Liberal Law Research Articles

Anti-Terrorism Criminal Law: Where Emergency Regime Meets the Investigative Agenda

AbstractThis article aims to show how reform of the law on terrorism not only has the power to create new criminal procedures, it can also create a distinct, parallel field operating alongside general criminal law. This parallel configuration presents certain unique features and processes which merit their own typology – namely, anti-terrorism criminal law (ATCL). First, the article discusses how states have responded to terrorism through reform of four key arenas: military law, immigration law, administrative law and criminal law. Comparison is then drawn between the United States and Israel in their respective approaches, showing that Israel has executed far more sweeping and significant reforms over the last four decades, mainly in criminal procedure. Examples are given to illustrate how Israel's evolving anti-terrorism legislation – and specifically, the new Counter-Terrorism Law of 2016 – changed the criminal procedural landscape to such a degree that it constituted the new field of ATCL. I contend that this move was anti-liberal in its definition and targeting of terror suspects, and in its pursuit of emergency aims and intelligence gathering rather than liberal criminal law objectives. Further, I show that liberal theory struggles to explain the integrated change model that Israel has implemented in its counter-terrorism reforms, and that the theoretical framings of Carl Schmitt and Michel Foucault may explain it more effectively.

Looking to the Horizon: The Meanings of Reparations for Unbearable Crises

Harms that arise from climate catastrophes deepen already unbearable forms of racial oppression. Both can be traced to accumulative ways of life that justified slavery and colonialism, which shifted into new forms of hegemony under liberal international law. A growing response has been to demand reparations. However, the meanings of reparations are vast and sometimes counterintuitive. This essay reflects on reparations claims emanating from the Caribbean, as one place where race and ecology converge. The Caribbean was forged by Indigenous genocide, the enslavement of African peoples, and the indentured labor of Asian peoples. Today, descendants in the region face subordination under liberal international law and climate catastrophes. Such conditions reveal that reparations are foremost a horizon of transformation away from accumulative ways of life that spread from Europe to the world, structuring the present reality. “Reparations” also refers to immediate justices that meet the demands of those who are harmed, because this prefigures the horizon of transformation by disrupting imperialism. These qualities dispel racializing critiques from the First World that reparations are irrational, or constitute politics separate from law. Reparations can enact legal relations that are meaningful to those “on the bottom,” and emancipatory for everyone, when communities and social movements define them.

Conclusions et ouverture : dialogue intergénérationnel

As the bioethics law has just been voted, several actors during this academic conference have examined the paradigm shift introduced by this resolutely liberal law from their respective perspectives. Using a reading grid inherited from Pascal’s orders, the different dimensions of moral, political, legal, and scientific discourse are used as a reference to evaluate an often highly contrasting discourse. The evolution of the paradigm from bioethics law to zoethics law, in search of social legitimacy and of a response to individual desires, constitutes a turning point in the revision of bioethics laws. Under these conditions, does bioethics law does not lose its universal purpose?

REMNANTS OF OTTOMAN LAW AND ITS APPLICATION IN CONTEMPORARY TIMES IN LEBANON AND THE ARAB WORLD

At the beginning of the sixteenth century (1516), the Ottomans controlled all the lands that are today within the Lebanese Republic, and their existence lasted for four hundred years, during which they established military, security, administrative and social systems and enacted laws to improve and organize the country. Although five centuries have passed since the Ottoman presence in Lebanon, some of these laws are still in force. Some have been amended, such as the personal status law related to Islamic Law, some administrative regulations, and the municipal ordinance that the French updated during the Mandate days (1920-1943). While Ottoman laws are still strictly enforced in Lebanon, such as the Associations Law. Two sources, one legal and the other specialized in Islamic history, confirm in two separate interviews to Anadolu Agency the importance of these laws for Lebanon since their enactment until today. "Not everything old is considered bad. For example, but not limited to, the Associations Law is an Ottoman law that enshrines freedom of association and respects Article 13 of the Constitution, and despite its promulgation in 1909, it has been considered a liberal law to date," says Appeals Lawyer Zakaria Yahya beast. Al-Ghoul added: "The Law of Associations is one of the most important laws issued during the Ottoman period. It is still in force to date, and it is the one who looks after the affairs of associations and how they are formed in Lebanon and the Arabs World. He pointed out that "there is a legislative decree issued in 1977, which is compared to the Ottoman Law of Associations as a recent law, but it allowed the pre-trial detention of journalists." He continued, "From here, this comparison makes us say that the problem does not lie in the extent of the laws' antiquity, but rather in the extent to which they meet the objectives of the current legal rules."

Ancient Greek Nomos and Modern Legal Theory: A Reappraisal

Recently, two books have appeared that venture to re-investigate modern legal theory's ancient Greek underpinnings. In both books, the notion of nomos plays a central role. Firstly, Thanos Zartaloudis has published a remarkable study in which he delves into the manifold meanings of that ancient Greek word. Zartaloudis offers us an extraordinarily rich analysis of the polyvalent forms and uses of nomos from the age of Homer up to the days of Socrates – the classical period in which nomos would finally come to acquire its sense of an enacted legal norm (‘law’) or binding social convention (‘custom’). Secondly, nomos is of central importance in Johan van der Walt’s recent book on the intertwined modern notions of liberal democracy and the rule of law – referred to by Van der Walt as the concept of liberal democratic law. For Van der Walt, the analysis of ancient Greek nomos and its long and tortuous reception history in western thought is crucial for a proper understanding of what the modern concept of liberal democratic law entails and how it could be saved for the future.

Nativist Nation

Nativist Nation Lucy E. Salyer (bio) Erika Lee, America for Americans: A History of Xenophobia in the United States. New York: Basic Books, 2019. 432 pp. Images, Notes, and index. $32.00. Amanda Frost, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers. Boston: Beacon Press, 2021. 248 pp. Images, notes, bibliography, and index. $27.95. Julia Rose Kraut, Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States. Cambridge, MA: Harvard University Press, 2020. 352 pp. Notes and index. $37.00. The 2016 presidential election brought Donald Trump and his shrill, anti-immigrant rhetoric to the White House, providing a bully pulpit and a megaphone for nativist forces that had been clamoring for more draconian policies. Trump unleashed vitriolic attacks on immigrants and foreign-born Americans of all statuses and nationalities but reserved special antipathy for Black and Brown immigrants. Trump promised to “take the shackles off” immigration agents and to “build the wall”—both physical and legal barriers—to stem what he called an “invasion” by “bad” people. Deeds followed words. Moving remarkably swiftly, Trump issued the controversial travel ban (a.k.a. “Muslim Ban”) within a week of his inauguration and adopted an aggressive deportation campaign to expel undocumented immigrants. Trump’s “zero tolerance” policy led to record-high detention rates and the separation of migrant children from their parents, some of whom have still not been reunited. By the time Trump left the White House in 2021, his administration had enacted an astounding 472 administrative changes “that dismantled and reconstructed many elements of the U.S. immigration system.”1 The 2016 election sparked diverse reactions: many onlookers were startled and appalled by the nastiness and the outright racism of Trump’s attacks while his supporters thronged to his message, as he dared say boldly and loudly what many conservatives felt. Erika Lee, in her new book America for Americans, expresses her own “constant astonishment and dark humor” as well as her “righteous anger and helplessness” in response to Trump’s campaign (p. 5). [End Page 368] Many critics believed that Trump’s anti-immigrant sentiment broke with the United States’ cherished image as a “nation of immigrants,” reviving outdated and disreputable views that had fallen out of favor decades ago. But as these three books—Lee’s America for Americans, Amanda Frost’s You Are Not American, and Julia Rose Kraut’s Threat of Dissent—reveal, Trump’s “Make America Safe Again” and “America First” slogans echoed a long line of cries throughout the nation’s history, demanding “America for Americans.”2 In sum, we’ve been here before. Lee, Frost, and Kraut all construct their studies around the same fundamental paradox: Is the United States a “nation of immigrants” or a nation against immigrants? On the one hand, Lee notes that the U.S. has received more than 80 million immigrants over the past 200 years and “historically led the world in resettling refugees.” It remains the “world’s largest immigrant-receiving country in the world.” Lawful permanent residents, observes Frost, benefit from liberal naturalization laws allowing them to become citizens 5 years after their arrival. Frost also remarks that the Constitution raises a broad umbrella over a diverse society, the First Amendment “protecting the rights of ethnic, religious, ideological, and racial minorities to live as they prefer.”3 On the other hand, the United States has continually defined itself in opposition to “foreigners,” employing a variety of methods to cull and separate those deemed a threat to “real Americans.” In one of the great opening lines of a book, Aristide Zollberg, in A Nation by Design (2006), observed that the United States has been “a nation of immigrants, to be sure, but not just any immigrants.”4 That observation, in itself, is not new. There is a rich literature on the history of anti-immigrant movements, with John Higham’s Strangers in the Land: Patterns of American Nativism, 1860–1925 (1988) providing the classic account. Higham and other scholars tended to view nativist movements as episodic, arising in times of national crisis. Writing a new epilogue for the 2002 edition of his classic work, Higham conceded that...

KEARIFAN LOKAL DALAM PENDIDIKAN HUKUM LINGKUNGAN DI INDONESIA

This paper will describe and examine local wisdom values that are implemented in environmental law education in Indonesia. Environmental law education is now more oriented towards liberal environmental law education so that it ignores the values of local wisdom. Based on this, the problem that arises is how about local wisdom can be the basis for environmental law education by internalizing local wisdom in environmental law teaching materials. The study in this paper uses m The research approach method is normative juridical. Secondary data were gathered through literature searches and analyzed using qualitative legal analysis to reach conclusions using a deductive syllogism.From the results of the study, it was concluded that klocal wisdom is full of spiritual meaning and ethical values. This local wisdom rests on the philosophy of values, ethics, and ways of behaving and behaving that are traditionally institutionalized. This is an important basis for environmental law education, which is a guide for humans when dealing with their environment. Keyword : Wisdom, Values, Education, Environmental Law.

“What Really Happened?”: The Life and Death of Olivia Coombs

“What Really Happened?”: The Life and Death of Olivia Coombs

Ex-Wives and the Welfare State

Ex-Wives and the Welfare State Lauren Jae Gutterman (bio) Suzanne Kahn, Divorce, American Style: Fighting for Women's Economic Citizenship in the Neoliberal Era. Philadelphia: University of Pennsylvania Press, 2021, 344 pp, Figures notes, and index. $55.00. In June 2022, in the days after the U.S. Supreme Court overturned Roe v. Wade, a Twitter thread went viral arguing that white women lacked the political organizing skills required for the moment. "The majority of white people in the U.S. were taught how to join clubs, not build community," author Miriam Forster stated. Forster's tweets followed much debate—on social media as well as in mainstream news outlets—about white women's complicity in the Court's ruling in Dobbs v. Jackson Women's Health Organization. In particular, commentators pointed to white women's integral role in helping to elect President Donald Trump, who appointed three of the six justices who authored the majority opinion in in the case. According to a 2021 Pew Research Center study, 47 percent of white women voters voted for Trump in 2016. In the 2020 election, white women voters' support for Trump increased to 53 percent.1 While focusing on women's access to the welfare state rather than abortion, Suzanne Kahn's Divorce, American Style: Fighting for Women's Economic Citizenship in the Neoliberal Era, sheds valuable light on contemporary debates about white women's activism and political investments. Divorce, American Style centers on white, middle-class, cisgender women who mobilized beginning in the 1970s around their shared experiences as divorced former homemakers. These women were caught up in sweeping cultural and legal changes that doubled the national divorce rate between 1967 and 1979, and weakened the financial position of wives who had previously depended on their husbands' incomes, insurance, and assets. Divorce, American Style challenges the Twitterfueled misconception that white women are incapable of grassroots organizing by detailing how effectively these activists, whom Kahn terms "feminist divorce reformers," mobilized for their personal welfare. But the book also reveals how deeply these women remained invested in a social welfare system that grants rights to special "deserving" groups of people at the expense of others. Over and over again, Kahn shows how these women failed to build connections with less privileged, unmarried mothers or [End Page 353] to fight for universal social welfare benefits. Ultimately, Kahn argues, feminist divorce reformers used marriage to maintain their own class status and racial power. While studies such as Robert Self's All in the Family (2012) and Alison Lefkovitz's Strange Bedfellows (2018), have highlighted the ways the feminist movement culturally and legally destabilized the male-breadwinner model of marriage, Divorce, American Style reveals just how reluctant some feminists were to give up a marriage-based vision of social welfare, given their previous investment in it. A national transformation in divorce law that made divorce cheaper, easier, and less stigmatizing, catalyzed the feminist divorce reform movement Kahn traces. In 1966, a group of lawyers, judges, and law professors from across the country drafted the Uniform Marriage and Divorce Act (UMDA) which called for replacing the nation's fault-based system of divorce, in which one spouse had to prove the other "guilty" of some specific legal transgression. Instead, according to the UMDA, judges could declare a marriage "irretrievably broken" without having to prove fault. By 1974, forty-five states had a no-fault divorce option, thus relieving unhappily married couples from having to perjure themselves—by lying in court about instances of cheating or physical abuse—or go through the expensive process of establishing residency in a state with more liberal divorce laws. These legal changes also altered the process of determining financial support. Under the no-fault regime, a dependent wife who was found not to be at fault could be granted alimony, or ongoing financial support. The UMDA, however, encouraged judges to determine shorter-term "maintenance" payments based on how long they imagined it would take a dependent spouse to become financially independent. While some states adopted such limited provisions to protect former housewives, many states did not adopt any legal safeguards for them at all. Beginning with sociologist Lenore Weitzman's...

Criminal law reform and the progressives—the case of provocation

ABSTRACT In this article, I consider the Australian criminal law reform campaign to abolish the partial defence of provocation. I argue that, while abolitionists were motivated by an admirable concern for equality, their proposal—which has now been adopted in many Australian jurisdictions—inadequately balanced the competing autonomy claims of victims on one hand and the accused on the other. Like the mid-twentieth-century English higher judiciary, abolitionists’ hostility to the partial defence was too unqualified—and they placed too little emphasis on the interests of accused persons. That said, they were right to argue that liberal provocation law, by being too solicitous of the welfare of certain accused, had had deeply illiberal effects. If the criminal law is to be truly progressive, it must do what it can to achieve fairness for disfavoured minorities—including those accused of serious offending.

Intimate Contracts and Choice Theory

Abstract Contract is one of the key tools liberal law employs in the service of its core mission of enhancing people’s autonomy, and choice theory conceptualizes this task as contract’s telos. It thus prescribes three principles – proactive facilitation, regard for the future self, and relational justice – for guiding the legal constitution of contract law in all spheres of human interaction. Spousal contracts are no exception. Thus, the law governing intimate agreements both allows people to adjust the default rules governing their marital estates and provides people off-the-shelf options for structuring their interpersonal interaction as spouses. In turn, the law of marital contracts ensures that free exit from marriage is, as it should be, immutable. Finally, relational justice guides, albeit still imperfectly, both law’s normative defaults for marital contracts and the rules that govern premarital, marital, and cohabitation agreements.

Reading Typologies of Whiteness: The Cop-Father and White Civil Society

Abstract This paper acts as an extended artist statement and explicates the primary themes that run through my series of films Typologies of Whiteness (2016–ongoing), with a particular focus on the film Typologies of Whiteness: Call Me Daddy (2020). I explore how the series gathers and détourns cultural materials to index three common discursive themes at play in police propaganda: liberal paternalism, conservative law and order, and normative pedagogy. Drawing connections between these themes, I theorize the construction of the Cop-Father who acts as a surrogate for the trope of the missing Black father. I argue that care and violence are bound in the single figure of the Cop-Father, who cares for his kin by wielding the capacity for violence toward the Other. The Cop-Father embeds himself in the anti-Black visual discourses of multiculturalism, civilizing and disciplining those on the margins of White civil society.

The Origins of the Market for Corporate Law

AbstractI study the origins of the market for corporate charters and the emergence of Delaware as the leader of this market. Specifically, I assemble new data on 19th- and 20th-century corporations to evaluate two widely held beliefs: (1) the U.S. Supreme Court is responsible for enabling a national market for corporate charters in the 19th century and (2) Delaware became the leader in this market only because New Jersey (the initial leader) repealed its extremely liberal corporate laws in 1913. I argue against both claims: The Supreme Court always opposed a national market for corporate charters, and New Jersey’s decline began a decade before its 1913 repeal. It is more likely that the market for corporate charters emerged as a collateral consequence of interstate commerce and that New Jersey declined because Delaware and other states simply copied its laws.

Long-Term Contractual Commitments and Our Future Selves

This article studies relational contracts whose performance implicates the person of the promisor (as where the promisor is the promisee’s employee). We investigate whether people’s beliefs that their and others’ personalities are relatively malleable (or not) correlate with their tendency to engage in such long-term contracts. Our survey experiment shows that the more people believe that their own personality is intertemporally malleable the less they tend to make long-term commitments; by contrast, the more they believe that others’ personalities are malleable, the more they tend to engage in such commitments. Our findings imply that people’s intuitive tendencies to make long-term commitments align with those that underlie liberal contract law, which is careful about enforcing contracts that constrain the self-determination of contractors’ future selves.

From Dualistic Opposition to Dyadic Integration: Toward a New Political Economy of Chinese Practice

This article argues for the construction of a new political economy based on Chinese practices. It begins with an explanation of the research approach of starting from practice, and from a distinctive mode of thinking that is akin to that of medicine, rather than Newtonian physics and mathematical logic. Then it discusses the present-day Chinese practices of combining socialism with market economy, state enterprises with private enterprises, the peasant economy with an industrial economy, and the party-state with the economy—all distinctive realities about the new Chinese political-economic system. The foil for the discussion is the long-standing hegemonic ideology and worldview of Anglo-American classical and neoclassical liberal economics and law. This article suggests that we employ China’s traditional dyadic integration worldview, evident in today’s practices, to arrive at a new integrative cosmological view that rises above both. To a considerable extent, this article is also a reinterpretation of classical Marxist political economy. What the article advocates may be termed a “participatory socialist market economy,” to be distinguished from a bureaucratized and controlling socialist planned economy. This is a system that is still very much in the process of formation, its particular content and characteristics yet to be clarified and specified through a sustained period of searching through practice.

The platform effect: How Amazon changed work in logistics in Germany, the United States and the United Kingdom

While the effects of the platform economy on work are mainly studied through the lens of gig or cloud workers, many more employees are likely to be affected in non-platform firms or sectors. We discuss the mechanisms of platform economy’s impact on the employment relationships and indirect effect on employment trends. Platform firms enter the service economy with business models that put existing service providers under pressure and advance a platform model of employment relationship. However, their transformative force is limited by three factors: employment regulations, access to welfare provisions and the employment relations at legacy firms. We examine the case of Amazon logistics in the US, Germany and the UK and find that the employment contract, as a legal institution, prevents the dissemination of independent contracting as the preferred employment model. Moreover, the welfare state has a paradoxical effect on platform work: universal welfare and liberal employment law facilitate the rise of precarious work.

Manifestation of Belief and the “Liberal” Law of Religion: Why It Is Time to Rethink the Status-Quo?

Abstract Manifestation of belief is a key component of religious freedom, however in modern pluralist states there are inherent conflicts between practices of the more religious minorities and those of the secular majority. In attempting to mediate those conflicts judges have been faced with the sensitive task of determining the extent to which a particular symbol or practice is worthy of protection by the law. The case law arising from this process has produced some inconsistencies and has shown that not all symbols are equal before the law. As a matter of practice, the law of religion is based on liberal values which tend to favour faith based on orthodoxy over orthopraxy. This article argues that the time has come for a remodelling of the current approach to manifestation of religion and belief and puts forward a holistic approach which considers religion as an element of identity and as such ascribed rather than merely a life choice. It explores the possibility of a modification of current legal tests which would give way to this approach. The argument is considered from three different perspectives namely the emphasis on autonomy within the “liberal law of religion,” the religious vs. secular binary present within the courts’ approach and the difficulty of defining religion and belief.

Violence and bordering on the margins of the State: A view from South Africa and the southern border of Spain

This article examines expulsions in and around the Spanish enclaves of Ceuta and Melilla and in informal settlements in former black townships in South Africa. These violent bordering processes expose the violent injustices that constitute the boundaries of lawful (liberal) law, and the violence that sovereigns use to secure territories. Drawing on Walter Benjamin we make three main theoretical arguments. First, that the bordering processes in our case studies are instances of law (and State) preserving violence. Second, that absence and responsibilization are central techniques for invisibilizing the role of violence in preserving law, and that abdication of jurisdiction is key to the exercise of state sovereignty. Third, that when the State preserves itself through sharing its monopoly over violence the fictitious distinction between law and violence collapses. We use the term ‘borderline lawful violence’ to highlight the precarious nature of the boundary between lawful and unlawful violence.

Sex, Law, and the Politics of Age Child Marriage in India, 1891–1937 by Ishita Pande

Reviewed by: Sex, Law, and the Politics of Age Child Marriage in India, 1891–1937 by Ishita Pande Divya Kannan Sex, Law, and the Politics of Age Child Marriage in India, 1891–1937 By Ishita Pande. Cambridge: Cambridge University Press, 2020. This book is a reminder of how the past continues to resonate in contemporary debates involving young people in society. Tracing the complex relationships between law and childhood through a micro-history of the Child Marriage Restraint Act of 1929 (CMRA), Ishita Pande assembles a wide range of archival evidence to destabilise notions of age as a natural phenomenon and critiques liberal legal frameworks for anchoring it. Departing from earlier feminist historical scholarship that has tended to subsume the figure of the child within the “woman’s question” in the late nineteenth and early twentieth-century India, Pande interrogates chronological age to highlight its inherent fuzziness in constituting childhood as a governable site and pries open the language of liberal law. Divided into three key sections with six richly detailed chapters, this nuanced theoretical narrative pulls together diverse historiographical strands, particularly from feminist legal theory, childhood and sexuality. The first section on juridical and autoptic childhoods draws substantially from the author’s previous scholarship. Here, she brings the reader’s attention to comprehend the nature and extent to which young girls’ bodies were subject to forensic scrutiny in a prejudicial racialised manner and ways in which colonial medicalised classifications of age inscribed new forms of violence on them. Pointing to the tragic case of Phulmoni Dasee, a young girl raped to death by her husband on their wedding night, along with other cases of child-wives, the autoptic and juridical child described by Pande is borne out of colonial projects of knowledge production central to legal attempts to consolidate age as a natural “fact” of life. Her illuminating analysis of various census statistics on children’s ages, medical charts and legal judgments reveals the fixation of liberal law with concretising chronological age despite the evident inherent messiness of statistics related to births and puberty of children in colonial India. The sexualised representations of child-wives, reduced to medical evidence appropriate to these narrow legal readings, accommodated orthodox community practices more than the health and well-being of young girls. Moving slightly away from the legal realm in the second section, Pande provokes the reader to reflect on whom the CMRA intended to protect through a subsequent discussion on sexology. Adding to the recent scholarship such as that of Durba Mitra’s Indian Sex Life and Ashwini Tambe’s Defining Girlhood in India on probing sexuality as foundational to colonial rule, Pande shows the blurring of the public-private dichotomy as sex-educators writing in Hindi and English debated child sexuality to address anxieties regarding “sexually precocious young girls” and excessive male masturbation.1 One may wonder what connects sexology to the debates around CMRA during this period, but Pande deftly demonstrates how sex was conceived as work bound within the “internalisation of the discipline of clock -time” (185) in these writings which attempted to establish age-graded appropriate sexual behaviour. In separating the “child” from the “adult,” notions such as brahmacharya in Hindu ritual discourse was reformulated in a hybrid version suitable for adolescent boys and girls. Here, Pande situates her strategy of reading sideways within a wider canvas and links Hindu sex-education with the circulation of norms of heterosexual monogamy and reproductive normality (185–188). During the debates on the CMRA, such sex-education literature that sought to “sort boys from the men,” simultaneously proclaimed adolescent male innocence, and invited extended state protection for them. The final section of the book deals with the Othering of the Muslim as a deviant form in the discussions on child marriage in India during the time of the CMRA. In critiquing the liberal frameworks of secularism, Pande forays into an arena that has largely been understudied in feminist scholarship on India. She devotes considerable attention towards understanding the challenges posed to the CMRA by alternate readings of the age of consent and marriage under colonial Islamic law in north India. Her analysis of the cases involving young Muslim wives shows...

Victory on Earth or in Heaven: Mexico's Religionero Rebellion

Victory on Earth or in Heaven: Mexico's Religionero Rebellion