Without Jurisdiction: Reconceptualising the Universal in our Response to Injustice (original) (raw)

’Global/Transnational Law’ Challenges to Theorizing About Law

Global/transnational “law” discourse seems to be premised on two important assumptions: first, that the empirical reality of the present day globalized world requires moving beyond the traditional concept of international law, because it no longer successfully depicts the nature of “raw data” of various regulatory and adjudicative phenomena taking place at the transnational level; and second, that the analytical rigor of the long dominant positivist strand of jurisprudence, which insists on the criterial approach to law and its autonomous status, nowadays contributes more to the obfuscation than to the clarification of its subject matter. Both of these assumptions lead to the claims that significantly challenge our traditional theorizing about law. According to the first – substantive – challenge, global/transnational phenomena give rise to the birth of a novel, non-statist and post-modern concept of law. According to the second – epistemological – challenge, the nature of the inquired phenomena requires adopting new research strategies which goes beyond the traditional method of the dominant analytical jurisprudence. I will scrutinize both of these challenges. As regards the first of them, I will show that while the strong claim that we are in the possession of some entirely novel concept of (global/transnational) law is not warranted, more modest claims regarding functional sphere of validity and genuinely new (global/transnational) sources of law merit significant weight. When it comes to the second claim, I will argue that the obsession with “law” as the “default descriptor” (Somek) for various global instruments of regulation and standardization stems largely from the erroneous assumption about the special, i.e. “exclusionary” nature of legal rules. Once the direct link between legal “normativity”, “validity”, and “bindingness” is exposed as unsubstantiated, the path is cleared for a more nuanced investigation about the nature of different phenomena that do not pass the threshold of “legality”. This, finally, implies that calls to substitute analyticity and criterialism with some sort of legal pluralist approach, which self-consciously blurs the lines between law and non-law, should be abandoned in favor of a refined analytical approach, which relies on a different sort of socio-legal investigation, the one that treats law as a normative order that is a product of specific historical development and that is as such in interaction with other social normative orders.

Law, Justice, His Master and Her Servant. Autonomy in a heteronymous legal order

When excavating legal modernity the remnants of a societal structure are laid bare. This structure was framed by a heteronymous legal system. It envisaged the enlightenment of the masses by means of rules imposed top down by an intellectual elite seeking to herd the flock. Bauman, drawing heavily on Foucault, denotes this top-down rule as: “the domination typical of ‘pastoral power’, one of the most insidious of the many shapes of domination, as it blackmails its objects into obedience and lulls its agents into self-righteousness by representing itself as self-sacrifice in the name of ‘the life and salvation of the flock’”. Moral autonomy allows for critical resistance towards extreme contemporary flashes of legal modernity which are visible in nationalistic tendencies across Europe. This presentation explores tentatively, as work in progress, the possibility of formulating a critical legal theory based on the Baumanian analysis of contemporary society and the role of law and ethics therein. The kernel of such a theory, it is suggested, lies in the courage of moral responsibility in the knowledge of uncertainty. In a globalising world such an attitude and perspective serves as a counterweight to the apparent prevailing focus, in practice, on the heteronomy of law within the developing new imperialism.

The Dual Foundation of Universal Jurisdiction: Towards a Jurisprudence for the'Court of Critique

Transnational Legal Theory, 2010

This article revisits the case of The State of Israel v Adolph Eichmann and calls for renewed attention to the analysis of universal jurisdiction in this early example of it. Precisely because the Israeli court's notion of universal jurisdiction is foreign to contemporary readers, it provides fresh guidance on a doctrine that has recently gained enormous importance in global politics. The Eichmann Opinion suggests a two-tiered test: among the cases satisfying the traditional conditions for universal jurisdiction, only those cases in which there is a political interest in pressing charges should be selected. As a world court with universal jurisdiction has not been established, universal jurisdiction remains grounded both in a universal vision of humanity and in the violence wielded by particular institutions.

General Jurisprudence 1

2005

This paper sets out a view of a General Jurisprudence that is needed to underpin the institutionalised discipline of law as it becomes more cosmopolitan in the context of "globalisation", and considers its implications. Part I restates a position on the mission and nature of the discipline of law and of the role of jurisprudence, as its theoretical part, in contributing to the health of the discipline. Part II clarifies some questions that have been raised about this conception of General Jurisprudence: (i) the implications of "globalisation"; (ii) The meaning of "General Jurisprudence" in this context; (iii) The relationship between Jurisprudence, Legal Philosophy, and social scientific approaches to law; and (iv) The significance of the idea of "non-state law". Part III illustrates through concrete examples some implications for possible agendas and issues suggested by this model within the areas roughly characterised as analytical, normative, empirical, and critical jurisprudence, including critical analysis of the assumptions and presuppositions typically underpinning mainstream work in fields such ascomparative law, public international law, religious law, and socio-legal studies.

Revisiting a Jurisprudence of Obligation Revisiting a Jurisprudence of Obligation

Touro Law Review, 2022

Through his landmark exploration of obligation as the conceptual touchstone of what he describes as the “Jewish jurisprudence of the social order,” Robert Cover offered an alternate language for legal regimes grounded in a rhetoric of individual rights. The present essay revisits Cover’s account of the socially embedded nature of law and juridical process, taking seriously both its claims, as well as the cautions of its critics. The essay thus neither abandons the concept of rights as key to jurisprudence nor seeks to present a naïve or romantic characterization of Jewish legal thought, and proceeds wary of the pitfalls inherent in such comparative efforts. At the same time, it argues that Cover’s primary insight regarding the notion of a socially imbricated obligation as a core feature of Jewish jurisprudence and provides an important contribution. This theory is especially valuable in contexts in which contemporary policymakers and advocates have lacked success in locating a language or strategy sufficient to appreciate and address overwhelming modern problems at the juncture of individual and community. More specifically, drawing on our previous work exploring Jewish law lessons for information privacy and environmental ethics, this essay argues that a nuanced adaptation of Cover’s theory of “incumbent obligation” as the organizing feature of Jewish law, can provide contemporary policymakers with a set of conceptual tools to help develop alternative approaches to metastatic surveillance and environmental collapse. The notion of obligation as the heart of an ethical and jurisprudential system provides a powerful corrective to the post-Enlightenment West’s centering of the “individual moral adventure” and the privileging of individual rights that has gone hand-in-hand with this ethos. The pre-modern roots of halakhah (Jewish law) permit a powerful challenge to this paradigmatic hegemony, as the Jewish legal tradition precedes liberalism and thus predates conceptions of the individual that undergird much of modern thinking, even as Jewish jurisprudence embodies a deep commitment to protecting individuals. Engagement with this tradition need not supplant liberalism. Rather, it presents a complementary ethical framework that can work within and enrich post-Enlightenment Western discourse. Reflecting this opportunity, revisiting Cover’s work provides a conceptual frame that is sufficiently flexible and capacious to provide an additional legal vocabulary and set of jurisprudential values that can help confront the greatest challenges of our age. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol37/iss4/16

Mind the Gap”: One dilemma concerning the expansion of legal subjectivity in the age of globalisation

Law, Crime and History, 2011

Addressing the important idea of the legal subjectivity of a range of putative new rights-claimants, the author argues that globalisation needs to form the matrix within which debates concerning the rights of various new kinds of claimant is located, and that it is essential not to lose sight of the multitudes of persons, animals and living systems constructed as, in an important sense,'outsiders' in relation to the globalising power structures of our age. The question of how we now construct a juridical order that is responsive, inclusive and ...

Law, justice and rights: some implications of a global perspective

Environmental Law and Justice in Context

first, the boundaries between these activities are not precise and are often contested; and, secondly, most practical questions about law involve a combination of analytical, empirical, and normative elements. So any classification of these broad fields or activities should not be expected to bear much weight. 4 If one stands back and surveys the vast heritage of Western legal theorising about law, one is reminded of two tendencies that are in tension. First, the Western heritage is vast. However, viewed from a global perspective, that same heritage can be criticised for being insular, parochial, quite narrowly focused, and even ethnocentric. Nearly all of it concentrates on the municipal law of sovereign states, mainly those in advanced industrial societies; it operates within and across only two of the world's major legal traditions, common law and civil law, with other major traditions marginalised or completely ignored. The 'Country and Western tradition' of legal theorising and comparative law is vulnerable to charges of parochialism and ethnocentrism. 5 2 Globalisation and G-talk Words like 'globalisation' and 'global' are used very loosely. Here, it is useful to distinguish between two primary uses. First, 'globalisation' is sometimes used to refer to certain recent tendencies in political economy-the domination of the world economy by a group of interrelated ideologies and practices, sometimes referred to as 'the Washington Consensus'. This usage is clearly illustrated by 'the anti-globalisation' movement, which has rather diffuse targets, including American hegemony, Western dominated international financial institutions, free market ideology, and capitalism in general. The issues are important, not least in respect of environmental matters, but this usage is too narrow in the present context. I shall use the term 'globalisation' , following Anthony Giddens, in a much broader, less politically fraught sense, to refer to those processes that increase interaction and interdependence in respect of not only economy and trade, but also communications, science, technology, language, travel, migration, ecology, climate, disease, war and peace, security and so on. 6 This second broader meaning can be quite useful, but it too is problematic. Terms such as global corporations, global law, global lawyers, global law firms, and global jurisprudence are indicative of a tendency to make exaggerated, misleading, meaningless, superficial, ethnocentric, or just plain false generalisations about processes and phenomena that are better discussed in less hyperbolic terms. 7 In particular, it is worth emphasising three points that are particularly pertinent to law. (i) Lawyers need to be especially sensitive to boundaries, jurisdictions, and levels of ordering. Not only are national boundaries becoming more porous, but we are all

Law's Ethical, Global and Theoretical Contexts

2015

Law's Ethical, Global and Theoretical Contexts examines William Twining's principal contributions to law and jurisprudence in the context of three issues which will receive significant scholarly attention over the coming decades. Part I explores human rights, including torture, the role of evidence in human rights cases, the emerging discourse on 'traditional values', the relevance of 'Southern voices' to human rights debates, and the relationship between human rights and peace agreements. Part II assesses the impact of globalization through the lenses of sociology and comparative constitutionalism, and features an analysis of the development of pluralistic ideas of law in the context of privatization. Finally, Part III addresses issues of legal theory, including whether global legal pluralism needs a concept of law, the importance of context in legal interpretation, the effect of increasing digitalization on legal theory, and the utility of feminist and post...