June 28, 2021

Hadjigeorgiou on Beyond Formalism: Reviving the Legacy of Sir Henry Maine for CIL

Andreas Hadjigeorgiou, University of Groningen; University of Antwerp; Frederick University Cyprus, is publishing Beyond Formalism: Reviving the Legacy of Sir Henry Maine for CIL: The Theory, Practice and Interpretation of Customary International Law in The Theory and Philosophy of Customary International Law and Its Interpretation (P. Merkouris, J. Kammerhofer, and N. Arajavi, eds., Cambridge University Press, 2021, Forthcoming). Here is the abstract.
Not all ontological concerns which surround the concept of (customary) international law (CIL) have disappeared, rather they have shifted. Whereas the existence of a genuine international legal system is taken as a ‘given’, questions still remain about its genesis and the position of CIL within it. Some for example, still question whether we can truly speak of customary international law, while others recast the concept of CIL through a formalist perspective. Accordingly, formalism, in its moderate form, treats formal sources, documents and/or proclamations as ‘better’ tools for both a) the preservation of existing rules of CIL, and b) the ‘creation’ of new legal rules. At its more extreme, formalism purports the view that c) IL (or even CIL) finds its genesis only in formal sources, documents, or proclamations. While some formalisation is undeniably helpful and even necessary, we should be more critical of this formalist paradigm. In this way, the chapter seeks to respond to these positions through a revival of the legacy of Sir Henry Maine and the evolutionary conception of law that he laid out the first foundation for. By operationalizing this conceptualization, a new vision spawns for CIL: a vision beyond mere formalism.
Download the essay from SSRN at the link.

June 24, 2021

New Publication: Paul S. Hirsch, Pulp Empire: The Secret History of Comic Book Imperialism (University of Chicago Press, 2021) @CrimeReads @UChicagoPress

 From the wonderful website CrimeReads, an excerpt from Paul S. Hirsch's new book Pulp Empire: The Secret History of Comic Book Imperialism (University of Chicago Press, 2021). It reads in part:

The American comic book is inseparable from foreign policy, the great twentieth-century battles between capitalism and totalitarianism, and the political goals of the world’s preeminent military and cultural power. The history of the American comic book is a story of visual culture, commerce, race, and policy. These four fields are analogous to the four colors used to print comic books: cyan, magenta, yellow, and black. They lie atop one another, smearing, blending, and bleeding to create a complete image. To separate them is to disassemble a coherent whole and to shatter a picture that in its entirety shows us how culture and diplomacy were entangled during the mid-twentieth century.


June 23, 2021

Litman, Murray, and Shaw on A Podcast of One's Own @LeahLitman @ProfMMurray @kateashaw1

Leah M. Litman, University of Michigan School of Law, Melissa Murray, New York School of Law, and Katherine Shaw, Cardozo Law School, have published A Podcast of One's Own at 28 Mich. J. Gender & L. 51 (2021). Here is the abstract.
In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are often white men; and the commentators who translate the Court’s work for the public are also largely white men. We suggest this lack of diversity has consequences both for the Court’s work and for the public’s understanding of the Court. We also identify some of the factors that contribute to the lack of diversity in the Court’s ecosystem, including unduly narrow conceptions of expertise and a rigid insistence on particular notions of neutrality. We also note and discuss our own modest efforts to disrupt these dynamics with Strict Scrutiny, our podcast about the Supreme Court and the legal culture that surrounds it. To be sure, a podcast, by itself, will not dismantle the institutional factors that we have identified in this Essay. Nevertheless, we maintain that our efforts to use the podcast as a platform for surfacing these institutional dynamics, while simultaneously cultivating a more diverse cadre of Supreme Court experts and commentators, is a step in the right direction.
Download the essay at the link.

June 17, 2021

Ojo and Ekhator on Precolonial Legal System in Africa: An Assessment of Indigenous Laws of Benin Before 1897 @Goser_ovbiedo

Idahosa Osagie Ojo, Benson Idahosa University, and Egahosa O. Ekhator, Derby Law School, have published Pre-Colonial Legal System in Africa: An Assessment of Indigenous Laws of Benin Kingdom Before 1897 at 5 Umewaen: Journal of Benin and Edo Studies 38-73 (2020).
There were salient novelties in the legal system of the Benin Kingdom and other areas in pre-colonial Africa that promoted justice, peace, and order among people and communities. Special provisions such as collective responsibility in legal personality, the law of primogeniture, the fusion of laws and religion in theory and practice, and the recognition of societal status and political position in legal proceedings amongst other legal concepts were incorporated into the body of laws in Benin. Previous intellectual efforts center on the political, economic, and social aspects of history, largely neglecting these legal dynamics and other vital areas of the kingdom’s organization. Hence, this study analyzes indigenous legal concepts in the Benin Kingdom using several varieties of primary and secondary sources. It contends that Benin, like other African societies, developed practical and useful legal concepts that helped in the consolidation of peace and harmony throughout its length and breadth, and that these indigenous Benin legal concepts were in force till 1897.
Download the article from SSRN at the link.

June 14, 2021

Banović on John Austin's Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism

Damir Banović, University of Sarajevo Faculty of Law, is publishing About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism in the International and Comparative Law Review (2021). Here is the abstract.
This article deals with analytical jurisprudence topics presented in John Austin’s work, his predecessors, and its influence on the contemporary theory of law. The article analyses his analytical method, understanding of what the method implies, and its application in understanding law as a social phenomenon. Not only does the article analyse the law phenomenon, but it also presents his views on similar phenomena in law, such as international and constitutional law, the phenomenon of sovereignty and a sovereign, and the principle of general utility as one of the moral principles. His theory of law was one of the most significant theoretical approaches in England of the 19th century, and also constituted the baseline for new conceptions and the basis of critical analyses of later positive law theories. Moreover, his work provides a solid ground for explanations of individual branches of law, especially criminal law. Finally, the article also presents a critical analysis of his approach, useful and important findings, and the perspectives for further development of the theory of law, especially in the domain of his analytical, empirically oriented and descriptive method.
Download the article from SSRN at the link.

Call For Papers: Art/Law Network, Summer Seminar, HOMEing, June, July, August 2021 @ArtLawNetwork


The Art / Law Network is holding a Summer Seminar Series, HOMEing, in June, July and August. There are two themes

  • Migrants in Art
  • Art, Law and the Border

It has a call for papers/submissions open for art works and papers on the two themes: https://artlawnetwork.org/event/aln-homeing-summer-series-projects-and-call-for-submissions-14-june-2021/.

June 11, 2021

Call For Applications: Institute for Interdisciplinary Legal Studies, Visiting Fellows 2022 @UniLuzern

The Institute for Interdisciplinary Legal Studies has posted this Call For Applications for Visiting Fellows for 2022.

Institute for Interdisciplinary Legal Studies – lucernaiuris

Call for Applications: Visiting Fellows 2022


The Institute for Interdisciplinary Legal Studies at the University of Lucerne invites applications for our Visiting Fellows Programme 2022.


The fellowship programme is set up to support junior scholars (PhD students and postdocs) who wish to undertake a short-term research stay at the institute. The scheme is open to all working broadly on interdisciplinary topics at the intersections between law, the humanities and the social sciences. Focusing on critical and theoretical approaches, the institute aims to bring together a diverse group of scholars who read and think widely across fields, contexts and disciplines.


We particularly welcome applications from those working on projects that connect with our own core interests. Currently, these include:


  • Legal Futures and Futurity
  • Law and New Technologies
  • Law and the Life Sciences
  • Theories of Justice and Histories of the Judiciary
  • Law, Art, Politics


The deadline for submissions is Thursday 30 September 2021.


Further details on eligibility, application process and assessment criteria are available here.


Please direct any questions to Dr. Steven Howe (steven.howe@unilu.ch).

June 10, 2021

Koh on Univitalism and American Law @BCLAW

Steven Arrigg Koh, Boston College Law School, has published Univitalism and American Law. Here is the abstract.
Curiously, the English language lacks a word for “the belief that human beings only live once.” This Essay, as an initial matter, coins this term: univitalism (from the Latin, "uni-" and "vita"). Univitalism is a long-held belief in the United States, prevalent amongst those with both sacred and secular views. It is so common, in fact, that is assumed by American Jews, Christians, Muslims, atheists, and agnostics alike — and thus integral to the reasoning of U.S. legal and political decisionmakers. By contrast, many Eastern societies and a significant minority of Americans subscribe to a “multivitalist” worldview, wherein individuals are reborn. This Essay historically surveys how univitalism has shaped American law and policy; it also considers how, in turn, American law reifies univitalism. In particular, this Essay will show how univitalism is integral to contemporary U.S. substantive criminal law, sentencing, and broader theories of punishment. A contrasting comparative view — adopted in certain international criminal tribunals and foreign criminal legal jurisdictions — will underscore this analysis. This Essay will argue that univitalism places particular emphasis on retribution and may exacerbate punitiveness in American criminal law.
The full text is not available from SSRN.

June 9, 2021

Stern on Proximate Cause in Legal Historiography @ArsScripta @theory_history

Simon Stern, University of Toronto Faculty of Law, has published Proximate Cause in Legal Historiography at 60 History & Theory 363 (2021). Here is the abstract.
The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes. To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely. To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play more attenuated roles, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography and to question their persuasive force.

June 4, 2021

Biswas on American Feminism in Formation: Margaret Fuller's Women in the Nineteenth Century and Louisa May Alcott's Little Women @IITHyderabad

Shreosi Biswas, IIT Hyderabad, has published American Feminism in Formation: Margaret Fuller's Women in the Nineteenth Century and Louisa May Alcott's Little Women. Here is the abstract.
In the last one hundred years or so, the theory and praxis of feminism have almost touched the zenith although, even in the late nineteenth and early twentieth century, feminism was only a neglected theoretical perspective, due perhaps to the fact that it liberally as well as radically challenged the mainstream patriarchal conventions. Debates and discussions were there, stray demands for rights of women were also raised here and there, a limited number of women in different countries of the world might also have risen to very high positions of power and authority, but till the last decade of the eighteenth century there was no consistent and dedicated writing to provide support to the women’s causes. My intention in this paper is to examine and evaluate the contribution of Margaret Fuller Ossoli and Louisa May Alcott in giving the necessary philosophical-theoretical support and literary justification to feminism during its formative period in America through a close study of Women in the Nineteenth Century (1845) and Little Women (1868). An exploration of the philosophical-literary back-ups which ignited the flourishing of feminism in America, even before the term ‘feminism’ was coined, is both interesting and insightful.
Download the article from SSRN at the link.

June 1, 2021

Manners on Executive Power and the Rule of Law in the Marshall Court: A Re-reading of Little v. Barreme and Murray v. Schooner Charming Betsy @Jane_C_Manners

Jane Manners, Columbia Law School, is publishing Executive Power and the Rule of Law in the Marshall Court: A Re-Reading of Little v. Barreme and Murray v. Schooner Charming Betsy in volume 89 of the Fordham Law Review (2021). Here is the abstract.
This Essay uses two 1804 opinions by Chief Justice John Marshall to explicate a world in which understandings of executive power and the rule of law were very different from those that predominate today. Scholars have misread Little v. Barreme and Murray v. Schooner Charming Betsy, this Essay argues, because they apply modern assumptions about the balance of power between Congress and the executive that do not fit the Marshall Court’s constitutional vision. Contemporary interpretations read Little for the propositions that the president’s inherent wartime power may be limited by statute and that early American jurists rejected officers’ “good faith” defenses to liability for tortious acts. But the opinion in fact reflects the Marshall Court’s view that, in an undeclared war, the president could not act at all unless authorized by Congress and that under no circumstances could the president give an officer a right to act where Congress had not. Charming Betsy, meanwhile, is known today for the “Charming Betsy canon”: Marshall’s assertion that wherever possible, courts ought to interpret the laws of Congress to accord with international law. In its historical context, however, the case illustrates Marshall’s view of the law of nations not as an external constraint on sovereignty—a common understanding of international law’s role today—but as an aspect of the rule of law critical to preserving the proper allocation of powers between Congress and the president. Indeed, read together, these cases show Marshall using the law of nations to reinforce a tenet central to the separation of powers in the new republic: that only Congress could alter the nation’s war footing. Through Little and Charming Betsy, the Marshall Court sought to foreclose Congress’s efforts to abdicate its responsibility to authorize acts of war and thus to underscore the constitutional balance that placed the war-making and lawmaking power not with the courts, not with the executive, but with Congress.
Download the essay from SSRN at the link.

Call For Papers: Political Imagination and Utopian Energies in Central and Eastern Europe, Faculty of Law, Charles University, September 16-17, 2021

 From Jan Géryk Faculty of Law, Charles Unversity

I would like to invite you to the 13th CEE Forum of Young Legal, Political, and Social Theorists which will be held on September 16-17 in Prague. The topic is "Political Imagination and Utopian Energies in Central and Eastern Europe". You can find the full Call for Papers here:


The deadline for sending your abstracts is on June 6, but since we use this mailing list as a channel quite late it is enough to write us that you are interested and the topic of your paper until June 6 and then have time for sending a full abstract until June 12.


Our contact email is ceef2021prague@email.cz


Best wishes, Jan Géryk Faculty of Law, Charles Unversity

Marinotti and Lubin on The Law of the Upload @JoaoMarinotti @AsafLubin

João Marinotti, Center for Law, Society and Culture, Indiana University Maurer School of Law; Information Society Project, Yale Law School; Center for Intellectual Property Research, Indiana University Maurer School of Law; The City University of New York - The Graduate Center, City University of New York, and Asaf Lubin, Indiana University Maurer School of Law; Berkman Klein Center for Internet & Society; Yale University - Information Society Project; Federmann Cybersecurity Center, Hebrew University of Jerusalem Faculty of Law have published The Law of the Upload as Indiana Legal Studies Research Paper No. 451. Here is the abstract.
In April 2020, Amazon released a new comedy series called “Upload.” The show extrapolates a future in which human consciousness is successfully simulated in silico. In this world, individuals can pay to be “uploaded” into a series of competing digital afterlives. When uploaded, human consciousness is converted into data and executable code, which can be edited, reset, throttled, or even deleted depending on each upload’s membership plan and payment status. The show breaks the boundaries between reality and virtual reality, consciousness and artificial intelligence, and even life and afterlife, entangling various legal questions in novel ways. By addressing three of these legal issues, we hope to highlight how science fiction may help launch a more nuanced conversation about what is artificial in artificial intelligence, what is virtual in virtual reality, and what is digital in digital rights. We argue that becoming early adopters of a new reconceptualized language around “us” and “them”, the “self” and the “other,” can perhaps future proof our society from the technological perils that await us.
Download the paper from SSRN at the link.