Legal realism and human rights

This essay uses Schmitt's work to cast new light on the relevance of the American legal tradition known as ‘legal realism’ for the history and analysis of human rights. It does so by exploring several of Schmitt's most famous criticisms of international law and human rights, and then suggests how they might correspond with a widespread critical legal tradition in the 1920s and 1930s. This essay describes in detail two fundamental features of this tradition: historicism and realism. It concludes by suggesting that a return to some of these earlier law writers and texts might be a more substantive way to develop a constructive critical position in the fields of human rights and international law than an overreliance on the politically provocative (and problematic) rhetorical flourishes of Carl Schmitt.     

3. CARL SCHMITT'S CONTRIBUTION TO A THEORY OF POLITICAL MYTH

My goal in this essay is to show that myths have played a larger role than we might think in politics and in political theory and that myths are essential to politics. For this purpose I will use Schmitt's theory of myth, since he elaborated his theory with strong interpretations of two different myths: Hobbes's Leviathan and Shakespeare's Hamlet. I will compare Schmitt's interpretations of Hamlet with my own, as doing so will provide a critical view of Schmitt's conclusions, and it will enable me to develop my own conception of myth and its relations to political theory and history.     

Women's Rights as Human Rights after the End of History

This article is based on the 2022 Gender & History annual lecture. It reconsiders the recent history of women's rights as human rights. The collapse of communism in Eastern Europe and the Soviet Union brought to an end a twentieth-century discourse of women's rights, understood not only as legal norms, but as a political language harnessed to a narrative of women as a collective subject progressing towards emancipation and equality. This was enabled by an international order in which human rights were tied to visions of self-determination, social rights and strong states, creating spaces for new subjects to make their voices heard in international law, albeit in particular and circumscribed ways. After 1989, women were again written into international law primarily as victims of violence, while the emergence of gender as a category of analysis challenged the notion of ‘women’ as a collective subject of rights. The story of women's rights, the article concludes, suggests that recent revisionist histories of human rights as a neoliberal utopia are only one part of a more complex human rights history.     

Schmitt and the Sovereignty of Roman Dictators: From the Actualisation of the Past to the Recycling of Symbols

The aim of this article is to analyse the complex roots of Carl Schmitt's theory on dictatorship in the classical world through the lens of classical receptions. It argues that Schmitt was deeply engaged with the classical tradition in formulating his theory on dictatorship. Knowingly or unknowingly, Schmitt legitimates his theory through a foundation in both the Roman idealisation of the virtuous dictators of the early Republic as well as the long tradition of the narrative of the enlightened sovereign as a guarantor of law, present in both Greek and Roman antiquity and in the subsequent European tradition. Schmitt skilfully repurposed the Roman historical tradition on dictators but glossed over the traditional antipathy of Roman republicanism towards sovereign rule. The claim that this article is presenting is that even though it has been overlooked by earlier scholars, Schmitt was both directly and indirectly influenced by the classical tradition of dictatorship and utilised their mythical and symbolic dimensions in the later Roman and the subsequent European legal and political traditions. The reason for this omission was that Schmitt, like his contemporaries, belonged to one of the last generations to be groomed in the classical tradition of literature.     

Hobbes and Schmitt

Many commentators are unconvinced by Carl Schmitt's interpretation of Hobbes's political theory which, to their minds, remakes Hobbes in Schmitt's own authoritarian image. The argument advanced in this essay comprises three claims about Hobbes and Schmitt and the ways in which they are construed. The first claim is that certain commentators are bewitched by a picture of authority which biases their own claims about Hobbes, perhaps in ways that they may not fully appreciate. The second claim relates to Hobbes's individualism. On Schmitt's account, it was this individualism that opened the barely visible crack in the theoretical justification of the state through which it was worm-eaten by liberalism. This essay argues that Hobbes's individualism is not what Schmitt or his critics take it to be. The individualism that figures in Hobbes's discussions of covenant and conscience, pace Schmitt, is an illusion, albeit one that lies at the very heart of his conception of the state and animates his understanding of the relationship between protection and obedience that sustains it. The essay concludes with some remarks about the wider implications of the argument it advances.     

From Dionysus to the Anti-Christ

Abstract

This essay is a reconstruction of Rene Girard's Christian apology in “I saw the Devil fall like Lightening.” It develops Nietzsche's antithesis between Christ and Dionysius which Girard identifies as the antithesis of modernity as such. Against Girard's own alliance with Carl Schmitt the essay adopts the Trinitarian point of view suggested by the author, in order to show that it is Erik Peterson's “Trinitarian” critique of Carl Schmitt's political theology of sovereignty which could fulfill the “true” aim of the author in fact much better.     

‘The Law is to Blame’: The Vulnerable Status of Common Property Rights in Sub‐Saharan Africa

The context of this article is the surge in large‐scale land acquisitions of African lands by local and foreign investors for commercial food, livestock, oil palm and carbon trading purposes. Involuntary loss of rural lands at scale is not new to Africa's majority rural poor, nor is it driven by a single factor. Historically inequitable land relations within communities, compounded by a century of capitalist transformation, take their toll. This study argues, however, that the weak legal status of communal rights is the most pernicious enabler in their demise, allowing governments to take undue liberties with their citizens’ lands, and particularly those which are unfarmed and by tradition held in common. While international acquiescence to abusive domestic law helps entrench the diminishment of majority land rights, the domestic laws themselves are principally at fault and necessarily the target for change. This legal vulnerability is explored here through an examination of more than twenty African land laws.     

When the personal becomes political: using legal reform to combat violence against women in Ethiopia

This article focuses on Ethiopia's first civil society organisation, the Ethiopian Women Lawyers Association (EWLA), which has been campaigning for legal reform to secure women's rights and address violence against women. Implementing legal changes to benefit women in Ethiopia is impeded by difficulties in using the formal legal system, by poverty and deeply embedded gender inequalities, by plural legal systems, and by entrenched cultural norms. However, the article argues that the most significant challenge is the increasing degree of authoritarianism in Ethiopian state politics, that this is crucial in determining the space for activism, and that this shapes the successful implementation of legal change. The research shows how women's activism around personal rights challenges public/private and personal/political boundaries and can be seen as a political threat by governments in contexts where democracy and rule of the law are not embedded, leading to repression of women's activism and hindering the implementation of measures to protect women's rights when states become more authoritarian. Little is known empirically about the impact of democratisation on the implementation of measures to protect women's rights in Africa. This article shows how the emergence of democracy and legal reform intersects with the emergence of women's rights, especially with respect to gender-based violence. It shows how trying to secure women's personal right to be free from violence through the law is profoundly political and argues that the nature of democratisation really matters in terms of the implementation of measures such as legal changes designed to protect women's rights.     

Political Philosophy and the Problems of International Order: Machiavelli,Kant, and Aristotle

Although international order is a consistent concern for both statesmen and citizens, it has received only rare attention from political theorists. In this essay I evaluate the contemporary international order in light of political thought, specifically with reference to Machiavelli, Kant, and Aristotle. Contemporary international order and its historical roots in the Peace of Augsburg find theoretical expression in the writings of Machiavelli, especially insofar as he advocates for overturning classical political thought. By rejecting classical political thought and the notion of natural right, along with Christian doctrine, Machiavelli set the stage for the political absolutism that underlies the concept of state sovereignty, as it was expressed at Augsburg. Kant, in rejecting Machiavelli's political absolutism, prepared the ground for international human rights. In doing so he provided theoretic ground for the authors of the Universal Declaration of Human Rights. But while human rights may provide a welcome balance to state sovereignty, they undermine international order insofar as international order relies on state sovereignty. I suggest that the current theoretical and legal inconsistencies that come about from making room for both state sovereignty and human rights may have their origins in modern political theory's rejection of Aristotelian political thought.     

‘Iustitiam non includo’: Carl Schmitt,Hugo Grotius and the Ius Publicum Europaeum

Through a discussion of Hugo Grotius’ conception of just war, this essay shows that within his critique of liberalism, Schmitt clashed with the very intellectual tradition he claimed to represent. Both historically and philosophically Schmitt's concept of the Ius Publicum Europaeum was a mirage. Indeed, his concept of the political was a rejection of the moral and civil philosophy that sees politics as the world of active citizens and commonwealths arguing with each other about fundamental questions of justice and equity.     

Land as fictitious commodity: the continuing evolution of women's land rights in Uganda

In sub-Saharan Africa, colonial influences have altered traditional practices as a way to manage that which Polanyi labeled as ‘fictitious commodities’ of land, labor, and money. Land has now become a highly marketable commodity and an intrinsic part of the global economy. Over the past century, Uganda's land rights have evolved from communal rights to that of male-dominated, individual ownership practices that have excluded women. Despite constitutional provisions, which confer title of both a deceased husband's property rights and equal rights to property within a marriage to a wife, postcolonial patriarchal tradition prevails. This article examines historical changes in land rights in Uganda and discusses the impact of shifts in land rights from communal ownership to individual tenure, altering power structures and attempting to create marketable land title. The Ugandan women's movement's opposition to policies and implementation of laws that exclude women has been unable to facilitate the required changes in unbiased access to land rights, despite apparent victories in revisions to the letter of the law. Situated within contemporary interpretations of tradition and pressures of market demand, this article shows that women's access to landownership and use are restricted by misinterpretation of traditional law and a lack of enforcement of contemporary legal rights. To illustrate the impact of a lack of access to land, this article examines an empirical case study of widowed subsistence farmers in southern Uganda. Women in Uganda continue to lose ground, quite literally, decreasing the possibility of gender equity in terms of land.     

Polygamy and Legislation in Contemporary Iran: An Analysis of the Public Legal Discourse

The purpose of this article is to analyze the interaction between different interpretations of Islamic jurisprudence in Iran and state law. It focuses on the public legal discourse about the new Family Draft Law in 2007–08, especially Article 23 regulating polygamous marriages and removing necessity for the first wife's permission. The participants in this public legal debate, which took place on the internet and in the media, were civil society organizations, especially women's organizations, the Shiite clergy, and state representatives. The article argues that even in a non-democratic, theocratic state such as the Islamic Republic of Iran, public discourse promoted by the named actors can challenge and influence state legislation. The removal of Article 23 from the Draft confirms this argument, but in the law of 2013 the requirement for the first wife's permission is not found. By looking at the arguments brought forward in the public discourse, the article demonstrates that the arguments are mainly “Islamic,” and none refers to international human rights, as this seems to be a kind of taboo in the political discourse.     

The Ernest Gellner Nationalism Lecture: The Soviet Union,self‐determination,and the creation of the postwar human rights system

The USSR played a key role in the establishment of the post‐World War II human rights system despite its repressive and even murderous domestic record. It forged an alliance with the countries of the Global South in support of decolonization, self‐determination, and social and economic rights, policies opposed by liberal states like the United States, Great Britain, and France. These positions were deeply rooted in the socialist tradition. Moreover, when a human rights movement emerged in the mid‐1960s, its members—in its origins overwhelmingly from the intelligentsia—called not for the overthrow of the Soviet Union but for the fulfilment of Soviet law. The language of rights, proclaimed with such flourish in the 1936 constitution and its successor in 1977, served as the weapon hurled by dissidents as they called on the Soviet government to respect freedom of speech and assembly, and national rights, including the right to emigrate. In turn, the international human rights movement developed from the 1960s to the 1990s largely through support for the Soviet dissident movement, Amnesty International, and Human Rights Watch prime examples. The Soviet experience is critical to any global history of human rights.     

The Paradox of Subjective Truth

Abstract

This paper focuses in part on Jan Assmann's interpretation and refutation of Carl Schmitt's very well-known secularization theory that all significant modern concepts of the state are secularized theological notions. It will be demonstrated that Assmann attempts to counter Schmitt's conception of modern secularization by suggesting that Mosaic monotheism inaugurated a revolution by theologizing the political. By briefly exploring Assmann's interpretation of Egyptian religion, it will be argued that a conception of the political as distinct from the theological characterized the political form of ancient Egypt. This leads to a discussion of Assmann's argument that Schmitt's conception of the friend/enemy distinction should be understood as an aberration of the political form of ancient Egypt and therefore viewed as a category of political illegitimacy. In order to illustrate this, attention will first be drawn to Assmann's distinction between primary and secondary religion. This is followed by a discussion of Assmann's notion of the structural transform of the political by theology, which then moves specifically into his argument for the intellectual origins of Schmitt's concept of the political. It will be attempted throughout this paper to bring conceptual clarification to Assmann's notion of theologization by relating it to the question of political theology currently taking place in France and the English-speaking world. Towards the end I offer a number of criticisms of Assmann's notion of theologization.     

The historical geography of Scotland since 1707

This article pays special attention to the large number of references to political theology by Hans Kelsen and Carl Schmitt, particularly in the interwar period, and seeks to interpret these references in a new way. While Schmitt's analogies between God and state are to be expected considering his strong Catholic roots, such comparisons are much more surprising for a positivist like Hans Kelsen, who always tried to relieve state and law from transcendental elements. The article concludes that, far from being marginal in the doctrinal dispute between Schmitt and Kelsen, references to political theology express and summarize their major controversy about the relation between state and law, as well as about the sources of the state's unity. The heart of the disputatio between the two jurists concerned the ability of the political power to emancipate itself from the juridical order. The ‘legal miracle’—in this context meaning the occasional autonomization of the state from law—was for Schmitt the manifestation of sovereign power. However, for Kelsen it represented the negation of the state's essence, whose actions must be determined only by the legal order.     

A normative case for pluralism: reassessing Vincent's views on humanitarian intervention

While R. J. Vincent's overall goal in Human rights and International Relations was to demonstrate how human rights might be promoted in international society, there was one area in which he was sceptical about allowing human rights to serve as the basis for international conduct: military intervention. This article begins by demonstrating that Vincent's greatest fear—that legitimizing humanitarian intervention would lead to countless wars—has proved largely unfounded. Nonintervention in the face of gross violations of human rights has marked the post‐Cold War period more than rampant interventionism. Moreover, while the use of force for humanitarian purposes has become acceptable in very exceptional circumstances, the manner in which it has been legitimized and the depth of the consensus around its appropriateness illustrate lingering scepticism among states about infringements of sovereignty. The article concludes by showing how Vincent's writings on humanitarian intervention, in particular his caution about an imperialist advance of cosmopolitanism, might provide a basis for a more robust normative defence of pluralism in contemporary international society.     

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.     

‘That Moral League of Nations against the United States’: The Origins of the 1856 Declaration of Paris

The Declaration of Paris, signed by seven European powers on 16 April 1856, is almost forgotten today. Yet it marks the beginning of modern international law as we know it: multilateral treaties open for accession by all powers with the intention of creating new universal rules. Its extension of neutral rights to trade undisturbed in peace-time was a radical reversal of the centuries-old British tradition of extensive belligerent rights. But there is no convincing explanation why Britain signed this treaty and lobbied for its global acceptance. This article shows that the Declaration was a package deal in which Britain accepted broader neutral rights but gained the abolition of privateering. Privateering was no anachronism, but the linchpin of US strategy in case of a conflict with Britain. The Declaration of Paris closed most of the world's ports to privateers and thus ended the practice. The Declaration was also the first multi-lateral law-making treaty and marks the invention of the main instrument we use today to create international law.     

5. GROSSRAUM AND GEOPOLITICS: RESITUATING SCHMITT IN AN ATLANTIC CONTEXT

Contemporary theorists of international relations and historians of empire have found utility in the spatial theory of “Grossraum,” or “great space,” that Carl Schmitt developed in the 1930s and 40s. This article asks whether Schmitt's concept of Grossraum can be fully disentangled from its German history—from the Nazi pursuit of Lebensraum in which it eventually culminated, but with which it is not identical either. I argue that Schmitt's Grossraum theory is neither merely a symptomatic reflection of the Third Reich's objectives, nor a free‐floating theory with strong potential for critiquing imperialism, but is best approached as an important moment in the transatlantic conversation among empires that unfolded between 1890 and 1945 about the sources, methods, and prerogatives of global power. It compares Schmitt with other figures in German geopolitics such as Friedrich Ratzel and Karl Haushofer in order to establish a genealogy of the distinction between land and sea powers, arguing that Schmitt's writings on Grossraum modernize and transmit to the twentieth century the most influential theories of political geography and geopolitics developed in the Atlantic world between 1890 and 1930.