An Empire of the Scholars: Transnational Lawyers and the Rule of Opinio Juris

The eternal conflict between justice and violence is the theme of director John Ford's last great film, The Man Who Shot Liberty Valance. In the world of the American West where Ford's story is set, justice does not just happen; it is a work of manly courage that encompasses a willingness—in extreme cases—to kill those men, such as Liberty Valance, who challenge law and order. Justice will require, as Plato said, a rightly ordered soul, but it will be a soul that must do violence to realize justice in a world that too often resembles a Hobbesian state of nature. In Ford's view, the truth of these violent origins of justice are more likely to be obscured than illuminated by the civilized historian's account of this truth. And we do violence not merely to justice but also to truth itself if we fail to respect the hard reality that civilization requires such measures.     

TROPICAL DEFORESTATION AND FOREST MANAGEMENT UNDER THE SYSTEM OF CONCESSION LOGGING: A DECISION-THEORETIC ANALYSIS*

ABSTRACT. Deforestation caused by concession logging is often the result of harvest decisions which focus on short-run profits rather than on long-run sustainable harvest yields. A sequential-decision model of this type of behavior is here developed which focuses on a logger's annual decisions of whether or not to remain in compliance with the terms of a concession contract. The contract stipulates harvesting procedures for a sustained forest yield, and noncompliance is taken to result in deforestation. An optimal decision policy for the concession logger is characterized in terms of optimal-stopping theory, and is employed to construct payoff incentives which encourage compliance. In particular, a forest management problem is formulated which focuses on the effectiveness of partial inspection policies in deterring noncompliant behavior. General necessary and sufficient conditions for the effectiveness of such policies are established, and are given a more operational form for the Markov case. A numerical example based on actual concession-contract data is also developed which suggests certain policy implications.     

A Review of the Environmental Policy Literature from 2014 to 2017 with a Closer Look at the Energy Justice Field

This review article documents and analyzes trends within the environmental policy literature published between 2014 and 2017. We find that environmental policy scholarship has recently shifted its focus from more traditional topics, such as watershed and ecosystem management, to other modern issues, such as climate change and energy. The environmental policy literature has increased in complexity and become more interdisciplinary in nature, which we illustrate with a discussion of the energy justice literature. The methodological approaches used by environmental policy scholars have also become increasingly diverse, with a notable uptick in statistical and modeling approaches. We find that some topics, such as policy failure, gender issues, and energy welfare policies are under‐explored, and certain regions within the world, such as developing countries, are less frequently studied. We encourage scholars to consider these gaps in the literature when developing future research.     

Diaspora policies in comparison: An application of the Emigrant Policies Index (EMIX) for the Latin American and Caribbean region

In this paper we present the Emigrant Policies Index (EMIX), an index that summarizes the emigrant policies developed by 22 Latin American and Caribbean (LAC) states. In recent decades sending states have increasingly adopted policies to keep economic, political or social links with their emigrants. These “emigrant policies” vary in scope and nature between different countries and include measures as diverse as dual citizenship policies, programs to stimulate remittances, the right to vote in the home country from abroad, and the creation of government agencies to administer emigrant issues. The EMIX proposes a useful tool to condense and compare a wide spectrum of policies across countries. Its development involved the collection of official data, as well as a critical review of secondary literature and input from experts as complementary sources. Through a rigorous framework for constructing the index, we show how emigrant policies can be aggregated to measure the overall degree and volume of emigrant policies in LAC states. The results of the EMIX portray a region that has indeed made serious efforts to assist their diaspora in the states of reception and to encourage their involvement in the political, economic and social fabric in the states of origin. The results, however, also reveal great variation in the emigrant policies and the administrative setting adopted by LAC states.     

TIME,PRESENCE, AND HISTORICAL INJUSTICE

The relationship between history and justice traditionally has been dominated by the idea of the past as distant or absent (and with that, irreversible). This ambiguous ontological status makes it very difficult to situate the often‐felt “duty to remember” or obligation to “do justice to the past” in that past itself, and this has led philosophers from Friedrich Nietzsche to Keith Jenkins to plead against an “obsession” with history in favor of an ethics aimed at the present. History's ability to contribute to the quest for justice, as a result, often seems very restricted or even nonexistent. The introduction of the “presence”‐paradigm in historiography can potentially alter this relation between history and justice. However, to do so it should be conceived in such a way that it offers a fundamental critique of the metaphysical dichotomy between the present and the absent and the underlying concept of time (chronosophy) that supports this dichotomy. The “presence”‐paradigm can be emancipatory and productive only if presence and absence are not perceived as absolute dichotomies. In the first part of this article I elaborate on the influence that the present/absent dichotomy has on the notion of justice by introducing a conceptual contrast between what I will call the “time of jurisdiction” and the “time of history.” The second part of the article focuses on the way certain aspects of the dominant Western chronosophy reinforce the present/absent dichotomy and thereby prevent us from thoroughly exploring the ambiguous but often very problematic presence of the past. Throughout the article I refer to the relatively recent phenomenon of truth commissions and the context of transitional justice to discuss some challenges for the “presence”‐paradigm.     

Community resistance and the role of justice in shale gas development in the United Kingdom

Global energy policies embracing a transition to unconventional oil and gas development are hallmarks of many developed nations. Among these, the United Kingdom has framed the development of shale gas as one means to transition from high-carbon fossil-fuel consumption to low-carbon alternatives. Yet the introduction of this industry and recent legislation associated with it have not been without controversy. Communities throughout the United Kingdom are engaged in sustained debates concerning climate change, health, the scale of extraction footprints, securitisation, and governance. Places such as Kirby Misperton, the focus of this article, are representative of many villages where questions abound about the role of justice at all stages and scales of governmental decision-making. Using a legal geographic lens, this article examines narratives among local residents who are actively resisting the arrival of unconventional gas. I consider how the relationships between and among energy transition, policy, and justice have been interpreted by communities and argue for inequity and risk to be addressed in more transparent ways. I contend that highlighting counter-narratives remains essential if powerful arguments by governments and others are to be negated. Fundamentally, true justice can only prevail when all stakeholders are considered legitimate and their opinions valid.     

Malta’s Unintentional Consequences: Archaeological Heritage and the Politics of Exclusion in the Netherlands

Abstract

We argue that the apparently successful implementation of the European Malta Convention (1992) in the Netherlands resulted in a relatively closed archaeological policy system, which separates ordinary people from experts. As a result, citizens were increasingly excluded from the archaeological process. The process of closure and exclusion is made visible by investigating Dutch amateur archaeologists and their changing roles within Dutch archaeology. Amateur archaeologists are a group of semi-experts often deemed essential to the quality of research and policy regarding archaeological heritage. Their marginalization after Malta caused discussion and frustration, undermining public support for the initial policy goal of the Malta Convention: conservation of archaeological heritage. Our analysis draws on recent academic debates concerning the policy-practice nexus in processes of Europeanization. Reducing negative side effects and re-targeting policies for greater efficacy and democracy requires insight into the pathways of implementation.     

Social and Cosmopolitan Liberalism

A central divide in philosophical thought about international distributive justice separates 'social' from 'cosmopolitan' liberalism. These views differ about the nature of the problem of international justice: social liberals are primarily concerned about fairness to states or societies, whereas cosmopolitan liberals are concerned about fairness to individuals. This article explores three reasons why philosophers interested in international distributive justice often regard social liberalism as the more plausible view. These reasons have to do with alleged differences between domestic and international society: empirical beliefs about the sources of backwardness; and moral preconceptions about the fairest allocation of the costs of irresponsible economic and population policies. The article argues that none of these reasons is persuasive, and that the deep ethical distinction between the domestic and the international realms, on which social liberalism depends, is more difficult to defend that many philosophers have thought.     

US democracy promotion in the Arab Middle East since 11 September 2001: a critique

Promoting democracy in the Middle East has been a key foreign policy objective of the Bush administration since n September 2001. Democratizing the Arab world, in particular, is seen as an important instrument in the ‘war on terror’. To help democratize the Arab Middle East, the US initiated a number of policies which, it claims, have encouraged reform. But what has really been the impact of US initiatives? This article examines the implementation of US democracy promotion policies across the Arab region, and in particular Arab countries, and argues that it has had mixed results. The article suggests three reasons why this is so. First, democracy is part of a wider set of US interests and concerns with which it is frequently in contradiction. Second, the Bush administration conceives democracy as a panacea: it overlooks the problems its implementation may cause and lacks clear ideas about achieving this implementation. Third, democracy promotion policies have limited outcomes because neither a politically neutral nor a more interventionist approach can initiate a reform process if it is not already underway for domestic reasons. On the basis of the three critiques, the article concludes with recommendations for US policy.     

THE CONTINUING MODESTY OF HISTORY

The critique of conventional historical writing has been emergent for a century—it is not the work of a few—and it has immense practical implications for Western society, perhaps especially in English‐speaking countries. Involved are such issues as the decline of representation, the nature of causality, the definitions of identity or time or system, to name only a few. Conventional historians are quite right to consider this a challenge to everything they assume in order to do their work. The challenge is, why do that particular work at all? Understandably, historians have consolidated, especially in North America where empiricism and the English language prevail. But even there, and certainly elsewhere, and given the changes in knowledge and social order during the past century at least, the critique of conventional historical method is unavoidable. Too bad historians aren't doing more to help this effort, and by historians I don't mean the most of us who think constantly in terms of historical causality as we learned it from the nineteenth century and our teachers; by “historians” I mean the experts who continue to teach the young. A major roadblock to creative discussion is the fact that problems such as those just mentioned all exceed disciplinary boundaries, so investigation that does not follow suit cannot grasp the problem, much less respond to it creatively. Of course everyone is “for” interdisciplinary work, but most professional organizations, publications, and institutions do not encourage it, despite lip service to the contrary. Interdisciplinary work involves more than the splicing activity that is all too familiar in academic curricula. Crossing out of one's realm of “expertise” requires a kind of humility that does not always sort well with the kind of expertise fostered by professional organizations, publications, and institutions. And even the willing have trouble with the heady atmosphere outside the professional bubble. In such conditions key terms (“language,”“discourse,”“relativism,”“modernity,”“postmodernity,”“time,”“difference”) are pushed here and pushed there without gaining the focus that would lead to currency until finally the ostensible field of play resembles a gigantic traffic jam like the one that opens the film Fellini Roma. Discussion of these issues leads in the end to Borges and his story, ‘The Modesty of History,” from which the title of this essay is borrowed.     

The Sharp Edges of Europe: Extending Schengen Eastwards

The EU's external security concerns have caused it to encourage regional integration at all levels in central and east Europe. However, its emerging internal security policies (contained in the newly integrated Schengen Convention, and in justice and home affairs cooperation) are having contrary effects by reinforcing barriers between countries in eastern Europe. The goals of regional integration and good-neighbourly relations between applicants and non-applicants are still present in the Union's enlargement strategy, but border policies are also being developed that run counter to them. EU border policies are raising new barriers to the free movement of people and goods that inhibit trade and investment between candidates and their non-applicant neighbours. There is a risk that the EU could end up giving the central and east European (CEE) countries the benefits of westward integration with their richer neighbours at the high cost of cutting ties with their poorer neighbours in the east. This bargain is still acceptable overall to most political leaders in central Europe; however, acceptance of the EU's terms has been accompanied by great unease about its unintended consequences for intra-regional relations. Moreover, this is not just a problem for CEE countries: the overall security of Europe depends on preventing the isolation of countries left at the edges of an enlarged Union.     

Sustainable policy? A public debate about nature development in the Netherlands

This article makes, first, a general argument for ‘sustainable policies.’ This argument will build on the observation that modern societies, of all political guise, find it difficult to cope with the challenges and opportunities posed by science and technology. Classical models of democracy do not seem to be sufficiently equipped to guide the political process in our highly developed societies. Second, this paper will discuss constructivist views on the development of technology in relation to society, and explore possible implications for democratization of technological culture. And finally, the article will present a particular case of experimentation with one alternative form of democracy. This experimental addendum to the existing political repertoires in the Netherlands was a public debate about the issue of ‘nature development’ or ‘nature construction’—the making of new nature, for example by giving back some of the Dutch land to the water of the rivers Rhein and Maas.     

Multicultural democracy: can it work?

After differentiating multicultural democracy (MD) from other types of democracy (liberal, consociational, ethnic and Herrenvolk), this article explores both the conditions favouring MD and the problems it faces. The main obstacle to MD is the model of the ‘nation–state’, which has been the basis of legitimacy in most liberal democracies since the French Revolution. Multiculturalism has existed in many non–democratic states (such as colonial and traditional empires) and in city–states. A distinction is made between minimal MD (the simple tolerance and legal protection of cultural diversity) and maximal MD (the celebration, encouragement and official support thereof). The article concludes that minimal MD is the more feasible of the two, and that political and social conditions for it are the most favourable in urban environments, especially in city–states.     

The model of ethnic democracy: Response to Danel

This is a response to Adam Danel's critique of my model of ethnic democracy. Danel argues that the model fails as an ideal type and as a comparative tool because ethnic democracy does not exist anywhere. I show, however, that there are indeed quite a few cases of ethnic democracy, although some are partial and some historical, including Estonia, Latvia, Northern Ireland from 1921 to 1972, Macedonia from 1991 to 2001, interwar Poland, Slovakia, and Malaysia. Danel does not address the real functions of the model as a theory of the emergence and stability of ethnic democracy and as a conceptual scheme for the comparative study of ethnic democracies. The theory accounts for the developments of ethnic democracy in these states and for the conditions for its success and failure. Danel also tries to show that Israel is a Western liberal democracy by overstressing its liberal traits and the non-liberal characteristics of Western democracies. I argue that Israel's ideology, design, policies, and practices as the homeland of the Jewish people, most of whom are not its citizens, and as the “property” of the Israeli-Jewish majority, means that it has a second-rate ethnic democracy and as a state and society does not qualify as Western.     

Giuseppe Mazzini and the democratic logic of nationalism

ABSTRACT. This article brings the thought of Giuseppe Mazzini back into the field of nationalism studies, from which it has been largely missing for a half century. It suggests the following: that Mazzini is much more modern and secular than he is usually portrayed; and that his commitment to liberal policies while rejecting liberal principles suggests that the distinction between civic and ethnic nationalism has been misconceived. Nationalism, to Mazzini, was not an end in itself but a means to an end – government of, by and for the people. The demand for such a government was manifested in three popular demands in nineteenth‐century Europe: in the West as democracy, in the East as national sovereignty (the precondition for democracy) and in both East and West as social democracy. Thus nationalism may be instrumental rather than an end in itself, and it may be attributable not to ethnic groups' natural striving for autonomy but to the pursuit of democracy.     

James Naughtie,The Accidental American: Tony Blair and the Presidency

Abstract

The terms "justice" and "necessity" are often employed in discussions of war. The just war tradition seeks to delineate when wars are and are not just; other theologians who do not find this approach helpful may nevertheless resort to the logic of necessity. Although unjust, some wars may still be deemed necessary. Barth employs both the language and logic of justice and necessity in his approach to war. The purpose of this paper is to address Barth's exposition of war in relation to his approach to divine justice and the necessity of Christian affliction. It does not attempt to make any large claims about the just war tradition or other approaches to war. Rather, it is intended to be an immanent critique of Barth from Barth's own theology, showing that, although consistent with his view of church and state, Barth's theology of war is inconsistent with his view of both God's character as just and the external necessity of affliction to Christian witness.     

Democratization, Legitimacy and Political Change in Central Asia

This article examines the concepts of democracy and legitimacy in the context of post-Soviet Central Asia. Its first argument is that democratization projects have lived through hard times in five Central Asian countries despite the failure of the institutional expression of democracy to incorporate the values and structures of these societies. The Soviet legacy of cynicism combined with local conservative political culture obstructs the emergence of democratic values and processes crucial for successful institutional development. If democracy does not provide a basis for political legitimacy, should the conclusion be that the ruling regimes are illegitimate? The article’s second argument is that the current sources of legitimacy stem from the fact that the regimes managed to cope with the initial challenges of post-communist transition with relative success and laid the foundation of the new states. Moreover, the populations do not see viable alternatives to the present order. However, there are new problems, such as mounting social tensions, regionalization and criminalization of politics. These challenges are largely a by-product of developments in the post-independence era. The continuing legitimacy of the regimes will depend on their ability to cope with these new, highly problematic issues.     

International political theory and the question of justice

The aim of the international justice theorist is to find coherence among ideas about justice at the international or global level. Linking justice to coercion and law can bridge the gap between just war theory and theories of international distributive justice. The idea of humanitarian intervention illustrates how the argument might go. Underlying that idea is the idea of a duty to protect. That duty is often thought to be an imperfect and therefore unenforceable duty based on a principle of beneficence. But we can also think of it as a perfect, enforceable duty to resist the violent, where that duty rests directly on the principle of respect, unmediated by beneficence. Respect also implies action to prevent non-violent harms. To do nothing while people are dying of starvation or disease is to fail to respect them as human beings by making their wellbeing a matter of indifference. We can therefore justly be compelled to prevent such harms by being taxed to support efforts to prevent them. A theory of justice that made the duty to protect central would ground the theory of international distributive justice in the justice—coercion link that underlies just war theory.     

The Right to a Nice Home: housing inspection in 1930s Stockholm

This article deals with how the authorities taught the Swedes to live and how Swedish citizens came to accept such an intimate encroachment in their private lives. Why did people accept these social experts of everyday life? The answer tells us something about modern society and modernity itself.

Around the turn of the 20th century, Stockholm had one of Europe's worst housing conditions, according to Swedish experts of the time. One-room apartments were the norm, even for large families. Not all buildings had running water and often several families shared one outhouse. At the same time, the idea that the home was the place in which the conscientious citizens of the future would be raised was introduced – in Sweden as elsewhere. Dwellings became part of the social question. Many people believed that a well-functioning home would improve other aspects of life as well: men would stay at home in the evening instead of going to pubs; women would do a better job of raising the children; and public health would improve. A neglected home was seen as a sign of the exact opposite; the right to a nice home turned into a duty to live well. As an extension of this idea, housing inspections became important processes in the effort to improve the lives of citizens. The inspections were carried out by municipal employees, who were expected to monitor people's everyday lives. They functioned as housing experts, but what did these social engineers actually do? How did they become housing experts? And was their encroachment into people's daily lives accepted by ordinary citizens?     

Youth crime and preventive policing in post-war Scotland (c.1945-71)

This article explores debates concerning the methods and styles used by the police service in its dealings with children and young people in post-war Scotland (in comparison with England). Study of the implementation of Police Juvenile Liaison Schemes is used to consider shifting points of tension as well as cooperation between the police and other occupational groups engaged in work at the nexus of youth justice-welfare. Whilst often characterized as contradictory tendencies, the article demonstrates that a social welfare ethic and a criminal justice ethic were coexistent within the rhetoric and practice of policing, but that they operated in a state of flux. It also argues that styles of policing were subject to change, particularly as the use of discretionary and informal methods was increasingly challenged, as physical violence was increasingly seen as an outmoded recourse for the institutions of criminal justice, and as the policing of youth was increasingly politicized. The post-war period can be characterized in terms of greater levels of public scrutiny, the formalization of processes previously undertaken through informal or semi-formal mechanisms, and attempts (not always successful) to systematize procedures nationally in terms of the Scottish state.