• Selected
• Entire List

Abstract:
The Seventeenth Century places Western political thought on a path increasingly concerned with ascertaining the legitimacy of a determinate individual, parliamentary or popular sovereign. Beginning with Shakespeare, however, a parallel literary tradition serves not to systematise, but to problematise the discourses used to assert the legitimacy with which control over law and government is exercised. This article examines discourses of legal and political legitimacy spawned in early modernity. It is argued that basic notions of 'right', 'duty', 'justice' and 'power' (corresponding, in their more vivid manifestations, to categories of 'heir', 'celebrity', 'martyr' and 'monster') combine in discrete, but always encumbered ways, to generate a variety of legitimating discourses. Whilst transcendentalist versions of those discourses begin to wane, their secular counterparts acquire steadily greater force. In addition to the Shakespearean histories, works of John Milton, Pierre Corneille, Jean Racine, Friedrich Schiller and Richard Wagner are examined, along with some more contemporary or ironic renderings.

law and literature, legal theory, legal philosophy, Shakespeare

Abstract:
Traditional scholarship has approached Aristotle’s Nicomachean Ethics mostly as a system of positive ethics. Less attention has been paid to the work’s metaethics - the claims Aristotle makes about what any system of positive ethics must say or do in order to count as an ethical theory. In this article, Book One of the Nicomachean Ethics is read not simply as an introduction to Aristotle’s system of positive ethics, but as a statement of distinct metaethical principles, which can be evaluated independently of any view that might be taken of his positive ethics. Insofar as Aristotle inscribes his legal theory within his ethical theory, those principles stand as a metaethics of law. Under Aristotle’s legal metaethics, law necessarily presupposes (1) a concept of the ‘good’; (2) purpose; (3) dialectics; (4) objectivist ethics; (5) a best constitution; (6) a positive ethics; and (7) a concept of the ‘human.’

Aristotle, conventionalism, ethics, dialectics, eudaimonism, metaethics, relativism, subjectivism, natural law, objectivism, rationalism

Abstract:
Abstract. Legal scholars' interest in Shakespeare has often focused on conventional legal rules and procedures, such as those of The Merchant of Venice or Measure for Measure. Those plays certainly reveal systemic injustice, but within stable, prosperous societies, which enjoy a generally well-functioning legal order. By contrast, Shakespeare's first historical tetralogy explores the conditions for the very possibility of a legal system, in terms not unlike those described by Hobbes a half-century later. The first tetralogy's deeply collapsed, quasi-anarchic society lacks any functioning legal regime. Its power politics are not, as in many of Shakespeare's other plays, merely latent, surreptitiously lurking beneath the patina of an otherwise functioning legal order. They pervade all of society. Dissenting from a long critical tradition, this article suggests that the figure of Henry VI does not merely represent antiquated medievalism or inept rule. Through Henry's constant recourse to legal process, arbitration, and anti-militarism, the first tetralogy goes beyond questions about how to establish a functioning legal order. It examines the possibility, and meaning, of a just one.

Abstract:
The Comedy of Errors, always loved on the stage, has long been deemed less substantial than Shakespeare's 'mature' works. Its references to private and public law have certainly been noted: a trial, a breached contract, a stand-off between monarchical and parliamentary powers. Yet the play's legal elements are more than historical curios within an otherwise light-hearted venture. The play is pervasively structured by an array of socio-legal dualisms - master-servant, husband-wife, native-alien, parent-child, monarch-parliament, buyer-seller. All confront fraught transitions from pre-modern to early modern forms. Those fundamentally legal relationships fuel character and action, even where no conventionally legal norm or procedure is at issue. 'Errors' in the play serve constantly to highlight unstable and shifting relationships of dominance and submission. Law undergoes its own transition from feudal-aristocratic to commercial forms. Through a theatrical framing device, it thereby re-emerges to remind us that those dualisms, even in their new incarnations, will remain squarely within law's ambit.

Comedy of Errors, law and literature, law and humanities, legal theory, legal philosophy, Shakespeare

Abstract:
Critical race theorists and LatCrits argue that, throughout US history, norms promising liberty and equality have been myths. They examine the formalisms of US rights discourse through the lens of a realist jurisprudence, arguing that guarantees of ‘equal protection’ or ‘due process’ have failed non-dominant groups throughout long histories of slavery, segregation, subordination, and ongoing exclusion. However, a number of them merely substitute a simplistic myth of US-is-good with an equally simplistic myth of US-is-bad. Scholars such as Mari Matsuda, Richard Delgado, Celina Romany, Berta Esperanza Hernández-Truyol and Elisabeth Iglesias condemn those who praise the black letter of US law while overlooking its brutal realities; yet they then take precisely that approach to non-US legal regimes, such as the standard norms of international human rights law, praising the black-letter norms while ignoring the oppressive politics and histories of many of the powerful countries and institutions behind them. Far from overcoming American ethnocentrism, they thereby recapitulate it. Within an ever more global discourse of human rights, critical theorists can only retain credibility by applying the same realist methods to international and non-US regimes that they demand for US law.

civil rights, civil liberties, critical legal theory, critical race theory, jurisprudence, human rights, international law, international human rights law, LatCrit, legal realism, legal theory, multiculturalism, rights discourse

Abstract:
All European states prohibit some form of hate speech. US law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.

comparative law, European law, hate speech, legal formalism, legal realism, US law

Abstract:
The mass media decisively shape global perceptions about human rights, yet fail to reflect the realities of global violations. Situations of egregious abuse are often overshadowed by those which receive attention for reasons extraneous to any specific concern for human rights. Distortions in established media sources arise not necessarily from deliberate misrepresentation, but from the inevitable disparities that arise when human rights abuses are reported as by-products of military, economic, or other interests. This study examines day-by-day coverage of global human rights, during the three-month period from October to December 2006, in two American and two British broadsheets: The New York Times, The Wall Street Journal, The Guardian and The Financial Times. The aim is to understand the kinds of factors which, albeit tangential to violations of fundamental human rights, nevertheless influence both the quantity and the quality of reporting. While various editorial pressures, such as the need to focus on topical stories, are not denied, it is argued that the news media must make greater efforts to achieve proportionality between the gravity of human rights situations and the degree of coverage those situations receive.

Afghanistan, China, Darfur, Democratic Republic of Congo, Iraq, Israel, Japan, human rights, international law, journalism, media, terrorism

Abstract:
The discourses of conquering empire and vassal nation are varied, often internally contradictory. The empire may represent openness and diversity, or militarist brutality. The underling nation may represent autonomy and self-determination, or narrow provincialism. Those discourses spawn ideologies of liberation (‘the empire liberates the nation’; ‘the nation must be liberated from the empire’) and counter-ideologies of oppression (‘the empire oppresses the nation from without’; ‘the empire prevents oppression by dominant national groups of subordinate national groups’). Such concepts are central to Shakespeare’s Cymbeline. Bound to pay tribute to Caesar Augustus, Britain’s King Cymbeline contemplates a national rebellion against pax romana, whilst at the same time exercising its own dominance over Wales and other conquered territory in the Isles. Parallels to the reign of James I are apparent, where England is embarking upon its ascent to empire, its pax britannica, in the face of Welsh, Scottish or Irish resistance. Several discourses emerge as hallmarks of power politics in early modernity: cosmopolitan empire, oppressive empire, cosmopolitan nation, oppressive nation.

Cymbeline, colonialism, imperialism, law and literature, nationalism, post-colonialism, Racine, Shakespeare

Abstract:
Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities. Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association. Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this chapter, that approach is challenged. Hate speech bans suffer from inherent flaws. They either promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, would dramatically limit free speech. Sexual minorities within longstanding, stable and prosperous democracies should generally enjoy all human rights, but should not necessarily seek the protections of hate speech bans.

discrimination, free speech, gay rights, hate speech, human rights jurisprudence, minorities, sexual minorities

Abstract:
In comparison to Aristotle, Plato's general understanding of law receives little attention in legal theory, due in part to ongoing perceptions of him as a mystic or a totalitarian. However, some of the critical or communitarian themes that have guided theorists since Aristotle find strong expression in Plato's work. More than any thinker until the nineteenth and twentieth centuries, Plato rejects the rank individualism and self-interest which, in his view, emerge from democratic legal culture. He rejects schisms between legal norms and community values, institutional separation of law from morals, intricate regimes of legislation and adjudication, and a culture of rampant litigation. He rejects the alienation of individuals, from each other and from their communities, that is so easily bred within highly complex political and legal systems. An understanding of his approach to some of the classic questions of legal theory provides insight not only into some central ideas of his own thought, but also into the roots of critical and communitarian critiques of law.

Abstract:
The Seventeenth century witnesses the steady demise of the fragmented or overlapping power regimes that had been rooted in the European Middle Ages. Centralised control increasingly structures emerging states. Jean Racine's La Thébaïde, recreating a chapter in the Oedipus myth, displays the Hobbesian drive for undivided sovereignty pushed to its logical conclusion: even two shareholders in power become one too many. Legal norms are constantly invoked to resolve a political and military power struggle, including discourses of absolute and shared sovereignty, separations of powers, popular consent, public welfare, national interest (raison d’état), natural law, and just war. Far from overcoming a brute power dynamic, however, those legal discourses show how the emerging modern state turns them into a tool of coercive power.

absolutism, Hobbes, just war, law and literature, modernity, natural law, Oedipus, Racine, raison d’état, Shakespeare, sovereignty, theodicy

Abstract:
Legal scholars’ interest in Shakespeare has often focused on conventional legal rules and procedures, such as those of The Merchant of Venice or Measure for Measure. Those plays certainly reveal systemic injustice, but within stable, prosperous societies, which enjoy a generally well-functioning legal order. In contrast, Shakespeare's first historical tetralogy explores the conditions for the very possibility of a legal system, in terms not unlike those described by Hobbes a half-century later. The first tetralogy's deeply collapsed, quasi-anarchic society lacks any functioning legal regime. Its power politics are not, as in many of Shakespeare's other plays, merely latent, lurking beneath the patina of an otherwise functioning legal order. They pervade all of society. Dissenting from a long critical tradition, this article suggests that the figure of Henry VI does not merely represent antiquated medievalism or inept rule. Through Henry's constant recourse to legal process, arbitration and anti-militarism, the first tetralogy goes beyond questions about how to establish a functioning legal order. It examines the possibility, and meaning, of a just one.

Abstract:
The concept of modernity has long been central to legal theory. It is an intrinsically temporal concept, expressly or implicitly defined in contrast to pre-modernity. Legal theorists sometimes draw comparisons between, on the one hand, various post-Renaissance positivist, liberal, realist or critical theories, and, on the other hand, the classical natural law or justice theories of antiquity or the middle ages, including such figures as Aristotle, Cicero, Augustine or Aquinas. Many theorists, however, while acknowledging superficial differences among the various classical theories, fail to appreciate the variety and complexity of pre-modern thought. Unduly simplifying pre-modern understandings of law, they end up drawing false distinctions between modern and pre-modern legal theory. The pre-modern example considered in this article is Plato. Unlike scholars within the Humanities, who have continued to revise their approaches to pre-modern thought (often reflecting changes in ethical or political thought today), legal theorists, including many who claim to challenge much of traditional positivism, have scarcely moved beyond traditional positivists' ahistorical and reductionist views.

Plato, pre-modern thought, legal textbooks