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Articles 1 - 9 of 9
Full-Text Articles in Jurisprudence
Promise Against Peril: Of Power, Purpose, And Principle In International Law, Robert Hockett
Promise Against Peril: Of Power, Purpose, And Principle In International Law, Robert Hockett
Robert C. Hockett
I take two recent monographs on international law – Mary Ellen O’Connell’s "The Power and Purpose of International Law," and Eric Posner’s "The Perils of Global Legalism," as case studies in a more general inquiry into the role of the "rule of law" ideal in domestic and international law. I argue that international and domestic law alike give varyingly explicit and effective expression to the rule of law ideal, and that the task before us is accordingly steadily to improve their effectiveness in so doing, not to pretend that there is no role for this ideal to play in interpreting …
Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Brennan
Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Brennan
Patrick McKinley Brennan
This chapter is an invited contribution to the first English-language comparative study of subsidiarity, M. Evans and A. Zimmerman (eds.), Subsidiarity in Comparative Perspective (forthcoming Springer, 2013). The concept of subsidiarity does work in many and varied legal contexts today, but the concept originated in Catholic social doctrine. The Catholic understanding of subsidiarity (or subsidiary function) is the subject of this chapter. Subsidiarity is often described as a norm calling for the devolution of power or for performing social functions at the lowest possible level. In Catholic social doctrine, it is neither. Subsidiarity is the fixed and immovable ontological principle …
The Liberty Of The Church: Source, Scope And Scandal, Patrick Brennan
The Liberty Of The Church: Source, Scope And Scandal, Patrick Brennan
Patrick McKinley Brennan
This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a …
Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Brennan
Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Brennan
Patrick McKinley Brennan
This paper argues that questions about "religious freedom" must be subordinated to the fundamental principle of the liberty of the Church, libertas Ecclesiae. The First Amendment's agnosticism with respect to the liberty of the Church is not ultimately normative. Catholics and others who merely seek religious "accommodation," as with the HHS mandate, for example, are agents of a status quo that illegitimately has comfortable self-preservation as its highest value. It is Catholic doctrine that "creation was for the sake of the Church," not for the sake of, say, religious freedom. The paper argues that the contingent constitution of …
Por Um Law No Mundo: Fundamentos Jusfilosóficos Do Instituto Da Adoção Como Direito Humano, Paulo Barrozo
Por Um Law No Mundo: Fundamentos Jusfilosóficos Do Instituto Da Adoção Como Direito Humano, Paulo Barrozo
Paulo Barrozo
Este ensaio articula os fundamentos jusfilosóficos do direito humano e cosmopolita dos jovens privados de autêntica relação pais-filhos de serem adotados, tendo assim acesso à experiência de crescer como fihas ou filhos. Esta visão jusfilosófica da adoção como direito humano é contraposta à abordagem, até então predominante, consequencialista-filantrópica da adoção. Uma vez apresentados os fundamentos jusfilosóficos em questão, cinco principais distinções emergem entre a adoção como direito humano e a visão tradicional da adoção. Primeiro, a perspectiva da adoção como direito humano reconhece o fato de que negligência e abuso de jovens é proporcionalmente e em termos absolutos mais frequente …
Respectable Queerness, Yuvraj Joshi
Respectable Queerness, Yuvraj Joshi
Yuvraj Joshi
This Article proposes a new theoretical framework to understand public recognition of gay people and relationships. This framework—called “respectable queerness”—suggests that public recognition of gay people and relationships is contingent upon their acquiring a respectable social identity that is actually constituted by public performances of respectability and by privately queer practices. The challenges posed by such recognition include dissonance between one’s public and private selves and fuelling moralism and entrenching divisions between different queer constituencies.
The Case For Repeal Of India's Sodomy Law, Yuvraj Joshi
The Case For Repeal Of India's Sodomy Law, Yuvraj Joshi
Yuvraj Joshi
This Article surveys some of the arguments for and against the repeal of India’s sodomy law. The first part analyses s.377 of the Indian Penal Code and considers its consequences for India's gay, lesbian, bisexual, transsexual, hijra and kothi persons. The second part provides an overview of the various theoretical and political positions taken in the sodomy law debate. The third part examines the rights-based arguments that have been made in support of repealing or reading down s.377, and the feminist and queer critiques of these arguments. The fourth part considers the arguments against the repeal that have been put …
Punishing Cruelly: Punishment, Cruelty, And Mercy, Paulo Barrozo
Punishing Cruelly: Punishment, Cruelty, And Mercy, Paulo Barrozo
Paulo Barrozo
What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca's De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the …
Law, Justice, And Power: Between Reason And Will (Stanford University Press), Sinkwan Cheng
Law, Justice, And Power: Between Reason And Will (Stanford University Press), Sinkwan Cheng
Sinkwan Cheng
This is an unprecedented volume that brings together J. Hillis Miller, Julia Kristeva, Slavoj Zizek, Ernesto Laclau, Alain Badiou, Nancy Fraser, and other prominent intellectuals from five countries in seven disciplines to provide fresh perspectives on the new configurations of law, justice, and power in the global age. The work engages and challenges past and present scholarship on current topics in legal studies: globalization, post-colonialism, multiculturalism, ethics, post-structuralism, and psychoanalysis. The book is divided into five parts. The first debates issues of (trans-)national justice and human rights in the global age, focusing on military interventions and refugee policies. Part II …