluence of these factors produces a pattern of place dressing and erasure that depoliticise the event and undermines its capacity to effectively articulate human rights. Currently Brazil has some of the most liberal LGBT laws of any South American state, yet recently Lesbian, Gay, Bisexual and Transgender (LGBT)/Sexual Orientation and Gender Identity (SOGI) human rights have been threatened by a rapid rise in hate crime and the emergence of an evangelical Christian right in state and regional assemblies. Within such a context the need to revive the roots of Pride as an articulation of otherness that demands recognition, and as a robust defence of human rights for the LGBT/SOGI community, is more pressing than ever.

An Academic Analysis of Demarcation and Ownership of Land in Hinduism

Land ownership is considered as a human right under the Universal Declaration of Human Rights and is recognized as a basic right in the modern world. It remains one of the most controversial issue throughout history, always in need of an appropriate definition suited to a nation’s political, social and economic conditions.While all liberal laws allow for certain reasonable restrictions on an absolute right to property for some public good, the challenge facing every country is where to draw the line against state interference into a person’s right to own and enjoy property. Especially in the modern world countries required more food production and the problem is that, some people have so much land area, and that a significant part of their lands is out of their power to cultivate accurately. Due to this reason much of land area remains barren. And in the other side some farmers who have not enough land, their half-power spend without receiving any fruit. Religion plays a Vitol role in this area, if the followers of that religion follow such rules with honesty. In non-Semitic religions Hinduism is one of the largest religion of the world with a rich culture and religious practices. This research paper will explain religious law about the ownership of land in Hinduism. Keywords: Hinduism, Property, Manu, Mahabhar’at, Landownership

Jefferson Decker, The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government

Jefferson Decker’s lucid, engaging The Other Rights Revolution examines the origins of conservative public interest organizations in the mid- to late 1970s. Like others who have written about these groups, he begins by tracing their rise as a reaction to the “new liberal state.” Decker does not focus on the conservative reaction to the Warren Court’s constitutional criminal procedure rights revolution; instead, he develops conservative reaction to the increasing authority of the regulatory state and the rise of public litigation by liberal public interest law firms. The reaction begins to coalesce after Lewis F. Powell, Jr., sent a 33-page memorandum to the Chamber of Commerce titled “The Attack on the Free Enterprise System.” Powell claims business “tolerates, if not participates in, its own destruction.” Decker then turns to the 1973 creation of the California-based Pacific Legal Foundation, which used the Powell memorandum for fundraising, and the Mountain States Legal Foundation in Denver. Both intended to defend free enterprise, and to attack the “too-powerful regulatory state.” Chapter 5 discusses the late 1970s effort by conservative lawyers to use public interest law to vindicate their intellectual and ideological vision. Once Ronald Reagan was elected President, many conservative public interest lawyers joined the administration. Decker thoughtfully and fairly looks at the experiences of Secretary of the Interior James Watt, formerly of Mountain States, to discuss the difficulty of transitioning to “governing from the right.”

Mark Twain's India: The Private-Public Divide in Following the Equator

Abstract Mark Twain lectured across the Indian subcontinent for over two months and narrated his experiences of India, Australia, and South Africa in his travelogue Following the Equator (1897). Even though Twain makes transnational connections between slavery at home and European imperialism around the globe, his travelogue is replete with ideologically contradictory statements. He alternates between respect for native cultures and a typical nineteenth-century assertion of the superiority of Anglo-American civilization. This article examines Twain's varying private responses to people and cultural practices in India. It also analyses his problematic endorsement of the British Empire as “reinforced by just and liberal laws,” which was in contrast with his later scathing denunciation of American imperialism. It will delve into the possible reasons for Twain's complicity with the colonialist discourse when he operates in a public sphere informed by his reliance on colonialist sources of history.

Toward a Radical Imagination of Law

In this Article, I consider the contemporary law reform project of a radical social movement seeking to transform the state: specifically, the Movement for Black Lives policy platform, “A Vision for Black Lives: Policy Demands for Black Power, Freedom, and Justice.” The Movement for Black Lives is the leading example of a contemporary racial justice movement with an intersectional politics including feminist and anti-capitalist commitments. The visions of such radical social movements offer an alternative epistemology for understanding and addressing structural inequality and injustice. By studying not only the critiques offered by radical social movements, but also their visions for transformative change, the edges of law scholarship can be expanded, a deeper set of critiques and a longer set of histories—of colonialism and settler colonialism, the Atlantic slave trade and mass incarceration—centered, and a bolder project of transformation forwarded. These visions should push legal scholars toward a broader frame for understanding how law, the market, and the state co-produce intersectional structural inequality, and toward agendas that focus not on building the power of law and law enforcement, but on transforming the state and society and building the power of marginalized communities. This shift would invigorate the social movements literature and bring new energy to scholarship on substantive areas of law, from criminal and immigration law to property and contract law. To illustrate the creative potential of studying radical social movements, this Article considers policing the Vision for Black Lives with the Department of Justice’s (DOJ) Ferguson and Baltimore reports. The Vision and DOJ reports offer alternate conceptualizations of the problem of policing and the appropriate approach to law reform. Reflective of liberal law reform projects on police, the DOJ reports identify policing as a fundamental tool of law and order that serves the collective interests of society, and locate the problems of police in their failure to adhere to constitutional law. As a remedy, the DOJ reports advocate for investing more resources in police: more trainings, better supervision, community policing. In contrast, the Vision identifies policing as a historical and violent force in Black communities underpinning a system of racial capitalism and limiting the possibilities of Black life. Here, law is central to the shape and legitimation of racialized violence and inequality. The Vision’s reimagination of policing—rooted in Black history and Black intellectual traditions—transforms mainstream approaches to reform. The Vision demands shrinking the large footprint of policing, surveillance, and incarceration, and shifting resources into other social programs in Black communities: housing, health care, jobs, and schools. It focuses on building power in Black communities, and fundamentally transforming the relationship between government, market, and society. In forwarding an abolitionist imagination, the movement offers transformative, affirmative visions for change designed to address the structures of inequality—something legal scholarship has for far too long lacked.

\u2018I felt the world crash down on me\u2019: Women\u2019s experiences being denied legal abortion in Colombia

BackgroundIn 2006, Colombia’s constitutional court overturned a complete ban on abortion, liberalizing the procedure. Despite a relatively liberal new law, women still struggle to access safe and legal abortion services. We aimed to understand why women are denied services in Colombia, and what factors determine if and how they ultimately terminate pregnancies.MethodsWe recruited women denied abortion at a private facility in Bogota. Twenty-one participants completed an initial interview and eight completed a second longer interview. Two researchers documented themes and developed and applied a codebook to transcripts using ATLAS.ti.ResultsParticipants faced barriers, such as lack of knowledge of service availability and delayed pregnancy recognition, leading to denial. Five out of eight participants ultimately received abortions in public hospitals, due to support from partners and a robust referral system; nevertheless, they received poor care. Those who continued pregnancies endured stigmatizing events and inaccurate medical counselling at referral facilities. Several women contemplated illegal abortion though were afraid to attempt it.ConclusionWe propose the following recommendations: 1) increase awareness about availability and legality of abortion services to prevent delay and consequent denial; 2) provide counseling and referral upon denial; and 3) train providers in interpersonal quality abortion care.

Long-Term Perspectives on Divorce in the Nordic Countries – Introduction

The Nordic countries are often put forward as forerunners in the acceptance of permissive divorce practices and in the shift away from a patriarchal family system during the twentieth century. This special issue focuses on the long term historical path dependencies that make Nordic institutions and norms regarding divorce stand out as liberal and individualistic in an international comparison, but also shed new light on the differences that exist between the countries. Specific traits that are raised is the role played by the shared Lutheran culture that facilitated the breakthrough of a secular notion of marriage as a civil contract, but also the important role played by the first wave feminist movement in all of the Nordic countries for the early breakthrough of liberal divorce laws. However, it is clear that permissive norms and institutions have tended to spread in two distinct waves with leaders and laggards within the Nordic context. In the early twentieth century, Denmark and Norway spearheaded the shift to bi-lateral no-fault divorce. In the 1970s, Sweden took over as the leader when the country adopted unilateral no-fault divorce while Finland consistently has tended to stand out as the conservative laggard within the Nordic context.

Liberalism and the End of International Law?

As globalisation and Pax Americana replaced the cold war as a framework for thinking about things international, explicitly liberal ideas of international relations developed and gained momentum. Liberalism puts great emphasis on law, and it is therefore no coincidence that there has also emerged a liberal theory of international law (LiTIL). Liberal ideas can be traced to many writers of international law, but the articulated liberal theory of international law is associated with Anne-Marie Slaughter, professor of international, foreign and comparative law at Harvard Law School. Besides her law degree, Slaughter has a PhD in IR, and she started publishing at the time of the break-up of the Soviet empire, which does not seem coincidental. Slaughter’s writing builds on a few distinct ideas: International law should be based on developments in IR, i.e., on liberal IR, where the individual is the fundamental actor. There is a liberal zone of peace and law and a non-liberal zone of (potential) wars and politics, and legal relations in the liberal zone are different from relations with or within the non-liberal zone; In the liberal zone, international relations have changed fundamentally from the old Westphalian paradigm, to relations on three levels: the transnational level between individuals, the transgovernmental between governmental institutions – what she calls disaggregation of sovereignty - and the traditional inter-state level. This theory has been critiqued from several points of view: Andreas Behnke will deal with the IR underpinnings of her theory and their political implications, Outi Korhonen has analysed the epistomological theory implicit in liberal international law, Martti Koskenniemi has written about the relation between law and politics in liberal international law, the political theory implicit in liberal international law has been questioned by Susan Marks and the political implications of her legal theory will be covered in Linda Bishai’s presentation. My intention with this paper is to deal with the liberal theory of international law as a legal theory. That is, I want to see what it has to say about the foundation of law, the nature of law, and how we can determine what is valid law, all of which are questions which legal theories usually aim to answer. I will first present Slaughter’s theory, and then deal with the different implications of that theory from the perspective of whether it produces sound international legal theory.

On the Duty to Host in International Law: Jacques Derrida and Political Literature

Jacques Derrida’s politics of hospitality explores the tension and interdependency that exist between hosts and guests. This article uses Derrida’s idea of hospitality and attempts to understand how it applies to the 21st century refugee crisis in the context of human displacement, state of refugee and immigration. We turn to the help of fiction as a critical tool in scrutinizing current political discourses. Specifically, we offer an analysis of J.M Coetzee’s novel Disgrace in light of Derrida’s theme of hospitality. Coetzee – who was awarded the Nobel Prize – presents a vivid portrait of post-apartheid South Africa that offers a contradictory perspective to Nelson Mandela’s vision of democracy in South Africa. His novel suggests that the inherent violence of colonialism can neither be resolved nor dissolved merely by expressions of regret and forgiveness. By extension, we ask if liberal democracies and international humanitarian law can offer a policy of hospitality that is both morally anchored and practical.