Showing posts with label Law and Politics. Show all posts
Showing posts with label Law and Politics. Show all posts

June 26, 2014

The US Supreme Court and Institutional Legitimacy

James L. Gibson, Washington University in St. Louis, Department of Political Science, Milton Lodge, Stony Brook University, Department of Political Science, and Ben Woodson, Stony Brook University, Department of Political Science, have published Legitimacy, Losing, But Accepting: A Test of Positivity Theory and the Effects of Judicial Symbols. Here is the abstract.

How is it that the U.S. Supreme Court is capable of getting most citizens to accept rulings with which they disagree? This analysis addresses the role of the symbols of judicial authority and legitimacy – the robe, the gavel, the cathedral-like court building – in contributing to this willingness of ordinary people to acquiesce to disagreeable court decisions. Using an experimental design and a nationally representative sample, we show that exposure to judicial symbols (1) strengthens the link between institutional support and acquiescence among those with relatively low prior awareness of the Supreme Court; (2) has differing effects depending upon levels of pre-existing institutional support; and (3) severs the link between disappointment with a disagreeable Court decision and willingness to challenge the ruling. Since symbols influence citizens in ways that reinforce the legitimacy of courts, the connection between institutional attitudes and acquiescence posited by Legitimacy Theory is both supported and explained.
Download the paper from SSRN at the link. 

February 19, 2014

Legal Theory and Political Philosophy

William A. Edmundson, Georgia State University College of Law, has published Why Legal Theory is Political Philosophy at 19 Legal Theory 1 (2014).

This article is part of a symposium issue on Scott Shapiro's book, Legality. It explores the question whether Shapiro's "moral aim" functionalism about the nature of law brings him into conflict with his own commitment to legal positivism. The article points out the role "framing judgments" must play in working out moral-aim functionalism. Framing judgments state the necessary conditions of pursuing a moral aim, as contrasted to perhaps simply pretending to. As such, framing judgments determine whether an institution structured as a "self-certifying, compulsory, comprehensive planning institution" also in fact pursues a moral aim. Determining whether an institution pursues a moral aim, or not, does not require delivering a verdict on its moral worth. But it does require setting out at least the rudiments of a theory of political legitimacy, and a theory of political legitimacy belongs to political philosophy. Thus, in this crucial respect, legal theory is political philosophy.
The article also explores the relation between the concept of a legal institution, and the concept of legal content. Drawing upon, but also critiquing, recent work by David Plunkett, the article challenges the widely assumed primacy of the concept of legal institution over that of legal content. If this challenge is successful, it makes trouble for those, like Shapiro, who want to be moral-aim functionalists about the concept of legal institution, while remaining legal positivists about the concept of legal content. If a moral aim certifies an otherwise-qualified institution as legal, it is conceivable that the legality of the norms it generates is to be certified solely by reference to their institutional source. A norm might be a legal norm regardless of any aim it could be said to have in itself. What, then, of customary law? That is, norms that count as legal despite lacking an institutional source? A moral-aim functionalist about legal institutions, who insists on a source-based test of legal content, has either to deny that there are customary laws, strictly speaking, or to face the question: how to distinguish mere custom from customary law? If (by parallel) a moral-aim differentiam of customary legal norm is admitted, then the theory is no longer a legal positivism about legal norms.
The full text is not available from SSRN.

February 10, 2014

Call For Papers: The Politics of Legality in a Neo-Liberal Age

From Dr Ben Golder, Senior Lecturer, Faculty of Law, The University of New South Wales, an announcement of a forthcoming symposium:
The Politics of Legality in a Neo-liberal Age

This symposium will examine the nexus between the political dominance of liberal legal ideas and the economic dominance of neo-liberal capitalism.According to classical liberal theory the state is legitimate to the extent that it respects legality.  The idea that the state should respect individual rights and the rule of law continues to have considerable purchase on our political discourse: the language of human rights is used by NGOs to criticise state violence, and by the same states to justify the violence of military interventions; those concerned with the legal response to terrorism often invoke the rule of law to criticise the expansion of powers for the executive branch of government; while the very same executive pays meticulous attention to justifying actions such as torture in legal terms.  Indeed, law is so central to the contemporary political imagination that the theorist Norberto Bobbio has dubbed our time the ‘age of rights’.  Economically, however, the age in which we live is that of neo-liberal capitalism.  The critique of the regulatory state and the advocacy of the ‘free market’ developed by neo-liberal thinkers such as Frederich Hayek, Milton Friedman, and Ludwig von Mises have had a serious impact on practices of government over the last 30 years.  Indeed, it has been argued that neo-liberalism has played a major role in the concentration of economic power in this time, profoundly influencing the policies that have shaped the course of economic globalisation; those that led to Global Financial Crisis of 2008; and the politics of austerity that has characterised the state response to this crisis in the US and the EU.

Neo-liberalism is not, however, simply an economic theory but a political philosophy that has legality at its core, defining itself against the regulatory state for violating individual liberty and advocating private property rights and a certain vision of the rule of law as crucial to the functioning of capitalist economies.  The rule of law has also been central to the processes of neo-liberal globalisation with ‘rule of law promotion’ playing a crucial role in developing markets in the global South.  And, while human rights are often used as tools for political critique and resistance, the historian Samuel Moyn has illustrated that the language of human rights has colonised political discourse since the late 1970s.  This is the very same period in which neo-liberalism has restructured the relationship between economy and society and state, raising the question of whether there is a relationship between these two phenomena.

An understanding of the contemporary political conjuncture, and the possibilities for its transformation, demands an analysis of the relationship between liberal legality and the current hegemony of neo-liberal capitalism. This symposium will address this conjuncture through papers which engage, among a range of other possibilities, the following themes and topics:-          What is neo-liberalism (a radical economic theory, a political philosophy, a governmental practice, a theory of the enterprising subject, a mutation in the history of liberalism)? How can we best understand and historicize the concept, and what set of theoretical analyses best sheds light on its contemporary operations?
-          What transformations has the neo-liberal era wrought to the state, its function, its operation, its ideological mode of presentation and legitimation?
-          What role specifically do law and legal ideas perform in undergirding and reinforcing neo-liberalism as a political and economic project?
-          What is the relationship between the critique of totalitarianism and the ideological defence of neo-liberalism? How can we think differently about the relation between state repression and the neo-liberal economic project?
-          How does the discourse surrounding the ‘rule of law’ and its promotion, especially in the global South, reinforce neo-liberalism? How might the rule of law, or aspects of the rule of law tradition, interrupt or restrain neo-liberal capitalism?
-          What is the relation between the discourse of human rights and neo-liberalism – historically, conceptually, and politically? How do human rights actors and institutions recreate (or oppose) neo-liberal hegemony?
-          What critical or emancipatory purchase, if any, do traditional liberal legal ideas (such as accountability, the separation of the political and the economic, the restraint of arbitrary power) still have in a neo-liberal context?
-          What relevance do the classic critiques of these liberal legal ideas (of legal objectivity and neutrality, of formalism, and of the commodity form in particular, etc.) have to our neo-liberal present? Do they perform the same work? What work might they do? How might we reframe or update them to take account of changed political-economic circumstances?
-          What prospects are there for legal resistance to contemporary forms of neo-liberalism? What might a strategic left response to neo-liberalism look like – a defence of the protections of the welfare state, or the creation of something new?
The symposium will take place over 2 days at the University of New South Wales Law School, Sydney, Australia on 1 and 2 August 2014. We invite paper proposals on any of the above, or related, themes. If you wish to discuss your proposed paper with the convenors in advance please email either Dr Ben Golder ( or Dr Daniel McLoughlin (

Procedure: Please email a 300 word abstract, 75 word bio and your institutional affiliation (if appropriate) to by 28 March with the email subject line: ‘Neo-liberalism and law symposium’. We regret that only a limited number of papers can be selected for this symposium.

Publication Plans: Whilst we do not require full length papers in advance of the symposium, the aim of our meeting is to work towards the publication of selected papers in an edited volume. Initial negotiations with interested publishers are already underway. 

December 2, 2013

Irish-American Politics and Justice

Sara Ramshaw, Queen's University, Belfast, has published Improvising (Il)Legality: Justice and the Irish Diaspora, N.Y.C., 1930-32, at 3 Irish Journal of Legal Studies 90 (2013). Here is the abstract.

The Seabury Commission, 1930-32, probed allegations of corruption made against, amongst others, the Irish-American Mayor of New York City, James J. ‘Jimmy’ Walker, and the Irish-dominated Tammany Hall, the Democratic political machine that had supported Walker. Taking the Seabury inquiry as its focus, this article explores these allegations from the perspective of Critical Studies in Improvisation (C.S.I.) fused with postcolonial critique. Improvisation, in accordance with C.S.I. principles, is not a lawless or extempore event; it is, instead, lawful, or full of law. The laws of improvisation may appear impenetrable to those unfamiliar with the practice. However, when read through a hibernocentric postcolonial perspective, their meaning and form become more understandable. As will be argued in this article, diasporic communities are inherently improvisatory; that is, they utilise improvisational techniques to help adapt and respond to new situations and social contexts. To be queried is whether the law and politics practiced by Tammany and Walker, taken together, constituted a markedly Irish approach to justice, one that entailed not scripted or planned illegality, as was alleged by Judge Seabury, but improvisations on Anglo-Protestant law as a response to the displacement of and discrimination against the Irish Diaspora in early twentieth century America.
Download the article from SSRN at the link.

This Samuel Seabury is descended from an earlier Samuel Seabury, who was an Episcopalian bishop, political activist during the American Revolution, and son of yet another Samuel Seabury. Read about him in Paul Victor Marshall, One, Catholic, and Apostolic: Samuel Seabury, and the Early Episcopal Church (Church Publishing, 2004). Under the pseudonym A. W. Farmer, Seabury wrote political tracts that figured in revolutionary thought. See Benjamin H. Irvin, Clothed in Robes of Sovereignty: The Continental Congress and the People Out of Doors (Oxford, 2011).

More about his descendant, the judge, in Herbert Mitgang's The Man Who Rode the Tiger: The Life and Times of Judge Samuel Seabury (Fordham University Press, 2d ed., 1996).

November 26, 2013

The Law and Jeremy Bentham

Philip Schofield, University College London, Faculty of Laws, has published The Legal and Political Legacy of Jeremy Bentham at 9 Annual Review of Law and Social Science 51 (2013). Here is the abstract.

The study of Jeremy Bentham (1748–1832), the English legal philosopher and reformer, is being transformed by the appearance of volumes in the new authoritative edition of The Collected Works of Jeremy Bentham. Following revisionist studies in the 1980s and 1990s that reasserted Bentham's credentials as a key figure in the emergence of the liberal tradition, more recent work has explored an increasingly varied range of topics from the perspective of an increasing variety of disciplines, including literary studies, sociology, and history of political thought, as well as law and philosophy. The view of Bentham as a crude authoritarian behaviorist is no longer tenable, and Bentham's place as a major philosopher with relevance for the twenty-first century is being increasingly recognized.
The full text is not available from SSRN.  

August 20, 2013

Law and Order and Rhetoric

Allen Rostron, University of Missouri, Kansas City, School of Law, has published The Law and Order Theme in Political and Popular Culture in volume 37 of the Oklahoma City University Law Review (2012). Here is the abstract.
"Law and Order" became a political rallying cry in the 1960s, as conservative candidates like Barry Goldwater, George Wallace, and Richard Nixon criticized courts for putting the constitutional rights of criminals ahead of the need for effective police work and public safety. As the nation’s president after his victory in the 1968 presidential race, Nixon continued to emphasize the law and order theme. Meanwhile, a series of Westerns and cop movies, such as John Wayne’s "True Grit" and Clint Eastwood’s "Dirty Harry," began to echo Nixon’s claims about criminals, courts, and law. Concerns about crime and the impotency of the legal system soon produced a set of remarkably popular movies about vigilante justice, including "Walking Tall" and "Death Wish". Even when law and order faded as a national political issue, Hollywood continued to dwell on the idea that courts are too lax, turning the idea that criminals routinely escape justice because of legal technicalities into one of television’s and movies’ most familiar clichés. Crime rates have been plummeting for two decades now, and a series of re-makes of significant films from the Nixon era suggests that law and order’s grip on popular entertainment and the public imagination may finally be breaking. 
Download the article from SSRN at the link. 

June 13, 2013

Legal Reform and Political Economy

Evgeny Finkel, George Washington University Department of Political Science, Scott Gehlbach, University of Wisconsin, Madison, Center for the Study of Institutions and Development, and Tricia D. Olsen, have published  Business Ethics & Legal Studies, University of Wisconsin, have published Does Reform Prevent Rebellion? Evidence from Russia's Emancipation of the Serfs. Here is the abstract.

Contemporary models of political economy suggest that unrest and revolution can be prevented by reforms that target excluded groups, but little is known about the actual effect of such reforms on social stability. We explore the impact of reform on rebellion with a new dataset on peasant disturbances in nineteenth-century Russia. Using a difference-in-differences design that exploits the timing of various peasant reforms, we document a large increase in disturbances among former serfs following the Emancipation Reform of 1861, a development completely counter to reformers' intent. Drawing on a simple global game that illustrates the various mechanisms by which reform might affect rebellion, we trace this outcome to elite divisions and limited state capacity, two political constraints that together contributed to a reform that favored the gentry in its design and was captured the nobility in its implementation.
Download the paper from SSRN at the link. 

June 2, 2013

Amazon Announces First Choices For Its "Amazon Original" Network

Among the shows that Amazon has picked up as an "Amazon Original" to air on Amazon Instant Video is Garry Trudeau's Alpha House, starring John Goodman, Clark Johnson, Matt Malloy, and Mark Consuelos as four Senators sharing D.C. digs.

Customers chose Alpha House and four other shows as Amazon Studios'  first Internet series through open voting over the past few weeks. 

April 11, 2013

TV For the Cynical

The New York Times' Alessandra Stanley on the rise of the politically-charged television series. I'll take my fictional politicos with extra scandal, please.

March 20, 2013

Mayor To Judges: Watch Movies and Learn Your Craft

Huang Qifan, mayor of the Chinese city of Chongquig, says judges should look to Hollywood films for assistance in making judicial determinations. During a panel discussion at the National People's Conference in Beijing on March 18, the mayor noted that the heroes of action movies represent good, which wins out over evil. A visceral example of the reach of popular culture into the bastions of power. More here from the Hollywood Reporter.

March 6, 2013

"The Wire" As a Critique of the U.S. Political System

John Denvir, University of San Francisco School of Law, has published Watching Television Can Change the World: "The Wire" as Critique, Part I.  Here is the abstract.

Popular culture can have political impact. "The Wire" is not only engrossing melodrama; it also tells a compelling story of how and why the American political system fails us. Because a television series like "The Wire" not only appeals to a much broader audience than traditional political arguments, but also transforms abstractions into concrete images aimed at both our hearts and our minds, it can play a major role in efforts to change the world for the better.
Download the paper from SSRN at the link. 

January 20, 2013

The Impact of "Scandal"

Tanzina Vega discusses the impact of the ABC drama "Scandal" in an article in the January 20th issue of the New York Times. Link here. "Scandal" features the activities of Washington "fixer" Olivia Pope, played by Kerry Washington.

November 2, 2012

An Enemy of the People

November 2: Science Friday features a discussion of a new production of Henrik Ibsen's An Enemy of the People, starring Richard Thomas. More here.

October 29, 2012

The Law and Politics Movement After 1968

Martine Kaluszynski, University of Grenoble, Institute of Political Studies Grenoble, has published The Changing Face of Law after the Events of 1968… or When Law Meets Politics: Introduction to the Mouvement Critique du Droit, at 2 Oñati Socio-Legal Series (2012).

The aim of this paper is to analyse the origins, the development and the long-term impact of the Critical Legal Movement (Mouvement Critique du Droit). Created some thirty years ago, this Movement resulted from the collective mobilisation of legal experts and political scientists across French cities (e.g., Lyon, Montpellier, Saint-Etienne, Toulouse and Paris). Referring mainly to Marxist theories, the Critical Legal Movement argued that law is deeply embedded in its social and its political context, and should thus be analysed through an interdisciplinary approach. Building on this critical perspective, the Movement developed a scientific project and teaching methods, which both differed from and opposed the way in which law was traditionally taught and studied in French Law Faculties. The Movement itself no longer exists, but it nevertheless had far-reaching consequences on the study of law. Indeed, the Critical Legal Movement was an opportunity to successfully explore alternative teaching methods and to create high quality research institutions.

Este artículo pretende analizar los orígenes, el desarrollo y el impacto a largo plazo del Movimiento Crítico del Derecho (Mouvement Critique du Droit). Creado hace unos treinta años, este movimiento surgió de la movilización colectiva de juristas y politólogos de diferentes ciudades francesas (como Lyon, Montpellier, Saint-Etienne, Toulouse y París). Haciendo referencia principalmente a teorías marxistas, el Movimiento Crítico del Derecho argumentaba que el derecho está profundamente arraigado en su contexto social y político, y por lo tanto se debe analizar desde un enfoque interdisciplinario. Partiendo de esta perspectiva crítica, el movimiento desarrolló un proyecto científico y métodos educativos, que diferían y se oponían al sistema de enseñanza y estudio del derecho en las facultades de derecho francesas. El movimiento en sí mismo ya no existe, pero sin embargo, tuvo consecuencias de gran alcance en el estudio del derecho. En efecto, el Movimiento Crítico del Derecho supuso la oportunidad de explorar con éxito métodos alternativos de enseñanza y favoreció la creación de instituciones de investigación de alta calidad.
Download the article from SSRN at the link. 

October 25, 2012

A New Book On Justice and Injustice

New from Routledge

The Concept of Injustice
By Eric Heinze
Published October 24th 2012 by Routledge--218 pages

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice. Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

August 18, 2012

It Is a Fact Universally Acknowledged That Everybody Wants Jane's Vote

The Atlanticwire brings word of a new debate--the fight over Jane Austen's relevance to conservatives. Should they be claiming her as a politico-philosophical progenitor--like Ayn Rand? More here.

February 29, 2012

Law and Tyranny

Timothy Sandefur, Pacific Legal Foundation, has published Love and Solipsism: Law and Arbitrary Rule in Classical Drama. Here is the abstract.

What distinguishes the rule of law from the lawless, arbitrary rule of brute force — which can almost interchangeably be described as tyranny or as anarchy — is that in a lawful rule the government’s coercive power operates according to principles of generality, regularity, fairness, rationality and public-orientation, whereas the arbitrary or lawless ruler wields power in the service of his (or their) own self-interest, or by mere ipse dixit. Law is to arbitrariness as reason is to mere will. In this paper, I explore the dichotomy between lawful and arbitrary rule as it has been represented in literature. I examine first the primal foundation of lawful rule, as depicted in Aeschylus’ Oresteia, in which law is generated by domesticating the use of force, through persuasion and willing union. Athena creates lawful order, not by fiat, but by marrying the Furies to “Persuasion”: the ambient coercive powers of the people — morally justified, yet dangerously personal urges for vengeance — will now be rationalized in accordance with public, logical, and articulable principles. By contrast, in Shakespeare’s Richard III, we witness the subversion and near-destruction of lawful order by a man who will tear apart the newly framed lawful order and make the state serve his own private ends. The contrast of these two dramas reveals that the tyrant is essentially a solipsist: his ultimate goal is to make the real world obey his say-so. And if law is like love, the tyrant is like the rapist: the forced surrender of intimacy is the best facsimile of love the solipsist can create; but it can never actually be love, because the two are separated by the same invisible and impenetrable boundary that separates truth from falsehood, or genuine loyalty from the rule of terror. I conclude with a look at the dissenter living in a lawless order, as depicted in two variations on the story of Antigone — the first by Sophocles and the second by Jean Anouilh. In both, the lawless, arbitrary rule is challenged in the name of law, and in each, the ruler nearly succeeds in substituting his private realm of mere words for the public realm of actual things. What emerges from this study is that the basic premise of all lawful order — the root of all secure liberty — is that there is a gap between the will of the ruler and the genuine law. Whenever such a gap exists — whenever it is meaningful to deliberate over whether the ruler’s commands are, in fact, law — the society will, to that extent, become one of lawful order and of (at least some) freedom. The link between tyranny and solipsism is that where the ruler’s will is accounted the law, there can be no genuine law, and thus no freedom. The paradox whereby tyranny is lawless is explained by the fact that tyranny is an attempt to impose by convention what does not originate in nature — and in the end, neither physical nature nor the nature of human relationships can be subjected to such commands. The ultimate demand of the lawless ruler(s) is to substitute his (or their) word for the world — to compel the subject to love him (or them). And because that can never be accomplished, arbitrary rule is doomed to eventual collapse.
Download the paper from SSRN at the link.

February 7, 2012

Hunny Bun?

From the Smithsonian Magazine, a reassessment of Attila the Hun that suggests that he wasn't, well, all that bad. Maybe he just needed a good press agent.

December 29, 2011

From the Capitol Steps: Happy Newt Year (and Other Song Stylings)

That irreverent group, the Capitol Steps, turns thirty, and has added some Newt Material to its repertoire. I'm referring, of course, to its song, "Three Little Wives of Newt" (cribbing from the Gilbert and Sullivan staple "Three Little Maids From School Are We"). Isn't the protection of the First Amendment wonderful?