Law,Principle, and the Theologico-Political History of Sovereignty

Abstract

This article takes it cue from the debate between Carl Schmitt and Erik Peterson regarding the possibility of political theology within Christianity, and in response, offers a conceptual-historical portrait of sovereignty and its juridical dimensions. Beginning with the introduction of Roman law into the medieval Church, the article traces the logic of “legal principle” as the basis of sovereign decision and how the form of legal distinctions adopted into canon law translate the Romanitas of law into the theory of papal sovereignty. By the Romanitas of law, that is to say the principle of sovereignty in law. The article then seeks to describe the conceptual translations of Roman politics and Stoic metaphysics into theological form and the logic of this translation into medieval natural law. The article concludes by evaluating how the civic theology of Rome is conceptually inherited by the politics and legal framework of sovereignty and returns to Peterson’s critique of Schmitt, arguing that political theology can be understood as a dynamic where politics is theologized, assuming that in the history of religion, theology and politics are never fully distinct to begin with.     

Leibniz,Locke, and the Early Modern Controversy over Legal Maxims

This article investigates the context of a side line in Leibniz's critique of Locke on maxims. In an enigmatic and little-explored remark, Leibniz objects that Locke has overlooked some legal maxims that fulfil the function of ‘constituting the law’. I propose to read this remark against the background of the divergence between conceptions of legal maxims in the common law tradition and conceptions of legal maxims in the Roman law tradition. In a few remarks, Locke seems to echo the common law emphasis on customs and conventions expressed by legal maxims. According to such a conception, reason would mainly fulfil the function of subsuming particular norms under more general conventional norms. By contrast, Leibniz uses the Roman law idea that some ‘rules of law’ express demands of natural reason and, thereby, express principles constitutive of natural law. This is why he proposes to reform vague and confused ‘brocards’ used by jurists in order to identify sound maxims that provide a natural-law foundation for legal institutions.     

God,Justice and Society

Abstract

This non-evaluative overview of God, Justice, and Society: Aspects of Law and Legality in the Bible summarizes Jonathan Burnside’s introduction to biblical law and his demonstration of its value as a resource for modern legal issues     

The Moral Theologian,Oliver O'Donovan and International Law

Abstract

Oliver O'Donovan renders a singular contribution to the theory and history of international law by identifying the spiritual impoverishment of the discipline following the triumph of state-centred contractarianism in the theory of international relations, with Hobbes, Locke, Kant and, for the present, John Rawls. This contractarian approach to international society has an inherent tendency, which O'Donovan highlights, to ground international order in the hegemonic claim of one or two countries to represent the values of the whole of humanity. With a combination of rational moral theology and biblical interpretation (Revelation), O'Donovan reasserts an international order grounded in the autonomous identities of the nations, which God has recognized as equal. With a theory of political legitimacy which rests upon representation of national identity, O'Donovan points the way to an international order based upon mutual respect among nations under natural law, in the classical medieval sense finally represented by Grotius and Suarez. This article describes again what the natural law tradition meant in the hands of Aquinas and Vitoria, in order to highlight the fact that the ontological dimension of natural law theory provides a way to meet the intolerable insecurities which theories of nationalism appear to generate. Then the article goes on to offer one way to bring natural law thinking up to date for contemporary audiences by drawing upon Paul Ricoeur's phenomenological theory of mutual recognition and respect among the nations as a way of going beyond the contractarian tradition in contemporary international law and relations theory.     

Precarious Territory: Property Law,Housing, and the Socio-Spatial Order

Most of us access shelter over land over which other people have legally sanctioned dominant interests and powers, creating systemic relations of security and vulnerability that I term precarious property. We all live inside the territory of property, but do so under different terms. Rather than thinking of the territory of property as an exclusive space of insiders and outsiders, I think of it as a relational technology that organises forms of conditional spatial access. Territorialised expressions of law play a crucial role in organising such relations through a “property space” that frames property’s participants, their interactions, their alternatives to transacting, and the meanings of property itself. Thinking territorially about precarious property offers us both analytical and ethico-political insights, I suggest.     

HENRY VAUGHAN,THE LIBERATION OF THE CREATURES,AND SEVENTEENTH-CENTURY ENGLISH CALVINISM

This article examines how Richard Bernard’s commentary on the Book of Ruth, Ruths Recompence (1628), was constructed so as to deliver its messages, specifically those reflecting Bernard’s concern with living well. Attention is drawn to certain parts of the exposition which exemplify Bernard’s views and one part, especially, which caused him perplexity. This last pertains to a central element of Ruth which challenges Bernard and his early modern predecessors, in particular, in expounding the book. This is Ruth’s approach in Chapter 3, following the advice of her mother-in-law, Naomi, to their kinsman, Boaz, on the threshing floor, alone by night to request marriage according to the levirate law. Such an approach is contrary to the voluminous literature in the early modern period setting out how women should conduct themselves. Regarding other parts of the exposition, the article shows how Bernard taught such lessons as desirable relations between masters and servants.     

China,Natural Resources,Sovereignty and International Law

Abstract

This article explores China’s attitudes towards the regulation of key natural resources by international law, domestically and at the trans-boundary and international levels. It considers the impact of international law on China’s own practices, and the contribution of China towards shaping international law. The article suggests that popular conceptions of a relatively isolated, sovereign absolutist China do not accord with contemporary legal realities, including in its dealings with natural resources. While China’s construction of strong sovereignty shapes its attitudes towards legal regulation, practice also suggests that China adopts a nuanced approach which includes legal compromise, and a commitment to multilateral regulation or bilateral diplomatic settlement of issues previously within the competence of national governments. China is often an active and constructive participant in contemporary law-making, even if – like all countries – it also seeks to instrumentally use international law.     

Judging,in Times of Panic

Summary

In his practice of intellectual history Ian Hunter has highlighted the productivity of a contextual approach to the institutions and discourses of philosophy, religion, law, and government. Deploying such an approach, his essay for this journal on the humanities in post-1960s Australia invites us to reconsider the terms in which the contemporary humanities have accounted for the world around us and in us. In drawing attention to some other examples of the way in which Hunter has applied this method, this paper explores the implications of a contextualisation of legal judgements that express ethical preferences which efface their historical conditioning. The paper suggests that such an approach might be productively applied in the work of understanding other kinds of legal judgements and policy settings that are commonly marked by a high degree of political agitation, such as contemporary immigration policy and border controls.     

Native 'land claims', Russian style

In Russia, as in Canada, Native peoples are attempting to gain greater control over their homelands. In the last decade, legislation at both the federal and sub-federal (provincial, republican, etc.) level has sanctioned the transfer of land to Native 'possession', though not ownership, for the pursuit of traditional activities. This paper surveys the legislative basis that authorizes the creation of Native 'communes' (obshchinas) and their territorialization. After examining how the process works in theory, it examines the paths taken, and obstacles met, in establishing obshchinas in three Native communities in the Sakha Republic (Yakutia).     

The persistence of partition: Boundary-making,imperialism, and international law

This article implores political geographers to engage with the sub-discipline's imperial roots in which international law was foundational. It does so by revisiting the practice of partition – defined here as an imposed boundary – which remains central to historical and current-day imperialism. This is the case, both regarding longstanding partitions, such as Northern Ireland, Kashmir, the Chagos Islands/British Indian Ocean Territory, Cyprus, Korea, and Western Sahara, and with regard to proposals to impose new partitions in Kosovo, Iraq, Syria, Ukraine, Palestine, and in the South China Sea. By adopting an historical perspective on the geopolitics of bordering, partition can be understood as an imposed boundary, in which the negotiators, to the extent they were consulted, were not presented with a free choice. Partitions in colonial situations only became illegal during the height of decolonization and the Cold War confrontation with the West, when the Soviet Union and Third World succeeded in modifying international law in a way that required the colonial powers to obtain the consent of the representatives of the communities whose territories they proposed to partition. As the world enters a more uncertain period, with increasing geopolitical competition, partition could make a comeback, in various guises, in which it may become necessary to pass judgment on the legality of partition, and not just its efficacy.     

汉初捕律探研——张家山汉简《二年律令·捕律》研读拾零

本文通过对张家山汉简中《二年律令·捕律》部分简文的释读,对原简的句读、编连及含义作了初步的探讨,并对其中涉及到的相关问题提出了自己的看法。     

Common usage,presumption and verisimilitude in sixteenth-century theories of juridical interpretation

The question of how common usage could be constitutive for the meaning of linguistic expressions has been discussed by Renaissance philosophers such as Lorenzo Valla, and it also played an important role in Renaissance theories of juridical interpretation. An aspect of the analysis of common usage in Renaissance theories of juridical interpretation that concerns the role of presumption has not yet found much attention. Renaissance jurists such as Simone de Praetis, Nicolaus Everardus, and Aimone de Cravetta saw that both the usage of Latin by practitioners of law and the vernacular common usage of ordinary people often differed from the technical definition of legal concepts as laid down by ancient jurists or modern legislators. In some cases, they ascribed both to Latin and to vernacular common usage the power of changing the meaning of juridical terms. Still, they were aware of the fact that matters of common usage involve always a degree of uncertainty. The methodological notion of presumption is one of the concepts that figured most prominently in Renaissance approaches to the problem of uncertainty, and, in particular, it was applied in the analysis of meaning-change of legal concepts through common usage.     

Hobbes's Contribution to International Thought,and the Contribution of International Thought to Hobbes

Summary

The aim of this article is to explore in what respects Thomas Hobbes may be regarded as foundational in international thought. It is evident that in contemporary international relations theory he has become emblematic of a realist tradition, but as David Armitage suggests this was not always the case. I want to suggest that it is only in a very limited sense that he may be regarded as a foundational thinker in international relations, and for reasons very different from those for which he has become infamous. In the early histories of international thought Hobbes is a cameo figure completely eclipsed by Grotius. In early histories of political literature, the classic jurists were often acknowledged for their remarkable contributions to international relations, but Hobbes is referred to exclusively as a philosopher of a positvist ethics and absolute sovereignty. It is among the jurists themselves that Hobbes is believed to have made important conceptual moves which set the problems for international thought for the next three centuries. He conflates natural law and the law of nations, arguing that they differ only in their subjects—the former individuals, the latter nations or states. This entailed transforming the sovereign into an artificial man, not in the Roman Law sense of an entity capable of suing and being sued; rather, as a subject not party to a contract, but created by a contract among individuals who confer upon it authority. This subject is not constrained by the contractors, but is, as individuals were in the state of nature, constrained by the equivalent of natural law, the law of nations in the international context. Throughout, the methodological implications are drawn for modern historians of political thought and political philosophers who venture to theorise about international relations.     

被边缘化的群体和被边缘化的法律——对富士康“跳楼门”事件的法律思考

富士康＂跳楼门＂事件属于社会转型时期被边缘化的劳动者极端地反映自身利益诉求的方式。该事件不仅暴露出劳动密集型企业管理模式的弊端,也折射出我国现行的法律体系对于劳动者权益保障的缺位。同时,富士康在对＂跳楼门＂事件的处理中也存在着与法治精神和现行法律规定相违背的地方。本文就富士康＂跳楼门＂事件所涉及的相关法律问题进行初步探讨。     

The Reward of a King: Machiavelli,Aquinas, and Shakespeare's Richard III

Abstract

Richard III centers on the rise and fall of a man who claims that he will “set the murderous Machiavel to school” and proceeds to seize the crown of England, only to lose his grip on that coveted prize in his own sudden personal and political unraveling. Insofar as we see Richard as a genuine but failed Machiavellian, it remains difficult to determine the extent to which Shakespeare's critique of Richard is a critique of Machiavelli. Yet Shakespeare's account of Richard's hopes, successes, and failures, examined in light of relevant classical texts, points to fatal flaws in Machiavelli's account of reason, conscience, and the end of human actions, demonstrating that the concept of the objective good is an essential component of any meaningful and coherent account of human action. Thus, Richard's ultimate descent into madness is a sign of the fate that even the “best” Machiavellian statesman or society is destined to share.     

Handling Sorcery in a State System of Law: Magic,Violence and Kastom in Vanuatu.

ABSTRACT This paper addresses the consequences of a local sorcery accusation that came to the attention of Vanuatu state police, courts and media. The paper discusses what happens to sorcery practices when these become absorbed into a modern, bureaucratic context. The argument revolves around the national imaginary formed by state power and the mass media in people's contemporary lives. In formulating new forms of opposition to sorcery, they also create a new imaginary space of national belonging.     

Words of Wisdom,Words of Prophecy: Why and How Biblical Law Speaks in the Public Square

The study of biblical law enables us to pursue justice. Its application involves selecting from a body of discourse and emerges not only from “rules” but from narrative and worldview. It also means internalising a fixed text and improvising a faithful response. It is shaped and constrained at every point by practical wisdom. Religious beliefs should not be excluded in principle and cannot be excluded in practice from a liberal democracy. As has always been the case, communicating biblical law means recognising and surmounting difference through argument, appeal and persuasion. A key part of this communicatory strategy, whether ancient or (post)modern, is fleshing out biblical law in compelling, real-life situations. Questions of application and communication are thus closely linked. Although its application may be counter-cultural, biblical law is comprehensible when instantiated in practical action.     

Implementing the Regulation on Places of Worship in Indonesia: New Problems,Local Politics and Court Action

This article examines the local implementation of the national Joint Regulation 2006 on places of worship in Indonesia. It focuses on the case study of the Protestant Christian Batak Congregation, which became one of the first churches to successfully challenge the authority of a local leader to cancel its permit to build a church. I begin by exploring the history of the regulation of permits for places of worship in Indonesia and the various proposals for law reform that have been put forward since 1998. I then outline the provisions of the new Joint Regulation and highlight the ongoing problems for religious minorities at the local level because of the failure of local authorities to implement the national regulation. I will demonstrate how religious minorities are challenging the decisions of local authorities by complaining to independent watchdogs, taking court action and using the political process. In conclusion, I argue that the Protestant Christian Batak Congregation court case is part of a broader trend for local authorities to use conflict over places of worship as an opportunity for political gain in the highly competitive political atmosphere since the downfall of Suharto in 1998.     

Credibility in the Court of Chancery: Salesbury v. Bagot, 1671-1677

ABSTRACT

Between 1671 and 1677, William Salesbury of Rhug fought a bitter legal battle in Chancery against his cousin, Dame Jane Bagot, and her family. William contested Jane’s inheritance of the Bachymbyd estate, Denbighshire, which once belonged to their shared paternal grandfather. According to the Chancery records, their grandfather wrongfully disinherited William’s father. The Lord Chancellor judged five out of six points in William’s favour. However, the estate archives demonstrate that William’s father had no lawful claim to Bachymbyd and William built his suit on forgeries and half-truths. In a case where a daughter inherited an estate from a younger son, William manipulated the contemporary social norms of gender and primogeniture. The suit provides a unique opportunity to understand how credibility was constructed in the seventeenth century. This article suggests that credibility depended on social norms and played a larger role in the law, and perhaps wider society, than evidence-based truth.