Abstracts from Volume XV, Number 2 (July 2002)
SPECIAL ISSUE: INTERNATIONAL LAW THEORY
GUEST EDITOR: Ed Morgan, University of Toronto
1. "Between Globalism and Territoriality: The emergence of an international constitution and the challenge of ecological legitimacy", Canadian Journal of Law and Jurisprudence, Vol. XV, Number 2 (July 2002) pp. 159-174.
Michael M'Gonigle
Faculty of Law
University of Victoria
Victoria, British Columbia, Canada
This paper is being written as the implications of September 11 continue to reverberate worldwide, its consequences going who knows where. Nothing, we are told, will be the same again. One aspect of this change will be how we think about international society, including its legal character. In this quest to understand international law in this changing, and uncertain, context, this paper posits a different sort of analysis, one that addresses the dialectical tension between globalism and territorialism. Globalism describes the emerging globally comprehensive legal (and political and economic) regime organized around expanding forms of centralized power. In contrast, territorialism describes an incipient movement to support a diversity of social and physical realms of authority rooted in a geographic tapestry of self-maintaining forms of place-based power. Both terms describe competing forces of social organization such as customary versus bureaucratic forms of regulation. These forces have long existed in a dialectical tension that, neither separate nor distinct, interpenetrate in countless aspects of political and economic life.
This dialectical tension permeates human history, but its operational character has been little considered, and its significance little understood. The conception of "territory" is a particularly complex one (especially when understood in its full historical sweep) that has a strong relevance to that foundational concern of international law, sovereignty. Externally, the territorial state is the legal subject. The challenge of this paper is to convey a vision and analytical framework that seeks to understand territory in a fuller sense than is traditionally used. To do so, this paper rechacterizes the increasingly centralized power structure from the perspective of ecological political economy. This perspective is particularly relevant to this age of ecological limits and global constitutionalism.
Based on this ecological analysis, the paper proposes a notion of territoriality that gives prominence to the state's historical other--place-based institutions of cultural and community authority. A territorial framework is then presented as an alternative conception of international ordering to that embodied by globalism. In its self-maintaining diversity, plurality of discursive practices/ways of knowing, and wariness towards the universalizing state-centered system, the territorial approach seeks to put in practice many lessons of the postmodern critique. To pursue this line of enquiry exposes to scrutiny a host of foundational beliefs and assumptions about modern economic and political life. Nevertheless, at the beginning of the 21st century such enquiry is again critically important for international lawyers because the sustainability of continued centralized growth is in question, while its momentum into a constitutional dead-end resists re-direction.
2. "Reflections on a Teach-In Walk-Out", Canadian Journal of Law and Jurisprudence,
Vol. XV, Number 2 (July 2002) pp. 175-189.
Susan Marks
Emmanuel College
Cambridge University
Cambridge UK
Karl Marx wrote that ‘the philosophers have only interpreted the world in various ways', whereas ‘the point is to change it'. Are international legal scholars exposed to the same charge? Have they too placed theory before the demands of real-world emancipatory practice? The author explores these questions, and shows how Marx's concerns about the philosophers indeed have resonance in the field of international law. At the same time, however, she observes that the problem is not with theory per se, if by theory is simply meant academic enquiry. Rather, it is with theory of a particular kind. Against this background, she discusses some of the ways in which academic enquiry can be itself a form of emancipatory practice, some of the features of what she refers to as transformative scholarship. In developing her account, she highlights the point that those who seek social transformation need not only to transcend the limitations for which Marx criticised certain kinds of philosophy (‘idealism'). They also need to avoid the antithetical pitfalls for which, much later, Frankfurt School theorist Adorno criticised certain modes of politics (‘actionism').
3. "Resituating the Judicialization of Politics: Bush v. Gore as a Global Trend", Canadian Journal of Law and Jurisprudence, Vol. XV, Number 2 (July 2002) pp. 191-218.
Ran Hirschl
Department of Political Science
University of Toronto
Toronto, Ontario, Canada
The availability of a constitutional framework that encourages deference to the judiciary, and the existence of a political environment conducive to judicial empowerment have helped bring about a growing reliance on adjudicative means for articulating, framing, and settling fundamental moral controversies and highly contentious political questions. This has resulted in the gradual erosion of the exclusive prerogatives of legislatures and executives.
4. "From Status to Treaty: Henry Sumner Maine's International Law", Canadian Journal of Law and Jurisprudence, Vol. XV, Number 2 (July 2002) pp. 219-254
Carl Landauer
Charles Schwab & Co., Inc.
Oakland, California 94611
USA
The article focuses on the overlooked volume of Henry Sumner Maine's corpus, the posthumously published International Law and uses it to respond to the general critical difficulty in establishing Maine's posture. Maine, of course, makes it difficult with the numerous contrapuntal moves of this book and others. For example, he strongly criticizes the predominant view of international law as an accretionary process of commentary by one theorist following another and yet he places tremendous value on Grotius, "whose works acted on the spirit of belligerency like a charm," and other early international legal theorists. He sees his contemporary environment as
marked by increasing militarization, even of militarization of society during time of peace, while he describes the relative humanity of the present over the distant past.
Ultimately, Maine is a realist who focuses on late nineteenth-century manuals of war rather than the idealism of the Anglo-American peace movement, and recognizes the importance of Czar Alexander II over any of nineteenth-century international legal theorists. If J.W. Burrow has identified social evolution as providing Victorians an "intellectual resting-place" between theoretical clarity and social diversity, Maine's broad social evolution allows him to mediate between the moral amelioration in international life and the practical realities of that life.
5. "Truth and Method in the Domestic Application of International Law", Canadian Journal of Law and Jurisprudence, Vol. XV, Number 2 (July 2002) pp. 255-279.
Reem Bahdi
Women's Human Rights Resources
University of Toronto
Toronto, Ontario, Canada
This paper presents a particular reading of Truth and Method, Hans-Georg Gadamer's landmark text, as a lens through which to consider the meaning of international texts in domestic contexts. His thoughts have remained virtually unknown within international human rights law but is highly relevant to accommodating variations in interpretation between national jurisdiction.
6. "Gender Performance, Sexual Subjects and International Law", Canadian Journal of Law and Jurisprudence, Vol. XV, Number 2 (July 2002) pp. 281-296.
Brenda Cossman
Faculty of Law
University of Toronto
Toronto, Ontario, Canada
In international law the understanding of gender and its relationship to sex remains fairly traditional. In this essay, I explore the subversive possibilities of feminist criticism of this story for international law.
7. "La Grande Illusion", Canadian Journal of Law and Jurisprudence, Vol. XV, Number 2 (July 2002) pp. 297-316
Immi Tallgren
Moisant, Chatou, France.
The way I discuss here the history of censorship and criticism of La Grande Illusion reflects the normal context today, in which it is acknowledged that there are certain common concerns of law and art and that they influence each other mutually. The expressive and ceremonial aspects of criminal law are well known.
8. "International Law's Literature of Terror", Canadian Journal of Law and Jurisprudence, Vol. XV, Number 2 (July 2002) pp. 317-324.
Ed Morgan
Faculty of Law
University of Toronto
Toronto, Ontario, Canada
It is the theory of this paper that while the natural analytic tendency is to seek the legal character of terror in the impugned act, it can actually be found only by examining the narrative of the law. As a legal concept, terrorism strikes not at the political power of states or at the safety of individual citizens, but at the law's own stability as law.
