le Dret on Freedom of Testation in the Revolutionary and Napoleonic Legislation @MPIPRIV

Valentin Pinel le Dret, Max Planck Institute for Comparative and International Private Law, has published Freedom of Testation in the Revolutionary and Napoleonic Legislation at 140 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung (ZRG GA) 278 (June 2023). Here is the abstract.

Contrary to what one could have deduced from art. 2 and 17 of the Déclaration des droits de l’homme et du citoyen, where property had been elevated as a natural right, imprescriptible, inviolable, and sacred, and art. 537 and 544 of the Code civil, where the owners had been given the right to use in the most absolute way and dispose freely of their property, neither the Revolutionary nor the Napoleonic lawmakers thought of the right of disposing freely of one’s property upon death as self-evident. Although there had been a long tradition of testamentary succession in the South of France, the right to dispose freely of one’s properties by testament led to tensions as to its articulation with the pro-intestate customs of the Northern provinces – in 1789–1804 French private law(s) had indeed not yet been unified and the unification process had given rise to several rearguard arguments in favour of local idiosyncrasies –, but most importantly, it led to tensions as to its articulation with the institution of family, one of the pillars, along with property, of the new social order that had emerged from the ruins of the Ancien Régime: the bourgeois society. Note: This article is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, De Gruyter. It is freely accessible on the basis of a licence with an OA-option funded by the MPG, Max-Planck-Gesellschaft.

Download the article from SSRN at the link.

Laguardia on Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Debate @montclairstateu

Francesca Laguardia, Montclair State University, has published Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Rhetoric at 9 Journal of Law and the Biosciences 1 (January/June 2022).

The graphic and bodily facts of a legal question of rights are relevant to the courts, particularly in questions that directly implicate physical bodies and pain, such as right to die cases, or what level of search may be allowable and when. However, in the case of abortion, or more specifically the bodily ramifications of pregnancy and childbirth, this detail is conspicuously absent. This article, relying on a content analysis of over 220 legal opinions on abortion rights, documents this absence of rhetoric. Particularly in the context of other discussions of pain and physical health risks in these very same cases, the complete absence of an acknowledgement of the bodily ramifications of pregnancy and childbirth appears purposeful, if perhaps not conscious. Reviewing prior literature on abortion rights and abortion rhetoric, it is likely that this lack of language both reflects and reinforces an assumption of women’s roles as mothers, a general reluctance to acknowledge the totality of the sacrifices women make in giving birth, and the refusal to acknowledge women’s individual interests as whole persons.

Download the article from SSRN at the link.

Haddock and McNeil on Bibliography on Indigenous Rights in Canada, 1995-2022 @OsgoodeNews

Leslie Haddock and Kent McNeil, both of Osgoode Hall, have published Bibliography on Indigenous Rights in Canada, 1995-2022 as Osgoode Legal Studies Research Paper No. 4294966. Here is the abstract.

Note to users: This bibliography does not purport to be comprehensive, especially insofar as non-legal materials are concerned. Also, although we have done our best to be as accurate as possible, no doubt there are errors, for which we ask your forgiveness. An attempt has been made to include works that deal with more than one topic in the Table of Contents under each of the relevant headings. A bibliography covering the pre-1995 period, Indigenous Peoples in Canada: A Bibliography of Legal and Other Works to 1994, compiled by Kristen Clark, Leslie Haddock, and Kent McNeil, Osgoode Hall Law School, is posted on the same websites as this bibliography.

Download the bibliography from SSRN at the link.

Loeffler on The Religions of Human Rights @Jbloeffler

James Loeffler, University of Virginia, is publishing The Religions of Human Rights in the Harvard Theological Review. Here is the abstract.

The modern human rights movement arose during a moment of unprecedented encounter between global religions in the mid-twentieth century. Yet attempts to parse the historical relationship between human rights and religious thought have almost exclusively taken the form of case studies of individual religious traditions. This focus on intellectual genealogies obscures the fact that much of human rights doctrine emerged from interreligious contacts and conflicts between Judaism and Christianity, particularly in the context of the decolonizing Middle East. This article retraces this interreligious encounter through the writings of Amnesty International founder Peter Benenson, diplomat and theologian Charles Malik, and rabbi and activist Maurice Perlzweig. Together they represent three different theopolitical responses to the problem of rel.igious pluralism after global empire: minoritarian human rights, majoritarian human rights, and cosmopolitan human rights. Recovering these interrelated human rights conceptions exposes the frames of religious difference embedded in the modern Western human rights imagination.

Download the article from SSRN at the link.

Newly published: Elizabeth S. Anker, On Paradox: The Claims of Theory (Duke University Press, 2022) @dukepress

Newly published:

Elizabeth S. Anker, On Paradox: The Claims of Theory (Duke University Press, 2022). Here from the publisher's website is a description of the book's contents.

In On Paradox literary and legal scholar Elizabeth S. Anker contends that faith in the logic of paradox has been the cornerstone of left intellectualism since the second half of the twentieth century. She attributes the ubiquity of paradox in the humanities to its appeal as an incisive tool for exposing and dismantling hierarchies. Tracing the ascent of paradox in theories of modernity, in rights discourse, in the history of literary criticism and the linguistic turn, and in the transformation of the liberal arts in higher education, Anker suggests that paradox not only generates the very exclusions it critiques but also creates a disempowering haze of indecision. She shows that reasoning through paradox has become deeply problematic: it engrains a startling homogeneity of thought while undercutting the commitment to social justice that remains a guiding imperative of theory. Rather than calling for a wholesale abandonment of such reasoning, Anker argues for an expanded, diversified theory toolkit that can help theorists escape the seductions and traps of paradox.

Kenny on "Love Mounts to the Throne with Law": Citizenship in Northern Ireland and Seamus Heaney's Antigone @dkennytcd @TCDLawSchool

David Kenny, Trinity College Dublin School of Law, is publishing ‘Love Mounts to the Throne with Law’: Citizenship in Northern Ireland and Seamus Heaney’s Antigone in Law and Humanities (2022). Here is the abstract.

In this paper, I examine disputes about citizenship in Northern Ireland though the lens of poet Seamus Heaney’s 2004 version of Antigone, The Burial at Thebes. Citizenship and identity in Northern Ireland—if people are Irish or British—has been a central issue of the conflict there. The 1998 peace agreement promised to allow people to identify however they wished, and not be forced to adopt an identity they rejected. But recent controversies, including Brexit and a major legal challenge, have shown that the legal concept of citizenship has not been able to fulfil this promise. Sophocles’ Antigone presents a great clash between the authority of the State and deep personal/morality commitments, and the tragedy that result. Heaney’s Antigone casts light on the fundamental clash at the centre of citizenship, and points us toward a flexible, contextual multi-level citizenship as a solution to law’s rigid conception of what a citizen must be.

Download the article from SSRN at the link.

Newly Published: Hedi Viterbo, Problematizing Law, Rights, and Childhood in Israel/Palestine (Cambridge University Press, 2021) @HediViterbo

Hedi Viterbo, Queen Mary University of London, has published Problematizing Law, Rights, and Childhood in Israel/Palestine (Cambridge University Press, 2021). Here from the publisher's website is a description of the book's contents.

In this book, Hedi Viterbo radically challenges our picture of law, human rights, and childhood, both in and beyond the Israel/Palestine context. He reveals how Israel, rather than disregarding international law and children’s rights, has used them to hone and legitimize its violence against Palestinians. He exposes the human rights community’s complicity in this situation, due to its problematic assumptions about childhood, its uncritical embrace of international law, and its recurring emulation of Israel’s security discourse. He examines how, and to what effect, both the state and its critics manufacture, shape, and weaponize the categories “child” and “adult.” Bridging disciplinary divides, Viterbo analyzes hundreds of previously unexamined sources, many of which are not publicly available. Bold, sophisticated, and informative, Problematizing Law, Rights, and Childhood in Israel/Palestine provides unique insights into the ever-tightening relationship between law, children’s rights, and state violence, at both the local and global levels.

 

Baker and Green on the Non-Existence of a "Legal Name" @j_remy_green @AustinACBaker @HRLROnline

Austin A. Baker, Rutgers University, New Brunswick, and J. Remy Green, Cohen & Green, P.L.L.C.; Boston University School of Law, are publishing There is No Such Thing As a 'Legal Name': A Strange, Shared Delusion in volume 53 of the Columbia Human Rights Law Review (2021). Here is the abstract.

As far as federal, most state, and any other source of American law is concerned — as several courts in the early 20th Century put it: there is no such thing as a legal name. Yet, the phrase “legal name” appears everywhere, often beside threats of the penalties of perjury if you give something other than your legal name. For example, transgender people often hear “well, this has to say your ‘Legal Name,’” as an explanation for why they must be referred to by their deadname. One would assume, given the widespread use, surely must be a clear, unambiguous name that constitutes a person’s “legal name” — as well as “legal” reasons an organization insists on using that name, right? Well. Not so much. Thus, this Article seeks to highlight the (legal, moral, and philosophical) wrongness of that notion. We begin by explaining the practical significance of this mistake (the mistake being something like, “legal name means XYZ and only XYZ,” where “XYZ” means “name on [usually one and only one of: birth certificate/social security card/driver’s license/name change order]”). Then, we survey the “legal” status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We then frame the wrongheaded notion that a person has a single clearly defined “legal name” as a harmful, collective delusion. So how do we rid ourselves of this delusion? We present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names when referring to them. Specifically, we introduce what we call the ‘Preference Norm’, according to we should defer to the legal name someone prefers absent some existent superseding legal reason not to. We argue that violating this norm in many cases constitutes a gross violation of someone’s dignity. We conclude by proposing a series of concrete legal suggestions which are meant capture the spirit of the Preference Norm.

Download the article from SSRN at the link.

Call For Proposals: Conference on Prison Abolition, Human Rights, and Penal Reform: From the Local to the Global

From the email box:

Prison Abolition, Human Rights, and Penal Reform:

From the Local to the Global

Mass incarceration and overcriminalization in the United States are subject to critique by some on both the right and the left today. Many critics increasingly talk of prison abolition. At the same time, the international human rights movement continues to rely upon criminal punishment as its primary enforcement tool for many violations, even as it criticizes harsh prison conditions, the use of the death penalty, and lack of due process in criminal proceedings. What would it mean for the human rights movement to take seriously calls for prison abolitionism and the economic and racial inequalities that overcriminalization reproduces and exacerbates? And what might critics of the carceral regime in the United States have to learn from work done by international human rights advocates in a variety of countries?

September 26-28^th, 2019, the Rapoport Center will host in Austin an interdisciplinary conference to consider the relationships among the human rights, prison abolition, and penal reform movements. Do they share the same goals? Should they collaborate? If so, in what ways? The conference is co-sponsored by the Frances Tarlton “Sissy” Farenthold Endowed Lecture Series in Peace, Social Justice and Human Rights, Center for European Studies, William Wayne Justice Center for Public Interest Law, LLILAS Benson Latin American Studies and Collections, John Warfield Center for African and African American Studies, Center for the Study of Race and Democracy, Department of Sociology, Center for Population Research, and Capital Punishment Center.

Ruth Wilson Gilmore will offer the keynote lecture on September 26. We invite proposals for papers, panels, art, or other forms of presentation from activists, practitioners, and scholars in all disciplines. We are eager to include those who study or advocate around criminal law and human rights in different regions and contexts, those who work on various forms of incarceration (including immigration detention), and those who explore alternatives to current criminal punishment regimes. We encourage discussion of the distributive effects of various constructions of and responses to crime. Topics might include:

• Racial capitalism and prison abolition
• Prison abolition: short- versus long-term goals
• Abolition and efforts to reform/transform conditions of confinement: are they in opposition?
• Capital punishment, human rights, and the goals of death penalty abolition
• Mass incarceration and surveillance
• Gender, sexuality, reproductive rights and the prison system
• Human rights and decriminalization
• The human rights movement and national and international criminal law
• Lessons from transitional and restorative justice
• Incarceration and the intersections of criminal and immigration law
• Immigration detention and the (private) prison industrial complex
• Potential responses to violent crime
• The UN and crime
• Exportation of criminal justice models: good and bad
• The role of victims in carceral regimes and anti-carceral responses
•  Reflections on the role human rights courts do and should play in the carceral state
• Black Lives Matter, human rights, and abolition
• Queer politics and abolition

Please send an abstract of your paper, panel, or project in under 500 words to Sarah Eliason by July 15, 2019. A limited number of need-based travel grants are available to support travel costs for selected participants. If you wish to apply for a travel grant, please complete this application form by July 15, 2019.

ICYMI: Boray on the Depiction of Disabilities in Movies

ICYMI:

Sameer Boray, NALSAR University of Law, has published Depiction of Disabilities in Movies: Disability Portrayal in the Media Through the Eyes of Bollywood and Hollywood. Here is the abstract.

This paper will journey through the stages of which the media through film has depicted people with disabilities. While every movie-maker has the creative freedom of making a film, certain aspects such as media portrayal of disabilities of movies cannot and should not go unchecked. The author has highlighted how this can be tackled by the intervention of law through censor boards. The Indian Censor Board with this respect has been analyzed and the author has provided how this responsible body can play a larger role, whilst remembering the creative freedoms movie-makers are endowed with. Few popular movies in both Hollywood and Bollywood have been discussed to throw more light on the kind of depictions and a basic study has been mentioned on how there is a change in studying disabilities as a subject.

Download the article from SSRN at the link.

CFP: Law, Literature, and Human Rights, MLA Annual Convention, Seattle, January 9-12, 2020

From the mailbox:

Call for Papers: 

Modern Language Association (MLA) Annual Convention, Seattle, January 9-12, 2020

Law, Literature, and Human Rights

Papers examining legal and literary articulations of human rights, broadly conceived, from Jus Gentium to the U.S. Constitution to the European Union. 250-500 word abstract and brief CV. 

Deadline for submissions: Sunday, 10 March 2019

Melissa J. Ganz, Marquette U (melissa.ganz@marquette.edu ); Christine L. Holbo, Arizona State U (christine.holbo@asu.edu )  

Lazar and Hirsch on Human Rights Movies Through the Prism of Movie Advisory Boards

Alon Lazar, Center for Academic Studies, and Tal Litvak Hirsch, Ben Gurion University of the Negev, have published Human Rights Movies Through the Prism of Movie Advisory Boards. Here is the abstract.

Human rights is a topic of high importance in Western societies, and discrimination has been noted as a determining force in their violations. Films depicting human rights issues have been discussed as instrumental in bringing these matters to the attention of the general public and students. Their exposure is dependent largely on their age-classifications by movie advisory boards which determine who can watch them. Two studies were conducted to assess how films depicting human rights issues and held exemplary by the Political Film Society (PFS) are evaluated by movie advisory boards, providing justifications for their age-classifications. Study 1 found that the boards in the US and the UK identify these movies as suitable mainly for adults, while in Australia, in most cases, moviegoers are to decide their appropriateness. Each board stresses different contents as their main concerns, yet none mention discrimination. Study 2, assessing Netherland's NICAM evaluations, revealed that these movies are considered suitable mainly for adults, primarily because they are heavy with violence and fear arousing contents, with only some noted to include discriminatory contents. Thus, in these liberal-democratic societies, human rights movies considered of high value, in most cases are removed from the educational arena.

Download the article from SSRN at the link.

Heinze on Theorizing Law and Historical Memory @Eric_Heinze_

Eric Heinze, Queen Mary University, London, School of Law, has published Theorizing Law and Historical Memory: Denialism and the Pre-Conditions of Human Rights as Queen Mary School of Law Legal Studies Research Paper No. 290/1018. Here is the abstract.

States’ efforts to mould historical memory have long attracted scholarly attention. In recent years, however, a focus on the role of legal norms and mechanisms as tools in those efforts has steadily sharpened. Most scholarship examines that role through particularist analyses, narrowing a specific period of history down to some particular state or region. As such studies accumulate, however, more general patterns emerge. This article explores not any such particular situation, but instead pursues a project of theorising the discipline of law and historical memory as a whole. One conspicuously shared element, particularly within the framework of modern states, is that the histories examined directly involve or ultimately trace back to human rights abuses. As a general matter, then, states’ efforts to deny past or ongoing conduct certainly pose a pragmatic obstacle by obstructing investigations into abuses. Yet it is argued in this article that the relationship between denialism and human rights is (in a Kantian-Habermasian sense) transcendental: the very possibility for the existence of a human rights system presupposes a sphere for open, public scrutiny of state conduct. That condition is not ‘all or nothing’: the extent to which a human rights system becomes possible depends upon the extent of that sphere of public discourse. Unsurprisingly, states with the best human rights records also maintain the types of open public spheres which most reliably ensue against state denials of human rights violations, and thereby provide models of best practice.

Download the article from SSRN at the link.

Rapoport Center for Human Rights and Justice Issues CFP @rapoportcenter

From the mailbox:

The Rapoport Center for Human Rights and Justice has posted a Call for Papers for its Working Papers Series. More information below:

Dedicated to interdisciplinary and critical dialogue on international human rights law and discourse, the Rapoport Center’s Working Paper Series (WPS) publishes innovative papers by established and early-career researchers as well as practitioners. The goal is to provide a productive environment for debate about human rights among academics, policymakers, activists, practitioners, and the public.

Authors from all disciplines and institutions are welcome to submit papers on any topic related to human rights.

Submissions undergo a rigorous selection process by the WPS interdisciplinary editorial committee, which includes graduate students and faculty from across the University of Texas. The WPS committee provides detailed comments and feedback to authors before the paper is published online.

Publication in the WPS does not preclude future publication elsewhere; in fact, many of our working papers have since been published in academic journals and edited volumes.

For the 2018-9 series, the Editorial Committee is accepting submissions on a rolling basis.

For more information, please visit: rapoportcenter.org/working-paper-series/or contact rcwps@law.utexas.edu.

de la Rasilla del Moral on Bartolomé De Las Casas: A Radical Humanitarian in the Age of the Great Encounter @hartpublishing

Ignacio de la Rasilla del Moral, Wuhan University, Institute of International Law, is publishing Bartolomé De Las Casas: A Radical Humanitarian in the Age of the Great Encounter in The Faces of Human Rights (Kasey McCall-Smith, Jan Wouters, and Felipe Gomez Isa, eds., Hart Publishing 2019). Here is the abstract.

Few lives may be as propitious to an understanding of the biographical genre as a way of addressing a larger historical theme than the life of the greatest advocate for justice and freedom for the Amerindian peoples in the sixteenth century. For generations, the life and works of Bartolomé de las Casas have served as lenses to look through at events and processes unleashed by the ‘great encounter’. Deeply intertwined with what came to be known as the ‘duda indiana’ (the ‘Indian Doubt’) among Spanish intellectual and political elites, were three interwoven dimensions that situate the praxis and theory of de las Casas’ life and work within the theological, moral and legal debates triggered by the Spanish Conquest of America. Traditionally, this has been considered as the birthdate of international law and, for some, building on the Lascasian legacy, of contemporary human rights law too.

Download the essay from SSRN at the link.

Farrell and Hughes on Magna Carta and the Invention of "British Rights" @routledgebooks

Michelle Farrell, University of Liverpool, School of Law and Social Justice, and Edel Hughes, University of Limerick, are publishing Magna Carta and the Invention of 'British Rights' in Human Rights in the Media: Fear and Fetish (Michelle Farrell, Eleanor Drywood, and Edel Hughes, Routledge, 2018) (forthcoming).

In this chapter we argue that the antipathy towards human rights, and the Human Rights Act in particular, that is evident in certain sections of the media and political establishment, lies partly in its relationship with the European, and, therefore, foreign or ‘alien’, system of human rights protection. Somewhat paradoxically though, those who are most trenchant in their criticisms of the Human Rights Act nevertheless stress that Britain is a nation founded upon human rights. Through the lens of the Magna Carta we examine the invention of the tradition of British rights and how the Charter has been co-opted by those who seek to foment opposition to the Human Rights Act and, albeit to a lesser extent, by those who seek to defend the Act by demarcating a clear line of history between the Charter and the Act. Both approaches, we suggest, serve to crowd out the space required for a rational critique of rights.

Download the essay from SSRN at the link.

Todres on The Trump Effect, Children, and the Value of Human Rights Education @jtodres

Jonathan Todres, Georgia State University College of Law, is publishing The Trump Effect, Children, and the Value of Human Rights Education in volume 56 of the Family Court Review (2018). Here is the abstract.

Since launching his presidential campaign, Donald Trump's rhetoric has often been divisive as well as demeaning of selected groups. This article examines the impact of Trump's rhetoric on children and their communities and explores the role that human rights education can play in responding to Trump and forging broader support for human rights. The article reviews the research on human rights education and considers how human rights education can be embedded in broader efforts to educate children. Using children's literature as a case study, the article argues for the importance of mainstreaming human rights education and meeting children where they are, in order to foster greater recognition of and respect for the rights of all individuals.

Download the article from SSRN at the link.

McGuinness on Presidential Human Rights Talk

Margaret E. McGuinness, St. John's University, School of Law, is publishing Presidential Human Rights Talk in volume 56 of the Washburn Law Review (2018). Here is the abstract.

In response to Professor Harold Hongju Koh's March 2017 keynote at Washburn University, "The Trump Administration and International Law," this essay examines the diplomatic and political rhetoric deployed by past presidents in support of human rights to argue that such "presidential human rights talk" represented an important element of U.S. human rights policy and promoted the transnational transmission of human rights norms. President Trump's complete abandonment of presidential human rights talk signals an end to what remains of American "human rights exceptionalism." Combined with Trump's "America First" approach to foreign policy, which rejects the value of the international institutions the U.S. helped build and sustain over the past 70 years, the end of presidential human rights talk may also mark the end of U.S. human rights diplomacy.

Download the article from SSRN at the link.

Zinos on Fundamental Rights in Early American Case Law: 1789-1859

Nicholas Zinos, Mitchell Hamline School of Law, is publishing Fundamental Rights in Early American Case Law: 1789-1859 in volume 7 of the British Journal of American Legal Studies (2018). Here is the abstract.

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.

Download the article from SSRN at the link.

ICYMI: Heritage, Culture, and Rights (Andrew Durbach and Lucas Lixinski, eds., Hart Publishing, 2017) @hartpublishing

ICYMI: Heritage, Culture, and Rights (Andrea Durbach and Lucas Lixinski, eds., Hart Publishing, 2017).

Cultural heritage law and its response to human rights principles and practice has gained renewed prominence on the international agenda. The recent conflicts in Syria and Mali, China's use of shipwreck sites and underwater cultural heritage to make territorial claims, and the cultural identities of nations post-conflict highlight this field as an emerging global focus. In addition, it has become a forum for the configuration and contestation of cultural heritage, rights and the broader politics of international law. The manifestation of tensions between heritage and human rights are explored in this volume, in particular in relation to heritage and rights in collaboration and in conflict, and heritage as a tool for rights advocacy. This volume also explores these issues from a distinctively legal standpoint, considering the extent to which the legal tools of international human rights law facilitate or hinder heritage protection. Covering a range of issues across Africa, Asia, Europe, Latin America and Australia, this volume will be of interest to people working in human rights, heritage studies, cultural heritage management and identity politics around the world.