Rethinking the History and Theory of Jus Publicum Universal: The Formation of China as a "Semi-Civilized" Legal Subject

Much of the existing scholarship on the universalization of nineteenth-century international law has framed it in terms of the imperial West's domination of non-Western societies.This article complicates and qualifies this conventional state-centric narrative by investigating the juridical,capitalist production of China as a "semi-civilized" international legal subject.It examines the foundational modem Sino-British/Westem commercial and extraterritorial treaties,as well as the treatises of a new professional class of British international lawyers-James Lorimer (1818-90),John Westlake (1828-1913),William Edward Hall (1835-94),T.E.Holland (1835-1926),Thomas Lawrence (1849-1920),and Lassa Oppenheim (1849-1920).The juridical production of China as a "semi-civilized" legal subject throws into relief the dual capitalist nature and significance of the universalization of nineteenth-century international law.On the one hand,this "civilized" legal discourse underwrote a novel liberal conception of a universal international law (jus publicum universal) within which China was formally included as a quasi-legal subject.On the other hand,it also underwrote a particularistic,Euro-centric international law,which excluded China from its global domain and denied it basic sovereign fights.In this way also,"civilized" international law justified both formal equality in Europeannon-European treaty relations,as well as the real substantive inequality of these international exchanges of rights and obligations.Building on the critical theoretical work of Evgeny Pashukanis (1891-1937),this article argues that a non-orthodox Marxist social theory of legal forms is best suited to explain the abstract,liberal universalism of nineteenth-century "civilized" international law and the contradictory forms of legal and jurisprudential discourse it made available and rendered normatively meaningful to international law practitioners.Through this Marxist theory,moreover,I shall relate said contradictory discourse to modern commodity exchange practices.     

Legal issues with volunteered geographic information

Volunteered geographic information (VGI) is a relatively new and rapidly developing activity with varying degrees of organization and legal sophistication that involves host sites, contributors, and users. VGI related activities raise a variety of legal issues, from intellectual property to liability, defamation, and privacy. These issues may affect the rights and obligations of all those who use or participate in VGI activities. This article provides an overview of some of these legal considerations from the perspectives of the host, contributor, and user respectively.     

Court-day crowds in colonial Virginia

ABSTRACT

For a generation, legal historians investigating colonial Virginia have emphasized the dramaturgy of court day. According to the dramaturgical school of interpretation, administrative and judicial activities of county court officials amounted to theatrical performances that simultaneously enforced economic order and stabilized traditional social relationships. Such interpretations assume a large audience routinely attended county courts to observe legal dramas. Often, however, only a small number of persons can be documented as present during court day. The independence theorem from probability theory suggests that the number of documentable attendees is a useful and easily calculated estimate for actual total crowd size. If so, some Virginia court sessions were attended by hundreds of people, while others drew only a few participants. A variety of factors apparently inhibited court attendance in older Virginia counties. By contrast, in newer frontier counties, mid-eighteenth-century revisions of court calendars produced heavy attendance at court day. Regardless of the number of people in attendance, any Virginia county court could still effectively enforce credit contracts.     

The legal (de)construction of geography: race and political community in supreme court redistricting decisions

This article examines the different conceptions of racial identity and ‘geography’ in two landmark Supreme Court decisions, Shaw v. Reno (1993) and Easley v. Cromartie (2001). Both decisions evaluated similar Congressional redistricting plans in North Carolina, but reached opposite conclusions. In Reno, the Court based its reasoning on the ‘objective’, ‘natural’ and ‘rational’ geography of North Carolina. Such geographic relationships create political communities and constrain the way in which state legislatures can draw electoral districts. In contrast, the Easley decision based its reasoning on voting behaviour, and makes an implicit appeal to deliberative democratic principles. From this perspective, political relationships create the geographic relationships defined by Congressional district boundaries. Where the Reno decision treats race as an arbitrary social distinction that the state should not use as the basis of political representation, the Easley opinion argues that the state can consider differences in racial voting behaviour during the redistricting process. More fundamentally, the Easley decision implies that racial identity is formed by deliberative political communities, rather than being an objective, static characteristic. This suggests that disputes over spatial relationships are critical to the construction of hegemonic racial identities, and that space is fundamental to the conception of racial difference.     

Norms and illegality in the social margins

The special section in this issue approaches the theme of illegal, semi-legal and extra-legal practices in Italy from a range of critical perspectives informed by ethnography, history and theory. The glimpses of social practice offered by our contributors explore the ambiguities and ironies of presumed distinctions between the lawful and the illicit, or the legitimate and the immoral. Five case studies depict different networks of social actors navigating contingent landscapes of possibility and constraint, sanctions and incentives, imagination and doubt. Seen in empirical terms, ‘from the bottom up’, the neoliberal terrain of normativity is shown to be far more heterogeneous and uncertain than we might have anticipated. Far from reconfirming our stereotypes, Italy offers many challenges to conventional assumptions about law and criminality.     

‘A Beautiful Fiction of Law’: Rhetorical Engagements with Terra Nullius in the British Periodical Press in the 1840s

This paper analyses two critiques of the jurisprudential basis of settler colonialism in Australia published in the early Victorian periodical press. Review articles in the North British Review and Fraser's Magazine in the 1840s deployed claims of legal sophistry to dispute the fiction that Australian colonies were settled, rather than conquered, and that the country was a terra nullius. By examining the politics and rhetoric of each article, the significance of legal ideology for both literature promoting colonization and humanitarian critiques of colonial policy is assessed. Through a combination of discourse analysis and intellectual history, the North British Review article is read as fusing Scottish Enlightenment concepts of social evolution with the rhetoric of sensibility to defend the existence of Indigenous rights to land and to argue for the degenerative implications of colonial social practices. Similarly, the Fraser's Magazine article offers an epitome of the place of law in colonial policy-making by invoking utilitarian and pragmatic approaches to law to rationalize doctrines of sovereignty and jurisdiction, minimizing legal protections for Aborigines while maximizing the legal powers of colonists. By tracing the use of jurisprudential rhetoric in reviews published in two leading metropolitan journals, the paper offers evidence that the literary sphere contributed to the emergent culture of colonial legality.     

The role of zoning in the strategic planning of protected areas: lessons learnt from EU countries and Serbia

This paper aims to highlight the problems and possibilities for improving the nature protection zoning of protected areas (PA) in spatial planning. It analyses and compares the systems of spatial planning and the legal basis for protecting nature in PAs in selected EU countries and Serbia. It investigates and compares the role of nature protection zoning and the practice of spatial planning for selected European countries. The case study of a national park in each of the selected countries is used to analyse the nature protection zoning and its role in the coordination of spatial planning for PAs and their surroundings. The initial hypothesis is tested and confirmed that, regardless of differences in the planning systems of the selected European countries, the models of nature protection zoning established for PAs are defining for the coordination of planning instruments in achieving the protection and sustainable development of PAs. The lessons learnt concern the identification of similarities and differences in approaches to nature protection zoning, and their relationship with the spatial planning for PAs in six European countries. Based on these lessons and existing research, recommendations are given for improving the legal basis for the nature protection zoning and spatial planning of PAs in Serbia.     

Religion,toleration, and religious liberty in republican empire

ABSTRACT

The essay considers the nature and extent of toleration extended by Roman authorities to the religious pluralism of the empire. Roman legal instruments and works of law and political theory identify religion not as a concern of individuals but communities, and above all of juridically-constituted communities. As a related matter, classical and Christian Latin employs the language of political belonging, most notably that of republican citizenship, as its dominant apparatus for discussing religious affiliation. These related conceptual apparatus placed considerable limits on Romans’ ability to afford liberty in matters of religion to individuals.     

Gendered struggles over land: shifting inheritance practices among the Serer in rural Senegal

Although women’s land rights are often affirmed unequivocally in constitutions and international human rights conventions in many African countries, customary practices usually prevail on the ground and often deny women’s land inheritance. Yet land inheritance often goes unnoticed in wider policy and development initiatives to promote women’s equal access to land. This article draws on feminist ethnographic research among the Serer ethnic group in two contrasting rural communities in Senegal. Through analysis of land governance, power relations and ‘technologies of the self’, this article shows how land inheritance rights are contingent on the specific effects of intersectionality in particular places. The contradictions of legal pluralism, greater adherence to Islam and decentralisation led to greater application of patrilineal inheritance practices. Gender, religion and ethnicity intersected with individuals’ marital position, status, generation and socio-ecological change to constrain land inheritance rights for women, particularly daughters, and widows who had been in polygamous unions and who remarried. Although some women were aware that they were legally entitled to inherit a share of the land, they tended not to ‘demand their rights’. In participatory workshops, micro-scale shifts in women’s and men’s positionings reveal a recognition of the gender discriminatory nature of customary and Islamic laws and a desire to ‘change with the times’. While the effects of ‘reverse’ discourses are ambiguous and potentially reinforce prevailing patriarchal power regimes, ‘counter’ discourses, which emerged in participatory spaces, may challenge customary practices and move closer to a rights-based approach to gender equality and women’s land inheritance.     

Die Seele auf der Bühne der Justiz. Die Entstehung der Kriminalpsychologie im 19. Jahrhundert und ihre interdisziplinäre Erforschung

The mind on the stage of justice: The formation of criminal psychology in the 19th century and its interdisciplinary research. – Criminal psychology emerges at the end of the 18th century as a new academic discipline in lectures and publications. It has recently been investigated by a considerable number of contributions from researchers of different academic backgrounds. In many respects criminal psychology can be seen as a predecessor of criminology. Its subject is the analysis of the origins of crime and its causes and determinants in the human mind. Criminal psychology embraced at that time philosophical, medical, legal and biological aspects. The latter increase in importance in the second half of the 19th century. The conditions of individual responsibility were generally codified in penal law, but had to be individually investigated in crucial cases through expertise in court. There a conflict emerged between medical experts and judges about their ability and competence to decide. At the end of the 19th century criminal psychology is used to fulfil the needs and interests of a criminal law which understands itself as increasingly utilitarian. Force and new instruments of treatment of offenders were legitimized by scientists who were very optimistic about their own epistemological abilities.