International Law in Context is a pedagogy-forward textbook. It reflects the recent paradigm shift in legal education, which focuses more on what students actually learn rather than the material to which they are exposed. The text aims to prepare the next generation of U.S. lawyers to engage with our interconnected world and to critically evaluate the U.S.'s role within the international legal order. The work is divided into three parts that accomplish these goals. Part One lays a foundation. (...) It covers the various actors within the system, the theories that help explain their behavior, and the principles and sources of law they create. Part Two turns to the fora that define and support the international order, the historical and political contexts that impacted their design, and their efficacy. Part Three is a capstone section that asks students to weave together everything they have learned in Parts One and Two. Students will engage in normative development regarding climate change, including the existing international treaty regime and U.S. implementation options, and the law of war in the modern age. The cornerstone of this book is its organization. The text groups material into conceptual frameworks that promote understanding and retention. For example, rather than consider the various dispute resolution fora in isolation, Part Two asks students to consider them in the context of what types of disputes arise and what legal rules can be employed to resolve them in various international and domestic fora. The institutions also are presented in chronology. In this way, students are encouraged to chart the developmental progression and to make connections and comparisons between various institutions. The use of conceptual frameworks continues within each part. For example, Chapter Six covers the sovereign State as a conflict resolution forum. Under this umbrella, the author discusses (a) State Jurisdiction; (b) The Reception of International Law into the Domestic Sphere; (c) The Qualification as a State Forum or State Litigant (i.e., Recognition of States & Governments); and (d) Protections Afforded Within the Forum: Sovereign, Diplomatic, and Consular Immunity. A typical coursebook might locate this material in four different chapters. The conceptual framework approach, however, allows students to see the big picture and the relationship between concepts. In addition to the frameworks, there are several other innovative pedagogical devices that support student learning. There are Foundation Questions that initially direct readers through the material and cumulatively help students confirm whether they have grasped key takeaways from each section. There also are Assessment Sets in each section, which provide students with immediate opportunities to apply material and gauge their understanding, and "Why Is This Important (a/k/a WITI Moment)" prompts designed to delve deeper into the underpinnings and consequences of various rules. Finally, there are directed reading notes before some more complex readings and margin annotations to keep readers oriented. (shrink)

Today's world is post-colonial and post-Cold War. These twin characteristics explain why international society is also riddled with the two major forms of injustice which Nancy Fraser identified as afflicting national societies. First, the economic and social disparities between states caused outcry in the 1950s when the first steps were taken towards decolonisation. These inequalities, to which a number of emerging states now contribute, are still glaring and still pose the problem of the gap between formal equality and true (...) equality. Second, international society is increasingly confronted with culture- and identity-related claims, stretching the dividing line between equality and difference. The less-favoured states, those that feel stigmatised, but also native peoples, ethnic groups, minorities and women now aspire to both legal recognition of their equal dignity and the protection of their identities and cultures. Some even seek reparation for injustices arising from the past violation of their identities and the confiscation of their property or land. In answer to these two forms of claim, the subjects of international society have come up with two types of remedy encapsulated in legal rules: the law of development and the law of recognition. These two sets of rights are neither wholly autonomous and individualised branches of law nor formalised sets of rules. They are imperfect and have their dark side. Yet they can be seen as the first milestones towards what might become a fairer international society; one that is both equitable (as an answer to socio-economic injustice) and decent (as an answer to cultural injustice). This book explores this evolution in international society, setting it in historical perspective and examining its presuppositions and implications. (shrink)

지금까지 헤겔의 『법철학』은 주권 국가 내의 문제들에 한정해서만 주로 다루어져 왔고, ‘국제법’과 ‘국제관계’에 관련해서는 대부분 부정적 관점에서 논의되었다. 그러나 ‘국제법’과 ‘국제관계’에 관한 헤겔의 논의는 긍정적인 관점에서 새롭게 이해될 필요가 있다. 이러한 관점에서 주목해야 할 핵심 내용은 다음과 같다. 첫째, 헤겔은 『법철학』에서 실정적 조약들과 국제법을 분명하게 구분한다. 둘째, 국제법은 국가 간 인정관계를 전제로 하며 이 인정관계는 ‘보편적 당위의 형식적 측면’과 ‘인륜의 내용적 측면’을 필요로 한다. 셋째, 헤겔은 국제관계를 개별 주권 국가들의 대립적이며 적대적인 관계로만 보지 않고, 인륜의 관점에서 그들의 상호 인정과 연대도 (...) 중요하게 고려한다. 이러한 인륜의 측면은 한 국가 내에 제한되지 않는 인류 전체의 다양한 문화, 교육, 도야 등의 차원에서 인륜의 토대를 적극적으로 형성하고 확대해 나가는 과정을 동반한다. 여기서 중요한 점은, 이 과정이 칸트식의 ‘세계시민주의’처럼 위로부터 요청되는 것이 아니라, 역사적 과정에서 아래로부터 진행되어야 한다는 것이다. (shrink)

State derecognition, defined as the withdrawal of recognition from a putative state, has been more impactful as a diplomatic subculture in the last decades than is often assumed. Recent practice suggests that when states engage in derecognition, they do not mechanically assess whether a state no longer fulfils the traditional criteria for statehood, but rather employ derecognition as a tool of foreign policy, tailored to enhance their own economic and geopolitical interests. The bargaining dynamics of derecognition and “rental (...) class='Hi'>recognition” policies adopted by a range of smaller states create a precarious hostage-like situation for the targeted entities who helplessly watch their international status being traded in a recognition market. As the success of some claims to statehood risks beings reduced to a matter of pricing, a process of commodification emerges: state recognition is granted to the “highest bidder” regardless of factual reality or legal considerations. With this backdrop, the present paper seeks to clarify how international law conceptualizes derecognition and its hypotheses of legality, offering an overview of contemporary events of derecognition and expedient shifts in recognition to clarify the role and deficiencies of international law as it stands before the emerging phenomenon of “statehood commodification”. (shrink)

This article argues for the necessity of recognising the collective rights-holding status of ‘sexual and gender minorities’ (SGMs) by examining the limits of the discourse concerning sexual orientation and gender identity in international law. I consider both symbolic interactionism and queer theory, which are critical of the assumption that everyone subscribes to a gender and a sexual identity. The theorisation proposed here accounts for not only people who possess a relatively stable identity, but also people whose situations are not (...) conclusively characterised but still require recognition justice. Not equating SGMs to LGBTI populations, I contend that the use of the term ‘SGMs’ should capture the sociocultural dynamics of the way in which one is made a ‘minority’. In light of the variations regarding sexual and gender norms in diverse contexts, SGMs are conceptually useful to accommodate differential experiences of nonconformity with the normative. (shrink)

Prior to the end of the Cold War, the word 'democracy' was rarely used by international lawyers. Few international organisations supported democratic governance, and the criteria for recognition of governments took little account of whether regimes enjoyed a popular mandate. But the events of 1989–1991 profoundly shook old assumptions. Democratic Governance and International Law attempts to assess international law's new-found interest in fostering transitions to democracy. Is an entitlement to democratic government now emerging in (...) class='Hi'>international law? If so, what are its normative foundations? How have global and regional organisations encouraged transitions to democracy, and are their efforts consistent with their constitutional frameworks? How should international law react to elections in which profoundly anti-democratic parties win the vote? In this volume, leading legal scholars grapple with these and other questions to assess the future of international law on this most domestic of questions. (shrink)

This is a very special volume of the Yearbook of Private International Law as it represents the celebration of the tenth anniversary of its first publication. It continues to provide interesting information on the future evolution in private international law. Contents includes: The New Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments of 30 October 2007. Commercial Agents under European Jurisdiction Rules. Grunkin-Paul and Beyond - A Seminal Case in the Field of International (...) Family Law. The New Rome I / Rome II / Brussels I-Synergy. Rome I and Contracts on Intellectual Property. Rome I and Distribution Contracts. Rome I and Franchise Contracts. Rome I and Financial Market Contracts. Special Section on Maintenance Obligations. (shrink)

When is a de facto authority not entitled to be considered a `government' for the purposes of International Law? International reaction to the 1991-4 Haitian crisis is only the most prominent in a series of events that suggest a norm of governmental illegitimacy is emerging to challenge more traditional notions of state sovereignty. This challenge has dramatic implications for two fundamental legal strictures: that against the use or threat of force against a state's political independence, and that against (...) interference in matters `essentially' within a state's domestic jurisdiction. Yet although human rights advocates have begun to speak of state sovereignty as an `anachronism', with some expansively proclaiming the emergence of an international `right to democratic governance,' international law literature lacks systematic treatment of governmental illegitimacy. This work seeks to specify the international law of collective non-recognition of governments, so as to enable legal evaluation of cases in which competing factions assert governmental authority. It subjects the recognition controversies of the United Nations era to a systematic examination, informed by theoretical and comparative perspectives on governmental legitimacy. The inquiry establishes that the category of `illegitimate government' now occupies a place in international law, with significant consequences for the legality of intervention in certain instances. The principle of popular sovereignty, hitherto vague and ambiguous, has acquired sufficient determinacy to serve, in some circumstances, as a basis for denial of legal recognition to putative governments. This development does not imply, however, the emergence in international law of a meaningful norm of `democratic governance,' nor would such a norm serve the purposes of the scheme of sovereign equality of states embodied in the United Nations Charter. (shrink)

Fitzpatrick’s writing on international law did not constitute the main focus of his oeuvre. However, the determinate-responsive nature of law that characterised so much of his work did extend to an analysis of the generative force of international law. This article picks up on commentary from Modernism and the Grounds of Law (2001) and ‘Latin Roots’ (2010), among other contributions, to test this generative force of international law, which Fitzpatrick identifies as a necessary affirmation of the movement (...) between the ‘determinate but not ultimately determinate’ sovereignty of a singular nation state and the ‘illimitably responsive but not ultimately responsive’ force of the community (Fitzpatrick 2010, p. 46). We test Fitzpatrick’s view of international law through two examples of un-recognised states and the mechanism of non/recognition utilised by the international legal community to determine what constitutes a singular nation-state for participation in the community of international law. Our two case studies, North Cyprus and Crimea, illuminate the continuing relevance of Fitzpatrick’s schema. Through non/recognition, ‘states’ that are included-as-excluded participate in the ongoing affirmation of an international legal ‘community’, a community that continues to be constituted through the affirmation of imperial power. (shrink)

This article examines the following questions: Is there a human right to food and water in the international sphere? Is it possible to derive such human rights as “general principles of law” within the meaning of public international law, which are independent from contractual agreement or recognition by States? What exactly would such a right to food and water comprise? Is there a constitutional rank relationship evolving between human rights and public international law which might affect (...) the interpretation of, e. g., WTO law? How can conflicting considerations be balanced? (shrink)

Despite a recent wave in global recognition of the rights of transgender and gender-diverse populations, referred to in this text by the umbrella label of trans*, international law continues to presume a cisgender binary definition of gender — dismissing the lived realities of trans* individuals throughout the world. This gap in international legal recognition and protection has fundamental implications for health, where trans* persons have been and continue to be subjected to widespread discrimination in health care, (...) longstanding neglect of health needs, and significant violations of bodily autonomy. (shrink)

With the emergence of powerful non-state actors onto the international plane, it has been necessary for international law to adapt and recognise legal actors other than the sovereign state. This article contends that it is essential that international legal recognition now be extended to multinational corporations and nongovernmental organisations. This ensures that such actors cannot escape accountability for violations of international law but also that they granted legitimate rights as participants in the international system. (...) Such a development does not require that the primacy of the state under international law be diminished. On the contrary, the theory and practice of international law requires that the state retain its position atop the international hierarchy. (shrink)

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is (...) law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms. (shrink)

In this article the author argues that men and boys have been historically and structurally rendered an invisible group of victims in international human rights and policy responses towards conflict-related sexual violence stemming from the United Nations. The apparent female-focused approach of instruments on sexual violence is criticized followed by a discussion – through analysis and interviews with legal scholars and champions for the recognition of male survivors’ experiences – of the first ‘emergence’ of male victims in these (...) instruments and key actors involved in this process. The existing serious dichotomy between visible and invisible victims is prominently based on their ‘gender identity’ and leads to structural discrimination of male victims of rape or other forms of sexual violence. To overcome this situation and develop more inclusive instruments, a reconceptualization is needed of the meaning and use of words like ‘gender’ and ‘gender-based violence’. Additionally, a more intersectional approach to sexual violence should be adopted, understanding that victims have a multitude of identities such as ethnicity or religious affiliation that make them particularly vulnerable to suffering. (shrink)

Consistent with Article 38 of the Statute of International Court of Justice, the primary sources of international human rights law can be identified as treaty, custom, and general principles of law derived from national legal systems. Treaty provisions in human rights law are often textually fairly open‐ended and hence will need to be read in the light of institutionalized practices of interpretation, such as the jurisprudence by regional human rights courts and international human rights treaty bodies. Despite (...) the universal acceptance of human rights treaties and the recognition of human rights as norms of customary international law, human rights violations do occur in all parts of the world and are often systematic. Major shortcomings of the international monitoring mechanisms for human rights treaties are their underresourcing, lack of visibility, and ineffectiveness. Even if human rights treaties have become universally accepted, compliance control remains underdeveloped. (shrink)

The law market model posits that the most appropriate resolution of choice-of-law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to optimal competition among jurisdictions to supply the most efficient law. (...) This model has influenced the rise of party autonomy, most notably in the widespread enforcement of many contractual choice-of-law and forum-selection clauses. One area that the model has had little influence on is the enforcement of foreign judgments. In the United States, judgments from other countries face higher hurdles in obtaining recognition and enforcement, as compared to judgments issued by courts of sister states. There has been little discussion in the law market literature of the possibility of ex ante contractually waiving these hurdles, or of choosing the law of states that make it easier to enforce foreign judgments. This reticence appears to be based in part on the assumption that state law on such recognition is mandatory and non-waivable, and that such law reflects the sovereign interests of states. Revisiting this regime through the lens of the law market model suggests that courts and public policymakers should permit parties, within broad limits, to contractually waive or select the law on judgment recognition, as they are permitted to do with other areas of law. (shrink)

From the point of the EU law, the CJEU has the exclusive competence to interpret the EU legal norms and decide upon validity of the legal acts adopted by the EU institutions because it is the most effective method to ensure the unilateral interpretation of the EU law and to prevent its fragmentation. Thus, it can be presumed that all disputes between the Member States regarding the EU law must be solved by the CJEU. The paper aims at finding the (...) answer to the question whether international courts under the international law must refuse their jurisdiction in cases where disputes of the Member States relate with the EU law. With the view of this aim, arguments arising from the international law (for instance, prohibition of intervening into affairs of another legal system, prohibition of abuse of laws), on the basis of which an international court should decline its jurisdiction, and applicability of such arguments to the situation discussed is assessed and an independent approach is formulated. (shrink)

Many scholars and activists have argued that the International Criminal Court holds potential for advancing the rights of women and girls, leading to extensive feminist engagement with and investment in the Court. As the ICC enters its second decade of existence, this article offers a reflection on both the possibilities and the challenges facing feminists. Can the international criminal law really offer a site for enhancing the rights of women? And if so, how? To explore these questions I (...) focus on the interaction between feminist activism and international criminal law institutions in relation to crimes of sexual and gender-based violence. I argue that some of the feminist strategies deployed to get sexual violence onto the international agenda have resulted in perverse outcomes. This should lead us to greater critical reflection regarding how international law conceives of sexual violence and direct our future engagements with international legal institutions. In particular feminist activists and scholars need to move away from focusing on the number of prosecutions towards challenging the international criminal law to characterise the nature of the harm in accordance with a recognition of sexual rights. (shrink)

This book offers an original account of a distinctly republican theory of social and global justice. The book starts by exploring the nature and value of Hegelian recognition theory. It shows the importance of that theory for grounding a normative account of free and autonomous agency. It is this normative account of free agency which provides the groundwork for a republican conception of social and global justice, based on the core-ideas of freedom as non-domination and autonomy as non-alienation. As (...) the author argues, republicans should endorse a sufficientarian account of social justice, which focuses on the nature of social relationships and their effects on people's ability to act freely and realize their fundamental interests. On the global level, the book argues for the cosmopolitan extension of the republican principles of non-domination and non-alienation within a multi-level democratic system. In so doing, the book addresses a major gap in the existing literature, presenting an original theory of justice, which combines Hegelian recognition theory and republican ideas of freedom, and applying this hybrid theory to the global domain. Fabian Schuppert creates a grand synthesis uniting neo-republican insights on freedom with Hegelian recognition theory. The result is an account of agency that arises from the idea of non-domination whose aim it is to safeguard individual freedom. When combined with Hegelian recognition theory a social focus also emerges. This amalgam comments on many of the major disputes concerning global justice from a cosmopolitan perspective. Because of the broad scope and the many contemporary discussions engaged this book will be of keen interest to scholars as well as a welcome addition to the classroom. (shrink)

Electronic commercial transactions have become a vital part of digital economies around the world. However, the countries need to upgrade their policy frameworks and related legal provisions amid a fragile cyber security environment. The authentication of electronic signatures is a complex phenomenon that needs attention for authentication and recognition. This research presents a comparative analysis of the two countries Jordan and the United Arab Emirates. This study analyzes the related legal statutes to figure out differences and compatibility with reference (...) to their recognition and ability to execute safe electronic transactions in the minimum time. Two legislative enactments have been analyzed in this study that is Jordanian electronic transactions law of 2015 and the United Arab Emirates Electronic transactions and trust services law of 2021. The study concludes that UAE laws are better recognized to verify and authenticate the electronic-signature-based commercial transaction in comparison with the enactments of Jordan in terms of categorizing different levels of security of the electronic signatures and legal preventive measures in case of falsification of data, content, and signatures and breach of the trust. (shrink)

Biometric identity systems are now a prominent feature of contemporary law enforcement, including in Europe. Often advanced on the premise of efficiency and accuracy, they have also been the subject of significant controversy. Much attention has focussed on longer-standing biometric data collection, such as finger-printing and facial recognition, foregrounding concerns with the impact such technologies can have on the nature of policing and fundamental human rights. Less researched is the growing use of voice recognition in law enforcement. This (...) paper examines the case of the recent Speaker Identification Integrated Project, a European wide initiative to create the first international and interoperable database of voice biometrics, now the third largest biometric database at Interpol. Drawing on Freedom of Information requests, interviews and public documentation, we outline the emergence and features of SiiP and explore how voice is recognised and attributed meaning. We understand Speaker Identification Integrated Project as constituting a particular ‘regime of recognition’ premised on the use of soft biometrics to disembed voice in order to optimise for difference. This, in turn, has implications for the nature and scope of law enforcement, people's position in society, and justice concerns more broadly. (shrink)

For many women and girls sexist and misogynistic language is an everyday experience. Some instances of this speech can be categorized as ‘sexist hate speech’, as not only having an insulting or degrading character towards the individuals to whom the speech is addressed, but also resonating with the entire group, contributing to its silencing, marginalization and exclusion. The aim of this article is to examine how sexist hate speech is handled in international human rights law. The argument derives from (...) the claim than that legal discourse should distinguish between ‘sexist speech’ and ‘sexist hate speech’, and that the later may be qualified as a form of violence against women. Then it analyses the approaches of two human rights protection systems—the United Nations and the Council of Europe system—towards the phenomenon of sexist hate speech, by taking their position towards hate speech in general as a point of reference. In both systems, sexist hate speech is being addressed more eagerly under the gender equality framework, including counteracting violence against women, than in their interpretation of hate speech under general human rights law. The article argues the importance of recognizing and addressing sexist hate speech both within the framework of gender equality instruments and anti-hate speech framework established by international human rights bodies. (shrink)

This book offers a social contract argument for a theory of international recognition—a normative theory of the criteria that states and international bodies should use to recognize political entities as member states of the international community.

What is recognition and why is it so important? This book develops a synoptic conception of the significance of recognition in its many forms for human persons by means of a rational reconstruction and internal critique of classical and contemporary accounts. The book begins with a clarification of several fundamental questions concerning recognition. It then reconstructs the core ideas of Fichte, Hegel, Charles Taylor, Nancy Fraser, and Axel Honneth and utilizes the insights and conceptual tools developed across (...) these chapters for developing a case for the universal importance of recognition for humans. It argues in favour of a universalist anthropological position, unusual in the literature on recognition, that aims to construe a philosophically sound basis for a discourse of common humanity, or of a shared human life-form for which moral relations of recognition are essential. This synthetic conception of the importance of recognition provides tools for articulating deep intuitions shared across cultures about what makes human life and forms of human co-existence better or worse, and thus tools for mutual understanding about the deepest shared concerns of humanity, or of what makes us all human persons despite our differences. -/- Recognition and the Human Life-Form will appeal to readers interested in philosophical anthropology, social and political philosophy, critical theory, and the history of philosophy. It also provides ideas and conceptual tools for fields such as anthropology, education, disability studies, international relations, law, politics, religious studies, sociology, and social research. (shrink)

Recognition plays a central role in international affairs and in moral and political theory. Hegel noted the connections between these two contexts, and this article explores Hegel's approach with reference to the work of two political philosophers (Honneth and Rawls) and debates in international law. The conclusion is that while recognition has a constitutive role in international affairs, it has a different role in moral and political theory: morality is the evaluative recognition of the (...) significance of individual autonomy. (shrink)

International institutions such as UNESCO are deliberating on a new standard setting instrument for neurotechnologies. This will likely lead to the adoption of a soft law document which will be the first global document specifically tailored to neurotechnologies, setting the tone for further international or domestic regulations. While some stakeholders have been consulted, these developments have so far evaded the broader attention of the neuroscience, neurotech, and neuroethics communities. To initiate a broader debate, this target article puts to (...) discussion twenty-five considerations and desiderata for recognition by a future instrument. They are formulated at different levels of abstraction, from the big picture to technical details, seek to widen the perspective of preparatory reports and transcend the narrow debate about “neurorights” which overshadows many richer and more relevant aspects. These desiderata are not an exhaustive enumeration but a starting point for discussions about what deserves and what requires protection by an international instrument. (shrink)

Recognition of legal personhood in contemporary international and domestic law is a matter of signs. Those signs identify the existence of the legal person: human animals, corporations and states. They also identify facets of that personhood that situate the signified entities within webs of rights and responsibilities. Entities that are not legal persons lack agency and are thus invisible. They may be acted on but, absent the personhood that is communicated through a range of indicia and shapes both (...) legal and popular understanding of powers and obligations, they lack standing in judicial fora. They are signified as entities that are the subjects of action by legal persons, for example exploitation through rights regarding natural resources or commodification of ‘wild’, companion and other non-human animals. They are also signified as members of a diverse class of non-persons such as ‘nature’ and ‘the environment’. This article explores the consequences of law’s signification of personhood and the natural world before asking whether we both should and could recognise domains such as specific rivers, forests or even Antarctica as a type of legal person. Recognition might acknowledge the salience of nature in the ontologies of colonised First Peoples. It might also underpin a global response to climate change as the existential crisis of the Anthropocene. In understanding law as a matter of signifiers and syntaxes the article cautions that ostensible recognition of some domains as persons has been aspirational rather than substantive, with observers misreading the sign as necessarily transforming power relationships. The article also cautions that personhood for nature or particular domains may be contrary to the self-determination of colonised First Peoples. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom (...) newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom (...) newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

In this significant contribution to Hegel scholarship, Robert Williams develops the most comprehensive account to date of Hegel's concept of recognition. Fichte introduced the concept of recognition as a presupposition of both Rousseau's social contract and Kant's ethics. Williams shows that Hegel appropriated the concept of recognition as the general pattern of his concept of ethical life, breaking with natural law theory yet incorporating the Aristotelian view that rights and virtues are possible only within a certain kind (...) of community. He explores Hegel's intersubjective concept of spirit as the product of affirmative mutual recognition and his conception of recognition as the right to have rights. Examining Hegel's Jena manuscripts, his _Philosophy of Right_, the _Phenomenology of Spirit_, and other works, Williams shows how the concept of recognition shapes and illumines Hegel's understandings of crime and punishment, morality, the family, the state, sovereignty, international relations, and war. A concluding chapter on the reception and reworking of the concept of recognition by contemporary thinkers including Derrida, Levinas, and Deleuze demonstrates Hegel's continuing centrality to the philosophical concerns of our age. (shrink)

In the theory and philosophy of law, war is often considered as a legal remedy. For example, according to H. Kelsen, war is a sanction of international law. These sanctions, like sanctions in national law, consist in the forcible deprivation of life, liberty, and other goods, notably of economic value. In war, human beings are killed, maimed, imprisoned, and national or private property is destroyed. By way of reprisals, national or private property is confiscated and other legal rights are (...) infringed. At the same time, it seems clear that the human experience in conditions such as suffering, pain, and death, has nothing in common with law. The decision of a sovereign state to start a war means a rejection to recognize both the norm of law as well as the generalized Other. Then, despite all the norms and guarantees of international law, the living experience of human beings during war is an experience of lawlessness, because they are harmed and at the same time not even recognized as legal subjects. Therefore, in order to answer the question about whether law is possible during war, we have to clarify in what way law exists outside the traditional norms of law, whether positive or natural. (shrink)

The field comprising both the theory and practice of struggles over recognition developed over the last 50 years in relative independence of the parallel field of deliberative and agonistic democracy. Over the last decade these two fields, in both theory and practice, have merged because courts, legislatures, ministries and rival armies around the world have often turned the reconciliation of struggles over recognition over to various institutions and practices of negotiation and deliberation. The result is the emergence of (...) a new hybrid field of recognition and dialogue. This paper is a critical examination of the emergence and the strengths and weaknesses of this new and important field of politics and law. (shrink)

Forty years after the beginning of the Khmer Rouge regime, the recent Trial Chamber judgment in case 002/01 before Extraordinary Chambers in the Courts of Cambodia has provided legal recognition of the devastating violence of the forced population movements. However, despite the undoubted significance of the judgment, it represents a missed opportunity to more fully reflect issues of gender. The article argues that in order to capture the plurality of gendered experiences it is necessary to foreground a social understanding (...) of harm. Drawing on civil party oral testimony, the article begins to surface gendered experiences of the social harms of familial separation and starvation of family members, harms that have often remained silenced in international criminal law. In doing so it seeks to contribute to emerging feminist discourse on broader gendered harms and illustrates the need for further scrutiny of the approach of the ECCC. (shrink)

Law is traditionally related to the practice of command and hierarchy. It seems that a legal rule should immediately establish a relation between a superior and an inferior. This hierarchical and authoritharian view might however be challenged once the phenomenology of the rule is considered from the internal point of view, that is, from the stance of those that can be said to “use” rather than to “suffer” the rules themselves. A practice oriented approach could in this way open up (...) a more liberal, and also somehow less parochial and ideological, road for legal theory. This is – it is argued in the paper – the programme, or better, the promise we can find in Herbert Hart’s main work, The Concept of Law. The article tries to render this promise more transparent while, nonetheless, not eschewing the blind sides of its narrative and argumentative strategy. (shrink)

While discussions of the constitution of intersubjectivity and self are prevalent in the phenomenological literature these discussions are only rarely related to issues of right. One might expect to find relevant discussions of intersubjectivity and right in the field of phenomenology of law. However, this field can instead be characterized roughly by the general questions of how law appears for a consciousness or how legal entities are generated by social acts. In order to map out the theoretical terrain for a (...) phenomenological discussion of intersubjectivity and right we therefore have to look outside of the traditional canon of phenomenology. In the following I suggest a vantage point for doing so by bringing Fichte’s discussion of recognition and right into dialogue with Hannah Arendt’s discussion of intersubjectivity, self and the question of a ‘right to have rights’. (shrink)

Natural law contains much social thought that predates sociology and related disciplines, and can be seen as part of the prehistory of the human sciences. Key concerns of natural law thinkers include the achievement of social life and society, and the individual’s place therein. However, there is an enduring tendency within sociology to dismiss the ahistoricism and universalism of natural law, and therefore to reject natural law thought in its entirety. This article proposes an approach that rescues the sociological relevance (...) of natural law. It draws on the respective methods of Chris Thornhill and Gary Wickham, who each seek to recover the importance of natural law for sociology. Thornhill treats natural law as a valid sociological object by focusing on its functions within society rather than engaging with its ahistorical concepts. His focus on the external functions of natural law, however, leads to a neglect of the internal conceptualisations of the social world in natural law thought. This in turn leads to a misinterpretation of Hobbes and voluntarist natural law. Wickham, on the other hand, explores in detail Hobbesian conceptions of society and the individual that Wickham argues can be utilised within contemporary sociology. This article revises Thornhill’s methodological framework in order to secure a space for the recovery of natural law as social thought. This approach allows for the recognition of natural law as an important piece of the epistemological background against which contemporary understandings of the human and society emerged. (shrink)

Kelsen’s critique of absolute sovereignty famously appeals to a basic norm of international recognition. However, in his discussion of legal obligation, generally speaking, he notoriously rejects mutual recognition as having any normative consequence. I argue that this apparent contradiction in Kelsen's estimate regarding the normative force of recognition is resolved in his dynamic account of the democratic generation of law. Democracy is embedded within a modern political ethos that obligates legal subjects to recognize each other along (...) four dimensions: as contractors whose mutually beneficial cooperation measures esteem by fair standards of contribution; as autonomous agents endowed with equal rights; as friends who altruistically care for each others’ welfare, and as fallible agents of diverse experiences and worldviews. (shrink)

An important contribution of Alan Patten’s Equal Recognition is the conception of neutrality that grounds his defence of minority cultural rights. Built in to his conception of neutrality of treatment is a notion of ‘fairness’ whose effect is to provide an upfront, across the board limitation on the demands cultural minorities may legitimately make on the rest of society. There must be limits on the duty to accommodate, but it obscures more than it illuminates to build this into the (...) content of the right to equal recognition itself. We see more clearly what is at stake in these conflicts by articulating the value of self-determination independently and taking account of necessary limits to its satisfaction as part of a second-stage analysis of what duties may be claimed and against whom. Familiar principles of discrimination law exemplify this alternative model. This presents the interest in self-determination more robustly, while acknowledging that the claims of duty arising out of it are defeasible. The result is a more flexible and nuanced exploration of the complex moral issues involved when fundamental interests clash. (shrink)

An attempt at moral interpretation of Hegelian ‘struggle for recognition’. The Author shows how the Hegelian figures of ‘Lord’ and ‘Bondsman’ (from The Phenomenology of Spirit) can be used to explain social role and importance of the idea of tolerance in the context of (intolerant) group moralities and the universal morality. The text is built of three parts: (1) the author sketches the connection of the traditional idea of tolerance and sociological understanding of morality on the basis of Hegel’s (...) understanding of recognition (Anerkennung). In the second step (2), he gives an outline of Hegelian two accounts of mutual recognition, finally (3) the author shows the moral dimension of recognition, as referred to the idea of tolerance and universalistic morality. (shrink)

Presenting the first critical analysis of Carl Schmitt's _The Nomos of the Earth_ and how it relates to the epochal changes in the international system that have risen from the collapse of the ‘Westphalian’ international order. There is an emerging recognition in political theory circles that core issues, such as order, social justice, rights, need to be studied in their global context. Schmitt’s international political thought provides a stepping stone in these related paths, offering an alternative (...) history of international relations, of the genesis, achievements and demise of the ‘Westphalian system.’ Writing at a time when he believed that the spatial, political and legal order—the nomos of the earth—had collapsed, he highlighted the advent of the modern state as the vehicle of secularization, tracing how this interstate order was able to limit and ‘rationalize and humanize’ war. Providing a large number of case studies including: global terrorism, humanitarian intervention and US hegemony, this book will give further impetus to, and expand, the nascent debate on the significance of Schmitt’s legal and political thought for international politics. _The International Political Thought of Carl Schmitt_ will be of interest to students and scholars of international relations, law and history. (shrink)

The aim of this paper is to offer a concise and faithful account of Rawls’ theory of international justice, in an effort, first, to elucidate the structure of the argument that is advanced in that theory and, second, to present a critical assessment of it. The critical assessment section attempts, on the one side, to cope with crucial methodological issues, which have a more general bearing upon Rawls’ overall political philosophical position, including the constructivist perspective of theory making and (...) the division between a political conception and a comprehensive doctrine; on the other side, to weigh up a set of substantive claims made in the Rawlsian theory of international justice, including the recognition of peoples as the fundamental subjects of international law, the toleration of the so-called decent peoples and the considerably thin construal of human rights encompassed in The Law of Peoples. The paper attempts to provide a series of reasons that could be well-suited to explicate its author’s doubts about the soundness of the Rawlsian theoretical perspective with regard to both its formal methodological features and its more content-oriented convictions. (shrink)

This article uses Hans Kelsen's theory of a legalsystem to take a fresh look at European Community law,and the relationship between the European Community,its Member States, and international law. It arguesthat the basis of the Community's legal legitimacy isindeterminate, and offers a model to accommodate thatindeterminacy. This model is founded on aconstructivist approach suggested to be particularlyuseful in the EC context. Using this approach, it isargued that the concepts of system, autonomy andsovereignty in the Community can only be understoodthrough (...) the recognition of a plurality of viewpoints,and that it is crucial, in describing the Community,to distinguish between a concept per se and thechoice to adopt that concept. (shrink)