Liberal Legalism Research Articles

Citizens as lawmakers: legal innovation and the competing moralities of environmental juridification

ABSTRACT Law has increasingly become a relevant political language and a field of political contestation for citizens. In the context of socioenvironmental disputes, citizens have appealed to the courts or become involved in lawmaking as means of asserting their rights and worldviews. Such citizen engagements with law, I argue, amount to a form of worldmaking, as they allow for the introduction of situated moral values that challenge existing notions, rooted in liberal legality, about the environment, development, and sovereignty. This article explores this argument through the prism of the twelve-year long citizen opposition to mining in El Salvador and citizen engagement with law that culminated in the country’s 2017 national ban on metal mining. It focuses on two processes of citizen-led legal experimentation: participation in a commercial arbitration dispute through two amicus curiae submissions and the production of several iterations of law drafts. The ethnographic research on which the article is based employed a networked methodology with a constellation of citizen actors whose engagements with law brought about the mining ban and articulated a set of alternative moral values.

Epistemic justice as energy justice: reflections from a transnational collaboration on hydropower and Indigenous rights

ABSTRACT Addressing the climate crisis requires renewable energy, however, developing renewable energy should be equitable. In this article, we analyze a 15-year-old transnational hydroelectric power development conflict involving Indigenous rights in Mapuche-Williche territory, Chile and a Norwegian state-owned company, Statkraft. We seek to advance the field of energy justice by evaluating injustices in this transnational conflict. At the heart of the conflict is a threatened Ngen Kintuantü (the spirit guardian Kintuantü), which is part of a ceremonial and pilgrimage site of utmost importance in Williche territory. We argue that epistemic justice – the radical inclusion of different ways of knowing – can be a central tenet to understanding and redressing the harms connected to energy development, especially via networks of solidarity with Indigenous rights claims. Yet currently, the right to consent for energy projects, – which is informed by the international legal mechanism Free, Prior, and Informed Consent and Chile’s codification of a less stringent Indigenous consultation – is limited by its formation within liberal legality. Despite these limitations, the Traditional Organization of the Ayllarewe of Ngen Mapu Kintuantü, an organization of Mapuche-Williche communities, is crafting and demanding their own form of territorial consultation. Drawing from a solidarity network of research across the Global South and North, we find that existing tools like FPIC can and must be strengthened through Indigenous and local guidance, but that justice, in a broader sense, cannot be achieved without returning land and broader legal reforms.

Reproduction of Islamic Law in The Era of Globalization and Pluralism

The rise of globalization values: secularism, capitalism, legal liberalization and democratic freedom that is sweeping the world today can create a disharmony of diversity during legal pluralism that exists in Indonesia between state law, religious law and customary law. The context of reproduction in this study redesigns policies based on Islamic law that have a vision that can moderate diversity in Indonesia so that the existence of Islamic law can be accepted in the context of diversity and diversity in an inclusive manner. To conduct the research, the author uses conceptual approaches and statutory law. As a result, the author concluded that legal pluralism in Indonesia should not occur strong autonomy in each legal system but increasingly interact and interconnect in the context of moderation, this complementary reproduction model of pluralism is being designed in this study.

프랑스 선교사들의 식민지 사제 양성

During the Japanese colonial period, the training of priests in the Korean Catholic Church was a long-term program that spanned over 12 years of education, giving rise to a distinctive group of intellectuals during the colonial era. This distinctiveness was further compounded by the conflict and confusion between modernity and anti-modernity, with the defense mechanisms of French missionaries' anti-modernism and anti-republican ideology being integrated into seminary education.
 The Japanese colonial education policy, which undermined advanced education by emphasizing the so-called 'harm of reading', drew exquisite agreement from missionaries who were proud of the revolution and republic but internalized anger against secular and anti-church values. The missionaries accepted the 'accreditation' system while tactfully retaining the church's values in actual education, and dealt with it with a backside disagreement.
 The so-called fervor for modern education and the legacy of liberalism stirred unrest among the youth. The notion that it eventually fostered socialism posed an equal risk perceived by both the missionary groups and colonial authorities, leading to a reluctance towards higher education. Requests for the establishment of a united theological seminary and the reform of existing seminaries, even those demanded at the Vatican level,were stymied as they were relegated to minor seminary-level secondary education accreditation. The accreditation for the theological college, which boasted the finest faculty for priestly training, was ignored.
 The bishops swiftly countered the burgeoning liberalism as a 'negative influence' and promptly removed it from the seminaries. However, even amidst the tumultuous clash of modernity and anti- modernity, the awakened consciousness itself couldn't be extinguished. The exiled republican government in Shanghai, formed by the March 1st Movement, finally unveiled the forbidden terms 'republic' and 'civilization' to Korean priests.

Oslo and the Shifting Paradigms of the Human Rights Community in Israel and Palestine

Abstract Despite some improvement to the lives of Palestinians through human rights activism, this article argues that the legal regime governing Occupied Territories, combined with a rigid legalized conception and application of human rights, limits the ability to achieve human rights protections for those living under prolonged military occupations. Drawing on a critique of liberal legalism, this article will identify four key barriers to change through an analysis of court cases and human rights reports in the Israeli military occupation of the Palestinians. It will trace key shifts in human rights organizations in Israel and Palestine, which seek to overcome these limitations in an effort to secure long-term human rights for Palestinians.

“Make All the Laws You Want”: The Catholic Left against Legal Liberalism, circa 1968

AbstractHow has American Catholicism interacted with American legal culture? Legal scholars have often examined this question in the context of contraception and abortion debates. This article focuses instead on the so-called Catholic left that emerged in protest against the Vietnam War in the late 1960s, and thereby seeks to bring the rich history of Catholic radicalism and peace activism into closer conversation with legal history. Drawing on both primary sources and a rich body of secondary literature in religious and social history that legal scholarship has not fully incorporated, the author examines ideas about law within the writings of Catholic left figures, including writer-monk Thomas Merton, sociologist-priest Paul Hanly Furfey, and activist-priest Berrigan brothers. Building on work by religious historians who have interpreted the Catholic radical tradition as a distinctive response to the limitations of political liberalism, this author emphasizes that the Catholic left also expressed a profound alienation from legal liberalism, with its veneration of lawyers and its faith in courts as sites of social progress. Revisiting the Catholic left through the lens of legal history raises questions for future research about the possible connections between leftist antiliberalism and the more familiar Catholic tradition of conservative illiberalism.

Deformalizing International Organizations Law: The Risk Appetite of Anne-Marie Leroy

Abstract Taking on this Symposium’s invitation to rethink international organizations law by focusing on scholars and practitioners outside the mainstream, this article explores and evaluates the legacy of Anne-Marie Leroy, the World Bank General Counsel from 2009 to 2016. In her attempt to trade the formal, rigid language of law for the deformalized routine of risk management – described as a ‘paradigm shift’ from ‘rules to principles’ – Leroy could be portrayed as an antipode to those who developed or nurtured the discipline of international organizations law. Yet it is precisely by focusing on figures working outside (and against) the diagrams of the discipline that we can gain a critical perspective on the evolving life of law in international institutions. The article specifically focuses on how Leroy’s paradigm shift sought to bypass, manage, and overcome problems of operational expansion and institutional accountability to the outside world – perhaps the two frontiers where the conceptual normative confidence of mainstream, functionalist approaches most manifestly hit their limits. In both domains, the article shows, the principled (occasionally prohibitive) posture of liberal legalism instilled by some of Leroy’s predecessors had to be traded for an attitude of ‘agility’ and enhanced ‘risk appetite’. This article traces these changes in the professional sensibility and material practice of international law(yering) and critically evaluates the ‘new normative architecture’ of ‘risk’ that underpins it. It is by dwelling in this disjunction between familiar doctrinal dilemmas and mundane material practices of lawyering – a space teeming with unexpected rules and routines – that a critical reinvigoration, reorientation, and re-theorization of international organizations law can emerge.

Christopher R. Seitz. Essays on Prophecy and Canon

Christopher R. Seitz. <i>Essays on Prophecy and Canon</i>

A Wild and Pragmatic Feminist Jurisprudence

Drucilla Cornell’s singular approach to feminist jurisprudence braided together psychoanalysis, deconstruction, and liberal legalism to formulate a simultaneously radical and practical remedy for women’s sexual subjection. Crossing epistemological and methodological divides in a disciplined and creative way, her brilliant work charted a path through the Scylla and Charybdis of over-regulation sacrificing freedom and libertarianism sacrificing equality.

International Law for a Time of Monsters: ‘White Genocide’, The Limits of Liberal Legalism, and the Reclamation of Utopia

For critical legal scholars, the ongoing far-right assault upon the liberal status quo poses a distinct dilemma. On the one hand, the desire to condemn the far-right is overwhelming. On the other hand, such condemnations are susceptible to being appropriated as a validation of the very liberalism that critical theorists have long questioned. In seeking to transcend this dilemma, my focus is on the discourse of ‘white genocide’ — a commonplace belief amongst the far-right/white nationalists that ‘whites’, as a discrete group, are facing demographic destruction as a result of deliberate policy choices. Such a belief has motivated acts of extreme violence. While libel to dismissal by experts on mainstream understandings of genocide, namely international criminal lawyers, I argue that this ‘white genocide’ discourse deserves careful scrutiny as a jurisprudential and socio-legal phenomenon that reveals key weaknesses in present modalities of liberal justification. Drawing upon an array of recent critical theories, I show how a liberalism unable to face its own decline enables the very far-right assertions it purports to oppose. Thus, given liberalism’s failure to act as a neutral arbiter, an alternative approach for those opposing the far-right is to develop a vision of politics and society that confront believers in ‘white genocide’ on a more substantive level. This, I argue, forces the far-right’s opponents to disavow liberal scepticism towards utopian transformation as well as the juridical understandings and institutions that allow this scepticism to durably persist.

Politics of hope and populist backlash: kurds in Turkey and Palestinians in Israel

ABSTRACT Turkey and Israel are known, respectively, for profound conflicts with their Kurdish and Palestinian minorities. Economic and legal liberalization waves raised hopes for expanded civic and socioeconomic inclusion but instead both countries swayed to populism. “Why were the Kurdish and Palestinian politics of hope destroyed and what did it take to do so?” We argue that the HDP and Joint List’s electoral in the 2010s threatened Erdoğan’s and Netanyahu’s authoritarian ambitions and in their endeavours to doom Kurdish and Palestinian aspirations, these leaders and their parties drew on practices and sentiments from the toolkit of populism. While the repression of the HDP has not abated, Netanyahu’s replacement in June 2021 with a diverse coalition, including an Islamic party, has dented Israeli populism but simultaneously forestalled aspirations for civic equality. Despite the dissimilarities between the cases, our comparison teases out the common trends of populist politics that threaten domestic minorities.

‘Plainspoken about Jew and Gentile’: Vladimir Nabokov, the legacy of Russian liberalism, and the Jewish question

ABSTRACT Vladimir Nabokov modelled his moral and political values on those of his father, V. D. Nabokov, especially revering his defence of Russian Jewry. This paper attempts to clarify broad-brushstrokes accounts of V. D. Nabokov, demonstrating how his ambivalent approach to the ‘Jewish Question’ evolved as a result of his Russian liberalism. Using contemporary accounts and revisiting primary sources, this challenges the hagiographic legacy built by his son and critics. In turn, this allows for a more refined understanding of Vladimir Nabokov’s literary engagement with the ‘Jewish theme’, his sacred relationship with his father, and the limitations of inherited liberalism.

Rupture in heritage: strategies of dispossession, elimination and co-resistance

ABSTRACT Diaspora and Israel Jews are increasingly engaging their historical narratives of liberation within new forms of co-resistance to the Israeli Occupation, a history that controversially has been weaponized by the settler colonial power to manifest its dispossessive policies. ‘Occupation is not our Judaism’ has become a political slogan to mobilise Jews against land confiscation, house demolitions, trees uprooting, interrogations, and the Annexation Wall. Activists are concerned about the enactment of violence in the name of Judaism, and seek to contest the establishment of a Jewish nation-state as a solution to antisemitism. Their Jewish identities are articulated on the basis of Israel-centrism, and through intersectional struggles for universal liberation. This article explores the ways in which Jewish historical narratives inform the settler colonial policies in Palestine and the counter activism in which Jews play a potential role. It focuses on the patterns of ‘co-resistance’ which emerged after the collapse of the Oslo Accords of 1993. While co-existence was propagated during the 1990s to reveal the occupier and occupied as two equal sides, co-resistance emerged as a counter narrative in which Jewish and Palestinian activists stand in solidarity against the occupation. Interviews and on-site observations in the Old Town of Hebron showed how heritage and history have been weaponized by settlers to construct Jewish-only enclaves and to destroy the social and spatial realities that signify the collective identity of the Natives. Despite the failure of co-resistance to reverse the settlement project, the interviewed activists saw it as a viable form of resistance to this project. This article explored its potential in dismissing any claim that casts the settler colonial project in Hebron as a natural return of Hebron’s Jews to their history, and to link Nakba to tikkun olam, challenging its exclusion from the moral universe of the Jewish legacies of liberation.

Liberalism and the Constitutional States: The Legacy of Liberalism in Western Central Europe

Liberalism and the Constitutional States: The Legacy of Liberalism in Western Central Europe

Dialectics of Philosophical Pillars of the Law and Development Doctrine

This article analyses the philosophical foundations of the Law and Development doctrine, which has been used as a practical tool since the 1950s in many countries in an attempt to improve their socio-economic conditions. Since the adoption of the UN Resolution on Sustainable Development Goals in 2015, most countries have been making efforts to achieve it. We emphasize two philosophical-legal traditions in Law and Development under consideration, which in many respects display antagonistic attitudes to each other: liberal legalism and the ideas of postmodernism philosophy, in particular, the ideas of post-development. The dialectics of this contradiction is revealed in an attempt by liberal legalism to spread itself beyond the western legal systems. Postmodernism, which has been influenced by left-wing political and legal doctrines (neo-Marxism), is aimed at taking into account the interests of local cultures and more equitable distribution of global public goods as a development priority. Following the logic of G. F. Hegel, the evolution of Law and Development can be presented as the spiral reflecting the interaction of law and development theories that began to unwind in the second half of the XX century and continues its upward movement to the present moment.

“Like a Cosmic, Invisible Umbilical Cord”

In summer 2002, New York City-based DJ Sadiq Bellamy and his two partners, DJs Tabu and Jeff Mendoza, organized the first Soul Summit Music Festival: a free, open-air, and open-to-the-public weekly series of house music dance parties set in Fort Greene Park, Brooklyn, during the summer season. The party ran every summer without incident for many years, and twenty years later, continues to receive global recognition among house heads for its success in bringing house music culture—and its legacy of liberation as a sensorial practice—to a broader and more intergenerational crowd than one would find in a club. Keeping in mind its rich genealogies, this article considers the social significance of open-air house music culture, and how various forms of participation within these house music topographies rearticulate the social in a way that refuses the spatiality of peripheralization and the temporality of extinction imposed on Black, brown, and queer of color life in New York City and beyond. In the case of Soul Summit, however, it is not just who participates, but also when and where that matter—in public space and in a historically Black neighborhood situated in a post-9/11, post-Bloomberg New York City—particularly as gentrification devastates the material and symbolic conditions that made possible house culture’s multi-faceted expression in the first place. This article proposes that in resistance to the “revanchist” urbanism of gentrification, the affects and arrangements cultivated on the open-air house music dance floor offer an alternate epistemology of, or way to re-imagine, the social. This lens of “house epistemology” illuminates how the gentrification of Fort Greene brought not only a shift in residential demographics, but also the displacement of a certain modality of public culture by foreclosing the social infrastructures that serve to remediate cultural memory and mobilize Black life.

Land and the limits of liberal legalism: property, transitional justice and non-reformist reforms in post-apartheid South Africa

SUMMARY Critical scholarship on transitional justice, in Africa and globally, has drawn attention both to limits of liberalism and legalism (such as inattention to structural injustices) and to normatively more expansive – transformative, and even revolutionary – approaches to justice. Focusing particularly on South Africa, this debate piece considers the roles of liberal property relations and conceptions of the rule of law in producing and maintaining injustices related to land and property in (post-)transitional societies in Africa and beyond. Moreover, the extent to which transitional justice might contribute to revolutionary aspirations of overcoming capitalist social and economic relations (as espoused, at least rhetorically, by liberation movements throughout Africa) is considered. It is suggested that while this is unlikely, non-reformist reforms offer one avenue by which more expansive (transformative or revolutionary) goals might be pursued, in part, in and through transitional justice.

Introduction: The Return of the Exception

The history of the 20th century, and more recently the two-decades long war on terror, have taught us the lesson that the normalisation of the state of exception (intended here as the proliferation of legal instruments regulating emergency powers, and their constant use in varied situations of crisis) is never immune from the risk of leaving long-lasting impacts of legal and political systems. With the “Return of the Exception” we intend to bring to the fore the fact that in the pandemic the state of exception has re-appeared in its “grand” version, the one that pertains to round-the-clock curfews and strong limitations to the freedom of movement and assembly, all adorned by warfare rhetoric of the fight against an invisible enemy – which, given the biological status of viruses, it cannot but be ourselves. But “return” here must be intended also in its psychoanalytic meaning. Much like the repressed that lives in a state of latency in the unconscious before eventually returning to inform consciousness and reshape behaviour, the state of exception is an element that remains nested in law’s text before reappearing in a specific moment with forms and intensity that are not fully predictable. Still, it remains cryptic whether the pandemic inaugurates a new epoch of liberal legality – the post-law – or just augurs its structural crisis.

LEGAL REVOLUTIONARIES AT YALE IN A TIME OF POLITICAL AND SOCIAL CHANGE

My comment on the fascinating personal accounts of experiences with the Yale Law and Modernization program will be in part personal. My own career and research interests are part of the ripple effect of that program and of the scholars who participated in it. After offering that personal account, I will try to look at the context for the Law and Modernization initiative in relation to the changing role of law and lawyers in the US and the way in which that role was exported as part of Cold War strategies. I will suggest that the battles around the Law and Modernization Program provide strong evidence of the crisis during an era of relative idealism (not inconsistent with US hegemonic designs abroad and social control policies at home) connected to modernization and what Trubek and Galanter termed liberal legalism.[1] What’s more, the program nurtured leaders in producing scholarship designed to update or replace liberal legalism, legal missionaries, and legal imperialism. Much of what we know as Law and Society, Critical Legal Studies, and other critical approaches came from these scholars and the events around Law and Modernization. I was a freshman undergraduate at Yale at the time of the beginnings of the Law and Modernization program in the Law School in 1968, although I had no sense of the program then. My undergraduate experience was all about the left, the critique of pluralism, European critical theory, and US critical histories. I told my historian advisor that I was thinking of law school (after he told me there were no positions in history), and he warned me about the conservatism, telling me among other things that law faculty tended to drive American cars. When there were demonstrations and strikes around the Bobby Seale trial in New Haven in 1970, followed by the demonstrations and strikes against the Cambodian invasion, I remember a forum where a law student said they could not strike because of the importance of their legal education for solving social problems. In retrospect, there was a sense among non-law students and activists, I think, that elite law was not very relevant to what was going on outside.[2] From the perspective of those within the law school, however, the accounts of the Law and Modernization cohort suggest that the students were nevertheless way in front of the general faculty.

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.