Liberal Legalism Research Articles

Time Frames and Legal Indeterminacy

A consensus has long been established that adherents of the Critical Legal School (and to a lesser extent, Legal Realism) exaggerated their claims of law’s indeterminacy. This paper however, attempts to resurrect the indeterminacy debate by articulating, developing and elevating a particular strand of it; namely, the use of unrestrained time frames in factual construction. This claims that factual construction in adjudication is, in part, contingent on the time frames adopted—though absent some metaprinciple on whether to adopt broad or narrow time frames—indeterminacy rears its head. The paper primarily argues thattime frame indeterminacyis important as it actually underwrites the attacks levelled by both Critical Legal Studies (CLS) and American Legal Realism (ALR) on legal liberalism. It nourishes ALR critiques by enriching the strict and loose articulations of precedent authored by Karl Llewellyn, and also connects some of the definitive themes that underline the CLS literature, specifically the rules-standards and free will-determinism contradictions in legal liberal discourse.

Taking Up #blacklivesmatter

Even though theology and Critical Race Theory (CRT) have yet to partner with one another in earnest, neo-Calvinism of the Kuyperian variety shares with CRT some important commitments. Kuyper and CRT both problematize liberalism. For Kuyper, French Revolutionary liberalism was a humanistic revolt against the God from whom originate individual freedoms and before whom all people stand as equals. For CRT, legal liberalism and constitutionalism purport to guarantee the rights of individuals, but far more often fail to enfranchise the weaker parties in society. Their shared critique is no solution. However, CRT’s insistence on race-consciousness is a major contribution to what would otherwise be Kuyperian abstract-ness. In turn, theology offers mature reflection on anthropology as well as eschatology that would otherwise not appear in CRT. Bavinck’s doctrine of the image of God grounds race-consciousness in a future where the human community of covenant promise is richly and concretely diverse.

The Fundamental Contradiction Redux? Liberty, Coercion, and American Legal Development

In Liberty and Coercion: The Paradox of American Government from the Founding to the Present, Gary Gerstle offers an ambitious account of American legal development from our nation's founding up to the present day. In many ways, Gerstle's account is in keeping with the long scholarly tradition of linking legal liberalism with changes in American law and politics. However, Liberty and Coercion also calls to mind critical legal scholarship, most notably Duncan Kennedy's “The Structure of Blackstone's Commentaries” and the idea of the fundamental contradiction. After reconstructing Kennedy's central claims, I highlight how they actually undermine Liberty and Coercion and jeopardize the larger legal liberal tradition.

Abstinence Cinema: Virginity and the Rhetoric of Sexual Purity in Contemporary Film by Casey Ryan Kelly

Reviewed by: Abstinence Cinema: Virginity and the Rhetoric of Sexual Purity in Contemporary Film by Casey Ryan Kelly Maureen Rogers (bio) Abstinence Cinema: Virginity and the Rhetoric of Sexual Purity in Contemporary Film by Casey Ryan Kelly. Rutgers University Press. 2016. $26.95 paperback; $15.95 e-book. 210 pages. Casey Ryan Kelly's Abstinence Cinema: Virginity and the Rhetoric of Sexual Purity in Contemporary Film explores the proliferation of youth-oriented plots about abstinence in contemporary cinema, arguing that such films make up a broader popular media phenomenon that reflects cultural anxieties about the legacies of feminism and sexual liberation. The case studies analyzed in each chapter cover "abstinence cinema," what Kelly defines as an "emerging constellation of disparate film texts from 2000 to the present that collectively articulate circumscribed meanings of sexuality, gender, and family within the symbolic and discursive repertoire of the abstinence movement."1 Kelly argues that different facets of neoconservative politics and evangelical Christianity are reflected and refracted in diverse contemporary feature films ranging from straight-to-DVD teen comedies to globally distributed action films. Working within a cultural studies interpretive framework, the author understands contemporary movies as privileged "site[s] of ideological contestation" that engage in a "cultural proxy war over what kind of sexual morality should govern public and private life."2 Through the interpretive protocols of ideological critique and textual analysis, Kelly uncovers the conservative ideological dimensions of current films that engage, on textual and subtextual levels, youth sexuality and virginity loss. Kelly argues that these filmic discourses emerge from the rhetoric of contemporary evangelical purity [End Page 172] teachings and resonate with the sex-negative politics of the religious Right. As a result, abstinence cinema registers conservative cultural attitudes that valorize female purity, heteronormative masculinity, and traditional coupling. Abstinence Cinema shows how a corpus of film texts refracts the sexual and gender politics of contemporary American evangelical Christianity. Establishing the tenets of abstinence culture in the book's introduction, Kelly explains that abstinence outside of wedlock is a core biblical value, and one recently enjoying mainstream visibility, as illustrated in the popularity of abstinence organizations such as True Love Waits and the Silver Ring Thing and through high-profile celebrities, notably Selena Gomez, who previously publicly discussed purity-ring ceremonies and abstinence pledges.3 Of course, the abstinence movement has made gains in public policy as well. As Kelly shows, abstinence-only sex education in public schools was promoted in the 1980s by the Christian Right (many of whom who were also combating pornography and gay rights at the time) and has continued in the United States throughout the administrations of Bill Clinton, George W. Bush, and Barack Obama. Kelly presents the corpus of abstinence cinema as the collective cultural manifestation of the anxieties, fears, and moralism that drive purity culture, as well as a phenomenon that has emerged in recent years. The book's introduction briefly charts a lineage from the "white slave" films of the teens, through the Production Code of the studio era, and toward a resurgence of raunchy teen comedies of the early 1980s. Soon after, public awareness of AIDS prompted Hollywood to abandon sex-positive representations, resulting in the disappearance of "the 1970s rhetoric of sexual liberation" from mainstream movies.4 Kelly argues that the early 2000s saw Hollywood "revisit[ing] virginity … this time with a host of films that overinflate the personal and social value of remaining chaste, imploring audiences to think more carefully about the potentially dangerous repercussions of sexual activity."5 The case studies in Abstinence Cinema, which range across releases from 2005 to 2012, reflect Kelly's periodization and represent a diverse range of films, not limited by production context, intended audience, or genre. The book's five main chapters are used to illustrate the pro-abstinence rhetoric of recent mainstream feature films. Kelly analyzes the rhetoric about family, sexuality, and gender in The Twilight Saga (2008–2012), The 40-Year-Old Virgin (Judd Apatow, 2005), The Possession (Ole Bornedal, 2012), and Taken (Pierre Morel, 2008), as well as across a recent cycle of low-budget teen sex comedies that includes American Virgin (Jean-Pierre Marois, 2000), American Virgin (Clare Kilner, 2009...

The Law of Emergency and Reason of State

This paper examines the role of human rights in political emergencies. It introduces the concept of reason of state as an alternative to theories of emergency powers that are based on either state prerogative or liberal legalism. It argues that state prerogative and liberal legalism suffer from a common defect: both are premised on a dynamic of norm and exception and thus are poorly equipped to deal with the ‘pseudo-emergencies’ that dominate state practice today. Reason of state better illuminates ongoing legal and political dynamics by focusing on the state’s role as custos – a guardian or protector of the regime of law – and the pressures such a claim place on legal order. Viewed from this perspective, human rights adjudication can be seen as a mechanism for normalizing and constitutionalizing reason of state by subjecting its exercise to public deliberation, contestation, and justification.

Koskenniemi's Images of the International Lawyer

AbstractIn this article I excavate and critique two dominant images of the international lawyer that emerge from the oeuvre of Martti Koskenniemi. In doing so, I hope to briefly shake the faith critical international legal thought so often invests in the potential of the subject. The first image is of the critical subject that emerges from From Apology to Utopia. She also happens to be a projection of the critic, governed by both elitism and unhappiness, for whom freedom is always both a constant and overarching possibility, and yet always embodied in a fleeting moment. By way of critique, I question whether this critic(al subject) may not unwittingly embed the very aspects of liberal legal and political thought that she seeks to challenge. The second image is of the professional lawyer, left on the shores of pragmatism. She emerges from my reading of Koskenniemi's The Gentle Civilizer, the 2005 Epilogue and his Kantian texts. She is constructed as Koskenniemi's critique is domesticated, taking a last, and perhaps futile, refuge in an ethics that is needed to buttress an identity which can aid international law's moral regeneration. Koskenniemi's writings urge today's international lawyers to put their sense of identity into question; this article asks which identities (and their possibilities) he embeds as he does so.

THe Scientific novelty of the post-classical jurisprudence

The author shows the inadequacy of the classical criteria of scientific character. Criteria and practice of logic not adequate the new picture of the world. The objectivity of scientific activity today is replaced by intersubjectivity. The main criterion of scientific novelty today is the social - relevance of the knowledge society. This criterion establishes the elites and reference groups. They selectrows the knowledge that claim the status of scientific novelty. Modern approaches to the law in domestic jurisprudence, the criterion of scientific novelty were more consistent with legal liberalism, economic analysis of law and postclassical theory of law. The most adequate call time, according to the author, is postclassical theory of law. The article presents the main provisions of the postclassical theory of law. It focuses on the main problem of modern law - connection of theory with practice.

The legacy of liberalism, community and culture

This article introduces the thematic section of Two Homelands celebrating the 25th anniversary of the publication of Will Kymlicka’s Liberalism, Community and Culture, one of the seminal books on multiculturalism and contemporary political theory in general. It contextualizes this symposium [thematic section] by identifying some of the assumptions that the then-existing liberal conceptions of justice were based upon when addressing issues related to cultural diversity. At the same time, it summarizes the argument for cultural rights advanced by Kymlicka in Liberalism, Community and Culture. It then presents the papers that are part of this symposium [thematic section] and their contribution to the understanding the liberal conception of multiculturalism has had on all subsequent theorizing over cultural diversity and civic equality.

Still reading the romance: gothic sexuality and the remembrance of feminism through Twilight and Fifty Shades of Grey

The Twilight and Fifty Shades of Grey texts have been popularly understood and promoted as having a polarizing effect on readers and audiences, with divergent interpretations focusing heavily on their representations of gendered sexuality. Because debates about female sexuality have been so closely and controversially associated with feminism, their reception has also been channelled through the enduring circuitry of the ‘sex-wars’. This article examines the ways in which the texts and their reception invoke a feminism at war with itself, arguing that this pattern reprises the enduring binary of the virgin/whore. Further, the current ‘gothicization’ of sexuality and pathologization of feminism – as well as the often-overlooked resurgence of goddess imagery in these texts – is argued to be intimately and inevitably connected, being responsive to the twin legacies of sexual liberation and the politicization of desire.

Criminalising Bribery in a Corporate World

This article explores how society defines acts of bribery and whether the demarcation between acts of official bribery and acts of commercial bribery retains any relevance in a world where public services are increasingly privatised and delivered by corporate actors. It examines the modern construction of bribery offences through the lens of legal moralism and liberalism to determine whether there are sufficient grounds to justify the imposition of criminal sanctions on persons and corporations who engage in such conduct. Next, it outlines the bribery laws in the United Kingdom compared with laws in Australia and discusses possible law reforms to tackle commercial bribery, as distinct from official bribery, in Australia.

A Holy Brother’s Liberal Legacy: Shlomo Carlebach, Reform Judaism, and Hasidic Pluralism

A Holy Brother’s Liberal Legacy: Shlomo Carlebach, Reform Judaism, and Hasidic Pluralism

The Rule of Law between England and Sudan: Hay, Thompson, and Massoud

Two significant writings, one by Douglas Hay and the other by E. P. Thompson, appeared in 1976. Both sought to explain relationships between law and social (specifically, ruling‐class) power in a manner that avoided treating law either simply as a coercive instrument of class domination (“vulgar Marxism”), or as a good for all “(liberal legalism”). They overlapped and each was influenced by the other, but they differed significantly, in substance, in tone, and in admirers. Mark Massoud sensibly and thoughtfully draws inspiration from both. This article queries, however, whether his account of the role and rule of law in Sudan manages to resolve a significant tension between Hay and Thompson. This results in a certain ambivalence in the telling, a sometimes anguished oscillation between two interpretive modes, perhaps sensibilities, represented by Hay and Thompson, each of which can lead in different directions.

Mère malgré moi: Redefining Adolescence and Motherhood for Harki Daughters

Dalila Kerchouche’s novel, Leïla, avoir dix-sept ans dans un camp de Harkis reassesses Harki culture in French society through an exploration of the complexities of female adolescence within the social and psychological confines of a Harki camp. This study surveys generational discords in the understanding of belonging and then examines emotional adolescent trauma lived within the space of the domestic sphere. The emancipation of Leïla’s self through therapeutic writing shows how coming of age has multiple meanings: one, inextricably linked to the old order of maternity, and the other, to the legacies of liberation born from May 1968.

Why Does the Law Want Us to Be Normal?: Schmitt’s Institutionalism and the Critique of the Liberal Legal Order

Why Does the Law Want Us to Be Normal?Schmitt’s Institutionalism and the Critique of the Liberal Legal Order Mariano Croce (bio) and Andrea Salvatore (bio) With a greater or lesser degree of sympathy and approval, Carl Schmitt has always been a point of reference for the critics of the liberal state. The pitiless denunciation of (what he viewed as) liberals’ hypocritical faith in the balance of powers and the neutrality of state law characterizes his oeuvre as a whole, despite the frequent adjustments his thinking underwent throughout his life. In this article, however, we claim that there is a phase in Schmitt’s theoretical development that is as instructive and enlightening as it is underestimated by most Schmitt scholars. In this phase, which we believe to be central to the understanding of Schmitt’s overall conception of politics, law, and society, he unraveled many of the theoretical impasses that he had incurred and left unsolved in the previous texts. More specifically, we claim that, notwithstanding his execrable allegiance to the Nazi regime, in the 1930s Schmitt set forth a thought-provoking institutional theory of law that allowed him to make his critique of liberalism deeper and more effective. In the first section of this article we scrutinize the reasons why Schmitt moved from his well-known decisionist paradigm to an institutional conception of law. In doing so, we cast light on the renewed role of normality in his legal theorizing and the way it is key to the existence of legal norms. In the second section we pin down Schmitt’s conception of the nature of norms vis-à-vis his polemic targets, normativism and legal positivism, to highlight the gist of his critique of the liberal legal order. On the basis of this, we contend that Schmitt’s institutionalist critique offers precious insights into the nature of the way law works on social reality. To vindicate this claim, in the third section we juxtapose his view with François Ewald’s Foucauldian view of norms to pinpoint interesting convergences in their critical analyses [End Page 32] on how norms serve as standards carrying out both cognitive and practical tasks. To show the import of our analysis, we bring Schmitt’s institutionalism to bear on the topical phenomenon of homonormativity, or rather, the normalizing effect of legal recognition on same-sex sexualities. In doing so, our goal is to show that Schmitt’s understanding of the foundational role of normality and its relation to the production of legal norms reveals something relevant to the nature of the legal order of liberal regimes, and in particular on the way these regimes try to conceal their selective and exclusionary activity with recourse to the claimed neutrality of state legal rules. The objective of this article, therefore, is twofold. On the one hand, it aspires to offer a novel contribution to the interpretation of Schmitt, well beyond a deep-seated reading that draws on his texts of the 1920s. On the other hand, we seek to do so in such a way that this analysis may help us decipher the ambiguous transitions of our time, where unquestionable progressions (such as the gradual accommodation of once-despised forms of kinship and sexuality) are accompanied by (barely visible) processes of exclusion, often disguised by the rhetoric of rights and equality. BEYOND DECISIONISM: SCHMITT’S INSTITUTIONAL TURN The identification of Schmitt’s theory with what is labeled “decisionism” is widely regarded as a platitude, if not a truism. Consequently, Schmitt is generally considered as the outstanding theorist of the notion of exception and its relevance for legal and political thought. According to this interpretation, the concept of exception lies at the heart of his theoretical framework as a whole and is the dominant element in the dialectical relationship between normality and exception. Based on this mainstream interpretation, normality is but the conceptual backdrop that allows the exception to emerge as the element that gives life to the legal order. Nevertheless, this can be considered a tenable account of Schmitt’s theoretical view only as long as one refers to the texts he published in the 1920s—that is, the period usually labeled his “decisionist phase...

Why Does the Law Want Us to Be Normal? Schmitt's Institutionalism and the Critique of the Liberal Legal Order

Why Does the Law Want Us to Be Normal? Schmitt's Institutionalism and the Critique of the Liberal Legal Order

Mobilizing Doubt: The Legal Mobilization of Climate Denialist Groups

Conservatives have adopted effective legal mobilization strategies in pursuit of their policy goals, but their legal mobilization efforts in the area of climate change politics are understudied. This paper explores the legal mobilization tactics of climate denialist groups, such as the industry-backed American Tradition Institute and the Free Market Environmental Law Clinic. These groups are increasingly using Freedom of Information Act (FOIA) requests to establish evidence of organized political activity by public university researchers who study the dynamics of climate change. This manuscript adds to the legal mobilization literature in three ways. First, this paper traces the origin of these climate denialist groups to the broader conservative legal movement of the 1970s that sought to challenge the dominance of legal liberalism in law schools, public interest groups, the judiciary, and other elite-dominated institutions, such as universities. Second, this manuscript uses the high profile case of Virginia Attorney General Ken Cuccinelli’s and the American Tradition Institute’s FOIA campaign against climate researcher Michael Mann to demonstrate how the legal mobilization tactics of climate denialist groups caused the American Association of University Professors (AAUP), the Union of Concerned Scientists (UCS), and the Climate Science Legal Defense Fund (CSLDF) to successfully countermobilize with their own legal campaign in support of the First Amendment rights of faculty. Finally, this manuscript provides the first empirical evidence of the effect of climate denialist FOIA suits on the activities of university researchers. Through personal interviews with researchers who have been asked to produce information under a FOIA request or state equivalent, I find overwhelming evidence that these requests do not alter the ways that they communicate research findings via email, but that they report initial negative experiences after learning of these requests and their means of communication are altered in the aftermath of these requests.

Precarious desires and ungrievable lives: human rights and postcolonial critiques of legal justice

This paper interrogates the idea of legal justice that informs LGBT and women’s international human rights interventions. It unpacks the governing sexual, gender, and cultural norms that limit the capacities of legal justice in relation to precarious desires and explores alternative registers of justice including in feminist affect theory as well as postcolonial approaches that exceed the confinements of liberal legality.

Human Rights, Legal Pluralism, and the Freedom of Religion in Malaysia

AbstractThe so-called crisis of human rights requires a precise diagnosis. Through a theoretical discussion of human rights and legal pluralism in the context of the freedom of religion in Malaysia, this paper suggests that the crisis ought to be understood as something vital to the character of rights. Crisis is not tangential to the human rights project: rights are political objects engendering political responses. Beginning with an excursion into legal positivism and liberalism, the paper argues that analyses of rights based on abstraction and presumptions of homogeneity are confounded in contexts of contested plurality. Secondly, legal pluralism is raised as a more suitable framework for rights. Finally, Augustine and Schmitt offer some clues as to how the political status of human rights might be properly acknowledged. The prominent Malaysian case ofLina Joyprovides an ongoing commentary on the dangers of divorcing human rights from this essential political character.

Infidelity and the Possibility of a Liberal Legal Moralism

This paper argues that according to the influential version of legal moralism presented by Moore infidelity should all-things-considered be criminalized. This is interesting because criminalizing infidelity is bound to be highly controversial and because Moore’s legal moralism is a prime example of a self-consciously liberal legal moralism, which aims to yield legislative implications that are quite similar to liberalism, while maintaining that morality as such should be legally enforced. Moore tries to make his theory yield such implications, first by claiming that the scope of our moral obligations is much more limited than legal moralists have traditionally claimed, and second by allowing for the possibility that the goodness of legally enforcing morality is often outweighed by the badness of limiting citizens’ morally valuable autonomy and spending scarce resources on enforcement. If Moore is successful in this, legal moralism is strengthened because it becomes immune to many of the most damaging liberal objections. By showing that despite making those moves Moore’s legal moralism is still committed to criminalizing infidelity, a manifestly illiberal implication for legislation, it is established that Moore is unsuccessful in creating a liberal legal moralism, and Moore’s failure in this regard raises questions about whether there can be such a thing as a liberal legal moralism.

The Battle Over Legal Reforms in China: Has There Been a Turn Against Law?

Legal reforms are at a crossroads in China. Liberal reformers hoped that the transition from Hu Jintao to Xi Jinping and the replacement of the much maligned Party-system cadre Wang Shengjun by the legally trained technocrat Zhou Qiang as head of the Supreme People’s Court (SPC) would lead to a turn towards liberal legality and a new era of liberal legal reforms. This article assesses the future of legal reforms in light of the Central Committee Decision concerning Some Major Issues in Comprehensively Deepening Reform and recent events. The first part begins with a brief overview of reforms and the major faultlines or challenges for legal reforms to provide context for the Decision. The second part summarizes and critically appraises the Decision. The third part discusses two dominant approaches to assessing legal reforms in China. The first emphasizes structural factors, sees a continuity from SPC presidents Xiao Yang to Wang Shengjun to Zhou Qiang, and therefore predicted there would be no turn towards liberal legality under the new administration, while the second emphasizes personalities, saw Wang Shengjun as a radical departure from the tradition of liberal legality under Xiao Yang, and thus predicted a return to a more liberal approach under Zhou Qiang. The fourth part concludes.