This essay argues that cosmopolitan law has been more successfully achieved not by appeal to a su... more This essay argues that cosmopolitan law has been more successfully achieved not by appeal to a supra-state authority or community, but by the development of features of existing treaty law. Specifically, it shows how the International Criminal Court’s jurisdiction over serious human rights violations has been extended to the citizens and territories of non-member states – and even to otherwise immune state officials – not by challenging the sovereignty of non-member states directly, but on the basis of member states’ own territorial sovereignty and the universal jurisdiction which they delegate to the Court and to the United Nations Security Council. In light of this, the authors argue that cosmopolitanism is better conceived not as invoking an independent sense of global community that supersedes and constrains state sovereignty, but as an immanent, contingent and creative development of statist criminal law itself, rooted in its principles of state sovereignty.
This essay argues that cosmopolitan law has been more successfully achieved not by appeal to a su... more This essay argues that cosmopolitan law has been more successfully achieved not by appeal to a supra-state authority or community, but by the development of features of existing treaty law. Specifically, it shows how the International Criminal Court’s jurisdiction over serious human rights violations has been extended to the citizens and territories of non-member states – and even to otherwise immune state officials – not by challenging the sovereignty of non-member states directly, but on the basis of member states’ own territorial sovereignty and the universal jurisdiction which they delegate to the Court and to the United Nations Security Council. In light of this, the authors argue that cosmopolitanism is better conceived not as invoking an independent sense of global community that supersedes and constrains state sovereignty, but as an immanent, contingent and creative development of statist criminal law itself, rooted in its principles of state sovereignty.
In my paper, I take as a specific example of the relationship between religion and human rights i... more In my paper, I take as a specific example of the relationship between religion and human rights in the work of Jürgen Habermas, asking if there is any possible relationship between religion and the foundations of human rights. I argue that if we mean by human rights what has been taken from Jürgen Habermas's recent work, then there can be little or no relationship between religion and human rights. Either religion can contribute little or nothing to the discussion of rights in multicultural societies, or another formulation for the origin of human rights must be found.
Since the publication of Between Facts and Norms, it appears to have gone largely unremarked by c... more Since the publication of Between Facts and Norms, it appears to have gone largely unremarked by critical theorists that Habermas has wholly abandoned the neo-Parsonian systems-theoretic account of social systems developed in his middle period. In this paper, I argue not only that Habermas has developed a new vocabulary and theoretical structure for dealing with social systems such as law, but also that this new approach to social systems is incompatible with the neo-Parsonianism of social systems developed in that arly work. This is not to say that Habermas' work in Between Facts and Norms should be set aside, but rather that the Parsonianism of The Theory of Communicative Action must be abandoned if Habermas' jurisprudential project is to go ahead.
also propose a rereading of Marx, Durkheim, and Weber that critically deals with the Eurocentric ... more also propose a rereading of Marx, Durkheim, and Weber that critically deals with the Eurocentric biases of their works. While Alatas and Sinha do hold Marx, Durkheim, and Weber accountable for what they perceive as the theorists’ conceptual, methodological, and ideological limitations, Alatas and Sinha demonstrate a mastery of and even admiration for the forefathers’ ideas and concepts rarely exhibited in contemporary texts on sociology. I have long hoped for someone to propose a strategy that moves the canonical restructuring debate from the discursive to the practical. However, due to poor proof reading and inconsistent criteria for candidacy, Alatas and Sinha’s list of neglected thinkers yields uneven results. For instance, in the introductory chapter Alatas and Sinha draw a distinction between social thought and social theory in order to justify the inclusion of thinkers like Nightingale, Ramabai, and Rizal. While I understand one need not be a sociological theorist in order to provide meaningful insights to our understanding of modern society, I would caution that the taken-for-granted relativism of postmodern perspectives threaten to dilute the intellectual vitality of sociological theory. I feel that Alatas and Sinha are at their strongest when they discuss thinkers like Ibn Khaldun, Martineau, and Sarkar who each were theoreticians that influenced the foundation of the discipline. Although I believe that disciplinarity is relevant to the survival and continuity of sociology, I share with the authors a conceptualization of an evolving rather than a static tradition of sociological theory. Despite these limitations, Sociological Theory Beyond the Canon represents a notable vision of an alternative way of teaching classical sociological theory that challenges social closure and professional exclusion in an age of intensifying globalization.
Leif Wenar argues, in Blood Oil, that the current rules governing natural resource exploitation b... more Leif Wenar argues, in Blood Oil, that the current rules governing natural resource exploitation by governments leaves too much room for the sale of a country’s natural resources in a manner which does not benefit its citizens. To that end, he proposes what he calls a Clean Trade Policy, under which individual developed states would pass laws forbidding the trade in resources where minimum standards for resource exploitation and sale are not met. In our paper, we first develop Wenar’s proposal, and then ask if it is possible for it to come to fruition. We theorize how activists interested in bringing about these changes might utilize the existing features of international law to adopt Wenar’s proposals. Beginning with Jessup’s theory of transnational law as a method of understanding the interaction of public, private, national and international legal regimes, and the process of norm creation and enforcement outside states, we argue that activists interested in taking up Wenar’s challenge to reform the ownership and distribution of global commodities would do well to move beyond Wenar’s narrow public law framework, and study the myriad forms of regulation and interactions that define the contemporary transformation of political sovereignty and rule-making under the conditions of globalization. We argue thatnonly by exploiting mechanisms of transnational lawmaking could the Clean Trade Policy be made law.
After failing to find any French newspapers interested in employing him as a columnist, Michel Fo... more After failing to find any French newspapers interested in employing him as a columnist, Michel Foucault initially visited Iran during the summer of 1978 as a special correspondent for the Italian Corriere della sera to discuss the circumstances of the Iranian revolution. Between Summer 1978 and May 1979, Foucault published articles on Iran not only in the Corriere, but eventually also in Le Monde, and Le Nouvel Observateur, as well as agreeing to an interview with an Iranian writers’ journal.1 The articles were soon condemned as Panglos-
Systems theorists have been criticized for failing to provide an adequate account of the features... more Systems theorists have been criticized for failing to provide an adequate account of the features of the international legal system. This criticism of systems theory parallels a similar critique of international law advanced by positivists working in the AngloSaxon legal tradition. Systems theory’s critics have attempted to use Hart’s argument against international as an argument against systems theoretic account of international law. The factors which influenced Hart’s critique of international law are well-known: it is open-textured, structurally decentralized, and lacks a single clear rule of recognition. In this paper, I attempt to answer some of these criticisms. I argue that the positivist critique of systems theory mischaracterizes the nature and structure of international law. To make this argument I first develop a broadly Luhmannian account of international law and the international rule of law and argue for an autopoietic account of international law-making. Second, I sug...
ABSTRACT In this paper I will sketch a theory of how normative demands for freedom emerging from ... more ABSTRACT In this paper I will sketch a theory of how normative demands for freedom emerging from the lifeworld both serve to provide new bases of legitimation for capitalism by drawing on underlying normative orders in the lifeworld while simultaneously giving rise to precarity on the part of new classes of workers. I argue that such a theory can provide a means of theorizing recent protests against capitalism (including, for instance, the events of the Occupy Wall Street movement and protests against the so-called sharing or gig economy). My thesis is that the phenomenon Standing identifies as the precariat emerges out of the reaction of the capitalist system to the events of the 1960s, and to available normative potentials contained therein.
as well as from two anonymous reviewers. Jürgen Habermas generously commented on an early version... more as well as from two anonymous reviewers. Jürgen Habermas generously commented on an early version of this argument. Any mistakes, of course, remain the authorʹs. 1 The collection of articles was published as: Jürgen Habermas/Niklas Luhmann, Theorie der Gesellschaft oder Sozialtechnologie-Was leistet die Systemforschung? (Frankfurt am Main 1972). 2 Poul Kjaer, Systems in Context: On the outcome of the Habermas/Luhmann debate, Ancilla Iuris (2006), 66-77, 77. 3 See, for instance, Hugh Baxter, Habermas: The Discourse Theory of Law and Democracy (Stanford 2011). 4 While I personally favor an autopoietic model of social systems, I will not make that argument here. Others have argued against the introduction of neo-Parsonianism, albeit for other reasons. For a representative critique of the neo-Parsonian model, see the essays by Thomas McCarthy/Hans Joas and others, in: Axel Honneth/Hans Joas (eds.), Communicative Action: Essays on Jürgen Habermas' The Theory of Communicative Action (Cambridge 1991).
The Journal of Law, Social Justice and Global Development
States rich in natural resources often have poor human rights records. Political scientists have ... more States rich in natural resources often have poor human rights records. Political scientists have labelled this correlation the "resource curse". To address structural causes and the misappropriation of resources by the rulers of those countries, Leif Wenar proposes in his book, Blood Oil, the so-called Clean Trade Act. We draw on Wenar's work to theorise how activists interested in bringing about these changes might utilize the existing features of international law to adopt Wenar's proposals. Activists interested in taking up Wenar's challenge to reform the ownership and distribution of global commodities would move beyond Wenar's narrow public law framework, and study the myriad forms of regulation and interactions that define the contemporary transformation of political sovereignty and rule-making under the conditions of globalisation. It is not enough that Clean Trade Laws are passed in developed nations.
This essay argues that cosmopolitan law has been more successfully achieved not by appeal to a su... more This essay argues that cosmopolitan law has been more successfully achieved not by appeal to a supra-state authority or community, but by the development of features of existing treaty law. Specifically, it shows how the International Criminal Court’s jurisdiction over serious human rights violations has been extended to the citizens and territories of non-member states – and even to otherwise immune state officials – not by challenging the sovereignty of non-member states directly, but on the basis of member states’ own territorial sovereignty and the universal jurisdiction which they delegate to the Court and to the United Nations Security Council. In light of this, the authors argue that cosmopolitanism is better conceived not as invoking an independent sense of global community that supersedes and constrains state sovereignty, but as an immanent, contingent and creative development of statist criminal law itself, rooted in its principles of state sovereignty.
This essay argues that cosmopolitan law has been more successfully achieved not by appeal to a su... more This essay argues that cosmopolitan law has been more successfully achieved not by appeal to a supra-state authority or community, but by the development of features of existing treaty law. Specifically, it shows how the International Criminal Court’s jurisdiction over serious human rights violations has been extended to the citizens and territories of non-member states – and even to otherwise immune state officials – not by challenging the sovereignty of non-member states directly, but on the basis of member states’ own territorial sovereignty and the universal jurisdiction which they delegate to the Court and to the United Nations Security Council. In light of this, the authors argue that cosmopolitanism is better conceived not as invoking an independent sense of global community that supersedes and constrains state sovereignty, but as an immanent, contingent and creative development of statist criminal law itself, rooted in its principles of state sovereignty.
In my paper, I take as a specific example of the relationship between religion and human rights i... more In my paper, I take as a specific example of the relationship between religion and human rights in the work of Jürgen Habermas, asking if there is any possible relationship between religion and the foundations of human rights. I argue that if we mean by human rights what has been taken from Jürgen Habermas's recent work, then there can be little or no relationship between religion and human rights. Either religion can contribute little or nothing to the discussion of rights in multicultural societies, or another formulation for the origin of human rights must be found.
Since the publication of Between Facts and Norms, it appears to have gone largely unremarked by c... more Since the publication of Between Facts and Norms, it appears to have gone largely unremarked by critical theorists that Habermas has wholly abandoned the neo-Parsonian systems-theoretic account of social systems developed in his middle period. In this paper, I argue not only that Habermas has developed a new vocabulary and theoretical structure for dealing with social systems such as law, but also that this new approach to social systems is incompatible with the neo-Parsonianism of social systems developed in that arly work. This is not to say that Habermas' work in Between Facts and Norms should be set aside, but rather that the Parsonianism of The Theory of Communicative Action must be abandoned if Habermas' jurisprudential project is to go ahead.
also propose a rereading of Marx, Durkheim, and Weber that critically deals with the Eurocentric ... more also propose a rereading of Marx, Durkheim, and Weber that critically deals with the Eurocentric biases of their works. While Alatas and Sinha do hold Marx, Durkheim, and Weber accountable for what they perceive as the theorists’ conceptual, methodological, and ideological limitations, Alatas and Sinha demonstrate a mastery of and even admiration for the forefathers’ ideas and concepts rarely exhibited in contemporary texts on sociology. I have long hoped for someone to propose a strategy that moves the canonical restructuring debate from the discursive to the practical. However, due to poor proof reading and inconsistent criteria for candidacy, Alatas and Sinha’s list of neglected thinkers yields uneven results. For instance, in the introductory chapter Alatas and Sinha draw a distinction between social thought and social theory in order to justify the inclusion of thinkers like Nightingale, Ramabai, and Rizal. While I understand one need not be a sociological theorist in order to provide meaningful insights to our understanding of modern society, I would caution that the taken-for-granted relativism of postmodern perspectives threaten to dilute the intellectual vitality of sociological theory. I feel that Alatas and Sinha are at their strongest when they discuss thinkers like Ibn Khaldun, Martineau, and Sarkar who each were theoreticians that influenced the foundation of the discipline. Although I believe that disciplinarity is relevant to the survival and continuity of sociology, I share with the authors a conceptualization of an evolving rather than a static tradition of sociological theory. Despite these limitations, Sociological Theory Beyond the Canon represents a notable vision of an alternative way of teaching classical sociological theory that challenges social closure and professional exclusion in an age of intensifying globalization.
Leif Wenar argues, in Blood Oil, that the current rules governing natural resource exploitation b... more Leif Wenar argues, in Blood Oil, that the current rules governing natural resource exploitation by governments leaves too much room for the sale of a country’s natural resources in a manner which does not benefit its citizens. To that end, he proposes what he calls a Clean Trade Policy, under which individual developed states would pass laws forbidding the trade in resources where minimum standards for resource exploitation and sale are not met. In our paper, we first develop Wenar’s proposal, and then ask if it is possible for it to come to fruition. We theorize how activists interested in bringing about these changes might utilize the existing features of international law to adopt Wenar’s proposals. Beginning with Jessup’s theory of transnational law as a method of understanding the interaction of public, private, national and international legal regimes, and the process of norm creation and enforcement outside states, we argue that activists interested in taking up Wenar’s challenge to reform the ownership and distribution of global commodities would do well to move beyond Wenar’s narrow public law framework, and study the myriad forms of regulation and interactions that define the contemporary transformation of political sovereignty and rule-making under the conditions of globalization. We argue thatnonly by exploiting mechanisms of transnational lawmaking could the Clean Trade Policy be made law.
After failing to find any French newspapers interested in employing him as a columnist, Michel Fo... more After failing to find any French newspapers interested in employing him as a columnist, Michel Foucault initially visited Iran during the summer of 1978 as a special correspondent for the Italian Corriere della sera to discuss the circumstances of the Iranian revolution. Between Summer 1978 and May 1979, Foucault published articles on Iran not only in the Corriere, but eventually also in Le Monde, and Le Nouvel Observateur, as well as agreeing to an interview with an Iranian writers’ journal.1 The articles were soon condemned as Panglos-
Systems theorists have been criticized for failing to provide an adequate account of the features... more Systems theorists have been criticized for failing to provide an adequate account of the features of the international legal system. This criticism of systems theory parallels a similar critique of international law advanced by positivists working in the AngloSaxon legal tradition. Systems theory’s critics have attempted to use Hart’s argument against international as an argument against systems theoretic account of international law. The factors which influenced Hart’s critique of international law are well-known: it is open-textured, structurally decentralized, and lacks a single clear rule of recognition. In this paper, I attempt to answer some of these criticisms. I argue that the positivist critique of systems theory mischaracterizes the nature and structure of international law. To make this argument I first develop a broadly Luhmannian account of international law and the international rule of law and argue for an autopoietic account of international law-making. Second, I sug...
ABSTRACT In this paper I will sketch a theory of how normative demands for freedom emerging from ... more ABSTRACT In this paper I will sketch a theory of how normative demands for freedom emerging from the lifeworld both serve to provide new bases of legitimation for capitalism by drawing on underlying normative orders in the lifeworld while simultaneously giving rise to precarity on the part of new classes of workers. I argue that such a theory can provide a means of theorizing recent protests against capitalism (including, for instance, the events of the Occupy Wall Street movement and protests against the so-called sharing or gig economy). My thesis is that the phenomenon Standing identifies as the precariat emerges out of the reaction of the capitalist system to the events of the 1960s, and to available normative potentials contained therein.
as well as from two anonymous reviewers. Jürgen Habermas generously commented on an early version... more as well as from two anonymous reviewers. Jürgen Habermas generously commented on an early version of this argument. Any mistakes, of course, remain the authorʹs. 1 The collection of articles was published as: Jürgen Habermas/Niklas Luhmann, Theorie der Gesellschaft oder Sozialtechnologie-Was leistet die Systemforschung? (Frankfurt am Main 1972). 2 Poul Kjaer, Systems in Context: On the outcome of the Habermas/Luhmann debate, Ancilla Iuris (2006), 66-77, 77. 3 See, for instance, Hugh Baxter, Habermas: The Discourse Theory of Law and Democracy (Stanford 2011). 4 While I personally favor an autopoietic model of social systems, I will not make that argument here. Others have argued against the introduction of neo-Parsonianism, albeit for other reasons. For a representative critique of the neo-Parsonian model, see the essays by Thomas McCarthy/Hans Joas and others, in: Axel Honneth/Hans Joas (eds.), Communicative Action: Essays on Jürgen Habermas' The Theory of Communicative Action (Cambridge 1991).
The Journal of Law, Social Justice and Global Development
States rich in natural resources often have poor human rights records. Political scientists have ... more States rich in natural resources often have poor human rights records. Political scientists have labelled this correlation the "resource curse". To address structural causes and the misappropriation of resources by the rulers of those countries, Leif Wenar proposes in his book, Blood Oil, the so-called Clean Trade Act. We draw on Wenar's work to theorise how activists interested in bringing about these changes might utilize the existing features of international law to adopt Wenar's proposals. Activists interested in taking up Wenar's challenge to reform the ownership and distribution of global commodities would move beyond Wenar's narrow public law framework, and study the myriad forms of regulation and interactions that define the contemporary transformation of political sovereignty and rule-making under the conditions of globalisation. It is not enough that Clean Trade Laws are passed in developed nations.
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