Guyora Binder - Academia.edu (original) (raw)

Papers by Guyora Binder

American Journal of Legal History

ABSTRACT When a state undertakes conflicting treaty obligations are both treaties binding, or is ... more ABSTRACT When a state undertakes conflicting treaty obligations are both treaties binding, or is the second precluded by the first? International lawyers have traditionally held opposing views on this question. This article, the first on the topic, provides a comprehensive analysis and critique of the treaty conflict problem, and offers a political theoretic explanation for its persistent intractability. According to this explanation, opposing views of the power of states to incur international commitments reflect opposing views of the normative basis for state sovereignty and the scope of state autonomy. One view proceeds from an imperial model of sovereignty, articulated by Bodin and Hobbes, that conceives the state as a custodian of the welfare insterests of a population. The other proceeds from a republican model of sovereignty, articulated by Machiavelli and Rousseau, that conceives the state as a vehicle for the self-expression of a community. Finally, drawing on the political economy of Smith, Hegel, and Polanyi, the article argues that the republican model is more effective in mobilizing the support of a population, but creates externalities that prevent it from being universalized. In short, autonomous republican sovereignty is always an illusion, depending on imperial sovereignty elsewhere. As long as nation-states remain a feature of the international system, sovereign equality will remain a myth. International law will have to regulate relations among governments of different kinds, including some form of colonial dependency.

The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the ... more The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the prosecution must prove she committed an act causing the death of another, accompanied by a culpable mental state. The law conceived homicide very differently in seventeenth-and eighteenth-century England: a killing required an act culturally recognizable as a violent assault. By “rethinking” killing as a kind of act rather than a result, this paper explains the transformation of homicide from unexcused killing to culpable causing. It examines a cross-section of the homicide cases reported in the Proceedings of the Old Bailey between 1674 and 1834. The study’s cases suggest that the categories of murder, manslaughter, and accidental death were distinguished primarily on the basis of differences in conduct rather than mental states, and that intent to kill was almost completely peripheral in seventeenth and eighteenth century English homicide law.

This encyclopedia entry provides an historical overview of the law and literature movement. It di... more This encyclopedia entry provides an historical overview of the law and literature movement. It discusses the involvement of lawyers in American literature in the antebellum period, interest in judicial rhetoric and philosophy of language among progressive era legal theorists, and the turn to literary theory among American constitutional theorists and critical legal scholars during the late twentieth century. The emergence of law and literature movements in the U.K. and on the continent are also briefly discussed. Authors discussed include Ronald Dworkin, Stanley Fish, Peter Goodrich, Martha Nussbaum, Richard Weisberg, Brook Thomas, Robert Weisberg, Robin West, and J.B. White.

Addressing the future of radical politics at the end of the cold war, this article offers a recon... more Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers democratic association as an alternative model of transformation and defends this project against the deconstructive critiques of participatory democracy and community. The logical extension of these arguments would preclude radical politics altogether and replace it with critique.

American Journal of Legal History

ABSTRACT When a state undertakes conflicting treaty obligations are both treaties binding, or is ... more ABSTRACT When a state undertakes conflicting treaty obligations are both treaties binding, or is the second precluded by the first? International lawyers have traditionally held opposing views on this question. This article, the first on the topic, provides a comprehensive analysis and critique of the treaty conflict problem, and offers a political theoretic explanation for its persistent intractability. According to this explanation, opposing views of the power of states to incur international commitments reflect opposing views of the normative basis for state sovereignty and the scope of state autonomy. One view proceeds from an imperial model of sovereignty, articulated by Bodin and Hobbes, that conceives the state as a custodian of the welfare insterests of a population. The other proceeds from a republican model of sovereignty, articulated by Machiavelli and Rousseau, that conceives the state as a vehicle for the self-expression of a community. Finally, drawing on the political economy of Smith, Hegel, and Polanyi, the article argues that the republican model is more effective in mobilizing the support of a population, but creates externalities that prevent it from being universalized. In short, autonomous republican sovereignty is always an illusion, depending on imperial sovereignty elsewhere. As long as nation-states remain a feature of the international system, sovereign equality will remain a myth. International law will have to regulate relations among governments of different kinds, including some form of colonial dependency.

The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the ... more The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the prosecution must prove she committed an act causing the death of another, accompanied by a culpable mental state. The law conceived homicide very differently in seventeenth-and eighteenth-century England: a killing required an act culturally recognizable as a violent assault. By “rethinking” killing as a kind of act rather than a result, this paper explains the transformation of homicide from unexcused killing to culpable causing. It examines a cross-section of the homicide cases reported in the Proceedings of the Old Bailey between 1674 and 1834. The study’s cases suggest that the categories of murder, manslaughter, and accidental death were distinguished primarily on the basis of differences in conduct rather than mental states, and that intent to kill was almost completely peripheral in seventeenth and eighteenth century English homicide law.

This encyclopedia entry provides an historical overview of the law and literature movement. It di... more This encyclopedia entry provides an historical overview of the law and literature movement. It discusses the involvement of lawyers in American literature in the antebellum period, interest in judicial rhetoric and philosophy of language among progressive era legal theorists, and the turn to literary theory among American constitutional theorists and critical legal scholars during the late twentieth century. The emergence of law and literature movements in the U.K. and on the continent are also briefly discussed. Authors discussed include Ronald Dworkin, Stanley Fish, Peter Goodrich, Martha Nussbaum, Richard Weisberg, Brook Thomas, Robert Weisberg, Robin West, and J.B. White.

Addressing the future of radical politics at the end of the cold war, this article offers a recon... more Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers democratic association as an alternative model of transformation and defends this project against the deconstructive critiques of participatory democracy and community. The logical extension of these arguments would preclude radical politics altogether and replace it with critique.