November 29, 2019

Barrett on Moral Rights and Immoral Artists @VicUniWgtn

Jonathan M. Barrett, Victoria University of Wellington, has published Moral Rights and Immoral Artists, a paper presented at the Asian Pacific Copyright Association Conference, Wellington, New Zealand, November 2019. Here is the abstract.
The word ‘moral’ used to denote upright behaviour and ‘moral’ to denote certain authorial rights (droit moral), are homonyms: the things signified by the same signifier are different. Because Germany’s moral rights equivalent is the personality right (Persönlichkeitsrecht), the German language does not permit the wordplay employed in the title. Nevertheless, this paper argues that personhood (Persönlichkeit), which is intertwined with the fundamental human rights principle of respect for equal and inherent human dignity, is the critical consideration for both understanding moral rights and engaging with the vexed issue of artworks created by immoral artists. This paper, which should be read as a sample of ongoing research, therefore approaches moral rights from a personhood perspective in order to construct analytical tools for engaging with immoral artists and their artworks.
Download the article from SSRN at the link.

November 25, 2019

Ledwon on "Breaking Bad" Contracts: Bargaining For Masculinity in Popular Culture @StThomasLaw

Lenora Ledwon, St. Thomas University School of Law, has published 'Breaking Bad' Contracts: Bargaining for Masculinity in Popular Culture at 23 William & Mary Journal of Women & the Law 397 (2017). Here is the abstract.
This Article examines the award-winning television show, Breaking Bad, to illustrate how the idea of a contract in popular culture can become inflected with a style of retrograde masculinity. Deals in Breaking Bad take place in the classic contract imaginary, which resembles the classic Western shootout: two antagonists face each other down in a duel. The show interrogates the frontier thesis, with its links to the American Dream and dangerous masculinities, through the ruthless contracts of Walter White. "I celebrate myself, and sing myself, And what I assume you shall assume, For every atom belonging to me as good belongs to you." -Walt Whitman, Song of Myself'
Download the article from SSRN at the link.

November 22, 2019

Call For Papers: Philosophical Journal of Conflict and Violence @thePJCV

Call for Papers

Philosophical Journal of Conflict and Violence (PJCV)

Special Edition on Conflict and Violence in Plato’s Philosophy

Edited by Joan-Antoine Mallet (Université Paul-Valéry Montpellier 3)

We invite contributions dealing with all facets of conflict and violence in Plato’s philosophy. A variety of philosophical perspectives are welcome, including history of philosophy, continental tradition, phenomenology, analytical philosophy, non-Western philosophy, and theology. We are also interested in approaches from other fields in relation to Platonic philosophy as history, anthropology, archeology and philology. We are looking for global analyses of conflict and violence in Plato’s work and/or particular studies focused on one or a few dialogues. The selected articles will be published by Trivent Publishing in December 2020.

Possible general topics include, but are not restricted to, the following:

●    Sources and influences of Plato’s conception of conflict and violence (Homer, Hesiod, Presocratics …)
●    Socrates, crime, conflict and violence
●    Plato and the Sophists about crime and violence
●    Plato’s politics and ethics
●    Plato’s conception of war (polemos and stasis)
●    Plato’s critical approaches of political violence
●    Plato’s views about crime and retribution
●    Plato’s view about potential way of solving conflicts
●    Plato’s conception of sacrifice
●    Violence and myths in Plato’s work
●    Plato’s metaphysics and ontology
●    Plato’s epistemology
●    Plato’s aesthetics
●    Conflict and violence in Neoplatonism
●    Influence of Plato’s legacy on philosophical interpretations of conflict and violence

Those interested in contributing to this issue should submit an abstract of 100–250 words to Joan-Antoine Mallet at and Andreas Wilmes at no later than April 1, 2020. Authors will be informed of acceptance by no later than May 1, 2020. Full papers should be submitted by June 15, 2020, be written in the PJCV template available on, and have a maximum of 20 pages.

Langford and Bryan on The Transformation of the Notion of Civitas Maxima @edgehill @LancasterUni

Peter Langford, Edge Hill University, and Ian Bryan, Lancaster University, have published 'From Wolff to Kelsen: The Transformation of the Notion of Civitas Maxima' in Hans Kelsen and the Natural Law Tradition 161-187 (P. Langford, I. Bryan, and J. McGarry, eds., Leiden; Boston: Brill, 2019).
A significant part of Kelsen’s work is devoted to the theoretical and methodological separation of positive law from natural law. The predominant impression of this process is of a determination to entirely sunder the conceptual framework of positive law from any continuing reliance upon natural law. However, certain of Kelsen’s works involve the appropriation of the notion of civitas maxima from Christian Wolff’s Jus Gentium Methodo Scientifica Pertractatum (1749). The presence of this notion raises the question of the relationship between Kelsen’s theoretical framework and the conception of natural law developed by Christian Wolff. It is through an examination of the transformation of Wolff’s notion of civitas maxima that an important aspect of Kelsen’s relationship to the natural law tradition becomes apparent. The appropriation will be traced through the initial discussion of civitas maxima in Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre (1920/1928), and its further exposition and development in Kelsen’s 1926 Lecture Course (‘Les Rapports de Système entre le Droit Interne et le Droit International’) at the l’Académie de droit international, in the Hague. In this manner, the significant methodological divergences between a Kelsenian theory of positive law, as a theory of legal monism according primacy to international law, and the Wolffian theory of natural law, as a theory of the law of nations, will become evident. This methodological divergence, however, should not obscure a more than residual affinity between Kelsen and Wolff concerning the cosmopolitical orientation of their thought.
The full text is not available from SSRN.

Weill on Brexit and the Anglo-American Model @RivkaWeill

Rivka Weill, Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School, has published From Earl Grey to Boris Johnson: Brexit and the Anglo-American Constitutional Model. Here is the abstract.
Trump and Brexit are at the forefront of political discussions around the world. Many treat them as symptoms of the same phenomenon: the rise of populism, nationalism, and xenophobia towards immigrants and refugees. Both seem to repeatedly challenge constitutional limits on a variety of fronts. Brexit was approved in a referendum by a slim majority, with wavering public support and in spite of a reluctant Parliament. Yet, all British political players feel bound by its results and have taken steps to withdraw from the EU, absorbing the costs of trillions of dollars to their economy. Exclusionary policies may not be enough to explain the extraordinary politics involved. This Article argues that the forces affecting Brexit are rooted in nineteenth century Britain. It deconstructs the familiar narrative that casts the US as the archetype of a constitutional model, with a formal supreme Constitution, judicial review, and popular sovereignty. In that narrative, the UK is cast as the antithesis, because Parliament reigns supreme, it has no formal Constitution, and it lacks a doctrine of judicial review. This Article reveals that, even as this narrative was becoming orthodoxy during the nineteenth century, the UK was already operating under a model similar to the US, demonstrating a continued commitment to popular, rather than parliamentary, sovereignty. The fact that Parliament refers major decisions to the People and carries out those decisions, as exemplified in the British determination to go ahead with Brexit, signals that the People is the sovereign, not Parliament. The challenges encountering popular sovereignty have remained the same over the past two centuries though gaining new dimensions: enfranchisement, protectionism, territorial divisions, and allocation of legislative power. This Article demonstrates how Britain has been operating under a common Anglo-American constitutional model for the past 200 years and highlights its implications for comparative constitutional law. The common Anglo-American model sheds new light on the meaning of the government’s mandate at elections, the rise of party power, and the conditions that would legitimize packing the courts.
Download the article from SSRN at the link.

November 18, 2019

Donelson on Describing Law @LSULawCenter

Raff Donelson, Louisiana State University (Baton Rouge), is publishing Describing Law in volume 33 of the Canadian Journal of Law and Jurisprudence (2020). Here is the abstract.
Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can see them as claims that must be assessed on the basis of practical reasons (pragmatism). Ultimately, this paper argues that we should understand these claims in the pragmatist way; as such, jurisprudential claims are about what to do, e.g., what to treat as law and how to order society.
Download the article from SSRN at the link.

Stern on A Mistake of Natural Law: Sir William Blackstone and the Anglican Law @RegentLaw

Craig A. Stern, Regent University School of Law, is publishing A Mistake of Natural Law: Sir William Blackstone and the Anglican Way in volume 4 of the University of Bologna Law Review (2019). Here is the abstract.
Despite charges to the contrary, Blackstone’s use of natural law in his Commentaries is coherent and actually shapes the whole, but it takes eyes alerted to Blackstone’s grounding in Roman Law and in the Anglican Church to see this truth. Once seen, it speaks directly to the study and practice of law in America today.
Download the article from SSRN at the link.

Menkel-Meadow on Negotiating the American Constitution (1787-1789) @CMenkelMeadow @GeorgetownLaw

Carrie Menkel-Meadow, University of California, Irvine School of Law; Georgetown University Law Center; is published Negotiating the American Constitution (1787-1789) Coalitions, Process Rules, and Compromises in Landmark Negotiations from Around the World: Lessons for Modern Diplomacy (Emmanuel Vivet, editor, Intersentia 2019.) Here is the abstract.
This essay describes the multi-party, multi-issue negotiations of the American Constitutional Convention in Philadelphia (1787), using the lens of negotiation theory. Expert process leadership by George Washington, James Madison and Benjamin Franklin, with deliberation about process rules (e.g. speaking rules, confidentiality) and decision rules (voting and reconsideration, packaging) as well as the use of committees and task groups to facilitate both cross-geopolitical and issue coalitions and specialization, rather than Committee of the Whole (plenary) meetings for all of the deliberations, allowed the negotiation, drafting and (later!) ratification of a monumental political document, with dubious political (and moral) legitimacy at the time of its completion, but considerable robustness, with a large number of amendments (including the “afterthoughts” of the Bill of Rights) over time. While there has been much replication of the text of the US Constitution (in later enacted Constitutions by other countries), not enough consideration has been given to the importance of process choices in comparative political theory (cf. Jon Elster’s work). This essay attempts to illustrate the use of “applied history” in understanding complex diplomatic and political negotiations, by using current theories to explore past behavior.
Download the essay from SSRN at the link.

Kjaer on Translation of Judgments of the ECtHR into Non-Official Languages @KjrAnne @OxUniPress

Anne Lise Kjaer, Translation of Judgments of the European Court of Human Rights into Non-official Languages: The Politics and Practice of European Multilingualism, in Language and Legal Interpretation in International Law (Anne Lise Kjaer and Joanna Lam, eds.,Oxford University Press, Forthcoming)(Oxford Studies in Language and Law).
The paper examines the role that translation of judgments of the European Court of Human Rights (ECHR) has played in the dialogue between the Member States of the Council of Europe and the Court over time. The judgments of the ECHR are produced in the two official languages, English and French, only. Translation into other languages was never an issue in the discussions leading to the adoption of the European Convention on Human Rights, and not until the beginning of the reform process at the turn of the century was translation of ECHR judgments into non-official languages put on the agenda. It was introduced into the reform discourse under the heading of Member States’ implementation of the convention and their knowledge and understanding of the Court’s case law. The paper traces the development of translation arguments in the reform discourse and discusses the possible reasons why translation into languages other than English and French was not an issue until the Court faced challenges from the Member States in the early 2000s. It is argued that the choice of language policy and considerations regarding translation into the national languages of the Member States indicate the institutional balance that exists at any given time in the interface between the national and European level of lHuman Riights law.
Download the essay from SSRN at the link.

Ramshaw on Law and Humanities: A Field Without a Canon @UVicLaw

Sara Ramshaw, University of Victoria Faculty of Law, has published Law and Humanities: A Field Without a Canon. Here is the abstract.
This short Commentary imagines law and humanities not as a “canon” per se, but as a “field without a canon”; or a canon that resists canonization. Arts-based practices utilized in legal research and teaching expose the law and humanities “canon” to its dual (and somewhat contradictory) nature: ever straining towards a pre-established archive, it must also leap ahead fearlessly to properly defy disciplinary boundaries and move the field beyond siloed thinking, which is one of the preliminary aims of law and humanities scholarship and pedagogy. Arts-based practices consist not of a stable collection of set texts, but instead signify a process of experimentation that is ever in flux and alive to possibility. It is this process of discovering new arts-based practices that ensures law and humanities remains a vibrant, yet ever-changing, field for years to come. To that end, this Commentary surveys a sampling of outsider approaches to law and humanities scholarship and pedagogy, those more concerned with process than product, and which are coming from outside of or beyond the more traditionally conceived canon of law and humanities. These approaches fall into two broad categories: (1) arts-based scholarly legal practices; and (2) arts-based legal pedagogical practices. A uniting feature of both these approaches is that they are being undertaken and explored by Canadian legal scholars at a small law school on Vancouver Island on the West Coast of Canada, namely the University of Victoria Faculty of Law, where there is an impressive number of faculty members using arts-based practices in their research and teaching.
Download the article from SSRN at the link.

November 13, 2019

AISB20: Communication and Conversation, April 6-9, 2020, St. Mary's University @AISB_soc

From Dr Yasemin J. Erden, AISB Vice Chair, Senior Lecturer, Philosophy, St Mary's University

AISB20: Communication and Conversation, 6 – 9 April 2020, St Mary’s University, Twickenham, London, UK

The society for the study of Artificial Intelligence and the Simulation of Behaviour (the AISB) annual convention will be held at St Mary’s University, Twickenham in London, UK from 6 - 9 April 2020. 

This year the theme broadly covers topics in language, communication and conversation, though there will be a range of symposia covering a range of topics in philosophy, AI, computing, etc.

The convention will follow the same overall structure as previous conventions, namely a set of co-located parallel symposia, as well as invited and plenary lectures and sessions.

Based in leafy Richmond borough, St Mary's University has a long and distinguished history. Strawberry Hill House, located in the University grounds, is Britain's finest example of Georgian Gothic Revival architecture (known locally as the Gothic Castle). The institute benefits from lots of green spaces, whilst being only a short distance from The Thames, Richmond Park, and central London (we’re just 35 minutes on the train from Waterloo). You can view a virtual tour of the campus here:

Here is a full list of symposia for the conference.

  • AISB AI & Games 2020 (AI&G)
  • 2nd Symposium on AI and Robotics Normative Spheres: Towards a Sustainable Society and Technology (AIRoNoS)
  • AI and Moral Learning (AIML)
  • 7th Computational creativity symposium (CC20)
  • First AISB Symposium on Conversational AI (SoCAI)
  • Do Robots Talk? Philosophical Implications of Describing Human-Machine Communication (DoRoTa)
  • Habits and rituals in real and virtual societies (H&R)
  • The Impact of Anthropomorphism on Human Understanding of Intelligent Systems (Anthro2020)
  • Philosophy after AI: meaning and understanding (PhAI2020)
  • Overcoming Opacity in Machine Learning (Opacity)
  • Representation and Reality In Humans, Other Living Organisms and Machines (R&R)
  • Responsibility and control: communication and conversation through technology (RACCT)
  • Social Interactions in Complex Intelligent Systems (SICIS) 
More information is available here.

November 8, 2019

Recently Published: Marett Leiboff, Towards a Theatrical Jurisprudence (Routledge, 2019) @legalintersect @routledgebooks


Marett Leiboff, Towards a Theatrical Jurisprudence (Routledge, 2019).

This book brings the insights of theatre theory to law, legal interpretation and the jurisprudential to reshape law as a practice of response and responsibility. Confronting a Baconian antitheatrical legality embedded in its jurisprudences and interpretative practices, Marett Leiboff turns to theatre theory and practice to ground a theatrical jurisprudence, taking its cues from Han-Thies Lehmann’s conception of the post-dramatic theatre and the early work of theatre visionary Jerzy Grotowski. She asks law to move beyond an imagined ideal grounded in Aristotelian drama and tragedy, and turns to the formation of the legal interpreter ・ lawyer, judge, jurisprudent ・ as fundamental to understanding what’s “noticed” or not noticed in law. We “notice” most easily through that which is written into the body of the legal interpreter, in a way that can’t be replicated through law’s standard practices of thinking and reasoning. Without more, thinking and reasoning are the epitome of antitheatricality legality; a set of theatrical antonyms, including transgression and instinct, offer instead a set of possibilities through which to reconceive assumptions and foundational concepts etched into the legal imaginary. And by turning to critical dramaturgy, the book reveals that the liveliness that sits behind theatrical jurisprudence isn’t a new concept in law at all, but has a long pedigree and lineage that had been lost and hidden. Theatrical jurisprudence, which demands an awareness of self and beyond self, grounds a responsiveness that can’t be found within doctrine, principle, or the technocratic, but also challenges us to notice what it is we think we know as well as what we know of lives in law that aren’t our own. The book will be of interest to scholars and students in the field of jurisprudence, legal theory, theatre and performance studies, cultural studies and philosophy.

 Towards a Theatrical Jurisprudence: 1st Edition (Hardback) book cover

Rubin on Early US Prison History Beyond Rothman: Revisiting @ashleyrubin

Ashley T. Rubin, Unviersity of Toronto, Mississauga, has published Early US Prison History Beyond Rothman: Revisiting at 15 Annual Review of Law and Social Science 137-154 (2019). Here is the abstract.
David J. Rothman's , one of the first major works to critically interrogate the beginning of America's extensive reliance on institutionalization, effectively launched the contemporary field of prison history. Rothman traced the first modern prisons’ (1820s–1850s) roots to the post-Revolution social turmoil and reformers’ desire for perfectly ordered spaces. In the nearly 50 years since his pioneering work, several generations of historians, inspired by Rothman, have amassed a wealth of information about the early prisons, much of it correcting inaccuracies and blind spots in his account. This review examines the knowledge about the rise of the prison, focusing on this post-Rothman work. In particular, this review discusses this newer work organized into three categories: the claim that prisons were an invention of Jacksonian America, reformers’ other motivations for creating and supporting prisons, and the frequently gendered and racialized experiences of prisoners. The review closes by reflecting on the importance of prison history in the contemporary context and suggesting areas for future research.
The full text is not available from SSRN.

Abbasi on the Politics of Exclusion through Language in the Presidential Speeches of Donald Trump

Ameer Ali Abbasi, National University of Modern Languages, Islamabad, has published Politics of Exclusion through Language in the Presidential Speeches of Donald Trump. Here is the abstract.
The current research is an attempt to define and discuss the mechanisms of power as used by Trump in his presidential speeches that he has made during the year, 2017, in accordance with Foucault’s Theory of Power/Knowledge. However, a number of research articles have been published on the speeches of Trump, but no one has analysed the mechanisms of power in his speeches as discussed by Foucault. So the present research fills up the gap by analysing Trump’s speeches using Foucault’s Power and Knowledge Theory. The researcher aims to answer the problem of mechanisms of power such as politics of exclusion in the concerned speeches, the way Trump employs to create discourse and knowledge. In order to discuss and analyse the speeches, the study embraces the qualitative method that enables to answer the question related to power mechanisms. The discussion and analysis consists of the mechanisms such as American nationalism, Islam and politics of exclusion, and paranoia. Besides, he also makes use of purposive, explanatory and descriptive designs of research to collect and analyse data using the above given theory. Thus, the study explores Trump's mechanisms of exclusionary politics as used in his presidential speeches.
Download the article from SSRN at the link.

ICYMI: Seabourne on Qualifying For Tenancy By the Curtesy of England in the Reign of Edward I @gcseabourne

This article considers the test used to determine the presence or absence of life in newborn babies, in relation to a widower’s entitlement to remain in land brought to the marriage by his wife, as tenant by the curtesy of England. To qualify for curtesy, a widower needed to have produced a live and legitimate child, but, since even a short period of life was sufficient, there might be disputes as to whether a child which was now dead had ever been alive. The common law therefore had to develop a way of settling this difficult matter of confirming or denying the presence of life. Several thirteenth-century sources show an emphasis on a sound as an indicator of life. This article considers the use of a sound criterion in this area, arguing that thinking and practice surrounding the appropriate test were more complex, less settled, and more interesting than has been represented in somewhat perfunctory accounts in the work of later lawyers and legal historians. This is significant for the understanding of this area of medieval law, but also has broader implications within legal history and historiography, and for scholars from other fields such as medieval social and medical history.

November 7, 2019

McMurtry-Chubb on Still Writing at the Master's Table @genremixtress

Teri A. McMurtry-Chubb, John Marshall Law School; Mercer University School of Law, has published Still Writing at the Master's Table: Decolonizing Rhetoric in Legal Writing For a 'Woke' Legal Academy at 21 Scholar 255 (2019). Here is the abstract.
When I wrote Writing At the Master’s Table: Reflections on Theft, Criminality, and Otherness in the Legal Writing Profession almost 10 years ago, my aim was to bring a Critical Race Theory/Feminism (CRTF) analysis to scholarship about the marginalization of White women law professors of legal writing. I focused on the convergence of race, gender, and status to highlight the distinct inequities women of color face in entering their ranks. My concern was that barriers to entry for women of color made it less likely that the existing legal writing professorate, predominantly White and female, would problematize the ways students are taught legal reasoning, analysis and writing. I argued: “If the traditional [dominant] legal analytical process is normalized and passed off as objective, both in the content of the legal writing curriculum and in the body of the person teaching the curriculum, most students unwittingly will continue to replicate racist and elitist legal structures as they learn the very process of legal reasoning and analysis in law school and as they undertake the practice of law.” I pick up that major theme in this article by focusing on how law professors of legal writing are forced to serve as handmaidens of hierarchy in the maintenance of the legal academy as an elite and closed discourse community. It considers how in teaching students how to “do” law - employ legal reasoning and analysis through written communication - legal writing curricula provide for no critique of the colonized formal rhetorical structures in which critical thinking, reading, analysis and writing skills are grounded. Part I problematizes the relationship of the five canons of rhetoric, specifically Invention and Dispositio, to Western/European epistemologies. Part II introduces Indigenous, African and Asian Diasporic Rhetorics, and Latinx Rhetorics as critiques of the canons of rhetoric and the Western concept of canonicity; examines them as new sites for Inventio and Dispositio; and considers the implications for teaching legal reasoning, analysis, and communication. Part III explores how de-centering Western epistemologies as the sole acceptable source of rhetoric opens possibilities for decolonizing the legal academy, and for preparing law students to become change agents in the practice of law.
Download the article from SSRN at the link.

Jukier on From La Beauce to Le Bayou @LawMcGill @JournalCivilLaw

Rosalie Jukier, McGill Faculty of Law, has published From La Beauce to Le Bayou: A Transsystemic Voyage at 12 Journal of Civil Law Studies 1 (2019). Here is the abstract.
This paper is an adaptation of the Tucker Lecture that I delivered in October of 2017. Its title depicts two iconic places, one in the Canadian province of Quebec, from where I hail, and the other in Louisiana, the locale of my audience. In this paper, I attempt to guide an allegorical voyage from la Beauce to le Bayou, from Quebec to Louisiana, from Montreal to Baton Rouge, from McGill to LSU, using a transsystemic itinerary. This voyage will showcase the unique way of teaching and thinking about law that has defined the program of legal education, and the imaginations of legal scholars, at McGill’s Faculty of Law for almost two decades. In addition to demystifying the elusive term “transsystemic,” and outlining the pedagogical and intellectual benefits of teaching and thinking about law in this way, this paper will focus on the increasing relevance of the transsystemic approach as a way of preparing jurists, wherever they may be, for the complexity and novelty of contemporary legal practice. By instilling creative, critical and flexible thinking skills, it enables jurists to deal with novel legal problems, to be more adept at envisaging a multiplicity of creative ways to solve legal problems through alternative methods of dispute resolution, and to keep pace with novel comparative judicial methodology. Just as la Beauce and le Bayou are different places with different geographical features, so too are Quebec and Louisiana different legal jurisdictions. However, they are, in many ways, sister jurisdictions, sharing a common mixity in their legal systems. This makes law schools in Louisiana a particularly fertile environment in which to showcase this unique itinerary in the hope that some of you will come along on this interesting voyage.
Download the article from SSRN at the link.

November 5, 2019

Call For Applications, Law and Society Association Workshop, Denver, CO, May 26-27, 2020 @law_soc

The Law and Society Association announces the call for applications for the Graduate Student & Early Career Workshop, May 26-27, 2020, in Denver, Colorado (USA). The workshop immediately precedes the LSA Annual Meeting.

Apply here.

November 4, 2019

Waldron on Non-Normative Principles @JeremyJWaldron

Jeremy Waldron, New York University School of Law, has published Non-Normative Principles. Here is the abstract.
How should we think about legal principles? In analytic jurisprudence, the best-known account of legal principles — Ronald Dworkin’s account — assigns them a normative function in law, albeit not a hard or determinate one. But legal principles sometimes serve a characterizing rather than a normative function: they tell us about the character of a legal system rather than giving us instructions about how to deal with difficult cases. There is a further question whether characterizing principles can nevertheless perform some sort of normative function in legal argument. In the second half of this paper, I consider the operation of constitutional principles, like the rule of law and the separation of powers.
Download the article from SSRN at the link.

Kemmerer and Wolhleben on Mythos und Recht: Poetick und Politik in Christa Wolfs Kassandra-Projekt @kemmereralex @Uni-MR

Alexandra Kemmerer, Max Planck Society for the Advancement of the Sciences; Max Planck Institute for Comparative Public Law and International law, and Doren Wohlleben, University of Marberg, have published Im Kalten Krieg der Geschlechter. Mythos und Recht, Poetik und Politik in Christa Wolfs Kassandra-Projekt (Cold War, Gendered: Myth and Law, Poetics and Politics in Christa Wolf's Kassandra Project) as the Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2019-21. Here is the abstract.
German Abstract: Im Wintersemester 2018/19 lud die Neuphilologische Fakultät der Universität Heidelberg in der Vortragsreihe „ModerneKrisenLiteratur“ dazu ein, im Dialog zwischen jeweils einem Literaturwissenschaftler und einem Vertreter einer anderen kultur-, sozial- oder geschichtswissenschaftlichen Disziplin darüber nachzudenken, wie sich die Umbrüche und Erschütterungen der ökonomischen, politischen und kulturellen Moderne in literarischen Werken des 20. Jahrhunderts niedergeschlagen haben. Am 15. Januar 2019 sprachen in der Neuen Universität Heidelberg die Rechtswissenschaftlerin Alexandra Kemmerer (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht) und die Literaturwissenschaftlerin Doren Wohlleben (Universität Marburg) über Christa Wolfs Kassandra-Projekt – ein in vier Vorlesungen und eine Erzählung gegliedertes Werk, das als mediales Großereignis bereits beim ersten öffentlichen Vortrag im Rahmen der Frankfurter Poetik-Vorlesungen im Mai 1982 große internationale Beachtung fand und inzwischen, übersetzt in dutzende Sprachen, zur Weltliteratur des 20. Jahrhunderts zu zählen ist. In der Begegnung von Rechts- und Literaturwissenschaft, von „Law & Literature“, erweist sich Christa Wolfs Kassandra-Projekt als Schlüssel zu einem differenzierten Verständnis des geteilten Deutschland in der Endphase des Kalten Krieges, des Wendejahres 1989 und der nachfolgenden politischen, sozialen, rechtlichen und kulturellen Transformationen. Herausgefordert und sensibilisiert von der je anderen Disziplin, gewinnen im Blick auf Mythos und Recht, Poetik und Politik Krisenmomente Kontur, deren Brüche und Verwerfungen noch unsere Gegenwart prägen. English Abstract: In the winter semester of 2018/19, the Neuphilologische Fakultät (Faculty of Modern Languages) at the University of Heidelberg hosted a lecture series inviting reflections on ruptures and upheavals in economic, political and cultural modernity, and their repercussions on 20th-century literature. Organised as dialogue between a literary scholar and a scholar of another field of the humanities, social sciences or cultural studies, the series „ModerneKrisenLiteratur“ invited in each of its weekly sessions contextual and reflexive explorations of literary works. On January 15, 2019, at Neue Universität Heidelberg, legal scholar Alexandra Kemmerer (Max Planck Institute for Comparative Public Law and International Law) and literary scholar Doren Wohlleben (University of Marburg), discussed Christa Wolf's Kassandra Project - a complex and highly original literary work which attracted great international attention already at its first public presentation in May 1982, in the Frankfurt Lectures on Poetics series, and has since become part of 20th century world literature. In Kemmerer’s and Wohlleben’s Heidelberg encounter, from a Law& Literature perspective, Christa Wolf's Kassandra Project is explored as key to a differentiated understanding of Divided Germany in the final phase of the Cold War, of the Fall of the Berlin Wall, the “Wende“, of 1989, and of subsequent political, social, legal and cultural transformations. Based on close readings of Wolf’s literary work, their transdisciplinary reflections on myth and law, poetics and politics highlight moments of crisis, ruptures and upheavals that are still shaping our present.
Download the article from SSRN at the link.

van den Berge on Law, King of All: Schmitt, Agemben, Pindar @UtrechtUni

Lukas van den Berge, Utrecht University, is publishing Law, King of All: Schmitt, Agamben, Pindar in volume 13 of Law and Humanities (2019). Here is the abstract.
Both Carl Schmitt and Giorgio Agamben draw on the ancient Greek concept of nomos as an important element underpinning their legal theories. Aiming to restore that concept to its pre-sophistic meaning, they grant central weight to a piece of poetry in which Pindar famously proclaims that ‘law (nomos) is king of all’, guiding both mortals and immortals while ‘justifying the utmost violence with a powerful hand’. For Schmitt as for Agamben, this means that the Pindaric fragment exposes the violent origins of law that normativist jurisprudence typically shields from view. For one thing, I will explain in this article why Schmitt’s and Agamben’s use of the fragment is at odds with any acceptable interpretation of it in its wider literary and historical context. More importantly, perhaps, my aim is ultimately to reconstruct a Pindaric jurisprudence as it should actually be preferred to that of both Schmitt and Agamben.
Download the article from SSRN at the link.