The social and legal implications of forensic DNA are paramount. For this reason, forensic DNA enjoys ample attention from legal, bioethics, and science and technology studies scholars. This article contributes to the scholarship by focusing on the neglected issue of sameness. We investigate a forensic courtroom case which started in the early ’90s and focus on three modes of making similarities: creating equality before the law, making identity, and establishing standards. We argue that equality before the (...) law is not merely a principle but a practice. In the context of DNA research, equality refers to using standardized technology and procedures to identify the criminal suspect. Our case shows the work at stake in introducing a new technology into the courtroom and serves as a lens, magnifying how contingencies and uncertainties are managed and ordered in everyday court practices to arrive at an equal treatment of the suspect. (shrink)

This paper sets out to chart the fortunes of one of the most significant moral propositions in Mu'tazilite moral theory — namely, that it is evil to lie, and it is evil irrespective of the consequences of so doing. The reasons which promote this principle to significance relate to the broader context of Mu'tazilite theological orientation, which aims to vindicate God's justice through demonstrating that moral value does not derive from revelation. Yet this principle suffers the difficulties which commonly afflict (...) deontological precepts, particularly the challenges posed by their conflict with teleological moral demands in certain situations, as well as the difficulty of empirically ascertaining that a moral principle has in fact given the agent his reason for action, as the Mu'tazilites attempt to do. These were difficulties which Aš'arite critics of Mu'tazilite moral claims were quick to pick up on, and it is in the light of such hostile fire that the coherence of the Mu'tazilite position on the evilness of lies is examined. This is the principal focus of this essay, and it is complemented by an examination of how the principle carries over to the realm of divine morality: can God tell a lie? If not, why not? And what does this reveal about the ordering of moral values in Mu'tazilite thought? (shrink)

Despite the attention equality before the law has received, both laudatory and critical, peculiarly little has been done to precisely define it. The first ambition of this paper is to remedy this, by exploring the various ways in which a principle of equality before the law can be understood and suggest a concise definition. With a clearer understanding of the principle in hand we are better equipped to assess traditional critique of the principle. Doing so is (...) the second ambition of this paper. I will argue that traditional criticisms are unpersuasive, but that there is a different, powerful argument against equality before the law. The third ambition of the paper is to argue that there is a sense, overlooked by both proponents and critics, in which the principle still captures something important, albeit at the cost of shifting from intrinsic to instrumental value. (shrink)

This Article argues that a particular political theory underlies the judicial interpretation of ‘equality before the law’. The Canadian Courts at the date of writing have elaborated two tests for the signification of ‘equality before the law’. The Article traces the two tests to the utilitarian political theory outlined by John Stuart Mill. The one test sets out the ‘greatest happiness of the greatest number’ or ‘social interests’ as the criterion for adjudicating equality. The second (...) test identifies the reasonable relationship of an alleged statutory classification vis-à-vis the statutory purpose. The Article offers an alternative approach based upon democratic theory. Examples of the two tests and the alternative approach are drawn from judicial constitutional interpretations in the USA and Canada. (shrink)

This article argues that Hannah Arendt’s controversial essay “Reflections on Little Rock,” when situated within her analysis of Jewish assimilation, has an astute insight: racial integration and the decrease of the racial gaps in material inequality, without taking seriously the political project of building a world in common, only intensify racism in racist polities. This occurs because attempts to extend formal equality to the racially dominated give rise to the rule of racial common sense, a result of a clash (...) between the political structures of equality and the racial inequality practiced in quotidian interracial exchanges occurring in civil society. Though Arendt’s work on racism echoes criticisms of racial integration leveled by racial realist and pessimistic accounts of the Civil Rights struggle, her work points to a more expansive practice of “the political” that calls for the institutional design of formal politics as an important strategy against racism. (shrink)

Political activists drive around with bumper stickers proclaiming their commitment to equality. Perhaps the bumper sticker loudly asserts “=!” Oppressed people lament their lack of equality. Political philosophers contemplate equality and try to formulate general principles about it. In recent days, some advocates of marriage rights for same-sex couples argued for their view by claiming it’s just a matter of equality. Indeed, one of their advocacy websites uses the name ‘Equality’.1 They want equal rights. Everyone (...) seems to take it for granted that equality is important. This seems entirely wrong to me. It seems to me that equality is legally (and politically and socially and economically and morally) irrelevant. (shrink)

The aim of this paper is to analyze a selection of arguments used by the Argentine Supreme Court to reduce the sentence of individuals convicted of crimes against humanity. The focus will be primarily centered on “Muiña´s case”, in which a lenient outdated ruling was made. The questions that this work will try to answer revolve around the court´s merit in issuing this lenient ruling to Muiña´s case and its justification. First, Muiña´s case is analyzed in depth. Then, a critical (...) analysis about the ruling and a decision concerning the existence of a true justification will be developed. Finally, we will discuss the appropriateness of the Court’s decision in Muiña´s case as opposed to the decision made in “Batalla´s case”, in which a less beneficial law was applied retroactively. (shrink)

Should Justice be blind or should she instead be capable of seeing everything, even the human heart? José M. González García examines how the iconography of Justice evolved over the course of history. Providing an overview of depictions of Justice in various ages and places, the book mainly focuses on "The Blindfold Dispute" that began to develop during Renaissance. While at first the blindfold was perceived as unjust, precisely because it denied Justice the ability to see everything, it transformed just (...) a few years later into a positive symbol of the equality of all individuals before the law. And other depictions were added: supplementary eyes, transparent blindfolds, the double face of Janus, the returns of Astraea and the "Eye of the Law". The book also analyses important historic moments in which the crisis of the Law went along with a search for new forms of representing the gaze of Justice, as reflections on the art of Dürer, Klimt and Kafka show as well as recent developments in political philosophy"--Back cover. (shrink)

This chapter contains sections titled: Feudalism Magna Carta28 The Basic Idea: No One Is Above the Law The Modern West Takes Shape From Law to Commerce Equality Before the Law Conclusion Discussion Acknowledgments.

Beazley, Margaret Australia rightfully places itself amongst democratic countries governed by the rule of law. It is a tradition in which I hold a firm belief. An essential aspect of the rule of law is its non-arbitrary application, and its guarantee of equality before the law. When describing the rule of law, A. V. Dicey stated that the rule of law meant: the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and (...) excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. (shrink)

If someone assaults you, should they get a milder penalty if they are rich than if they are poor? We wouldn't dream of passing a law that formalized such an arrangement. But the design of our legal systems in the US, UK, and elsewhere, which permits people with sufficient money to pay for better lawyers, means that wealth often does make a difference to legal outcomes. Justice, then, depends not only on the substance of the laws we pass, but on (...) the design of the system that administers and enforces them. Philosophers and legal theorists, however, have paid relatively little attention to what justice demands of the general design and structure of the legal system. Equal Justice argues among other things that market principles should not determine access to legal resources. If, for example, a large corporation sues a small startup, either the corporation has to use a law firm of the quality that the startup can afford or--which would be preferable, given the corporation's in-house lawyers--the startup would be given a subsidy to afford a top firm. The author builds on this core idea of equal access to resources to work out how the court system and the legal profession should be structured in order to ensure a generally just legal system. (shrink)

What do we mean when we refer to people as being equal by nature? In the first book devoted to human equality as a fact rather than as a social goal or a legal claim, John Coons and Patrick Brennan argue that even if people possess unequal talents or are born into unequal circumstances, all may still be equal if it is true that human nature provides them the same access to moral self-perfection. Plausibly, in the authors' view, such (...) access stems from the power of individuals to achieve goodness simply by doing the best they can to discover and perform correct actions. If people enjoy the same degree of natural capacity to try, all of us are offered the same opportunities for moral self-fulfillment. To believe this is to believe in equality. This truly interdisciplinary work not only proposes the authors' own rationale but also provides an effective deconstruction of several other contemporary theories of equality, while it engages historical, philosophical, and Christian accounts as well. Furthermore, by divorcing the "best" from the "brightest," it shows how descriptive equality acquires practical significance. Among other accomplishments, By Nature Equal offers communitarians a core principle that has until now eluded them, rescues human dignity from the hierarchy of intellect, identifies racism in a new way, and shows how justice can be freshly grounded in the conviction that every rational person has the same capacity for moral excellence. (shrink)

Equality before the law is one of the fundamental guarantees citizens expect in a just and fair society. We argue that recent trend toward mass incarceration, which has had vastly disproportionate impact on African Americans, is undermining this claim to fairness and raises a serious legitimacy problem for the legal system as a whole. Using original data from the Race, Crime and Public Opinion study we show that African Americans view the 'War on Drugs" as racially biased in (...) its implementation. This perception of bias consequentially undermines legal system legitimacy by lowering blacks' expectations for police performance in their communities and encouraging receptivity to appeals for jury nullification based on race. (shrink)

In Modern Isonomy distinguished political theorist Gerald Stourzh develops the idea of "isonomy" or a system of equal rights for all, as an alternative to the concept of "democracy." The ideal for Stourzh is a state, and indeed a world, in which individual rights, including the right to participate in politics equally, are clearly defined, and possessed by all, as the core of a real democratic system. Stourzh begins with ancient Greek thought contrasting isonomy--which is associated with the rule of (...) the many--with oligarchies and monarchies, pursuing the implications of these different forms for the rights accorded to individuals. He moves on through history to discuss the American experiment with the development of representative democracy as well as the French revolution, after which the idea that rights should not be influenced by the status of the individual became the bedrock of a democratic system. But progress on the creation and protection of individual rights for all has been uneven. Democratic systems themselves often limit the scope of rights, particularly rights to participate in the political system. Stourzh brings this learned exploration forward to the discussions of human rights and democracy in the postwar period, with the end of the colonial empires and the fall of fascist dictatorships. He demonstrates how deeply intertwined equal rights for all, under law, as a concept and practice are with the development of democracy. He then explores the challenges to the idea of equal rights posed by economic inequality and the demands of the "security state" and concludes with a discussion of universal human rights which, under his idea of isonomy, will require bodies superior to nation-states to enforce. (shrink)

The rules as we know today in modern societies have their base in the Magna Carta from 1215. In that time people declared that the rights of the king and nobles must be limited and that was the first step toward as we know today “democracy”. The rights incorporated in the Magna Carta defined the limits what a state can do and also set boundaries in order to achieve equality between the state and the individual. The rights proclaimed with (...) Magna Carta found their path in the French Revolution from 1789 as “Liberty, Equality and Fraternity” became symbol of democratic freedom and afterwards gave value in the conventions and other international instruments. The main purpose that was achieved with Magna Carta from today’s perspective is that the rules have been implanted in the conscience of people, so they learn to obey and practice them. The Magna Carta rights are integral part of international conventions and on that way they have been taken from the states on national level so they become inevitable incorporated segment of the constitution and the laws of states. Those rights have achieved their purpose, because 800 years after their proclamation, some of them are still on force and have been provided in the constitutions of many countries including the Western Balkan countries. The rights that derived from Magna Carta concerning the rule of law, independence of the judiciary, equality before the law and prohibition of discrimination are integral part of the Constitution of Macedonia which makes efforts for their implementation into practice – because contrary, words will be just words on paper and nothing else. (shrink)

Many scholars have suggested that Aristotle’s famous aphorism ‘treat equals equally, unequals unequally’ is a formal, and thus impractical, theory of equality. This dissertation aims to criticise the popular view that Aristotle’s theory of equality is purely formal and to develop and defend an interpretation which will pay attention to the substantive elements. The first chapter argues that Aristotle provides us with a spectrum from formal to substantive equality. At the formal end, we have the abstract principles (...) of formal fairness and proportionality, while at the substantive end we can find information for the designation of the appropriate variable of comparison between people or treatments in various domains of social interaction. The second chapter argues for an account of commensurability based on Ph. VII.4. I claim that, in any comparison, the term ‘equal’ should be predicated synonymously of the people or treatment compared, while at the same time they should not admit to difference in species; such an account, I suggest, is also compatible with Aristotle’s theory of economic value in EN V.5. The third chapter presents the Aristotelian account of equality in distributions. I focus on Aristotle’s theory of political distribution in Pol. III, where he puts forward two distinct criteria: political capacity and contribution to the polis. I also examine Aristotle’s moderate suggestion for equalisation of property by the means of public property and taxation. The fourth chapter criticises the popular line that Aristotle holds an inconsistent theory of corrective justice, because in EN V.4 he suggests that people should be treated as equal before the law, while in the first lines of EN V.5 he allows for hierarchical considerations. I eliminate this apparent inconsistency by claiming that the former deals with the compensatory, while the latter with the punitive element of corrective justice. The fifth chapter explores the role of equality within the private domain, mainly in the household and in various types of friendship. I propose that Aristotle offers two types of superiority, one based on actuality and a second based on function, which are not mutually exclusive. To summarise, by examining Aristotle’s responses to various problems about equality and hierarchy I conclude that although he possesses the theoretical tools to argue for ‘inalienable’ metaphysical equality of human beings which will make equality an individual entitlement or right, based on his principle of individuation in Metaph. Z.8, he prefers not to utilise this thesis for political purposes. Instead, he reduces equality to justice (inequality is unjust, since it violates principle of formal fairness which is fundamental for justice) and a set of pragmatical considerations (e.g. concord and the optimal outcome for the polis). He prefers to argue that equality or hierarchy of people or treatments is related to, and defined by, the particular institution that we examine. (shrink)

Lord Rabinder Singh has been one of the leading lights in the recent development of the common law, most notably in the field of human rights and the law of privacy. Here, for the first time, he reflects on the defining themes of his career as advocate and judge. Combining his trademark originality of thought and impeccable scholarship, he selects previously published and unpublished writings to track the evolution of his approach to the common law. A substantial introduction gives context (...) to the book, while opening introductions to each piece reflect on their relevance to contemporary legal thought. The essays explore themes as diverse as judicial review, equality, and privacy and personal autonomy. Insightful, erudite, and thought-provoking, this collection is a must read for all those interested in the law and its role in society. (shrink)

The recent publication of a special number of the SAJP dedicated to a discussion of Samantha Vice’s thoughts on being a white South African prompted this reflection on justice, equity and the modern idea of the state – against the background of moral feelings of guilt and shame, cultural diversity and merging identities. Its aim is to provide a perspective on the unity of the public legal order of the state, the distinct meaning of citizenship and affirmative action in terms (...) of the distinction between constitutive and regulative legal principles also helping white South Africans to understand how affirmative action relates to injustices of the past. The classical understanding of equity will play a key role in this discussion, aimed at showing how we can avoid the apparent impasse of equality before the law and of “fair discrimination.”. (shrink)

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the (...) internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights. (shrink)

This volume is primarily concerned with equality as a basic component of the democratic character of representation. In other words, of the many types of equality that have attracted the attention of theorists since democracy's beginnings - arithmetic equality, equality before the law, equality of opportunity- we would like to draw attention to representational equality, that is, the role of equality in systems of democratic representation. In what form is equality present (...) in traditional forms of electoral representation? How can it be secured in new forms of representation, such as claims-making, deliberative, klerotarian and epistemic representation? And to what extent are electoral or non-electoral models of representation able to accommodate increasing social inequalities? The articles in this volume discuss these issues from a normative and conceptual point of view, seeking to shed new light on the important but under-explored relationship between equality and representation. This book was originally published as a special issue of Critical Review of International Social and Political Philosophy. (shrink)

Drawing on 38 in-depth, qualitative interviews, this article explores how people working in the equality sector in England and Wales view and use the current law around sex and gender, and how they imagine law’s future, particularly potential decertification, where the state would withdraw from certifying and regulating a person’s sex/gender. Whilst situated in the bureaucratic strand of the literature, the paper also contributes to wider legal consciousness studies. This literature has generally focused on people’s relationships to law in (...) terms of domination, alienation and game-playing. Drawing on idioms and the language of touch, the paper unpacks the way in which equality actors talked about law not as remote or alienating, but as close and familiar; not as oppressive, but as “precious” and hard-won. Some also regarded law as a place of safety in unsafe times. These proposed ‘attached to law’ and ‘protective of law’ strands of consciousness enrich and extend Ewick and Silbey’s classic ‘before the law’ narrative. The findings are also useful for critical legal and feminist scholarship. Combined with the equality sector’s pragmatic and tactical use of law to problem-solve, this close and protective orientation towards law reproduces its hegemony. The paper concludes by exploring a recurrent refrain that, in relation to decertification, “we’re not there yet” and that gender equality would need to be achieved before decertification would “fly”. (shrink)

This book examines the relationship between the idea of legitimacy of law in a democratic system and equality, conceived in a tripartite sense: political, legal, and social. Exploring the constituent elements of the legal philosophy underlying concepts of legitimacy, this book seeks to demonstrate how a conception of democratic legitimacy is necessary for understanding and reconciling equality and political legitimacy by tracing and examining the conceptions of equality in political, legal, and social dimensions. -/- In the sphere (...) of political equality this book argues that the best construction of equality in a democratic system - which resonates with the legitimizing function of majority rule - is that of equality of political opportunity. It is largely procedural, but those procedures represent important substantive values built into a majoritarian system. In the sphere of legal equality it argues that a plausible conception of non-discrimination can be constructed through a "reflective equilibrium" process, and should reject a thoughtless assumption that the presence of some particular criteria of differentiations necessarily taints a legal classification as discriminatory. Finally, the chapters on social equality explore, in some detail, the currently influential, and presumptively attractive, "luck egalitarianism": the idea that social equality calls for neutralizing the disparate effects of bad brute luck upon a person's position in society. (shrink)

On 24th March 2020, the first nationwide complete lockdown was announced by the Prime Minister of India for 21 days which was later extended to 31st May 2020. Consequently, thousands of migrant workers placed in big cities had no other option but to go back to their native villages. Their journeys back to villages- thousands of kilometres on bicycles or foot due to the non-availability of public transport amidst the travel ban- were driven by the compulsions of food and shelter. (...) In one of many heart-wrenching incidents, sixteen laborers were run over by a freight train while they were resting on the railway tracks. The images of the Roti on the railway track strewn across were beamed on the national news channels, as a telling commentary of the unimaginable hardships of these workers. Ironically, in the eyes of law, they were trespassers under the Indian Railways Act, 1989. The Indian Railway did not pay any compensation to the victims. Their act also violated the Indian Disaster Management Act, 2005 and Indian Penal Code, 1860- the law for the breach of lockdown guidelines and the law for disobedience of order by public servants respectively- for having decided to travel amidst a travel ban. The semiotics of law-making acts ‘criminal’ bereft of ‘moral culpability’ are seldom questioned on their supposed amoral foundations. Pandemic exhibited that social fissures not only condition the individual or community actions but also the actions of the State. Minorities especially Muslims were at the receiving end of State’s selective enforcement of lockdown laws in India. The various instances in the wake of the COVID-19 pandemic expose the hollow claims of equality before the law and the equal protection of laws as a constitutional promise to every citizen. This article aims to unravel the ostensible and the actual moral exhibition of such Indian laws through the lens of several incidents during the nationwide lockdown in India. This paper would argue that this constructed positivist amorality needs to be deconstructed to unearth the power imbalance that it seeks to hide. (shrink)

In many jurisdictions in the United States and elsewhere, the law governing deadly force by police and civilians contains a notable asymmetry. Often civilians but not police are bound by the imminence requirement—that is, a necessary condition for justifying deadly force is reasonable belief that oneself or another innocent person faces imminent threat of grave harm. In U.S. law enforcement, however, there has been some shift toward the imminence requirement, most evident in the use-of-force policy adopted by the Department of (...) Justice in 2022. This article defends that shift and argues that the ethical case for the imminence requirement in policing is stronger than Shannon Brandt Ford suggests in a recent article. Though the imminence requirement’s impacts on policing and public safety require ongoing study, the principle of equality before the law and the Doctrine of Doing and Allowing both provide moral grounds for this requirement, especially given the lack of evidence that the status quo helps protect life. (shrink)

Friedrich A. Hayek argues that “equality of the general rules of law and conduct” is the only kind of equality compatible with liberty and, moreover, that attempting to pursue equality along any other dimension is likely to destroy liberty. For Hayek, then, as a social philosopher and political economist who was principally concerned with understanding and promoting liberal order, the question “What kind of equality?” has a straightforward answer. Equality before the law, perhaps (...) class='Hi'>equality of opportunity in a procedural sense, is the equality that we should pursue, not material equality and certainly not equality of outcomes. One wonders, though, whether Hayek dismisses too quickly the more substantive forms of equality and, more importantly, whether we can achieve the liberal society that Hayek envisions without concerning ourselves with more than just the presence or absence of equality of the general rules of law and conduct. This essay will explore, criticize, and expand upon the way that Hayek makes use of equality in his conception of a free society. Specifically, we argue that Hayek may need a more substantive conception of equality than he is willing to deploy in order to arrive at the liberal society he hopes to bring about. (shrink)

In some sense every man has a moral right, or more properly a moral claim, to equality with other men. In what sense will, I hope, become apparent in the course of this paper. That there is such a claim in some sense is clear enough. “Equality before the law,” for example, is something which we all recognize to be right.

Organized around such themes as equality before the law, equality of opportunity, and equality of result, the selections included in this anthology range from Plato to the present, treating a topic of fundamental importance to political theory.

As today's battles rage between those who march under the banner of liberty and those who unfurl the flag of equality, even an engaged partisan might be forgiven for occasionally wondering whether the game is, after all, worth the candle. For one thing, neither party simply rejects the other's principle – properly understood. Egalitarians routinely emphasize that their concern for equality is, also, a concern for true liberty; thus Michael Walzer, writing “In Defense of Equality,” finds it (...) “worth stressing that equality as I have described it does not stand alone, but is closely related to the idea of liberty.” 1 Libertarians tend to be less enthusiastic in their embrace of equality, but almost all endorse some form of equality or other – for example, equality of political rights or equality before the law. It would seem, then, that the differences between egalitarians and libertarians are really over the meaning and scope of equality and liberty, and that putting the issue as one of equality vs. liberty may be misleading. More important, one can wonder whether either the egalitarian or the libertarian combination of the principles of liberty and equality is worthy of support. What society has exalted personal liberty, has taken rights more seriously, than ours? Yet who can easily dismiss Solzhenitsyn's charge that our worship of freedom has resulted in “destructive and irresponsible freedom” being granted “boundless scope,” leaving us defenseless against “the corrosion of evil”? 2 The cause of liberty against tyranny surely continues to command our support; but what conclusion ought we to draw from the facts that liberty in absentia seems so markedly more attractive than liberty in practice, and that the qualities manifested in the struggle for liberty seem so superior to those that come to the fore once liberty is secured? (shrink)

This paper considers possible future legislation that requires the exclusive use of autonomous cars. The author develops and defends a ‘Liberal Argument Against Mandated Autonomous Cars’, which argues that such a law would be incompatible with classical liberalism, provided that the following condition holds: In the event where the car must ‘choose’ between running over a young person or an old person, or both, autonomous cars are programmed to respond by running over old people in order to save young people. (...) Such a law requiring the use of these cars, provided that these assumptions hold, would violate the important value in classical liberalism that all individuals ought to be treated equally before the law. The paper concludes by arguing that alternative ways of dealing with this problem come with their own set of unpalatable problems. (shrink)

At the end of the verses 44th, 45th, and 47th of the Surat al-Māʾida, it is seen that those who do not judge by what Allah has revealed are described as unbelievers, oppressors, and fāsiqs with the general expression. Especially in verse 44th of the surah, the fact that those who do not judge by Allah's revelations are characterized as misbelievers has been a subject of debate since the early period. Many different opinions have been expressed by the mufassirs about (...) who are included in this scope, who are the addressees of the verse, whether the” kufr” here is blasphemy in the form of denying Allah and leaving the religion, or is it a different type of “kufr”. As it is understood from the information in the sources regarding the asbāb al-nuzūl of these verses were revealed as the Jews destroyed the provisions set by Allah in the Torah, changed them with various ways, and discriminated between people in various ways and applied them. With the relevant verses in Sūrah al-Māʾida, all these injustices, lawlessness, and unfairness were made away and the Jews who committed them were strongly criticized. In this regard, it is seen that some commentators have devoted themselves to the reason for the verdict of the relevant verses and interpreted the characterizations in the verse as infidels, cruel, and fāsiqs as covering only the Jews who committed these acts. However, even if the information about the contents of the relevant verses shows that these verses are about the Jews, this does not mean that the scope of the verse should be limited to them. Because both the universality of the messages of the Qur'an in general and the fact that the address in the verses came in a public way do not allow these provisions to be allocated only to a certain group. In addition, according to the rules of istinbat, the fact that the reason for making a religious provision is specific does not prevent the generalization of it. When considered within the framework of the principles we have explained, it becomes clear that narrowing down the provisions of the verses by allocating them only to a certain group is not a correct approach. In this article, it is aimed to draw attention to the richness of meaning that emerges when the relevant verses are evaluated in terms of the types of indications in the fiqh method. When the verses within our subject are evaluated in terms of the types of indications, it is seen that these verses indicate that the implementation of a provision in force cannot be avoided. In the relevant verses, it's concluded that important principles and rules of law such as the realization of justice, the rule of law, equality before the law, no one's being privileged in the sight of the law, the powers of the head of state are limited, that there is no place for ijtihad where Allah's clear judgment exists. (shrink)

Animal studies and biopolitics are two of the most dynamic areas of interdisciplinary scholarship, but until now, they have had little to say to each other. Bringing these two emergent areas of thought into direct conversation in _Before the Law_, Cary Wolfe fosters a new discussion about the status of nonhuman animals and the shared plight of humans and animals under biopolitics. Wolfe argues that the human­­­-animal distinction must be supplemented with the central distinction of biopolitics: the difference between those (...) animals that are members of a community and those that are deemed killable but not murderable. From this understanding, we can begin to make sense of the fact that this distinction prevails within both the human and animal domains and address such difficult issues as why we afford some animals unprecedented levels of care and recognition while subjecting others to unparalleled forms of brutality and exploitation. Engaging with many major figures in biopolitical thought—from Heidegger, Arendt, and Foucault to Agamben, Esposito, and Derrida—Wolfe explores how biopolitics can help us understand both the ethical and political dimensions of the current questions surrounding the rights of animals. (shrink)

Bringing these two emergent areas of thought into direct conversation in Before the Law, Cary Wolfe fosters a new discussion about the status of nonhuman animals and the shared plight of humans and animals under biopolitics.

'The many virtues of Constitutional Justice are evident throughout the piece. The author should be congratulated for even attempting to construct a normative theory of liberal constitutionalism... Constitutional Justice is a work that faithfully carries on the grand tradition of normative legal thought. No small task, and Allan succeeds admirably.' -Law and Politics Book ReviewThis book offers a systematic interpretation of the ideal of the rule of law, arguing that the principles it identifies provide the foundations of a liberal democratic (...) legal order. It explains the essential connections between a range of matters fundamental to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equality before the law. The principles of public law are interpreted in the light of liberal legal and political philosophy.Readership: Scholars and students of law, philosophy, and politics. (shrink)

This paper considers possible future legislation that requires the exclusive use of autonomous cars. The author develops and defends a ‘Liberal Argument Against Mandated Autonomous Cars’, which argues that such a law would be incompatible with classical liberalism, provided that the following condition holds: In the event where the car must ‘choose’ between running over a young person or an old person, or both, autonomous cars are programmed to respond by running over old people in order to save young people. (...) Such a law requiring the use of these cars, provided that these assumptions hold, would violate the important value in classical liberalism that all individuals ought to be treated equally before the law. The paper concludes by arguing that alternative ways of dealing with this problem come with their own set of unpalatable problems. (shrink)

This paper proposes a new way of measuring progress in international politics, an approach that focuses on the symbolic and ideological work of international organizations. Although such a strategy is not entirely new to the study of International Relations, it has not been a common, accessible way of assessing how well international organizations work to effect change. The more famous methods have been legalistic—investigations of how international organizations have created new international law in the issue-areas under investigation1—and bureaucratic—studies of how (...) international organizations create machinery to deal with the problems2. But in a world where domestic and international discourse is more mediated than ever before by television, radio, the Internet, newspapers, and other means of mass communication, the argument here is that propaganda is a third arena that must be taken into account when exploring the work of international organizations. The international organization in question here is the United Nations, and the issue-area examined is gender equality, a topic that is also variously described as “women's rights,” “women's issues”, or the “women's movement”. The paper explains first why the topic of the UN and women's rights is important, I then examine the propaganda role of the UN in the struggle for gender equality, and the paper concludes with a critical analysis of the UN's propaganda work in relation to this issue. (shrink)

Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in sometime later on. “It is possible,” says the gatekeeper, “but not now.”—Franz Kafka..

America’s legal system harbors serious, widespread injustices. Many defendants are sent to prison for nonviolent offenses, including many victimless crimes. Convicts often serve draconian sentences in crowded prisons rife with abuse. Almost all defendants are convicted without trial because prosecutors threaten defendants with drastically higher sentences if they request a trial. Most Americans are terrified of encountering any kind of legal trouble, knowing that both civil and criminal courts are extremely slow, unreliable, and expensive to use. This book explores the (...) largest injustices in the legal system and what can be done about them. Besides proposing institutional reforms, the author argues that prosecutors, judges, lawyers, and jury members ought to place justice before the law – for example, by refusing to enforce unjust laws or impose unjust sentences. Issues addressed include: · The philosophical basis for judgments about rights and justice · The problems of overcriminalization and mass incarceration · Abuse of power by police and prosecutors · The injustice of plea bargaining · The appropriateness of jury nullification · The authority of the law, or the lack thereof Justice Before the Law is essential reading for everyone interested in legal ethics, the rule of law, and criminal justice. It is also ideal for students of legal philosophy. (shrink)

We live in a world of one-size-fits-all law. People are different, but the laws that govern them are uniform. "Personalized Law" - rules that vary person by person - will change that. Here is a vision of a brave new world, where each person is bound by their own personally-tailored law. "Reasonable person" standards would be replaced by a multitude of personalized commands, each individual with their own "reasonable you" rule. Skilled doctors would be held to higher standards of care, (...) the most vulnerable consumers and employees would receive stronger protections, age restrictions for driving or for the consumption of alcohol would vary according the recklessness risk that each person poses, and borrowers would be entitled to personalized loan disclosures tailored to their unique needs and delivered in a format fitting their mental capacity. The data and algorithms to administer personalize law are at our doorstep, and embryos of this regime are sprouting. Should we welcome this transformation of the law? Does personalized law harbor a utopic promise, or would it produce alienation, demoralization, and discrimination? This book is the first to explore personalized law, offering a vision of law and robotics that delegates to machines those tasks humans are least able to perform well. It inquires how personalized law can be designed to deliver precision and justice and what pitfalls the regime would have to prudently avoid. (shrink)

This paper examines the ‘deep-end’ of the international justice process—the incarceration of persons convicted in specially constituted international criminal tribunals and courts for gross violations of human rights, genocide, crimes against humanity and war crimes with a focus on language rights of such prisoners who are commonly serving sentences in foreign prisons. The punishment phase of the international justice process and its effects are not easily quantifiable and have been largely hidden from view. Although international criminal law asserts that equal (...) treatment before the law requires that there be no significant disparity in punishment regimes from one sentence-enforcing country to another, comparative penology shows that there are considerable differences in the conditions of confinement and the nature of correctional services in the prison systems of different countries. This has a direct impact on post-sentence procedural and rehabilitation rights of which language rights from a key part. In this specific context, and drawing from existing literature, the paper therefore examines the extent to which enforcement practice conforms to the ideal of equal treatment espoused by the tribunals. (shrink)

Smith's last illness is described, along with his final order to have his unfinished manuscripts burned shortly before he died on 17 July 1790. His character is summed up as two‐sided: benevolent yet prudent, also firm and decisive, from one point of view; but from another darker one, that of a melancholy or, at times, volatile personality, subject to psychosomatic illness arising from his intense concentration on chains of abstract ideas. Nevertheless, he remained a tireless inquirer into human nature, (...) particularly its emotional range, and into its expressive forms and institutions. His free‐market system showed, he believed, how people in a relatively early phase of commerce and manufacturing might prosper within a framework of justice and equality before the law. He thought that self‐interest was centrally involved in economic transactions, but also held that the happiness of others is necessary to us, and he devoted his last years to moral philosophy, believing that he might help us aspire for virtue rather than wealth, and so become members of a truly civil society. (shrink)

The paper examines the issue of justice in the Russian philosophical tradition of the late 19th - early 20th centuries in the context of a philosophical and legal rationale of this category, offered by the famous Russian philosophers Boris Chicherin and Vladimir Soloviyov. An analysis of Boris Chicherin's works "Philosophy of Law", "Course of State Science" and "Philosophical Issues" afforded ground for concluding that the thinker deduced justice from the idea of freedom and defined it as a balance of compulsory (...) (state) and voluntary (moral) laws. Keeping such a balance is possible only within human unions which supreme rule is adherence to truth i.e. everyone shall get what belongs to him. Requirements of justice also include respect for someone else's rights and minority rights whereas achievement of general welfare is considered by the philosopher as its supreme goal. Views of Vladimir Soloviyov were explored through analyzing his works "Justification of Good" and "Right and Morals". Justice is among the central concepts of his philosophical conception "Ethics of Universal Unity" and is defined as common equality before the law, the supreme ideal, the good i.e. the only righteous and true life journey. The good as it is reveals to a man his meaning of life through the categories of truth and love. Justice as law of truth destines to each his own whereas justice as law of love shows a man the necessity of sacrifice for his neighbor. Discussion between these philosophers subsequently governed the extent of creative perception of philosophical and legal issues related to the balance of law and morals, individual freedom and equality. (shrink)

This essay offers hope that beyond the specter and tragedy of the Yugoslav civil war lie the prospects for peace, democratization, economic and political reconstruction, and the evolution of a democratic Third Yugoslavia. But, to realize this hope, there is a need for the development of a genuine civic culture and civil society in the Yugoslav successor states based on democratic values, pluralism, and tolerance, rooted in the conception of universal human rights, constitutionalism, and equality before the law. (...) The South Slavs may have to retrieve their historical memory which predates the fateful divisions along ethnic, cultural, and religious lines. The Swiss model of autonomous cantons, four major languages, neutrality, but a pronounced common national identity is also instructive for democratic prospects of a possible future South Slav (con-) federation and peace in the Balkans, A proposed Illyrian Constitution would bind the South Slavs together, reconnecting individual human rights to community. Above all, moral and spiritual renewal are the necessary precondition for peace and reconciliation, as well as economic and political reconstruction and the genesis of a democratic Third Yugoslavia. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:What Happened to Civility: The Promise and Failure of Montaigne's Modern Project by Ann HartleVicente Raga RosalenyHARTLE, Ann. What Happened to Civility: The Promise and Failure of Montaigne's Modern Project. Notre Dame, Ind.: Notre Dame University Press, 2022. ix + 178 pp. Cloth, $100.00; paper, $30.00Why are we witnessing increasing social polarization in Western societies? What has happened to make our liberal democracies so ideologically charged? Professor Ann (...) Hartle's book tries to answer these and other questions in line with the concept of civility that, according to her thesis, Michel de Montaigne created in early modernity and that is about to disappear in our day. Not in vain is Montaigne the protagonist of this book, given that Professor Hartle is a world-renowned specialist on the author of the Essays, although in this case she is interested in the transformations that gave rise to modernity in order to understand our present day. She reads Montaigne for a better interpretation of some central problems of our time, such as the difficulty to speak freely that is experienced on university campuses and, in general, the increasing politicization of our civil societies.Thus, in the first place, Professor Hartle's work interrogates the origins of civility, the social bond created in modernity. To this end, she exposes what happened in the time of Montaigne, when societies, based on the classical and Christian tradition, were plunged into a general crisis. This is what the French essayist detected, and it led him to propose a new type of bond. For this, it is necessary to free oneself from tradition, which had legitimized the division between masters and slaves, the source of all conflicts.Montaigne's movement is philosophical in character: It consists of a split carried out in his Essays between the natural human being and the philosophical observer, which leads to a break with traditional moral standards, identified with Nature. The new human being, thus unfolded, can choose his own hierarchy of values and address the good he chooses with his own will (although this will be a will purified of particularisms, without excessive self-esteem). Such self-awareness, achieved by Montaigne as an accidental philosopher, is concretized in the predominance of the concept of judgment, in the ability to freely choose our possibilities (and not ends dictated by Nature).The new world thus created, Hartle explains, gave rise to the liberal order. It is true that Montaigne was not a theorist, but in his work it is possible to find the rupture of the traditional hierarchy between masters [End Page 351] and slaves, now considered as equals before the law, which is above all, and which is the fruit of reason. In this civil society, human beings no longer dominate each other, and each peacefully pursues his purposes. It is the state, as the embodiment of the law, that regulates everything, except the space of freedom gained with the emergence of the modern public sphere.In this context, the concept of authenticity makes sense, which, according to Professor Hartle, is the best reflection of the breakdown of the traditional order and the disappearance of its moral community. Now each individual pursues his purposes and is no longer to fulfill the ends of a universal human nature. That is why the bond of civility, in which the absolute autonomy of the subject is recognized, as well as his equality before the law, replaces the moral ties of the traditional community and its hierarchies. It is the French thinker who best exemplifies this transit, by showing himself openly in his Essays as a common subject who pursues his purposes and who relates to others as equals, no longer as someone superior, capable of disputing merit, and dominating others.However, this new society and its civil bonds are in crisis; civility fades, or that is Professor Hartle's pessimistic conclusion. Today we are witnessing an ideologization of previously depoliticized areas, such as the university, with the demand for the use of politically correct language and the fear of expressing oneself freely, especially when one's own opinions do not align with the current political trends. The failure... (shrink)

Recent political turmoil has focused international attention on Egypt, yet there is little awareness of the country’s stateless populations—those who lack legal nationality to any state—or the challenges they face. Individuals in situations of protracted statelessness are denied their right to a nationality, resulting in an array of additional rights violations. Such violations include denied freedom of movement, equality before the law, and access to economic and social rights. Drawing from two years’ of fieldwork data, this study highlights (...) the plight of those who are unable to achieve legal status in a country with harsh punishments for illegal presence, entry, and exit. It also evaluates potential solutions for eliminating statelessness in Egypt and protecting the rights of stateless populations. As Egypt seeks to move beyond revolution, it is vital that the government addresses the pervasive and systemic inequalities that deny individuals their right to a nationality. (shrink)

This paper deals with the nature and direction of constitutional thinking and practice in Pakistan. It is argued that the country reflects a general malaise of postcolonial societies, characterized by tension between the locus of power in the politico-administrative machinery and the source of legitimacy in the constitution. Under the classical formulation, the constitution represents the way a nation wants to live its collective life in terms of various laws and institutions, as well as the powers and duties of public (...) office-holders. In other words, the institutional-constitutional edifice of the state functions as the vehicle of a nation's life’. One finds comparable theories in the tradition of structural Marxism, for example in Poulantzas, which consider the state as a condensate of the power structure of the society. It is argued that there is a conceptual tension in the formulation of such theories. In the context of postcolonial societies, transplantation of institutions and constitutions from a different era and a different continent played a formative, almost deterministic, role in the way the state's authority was conceived and opera-tionalized. For more than a hundred years, British India remained a laboratory for the implementation of political, economic, legal and administrative values and norms. On the one hand, this shaped the way people came to look at their relations with the state in terms of new implements of power such as non-arbitrary sources of authority, codified law, rational-legal bureaucracy and rule of public representatives. On the other hand, it created the mass public itself which, in due time, rose to stake a claim for societal input into the business of the state. In other words, our discussion needs to go beyond the ahistorical approach to constitutionalism in Pakistan and elsewhere, as embedded in such concepts as the reflection of either the nation's will or the social power structure in a microcosm. The relative autonomy of the state apparatuses of the military, the bureaucracy and the judiciary, as well as constitutional provisions ranging from writ jurisdiction, equality before the law and equality. (shrink)

Carl Schmitt sees the 1933 Nazi seizure of power as a revolution that inaugurates an entirely new era of political-legal order. Analyzing Schmitt’s rarer Nazi-texts, diaries, and correspondence, I argue that from 1933 to 1936 Schmitt attempts to theorize the Nazi revolution by developing an entirely new political language of Nazism, cleansed from non-German ways of thinking, especially nineteenth-century liberalism. I focus on three conceptual transformations through which Schmitt understands the remaking of the German state: The shift from the liberal (...) democratic neutral state to a new one-party state or a Führer-state dominated by a movement – a shift symbolized by the “death of Hegel”; the transformation of sovereign power into Führertum, represented by the symbolical deaths of Jean Bodin and Thomas Hobbes, whose thought cannot comprehend the totality of the Nazi movement, and the perversion of the liberal-democratic equality before the law to the völkisch equality of the race as the basis of all Nazi political–legal life. Criticizing previous interpretations of Schmitt’s Nazi thinking, I demonstrate that when Schmitt abandons his own decicionist thought in favor of concrete order thinking in 1933/1934 the idea of race becomes the basis of his political–legal thought. (shrink)

At the beginning of Derrida's ‘Before the Law’, a reading of Kafka's story with that title, is an epigraph from Montaigne's Essays: ‘… science does likewise (and even our law, it is said, has legitimate fictions on which it bases the truth of its justice)…’. Derrida again refers to this quotation in ‘Force of Law’, asking what a ‘legitimate fiction’ might be and what it would mean to establish the basis for the truth of justice. With reference to these (...) writings on the status of narrative and the law, as well as to other texts by Derrida, this paper examines the story of the judge-penitent in Camus' The Fall and, in particular, this ironic reading of the aporetic experience of standing ‘before the law’. What does the narrative, The Fall, entail? Camus writes that the man who speaks in this text is involved in a ‘calculated confession’. How are the borders between truth and fiction, justice and the law, negotiated in this reckoning ‘before the law’? (shrink)