Law, Policymaking, and the Policy Process: Closing the Gaps

Public policy scholars and public Law scholars often study the same substantive issues and have similar theoretical interests Yet students of the public policy process rarely consider the courts as policymakers in the same manner as do their public law counterpart We seek to explain this difference in approaches between the two Subfield on the question of the courts as policymakers, and we ask. how models of the public policy process should incorporate the judiciary.     

Natural Law Theory,Legal Positivism,and the Normativity of Law

This essay examines two dominant traditions in legal philosophy, the natural law theory and legal positivism, in terms of how they account for the normativity of law. I argue that, although these two traditions generally take the question of the normativity of law seriously and try to account for it, they are not successful in doing so. This failure in the prevailing literature on the philosophy of law, I suggest, nevertheless has an implicit reconstructive impact: the insights into the failure of natural law theory and legal positivism imply an alternative philosophical framework that may provide a positive answer to the question of the normativity of law.     

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.     

Legalism: Law,morals, and political trials

The purpose of this article is to critically undermine two commonly held and closely related contentions regarding the British idealist tradition. The first is that the British idealist tradition went into rapid and terminal decline shortly after the outbreak of the First World War. The second is that J. A. Smith was largely responsible for it. These aims are achieved through a diachronic analysis of Smith's conception of human imperfection as well as an assessment of Smith's intellectual legacy. As this article will show, contrary to the received view, Smith was a philosophical innovator who instigated an intellectual evolution within the British idealist. In particular, this article shows that Smith substituted aspects of his early Greenian philosophy with elements of Italian idealism. As a result, Smith was instrumental in moving British idealism away from its traditional underpinnings and towards more a Croce–Gentilian foundation. It is this neglected philosophical innovation which has given scholars the false impression of the tradition's collapse. By establishing Smith's intellectual innovation this article intends to show that Smith made a much more significant intellectual contribution to the philosophical tradition to which he belongs than has so far been recognised.     

Chen,Li.Chinese Law in Imperial Eyes: Sovereignty,Justice and Transcultural Politics

Inspired by comments released in the British press following the 2009 execution in China of a British citizen,Chinese Law in Impenal Eyes seeks to understand the roots of the dominant Western interpretation of Chinese law,one that in part still echoes the comments expressed over the case of the ship the Lady Hughesin 1784.Focusing on several pivotal moments in the Sino-Western encounter (mainly between Britain and China) between 1740 and 1840,the author depicts the ways in which the image of Chinese law was created and shaped,and how it acquired such lasting power.     

History, Memory, and the Law: The Historian as Expert Witness

There has been a widespread recovery of public memory of the events of the Second World War since the end of the 1980s, with war crimes trials, restitution actions, monuments and memorials to the victims of Nazism appearing in many countries. This has inevitably involved historians being called upon to act as expert witnesses in legal actions, yet there has been little discussion of the problems that this poses for them. The French historian Henry Rousso has argued that this confuses memory with history. In the aftermath of the Second World War, judicial investigations unearthed a mass of historical documentation. Historians used this, and further researches, from the 1960s onwards to develop their own ideas and interpretations. But since the early 1990s there has been a judicialization of history, in which historians and their work have been forced into the service of moral and legal forms of judgment which are alien to the historical enterprise and do violence to the subleties and nuances of the historian's search for truth. This reflects Rousso's perhaps rather simplistically scientistic view of the historian's enterprise; yet his arguments are powerful and should be taken seriously by any historian considering involvement in a law case; they also have a wider implication for the moralization of the history of the Second World War, which is now dominated by categories such as "perpetrator,""victim," and "bystander" that are legal rather than historical in origin. The article concludes by suggesting that while historians who testify in war crimes trials should confine themselves to elucidating the historical context, and not become involved in judging whether an individual was guilty or otherwise of a crime, it remains legitimate to offer expert opinion, as the author of the article has done, in a legal action that turns on the research and writing of history itself.     

Law,Courts, and the Judicial Process

Abstract

In I Am Charlotte Simmons, Tom Wolfe explores how precarious the pursuit of happiness is in our liberal society, which provides insufficient moral support for individuals to resist following popular opinion in their pursuit of happiness. For Wolfe, the first step of the pursuit of happiness requires the courage to resist popular opinion and to seek an answer to what happiness is for oneself. As Wolfe shows, our universities are neglecting their task to prepare individuals with a liberal education to guide them on how to live as politically and morally free beings who are responsible for pursuing happiness. Despite appearing to be proud and independent, Charlotte Simmons's education fails to provide her with the moral courage to resist peer pressure. At her university, she adopts scientific viewpoints that undermine political and moral liberty and teach her that her superior intelligence and education are tools of domination. Charlotte puts them in service of gaining popularity. Instead of bringing her happiness, her pursuit of popularity leads to discontentment. Since liberalism provides incomplete moral guidance, Wolfe turns to ancient thinkers to find support for the courage to use political liberty to think about what happiness is and how it is to be pursued. In contrast to Charlotte, Jojo, a star basketball player, turns toward the pursuit of a liberal education to live as a free being and to seek happiness.     

Law,memory, and priestly office in Rome,c.500

This essay sets the development of Christian thinking about law and clerical office in the wider context of the discussion of office in the later Roman empire. It offers a reassessment of the work of Dionysius Exiguus, a well‐known translator from Greek into Latin of the Acts of the fourth‐ and fifth‐century church councils, and a compiler of papal decretals. The essay attempts to place Dionysius’ work in its immediate Roman context, in the context of fifth‐century canonical activity, especially in North Africa, and in the more general context of the political culture of office‐holding in the late Roman polity. Central here is the tension between bureaucratic regulation and autocratic room for manoeuvre. Dionysius did not attempt fully to resolve this tension, though he did attempt to contain it.