Liberal Law Research Articles

Moral reconciling at career launch: politics, race, and occupational choice

Abstract Recent research suggests that college-educated young adults, especially those who are politically liberal and/or racially marginalized, exhibit moral reservations about their intended occupations. How do they justify entering occupations that conflict with their morals, and with what consequences? This article examines the case of 74 mostly liberal prospective law school students from a range of racial backgrounds followed over 2 years. In interviews at career launch, respondents criticized the legal profession for its perceived perpetuation of inequality and violence. Despite their moral reservations, they articulated three occupational justification narratives for attending law school: lifting up (exceptional lawyering); leveraging out (legal education for nonlawyer aspirations); and leaning in (conscientious class mobility/maintenance). These narratives differentiate between morally ‘good’ and ‘bad’ occupational domains—a cultural-cognitive process we term moral reconciling. We theorize how moral reconciling at career launch charts young adults down different early career trajectories, with implications for occupational sorting and change.

When Is it Right to Speak of Animal Rights?

Abstract This article examines the ways in which the language of legal rights is invoked by those seeking to improve the treatment of animals. Drawing from a range of analytical, realist, and critical legal and social theorists, it argues that certain argumentative techniques commonly employed to justify the extension of legal rights to animals may serve to strengthen and reproduce the very forms of exploitation they seek to challenge. The article begins by identifying and critiquing the binary characterisation of rights/welfare and property/personality in liberal animal law scholarship. It then employs the insights of Theodor Adorno and Walter Benjamin to expose and critique various appeals to an ‘exterior’ or ‘extra-legal’ domain which functions to stabilise the meaning of these doctrinal categories. In doing so, it explores the strategic viability of rights discourse in the animal advocacy movement with a view to highlighting the limitations of liberal constructions of animal rights.

Between the Church and the State

Abstract Supranational cultural institutions and communities play an interesting role in the development of abortion policy both historically and today. In this article we consider two such institutions: the Catholic Church and the European community. The church is famously antiabortion, and we describe the ways in which the Catholic position manifests itself in different countries. Conversely, almost all European countries have liberal laws that allow abortion on demand for twelve weeks of pregnancy. Italy sits at the intersection of European and Catholic identities. Italy adopted European-style liberal abortion laws early, but Italians continue to identify with the church in surveys, which is one of the causes of high levels of conscientious objection by medical professionals. Italy’s abortion policy pleases neither Catholics nor secularists. We explain this by understanding Italy’s abortion law as liberal de jure, but its culture is still heavily influenced by Catholicism, resulting in limited abortion access de facto.

A Critique of Conqueror South Africa, Post-1994 Liberal Democracy and Liberal Democratic Law

Violence and oppression in the form of conquest and colonialism, racism, patriarchy, heteronormativity and in terms of class are all inevitable effects of Western culture. This is due to the reason that Western culture is fundamentally highly materialistic, competitive, narcissistic, individualistic and takes aggressive and domineering stances towards innerworldly entities. Therefore, a Western concept of law based on such a culture is fundamentally ineffective to eradicate such violence and oppression, but rather perpetuates it. These characteristics of Western culture and the Western concept of law have their roots in the Western conception of “Being,” particularly in the conception of “Being-with.” This article argues that liberal democratic law and liberal democracy rooted in an individual, competitive, hierarchical and amensalist Western ontological framework fundamentally perpetuate group-based oppression. Therefore, the 1996 constitution and post-1994 South African constitutionalism secure and perpetuate the oppression of the indigenous conquered people under the guise of transformation and reconciliation.

ON SOCIO-CULTURAL ASPECTS OF THE USE OF POSTCARDS IN THE GERMAN-CZECH CONFLICT AT THE TURN OF THE 19TH CENTURY

Postcards as a reflection of German-Czech contradictions in the period of the Badeni crisis in the late 19th and early 20th centuries have more than once been the subject of study. The research novelty of this article lies in the fact that the problem is examined not through postcard images themselves, but from the point of view of the primary functionality of postcards as a means of communication and a commercial product. The author focuses on commercial, postal-technical, consumer practices, institutional and legal aspects, as well as the reception of postcard messages, both individual and public. Various national associations and private entrepreneurs, main producers of postcards, oft en deliberately radicalized their content in their political or commercial interests. The specificity of the postcard as a means of postal communication and its mass appeal served as the basis for unique practices in mobilizing supporters and criticizing opponents by “cartographical attacks”. Even the design of postcard forms was a means of national struggle and expression of personal position. Publishers of the respective orientations designed them in the “German” or “Czech” spirit, while the official position was to refuse any name for this postal product. At the same time, the numerous variants of handwritten edits concerning all the constituent parts of the postcard (technical design of the form, address, and stamp) allowed users to state their position on the national question. Th e legal side of postcards’ production, functioning and existence was determined, on the one hand, by conditions which were common to other types of printed matter, in particular, by the liberal press law of 1868, and, on the other hand, by postal regulations that periodically withdrew certain postcards from circulation. All this became the subject of litigations and debates in parliament and thus provided a way for postcards to enter the public sphere and, accordingly, served to attract further public attention to the national conflict and its aggravation.

Analysıs of Foreıgn Direct Investment Policies and of the Performance of FDI Flows into Türkiye

The purpose of this paper is to overview Foreign Direct Investment (FDI) policies and legal framework over the years in Türkiye and analyze the performance of FDI inflows to the country by using total and sectoral FDI data over the period 1970-2022. With the recognition of positive spillover effects of FDI in bringing foreign exchanges, as well as new technologies, managerial and marketing skills to domestic industries, Türkiye opened its economic activities to foreign capitals by adopting liberal FDI laws and regulations in 1980, 1989, 2003 and 2012. Our study shows that immediately after these years, both aggregate FDI inflows and their sectoral distributions in Türkiye has changed dramatically. For instance, after the implementation of the FDI law in 2003, the service sector attracted the most of total FDI inflows.

The Problem with Preparing to Kill in Self‐Defense

ABSTRACTIn a society marked by liberal gun ownership laws, and an increasingly militarized police force, how should we think about cases where a homeowner shoots a person who has mistakenly knocked on the wrong door, or where a police officer shoots someone who is unarmed? The general tendency – by shooters, courts, and many observers – is to use the framework of self‐defense. However, as I will argue, relying on the framework of self‐defense is inappropriate in these cases, because theories of self‐defensive killing are built up around a very specific type of case, namely, a random, sudden, one‐off encounter between roughly equally matched strangers. When a person who acts in self‐defense has undertaken certain preparations to kill in self‐defense – such as buying a gun, or undergoing certain kinds of training – they transform what would have been defensive violence into offensive violence. But because the self‐defense framework distinguishes only between defensive and aggressive violence, it cannot easily register the unique moral features of offensive violence. Relying on the self‐defense framework, then, produces judgments that are overly permissive of killings by gun owners and police, masking them as self‐defensive when in fact they are much more morally fraught.

Odredbe Mažuranićevog zakona o osnivanju narodnih škola i priprema za narodne učitelje u Kraljevinama Hrvatskoj I Slavoniji i zakonodavni okviri za podsticanje stvaralaštva u obrazovanju

Ivan Mažuranić, a Croatian Ban who reigned from 1873 to 1880, implemented significant reforms in education, administration, and judiciary as part of his political program aimed at providing a modern legal framework for Croatian autonomy. During the second year of his reign, on August 19, 1874, Ban Mažuranić proposed the draft Act on the organisation of public schools and teacher training schools, which was adopted and confirmed by the Austrian Emperor and Hungarian-Croatian King Francis Joseph I on October 14, 1874. This Act is considered to be the first Croatian autonomous school law and one of the most liberal school laws in Europe, establishing schools as secular institutions. While many provisions of that Act remain applicable in today's Croatian educational system, they sparked some serious debates and protests across social classes at the time. A qualitative comparative analysis of this Act and the current Act on education in primary and secondary schools will compare the legislative frameworks for encouraging creativity in education and enabling the autonomous work of teachers. By enacting this law, Ban Mažuranić demonstrated his commitment to fulfilling his election promises. Along with other laws enforced in judiciary and administration, this Act paved the way for the modernization of the former Croatian state, aligning it with European standards of a modern civil state.

Enclaves of Exception: Reaping the Advantages of Colonialism Through Free Trade in the Scandinavian Caribbean, 1672–1815

ABSTRACT The mercantile history of Charlotte Amalie and Gustavia, free ports in the Danish (1672–1917) and Swedish (1784–1878) Caribbean, have existed outside of the standard purview of both national and transnational historiographies, despite the considerable attention they received by eighteenth century political and economic thought. Due to their unique legislative character, they cannot be situated easily within available historical frameworks. In contemporary politico-economic opinion and eyewitness accounts, the Scandinavian free ports were equated to other free trade regimes insofar as they were conceived as a means of commercial rivalry against other nations. The liberal laws of free ports were styled as consistent with Enlightenment theories of equality and industry, even though they did not represent anything novel in the permeable commercial world of early modern colonialism. Interloping, as the practice of trespassing commercial privilege was commonly referred to, was a key feature of the transit trade operating out of these free ports. The utility of the free port trade was highly contingent upon shifting alliances and patterns of conflict. Operating across the peripheries of other empires, Scandinavian free trade designs in the Caribbean were beneficial for various actors, including but not limited to the parent states themselves.

The German Climate Verdict, Human Rights, Paris Target, and EU Climate Law

The German Constitutional Court’s climate verdict provided a re-interpretation of core liberal-democratic concepts, and it is highly relevant for liberal constitutional law in general, including EU and international law—where similar issues are currently being discussed in ongoing trials before the European Court of Human Rights and the International Court of Justice. The present article applies a legal interpretation to analyse the national and transnational implications of the ruling. The results show that the verdict accepts human rights as intertemporal and globally applicable. It applies the precautionary principle to these rights and frees them from the misleading causality debate. However, the court failed to address the most important violations of human rights, it categorised climate policy as a greater threat to freedom than climate change, and the court failed to acknowledge that the Paris 1.5-degree limit implies a radically smaller carbon budget. Furthermore, little attention has so far been paid to the fact that the ruling implies an obligation for greater EU climate protection, especially since most emissions are regulated supranationally. Against this backdrop, the EU emissions trading system demands a reform, which has to go well beyond the existing EU proposals so as to enable societal transformations towards sustainability.

A Qualitative Study on Sustainability of Tea Industry: Exploring the Challenges and Opportunities Using PESTEL Review

The fundamental value of this study is to examine the sustainability issues of the tea industry in Bangladesh using PESTLE (Political, Economic, Technological, Social, Environmental, and Legal factors) analysis. PESTEL analysis perceived that the macro-environmental factors in the sustainable tea industry of Bangladesh are rather unpromising as a consequence, making it a profitable industry through evaluating its challenges and opportunities. A qualitative research method has been applied to measure the importance of the macro-environmental factors and their level of influence on the tea industry. For the data collection purpose, this study used an interviewing method and the thematic analysis was applied for data analysis purposes. 3o industry experts and stakeholders were interviewed and some major insights are discovered. Lack of governance of public authority, limited awareness of sustainability issues, below-standard labor wages, achieving economies of scale, outdated machineries and technologies and liberal import law are some significant challenges facing the sustainable tea industry of Bangladesh. The findings may provide useful suggestions for the policy-makers, researchers, developers and tea garden owners for decision-making purposes.

Back to Square One: Attempted Legal Amendments and Abortion Practices in Sri Lanka

The Sri Lankan law only permits induced or iatrogenic abortion to save the life of the mother. Despite the restricted law, law enforcement mechanisms, and reported high national contraceptive prevalence rate, a significant proportion of pregnant women terminate their pregnancy outside the law. Despite the existence of restrictions and inertia, numerous stakeholders concerned about women’s health have made several attempts to liberalize the abortion law in Sri Lanka. Although several amendments were proposed to rationalize the abortion law in Sri Lanka, nothing has been successful – we are back to square one.
 Expansion of legal exceptions for induced abortions and improved safe abortion with the revolutionized medical abortion (MA) were observed in numerous countries globally during the past decade. On the other hand, some countries with broadly liberal laws, including the United States, have added restrictions. How these global changes have affected countries like Sri Lanka is worth studying. This article assesses the response of the Sri Lankan government and the society towards those global changes in terms of the policies and practices on induced abortion. Authors argue that the paradigm shift in abortion practices in Sri Lanka, driven by the emerging occurrence of medical abortion, has highlighted the disparity between the existing legal status and the aspirations of most Sri Lankans. Given the widespread support for legalizing abortion in cases of rape, incest, and fetal abnormalities, it is imperative the government seriously consider legal amendments.

Reflections on the Circulation of Normative Models and Legal Works in the 1936 Argentine Civil Code Draft on Possession

Abstract This article explores the process of circulation of normative models and legal theories between Europe and Latin America. It analyzes the circulation of the German possessory model in the Argentinian legal experience between the enactment of the Civil Code of 1869 and the Civil Code Draft of 1936. We argue that the prominence of possession in nineteenth-century local legal culture and practices both conditioned and encouraged the reception of this model. The criticisms that arose at the beginning of the twentieth century regarding the liberal property law of the Civil Code were channelled, in the Civil Code Draft of 1936, through an expansion of the protection of possession to situations not previously contemplated, such as rural and urban leaseholds. German law, which served among other things, as the basis for this legal innovation, was adapted to specific legal traditions operating in provincial regulations.

“Can Men Have Hearts?”: Susa Young Gates's Divorce, 1878

“Can Men Have Hearts?”: Susa Young Gates's Divorce, 1878

Against insular liberalism: Sayyid Qutb, illiberal Islam and the forceless force of the better argument

Political liberals claim that liberal polities may legitimately dismiss the objections of ‘unreasonable’ citizens who resist political liberals’ favored principles of justice and political justification. A growing number of other political philosophers, including post-colonialist theorists, have objected to the resulting insularity of political liberalism. However, political liberals’ insularity also often presents them from being sensitive or responsive to these critics’ complaints. In this article, I develop a more efficacious internal critique of political liberalism: I show that political liberals’ own core principles of liberal legitimacy sometimes require liberal polities to engage with the objections of those who hold ‘unreasonable’, and even illiberal, views. First, I draw on the work of Sayyid Qutb, an illiberal Islamic political thinker, to argue that – contrary to what political liberals often imply – even ‘unreasonable’, illiberal citizens may be fair-minded: that is, they may be actively concerned to cooperate with others on fair and mutually endorsable terms. Second, I contend that a liberal state’s own core commitment to treating citizens as free and equal requires it to offer fair-minded illiberal citizens like Qutb deep reasons – that don’t presuppose agreement on liberal principles of justice and so can speak to them in the dialectical position they start from – for why they should accept the liberal laws with which the state coerces them to comply. By showing how political liberals’ own commitments oblige them to address even ‘unreasonable’ political perspectives, I open the door to their more robust engagement with their critics, including not only comparative political theorists but also the growing number of illiberal citizens who challenge democratic regimes.

Remarks on Johan van der Walt’s Concept of Liberal Democratic Law

This article engages with Van der Walt’s concept of liberal democratic law. Firstly, it shows that his concept is significantly influenced by Hans Kelsen’s theory, mainly by Kelsen’s democratic political theory but also by Kelsen’s legal theory (insofar as the latter is considered to be related to the former). Secondly, it demonstrates that he goes also beyond Kelsen’s theory by considering necessary for the sustainability of liberal democratic law an adequate social state. Given this, I argue that there is, to an extent, a proximity to Hermann Heller’s social Rechtsstaat theory. Thirdly, it shows that – although the socio-economic level is, to an extent, considered – he leaves unexplored the rise of independent technocratic institutions in the economic governance framework of contemporary liberal democracies (the independent central banks, like the European Central Bank, being the main example). I argue that this issue needs to be explored in order to reach a realistic understanding of liberal democratic law (an understanding that Van der Walt aims at).

Rawls, Habermas and Liberal Democratic Law

The theoretical undertakings of both Rawls and Habermas pivot on an aspiration to explain (and surely to promote through explanation) the Enlightenment ideal of reason reflected in the idea of liberal democracy. The thoughts developed in my book The Concept of Liberal Democratic Law (2020, CLDL hereafter) pivot on the same aspiration. What obviously distinguishes the theoretical undertaking in CLDL from those of Habermas and Rawls, is the greater emphasis in CLDL on the precariousness of this ideal of reason. This article first gives a short exposition of some of the main lines of thought developed in CLDL. It then moves on to an analysis of Rawls’ theory of political liberalism and Habermas’ discourse-theoretical explanation of the legitimacy of modern law through the prism of the key elements of CLDL highlighted in the first part of the article.

Liberal Democratic Law, the Ethics of Civility, and Agonistic Politics between Hegemony and Compromise

This article brings Van der Walt’s argument on the importance of an ‘ethics of civility’ in liberal democracies into dialogue with agonistic democratic theory. While agonists agree with Van der Walt that democracy requires citizens’ readiness to live with views that they do not consider ‘reasonable enough,’ they focus on the political processing of conflicts among political actors with opposing views of what is reasonable. The article argues that agonism may be a suitable complement to Van der Walt’s argument, because it shows how politics can help foster citizens’ willingness to act according to the demands of an ‘ethics of civility.’ It refers to Chantal Mouffe’s and James Tully’s agonistic theories and shows that both describe forms of conflict processing that prevent situations in which an ‘ethics of civility’ would demand too unequally distributed sacrifices: continued hegemonic struggle in the case of Mouffe and compromise in the case of Tully.

The Fragility of Liberal Democratic Law

The Fragility of Liberal Democratic Law

Enduring Contingency

Van der Walt, in my reading, suggests that enduring contingency, in the twofold sense of an enduring state of contingency and of contingency as what needs to be endured, justifies the central role of the majority/minority principle in liberal democratic law. Does this endorsement of the principle go far enough in addressing the radical challenge of contingency? What about those cases in which a group refuses to understand itself as a disaffected minority in conflict with a majority, hence as part of a unity, even if only the unity of a legal order? At issue is a group that demands exclusion from a polity rather than demanding its recognition and inclusion as a minority entitled to be treated as equal to, even if different from, the majority. I suggest that, in the end, Van der Walt justification of the majority/minority principle espouses an agonistic defence of political and legal unity.