Liberal Legalism Research Articles

The Destruction of Legal Reason: Lessons from the Past

The legal predicament of today in Europe and beyond takes the form of a devaluation of the meaning of legality, constitutionality and, of the rule of law. What we are dealing with is yet another crisis of both the tradition of the Rechtsstaat in continental setting and, more broadly, of liberal legality. While this disruption within the sphere of the law seems to mirror the reshuffling in established politics that took place over the last twenty years, it traces back to central jurisprudential questions that have made the substance of crucial debates during the interwar and have fashioned both the field of constitutional theory of the continent and our jurisprudential apparatus for approaching the nexus between law and politics. In this article I argue that the apparent uchronia that the current status of the law opens in relation to past theoretical questions that were seeking to ground legality, is neither a simple by-product of a Zeigeist oversaturated by appeals to procedural democracy or for returns to sovereign power, nor a mere regression to past juridico-political settings. It is a historical development that has been dormant for the past decades, yet has slowly undermined legal thought and praxis. Revisiting, as a matter of historical and jurisprudential inquiry, the context and the content of this original opposition between liberal legality and its enemy, is a way of understanding what constructs our own contemporary situation.

The Conceptions of Sharia and Citizenship in Indonesia and Malaysia

Indonesia and Malaysia offer comparative perspectives concerning the relationship between loyalties to the Muslim umma, local ethnicity, and the modern nation-state, and how interpretations of the sharia and modern constitution, laws, politics, and policies intersect in multiple and changing ways. This article seeks to compare and contrast some of the contemporary discourses on sharia and citizenship as demonstrated by Indonesian and Malaysian scholars, politicians, and activists. Both Indonesian and Malaysian constitutions were born out of the modern notion of citizenship that recognizes religious diversity. On the one hand, the Constitution of Indonesia does not specify Islam as the state religion, but the government promotes official religions. On the other hand, the Constitution of Malaysia makes it explicit that Islam is the state religion while recognizing religious diversity. The Indonesian government does not conflate particular ethnicity with Islam, whereas Malaysia integrates Islam and Malay ethnicity amidst Malaysian religious and ethnic plurality. Both cases prevent us from categorizing each case as either an Islamic legal conservatism or a modern legal liberalism. These two cases resist the binary opposition between sharia conservatism deemed against citizenship and modern legal liberalism deemed against religious laws. There are ambiguities, contradictions, as well as compromises and integration between conflicting ideas and systems concerning Islam and citizenship.

An essay on neoliberalism

A comparison of liberalism and neoliberalism shows that conceptual contradictions of liberal ideas arise in the liberal hypostatization of various forms of social being. Therefore, the political liberalism will contradict the cultural one, and the legal liberalism will contradict the economic one. However, there are no fundamental differences between liberalism and neoliberalism: both are based on the same values and differ only in the sphere of their application. Liberalism, as a political practice, is intended mainly for the domestic use, while neoliberalism rather for the external use. In other words, neoliberalism, being an integral part of liberalism, presents the foreign-policy dimension of liberal concepts. Foreign policy is inherently aggressive: a number of French revolutionary governments should be recognized as the earliest forerunners of modern neoliberals. For instance, the foreign policy of the Convent clearly outgrew the liberal ideas of the Enlightenment and was aimed at enforcing liberalization on the European scale. The essence of liberalism is manifested in ousting the previous, partly traditional social, political and economic practices and in replacing them with the unified ones that should become the norm for the humankind. Neoliberals prefer to push their influence through the institutional pressure by using international non-governmental organizations, transnational companies, and the associated leaders of a number of countries of different levels of development. These organizations recruit personnel for management all around the world and constantly shuffle them, move from one country to another to create a new management culture intended for the neoliberal model of the global scale. The goal of neoliberals is almost the same as the goals of liberals (one can argue only about the means) and presents their foreign-policy version: neoliberals aim at reformatting the social space on the global scale by the abolition of the old states and introduction of a new social-political system, which is obviously manifested in the European Union, where the former states are gradually replaced by the regions, and the social policy aims at developing a new-European identity.

Political Economy and Working Law

ABSTRACTLauren B. Edelman’s Working Law: Courts, Corporations, and Symbolic Civil Rights (2016) offers an empirically supported theory of legal endogeneity, explaining how managerialized ideas of compliance with employment discrimination legislation diffuse in organizational fields and shape judicial doctrine. Managerialization and legal endogeneity explain how and why equality-promoting civil rights legislation may do little to reduce workplace inequalities. This essay places Edelman’s theory within a broader terrain of opportunities and limits of law for promoting egalitarian change. Managerialization is not always detrimental to enhancing workplace race and gender equality. However, typically reinforcing logics of market capitalism and liberal legality often make it so, while blocking reforms countering judicial deference to managerialized compliance.

The Rise of American Conservatism in Israel

Abstract: The American fascination with the link between interpretive methodology and political ideology rarely reaches beyond its borders. This Article offers a comparative case study, which converses with the American example—Israel. A twofold argument is offered to facilitate this conversation. First, the Article identifies a shift in the ideological climate of the Supreme Court of Israel, manifested in the rise of a new interpretive method. For the first time, the interpretive theory prevailing in Israel, Purposive Interpretation, faces a viable competitor. The Article unpacks the challenges posed by the new theory, termed Purposive Originalism, in methodology as well as underlying understanding of democratic principles. While Purposive Interpretation is conceptually and historically tied to American liberal theories, Purposive Originalism deeply resonates American conservatism, espousing variations on its three basic tenets: originalism, bright-line rules, and deference. Second, the Article contends that this development should be understood as part of a broader ideological reorientation of the political right-wing in Israel, toward American conservatism. Increasingly drawing on the philosophies and strategies of its American counterpart, the Israeli Right has adopted the compound of social traditionalism, neo-liberal economic policy, and hawkish national security stance, as well as discontent with the administrative state, synthesized under the headline of conservatism. An interpretive methodology that strives for the same values enshrined in this political project fulfills a vital role in its success. Such a convergence of judicial and political reinterpretations of conservatism marks an Israeli recreation of the dynamics that emerged in the U.S. in the 1980s, with an all-encompassing conservative backlash against legal liberalism. The Israeli case thus reveals how American conservatism can be, and is indeed, incorporated into different cultural and constitutional settings.

The politics of the workshop: craft, autonomy and women’s liberation

The women’s liberation movements that emerged in Britain in the late 1960s are rarely thought of through their relationship with technology and technical knowledge. To overlook this is to misunderstand the movement’s social, cultural and economic interventions; it also understates how the technical environment conditioned the emergence of autonomous, women-centred politics. This article draws on archival evidence to demonstrate how the autonomous women’s liberation movement created experimental social contexts that enabled de-skilled, feminised social classes to confront their technical environment and the deficits they experienced within it. The context for forging such politics was the workshop. More than a one-off, skill-sharing event, the workshop was a mobile habitus, adapted from a Marxist craft politics that prioritised the distribution of collective knowledge and responsibility and enabled the realisation of women's self-determination and autonomy. The workshop was discursively extended through women-authored publications in the 1970s and 1980s and designated a specific orientation within knowledge that supported women to practise a range of technical knowledge and gain expertise. An important, and largely forgotten political legacy of women's liberation is its world-making activisms: how it created social contexts that supported de-skilled, feminised classes to substantially intervene, shape and re-build their environments. Such histories can inspire how we practise politics today within an environment characterised, some theorists claim, by dramatic scales of de-skilling and dispossession.

Law and Development Theory: A Dialogical Engagement

Using law and development experience in the Global South, this Article dialogically engages with law and development theories advanced by the Global North grouped under three rubrics: liberal legalism, neoclassical institutionalism embraced by the Chicago School, and new constitutionalism. It argues that from the Global South’s perspective, the Global North’s theories provide some relevant propositions but also entail significant challenges. This Article therefore proposes three pluralist conceptual models of law and development including pluralist legalism, pluralist institutionalism, and pluralist constitutionalism. By doing so, this Article contributes to the understanding of limitations and possibilities inherent in law and development theories.

Is My Foreign Yours? The Concept of Foreignness in the Regulation of Political Finance

ABSTRACTDebates over ‘foreign’ political influence focus on the regulatory ‘why’ and ‘how’. This masks deeper questions about ‘who’ is foreign. Is foreignness a factor of where money is housed or its owner’s status? What of permanent residents and citizens abroad? This article unearths the debate in two stages. First, it analyses ‘foreignness’ as a general socio-legal concept linked to xenophobic wariness of, or outright aversion to others. Yet in modern liberal legal orders, outright discrimination is not an acceptable method or motivation for regulation. Instead, three distinctive, underlying conceptions of foreignness are identified within liberal legalism: jurisdiction, political community, and material interconnectedness. Application across five anglophone democracies shows that political finance law in each of those countries embodies aspects of every conception. Given they are distinguishable, this suggests not only that regulation in this area is still evolving normatively but, more importantly, that ‘foreignness’ is a rich conception not easily captured in a single definition. Revealingly, although foreignness is logically a nested and symmetric idea, regulation rarely touches influence between federal regions or actions of local corporations abroad.

Либерально-демократическая правовая мысль и «белые» правоведы

Либерально-демократическая правовая мысль и «белые» правоведы

“Land of the White Hunter”: Legal Liberalism and the Racial Politics of Morals Enforcement in Midcentury Los Angeles

“Land of the White Hunter”: Legal Liberalism and the Racial Politics of Morals Enforcement in Midcentury Los Angeles

Can Global Legal Pluralism Be Both 'Global' and 'Pluralist'?

Can Global Legal Pluralism Be Both 'Global' and 'Pluralist'?

Against Intolerance: The Red Scare Roots of Legal Liberalism

This article argues that important antecedents of post-New Deal American liberalism emerged in response to the first Red Scare. As war hysteria gave way to patent anti-radicalism, the pervasiveness of peacetime state-sponsored repression undermined progressive confidence in administrative governance and generated support for so-called personal rights. At the same time, the suppression of meaningful labor activity during the early 1920s buttressed conservative confidence in the judiciary and liberated lawyers and business advocates to oppose state policing of putatively private beliefs. The result was increasing convergence around a new liberalism, defined against “intolerance,” which laid the groundwork for judicial enforcement of free speech and minority rights.

Cultural Formation and Appropriation in the Era of Merchant Capitalism

AbstractDiscussions of ‘cultural appropriation’ in popular culture suffer from an inherited politics of authenticity and ownership originating in a liberal legal–ethical framework. Here, I use Raymond Williams’s and Stuart Hall’s cultural theory to pinpoint the place at which cultural-appropriation discourse goes wrong – an essentialist and anti- historical notion of colonial encounters. We can overcome these limits through Marxist cultural and historical analysis. Outrage about colonial violence which most often roots appropriation discourse is better understood within the context of an account of the transition to capitalism beginning with the Low Countries and their eastern colonies. Furthermore, the Marxist idea of the cosmopolitan cultures of both capital and labour offers a productive path for the history of culture rooted in the same colonial encounter.

Peace-in-Difference: A Phenomenological Approach to Peace Through Difference

ABSTRACTThis article develops the notion of ‘peace-in-difference’, based on a phenomenological approach to difference from German sociology in the 1920s to the French philosophies of Emmanuel Lévinas and Jacques Derrida. Such an attempt responds to a long-standing concern in peacebuilding theory and practice and is critical of essentialist and linear-teleological approaches to peace, as with the theoretical framework of liberal peace-building. As a consequence, ‘peace-in-difference’ is sceptical with attempts to define peace as a status, but rather envisions peace as a perennial process of dialogue. However, ‘peace-in-difference’, even though having the critique of liberal peace and subsequent research questions in common with post-liberal approaches, it is also critical with their construction of ‘the local’ as as a binary opposition to ‘the international’. Though this binary is an attempt to overcome liberal legacies in International Relations (IR) and peace studies, it nevertheless risks reintroducing essentialism. In contrast, a phenomenological approach infers a positive understanding of difference(s) which can be generative of peace, if and when perceived in non-essentialist ways and negotiated as such.

Unpacking the global refugee crisis: deploying the ethical and political work of border crossing

ABSTRACTThis article, derived from the author’s keynote address to the ANZCA conference in July 2017, seeks to reinvigorate a constitutive Communication research approach, drawing on feminist, postcolonial, and intersectional analysis as well as recent research on listening. The model is tested via a case study of BBC media framing the European 2017 refugee crisis as a regional, rather than global, problem. It is argued that Eastern European and Tier 1 countries’ resettlement policies reflect colonial histories and liberal legacies, seeking not to relieve humanitarian strain but to enhance economic growth. The article suggests we must confront how privilege enacts culturally exclusive practices that normalise complacent attitudes in media and scholarly environments that exempt the voices of those ‘outside of the neighborhood’. The duty of ‘care’ is problematised here as a potential tool of colonialism, which must be used ethically if it is to invite thoughtful listening in our work as researchers, organisational leaders, and colleagues seeking to decolonise our practices.

The Racial Contours of YIMBY/NIMBY Bay Area Gentrification

In this article, we trace the emergence of the false YIMBY/NIMBY dialectic now dominant in San Francisco housing rights discourse, studying its constitution and material effects. Specifically, we investigate how racial capitalism is constitutive of both YIMBYism and NIMBYism, drawing upon Cedric Robinson’s argument that racialization has always been constitutive of capitalism, and racism is requisite for capitalism’s endurance. We make our argument by drawing upon empirical research conducted by the Anti-Eviction Mapping Project (AEMP), a data analysis, oral history, and critical cartography collective of which we are both a part. We also draw upon collaborative research between AEMP and community-based housing rights nonprofits and local housing justice organizing efforts, as well as literary and cultural analysis. Such a methodological approach facilitates the unearthing of the racial logics undergirding YIMBYism, pointing to the need for alternative analytics to theorize and mobilize against heightened forms of racialized dispossession. We begin by outlining San Francisco’s YIMBY and NIMBY genealogies, and then proceed to unravel the basic statistical logic underpinning YIMBYism. In doing so, we introduce an additional analytic that we argue is requisite for deconstructing YIMBY algorithms: aesthetic desires of wealthy newcomers. We suggest that the YIMBY “build, baby, build” housing solution fails when architectural and neighborhood fantasies are taken into account. We then study how racialized surveillance informs not only the NIMBY but also the YIMBY gaze, arguing that both camps are ultimately tethered to racial capitalism’s liberal legacies.

Sanctuary and the Contested Ethics of Presence

Sanctuary denotes the insulation of spaces and places and persons, designating refuge or immunity from some force or authority. In this respect, we can think of sanctuary not as challenging state power frontally but as shielding against incursions of power. It is protective and defensive; it embodies a politics of boundary maintenance. Precisely because sanctuary is a politics of boundary maintenance, it is in some respects quintessentially liberal in nature and impulse. Liberalism stands for a politics of jurisdictional boundary maintenance; it demands the separation of spheres and powers. (In political theorist Michael Walzer’s terms, liberalism is “the art of separation.”) In (heretofore) liberal democratic states like the United States, jurisdictional sphere separation has been enormously protective for noncitizen immigrants. Liberal legalism has imposed crucial constraints on the jurisdiction of interior border enforcement. That this is so becomes particularly clear in moments like the present one, in which the authoritarianizing national state is smashing through prior jurisdictional boundary settlements and extending the interior border to reach an ever wider set of spaces and moments and subjects. Which is to say: the aggressive processes of border pervasion unleashed by the Trump administration represent a systematic attack upon, and partial dismantling of, certain sanctuarist elements endemic to liberal legalism.

The Social Movement Turn in Law

The rise of social movements in US legal scholarship is a current response to an age-old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between law and politics. This problem erupted in controversy around the civil rights–era concept of legal liberalism defined by activist courts and lawyers pursuing political reform through law. Contemporary legal scholars have responded by building on social science to develop a new concept—movement liberalism—that assigns leadership of transformative change to social movements to preserve conventional roles for courts and lawyers. Movement liberalism aims to achieve the lost promise of progressive reform, while avoiding critiques of legal activism that have divided scholars for a half-century. Yet rather than resolving the law-politics problem, movement liberalism reproduces long-standing debates, carrying forward critical visions of law that it seeks to transcend.

Repressive inclusion

ABSTRACTThis article examines the relation between emergency legal doctrine and racial sovereignty in the context of Palestine. It theorises Israel's multifarious emergency modalities in a colonial present paradigm where traditional territorial colonisation is fused with modern security biopolitics. The Israeli juridical-security apparatus mimics European liberal legalism in presenting itself as generally accepting of human rights obligations, save in circumstances where particular illiberal measures are necessitated on security grounds. These measures, however, comprise a pervasive patchwork of emergency modalities that have penetrated all spheres of Palestinian political, economic and cultural life. The retention and application of the British Mandate-era Defence Emergency Regulations as well as the constitutional state of emergency have produced an emergency marked by longevity and racialisation. Furthermore, Israel has invoked the emergency derogation option under international treaties to claim the legality of measures such as mass internment without trial. I articulate these dynamics of legality, emergency and sovereignty in terms of “repressive inclusion”: a racially contingent inclusion within – and repression by – the juridical order. This evokes the suffocating hold of racialised emergency legal structures. The consequences for Palestinian lives and bodies have been severe; the alienation of land and fragmentation of territory have been acute.

THE CONCEPT OF SELF-DETERMINATION IN THE PHILOSOPHY OF THE ENLIGHTENMENT

Purpose. The purpose of the article is to define main directions and ways to legitimize philosophical ideas of self-determination as a fundamental global and valuable intention of Western culture in the context of its enlightenment paradigm. Methodology. The research is based on historical and logical methods, which allowed to theoretically reconstruct the cultural and historical context, as well as philosophical and theoretical principles of understanding and recognition of self-determination as a phenomenon of Western culture of the Enlightenment age. The authors have used their own theoretical model similar to the one of “ideal type” by. M.Weber based on the methods of generalization, abstraction and idealization, which allowed to present the phenomenon of individualism in the most general form as a system of value orientations of an individual, whose nature is seeking self-determination and originality. Originality. The historical and philosophical analysis has shoяк.wn how the philosophy of the Enlightenment age created moral principles of European culture advancement, especially through rationalization and the idea of political, economic and moral independence of a personality, recognition of rights for own initiative and sovereignty, individual identity as a public good. Thus, the idea of self-determination in this philosophy is related not only to the recognition of human rights, but also to the search of possible ways for a person to embrace current legislative system, harmony conditions and public interests. Conclusions. The philosophy of the Enlightenment has made a significant step toward further development of self-determination concept and its rationalization – separation of freedom and tyranny, new perception of necessary conditions for free self-determination of an individual as the ability to manage own passions and build own life on some rational principles, to refuse from excessive egoism, combining personal interests with the interests of others and public in generally these ideas were performed in the system of philosophical and legal liberalism, which emerged as a result of the synthesis of individualism and rationality concepts, and became an ideological basis for the modernization of Western civilization.