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Full-Text Articles in Jurisprudence
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
Philosophy: Faculty Publications and Other Works
It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …
A Realist Defense Of The Alien Tort Statute, Robert Knowles
A Realist Defense Of The Alien Tort Statute, Robert Knowles
Law Faculty Publications
This Article offers a new justification for modern litigation under the Alien Tort Statute (ATS), a provision from the 1789 Judiciary Act that permits victims of human rights violations anywhere in the world to sue tortfeasors in U.S. courts. The ATS, moribund for nearly 200 years, has recently emerged as an important but controversial tool for the enforcement of human rights norms. “Realist” critics contend that ATS litigation exasperates U.S. allies and rivals, weakens efforts to combat terrorism, and threatens U.S. sovereignty by importing into our jurisprudence undemocratic international law norms. Defenders of the statute, largely because they do not …
Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya
Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya
Publications
In this article renowned scholar S. James Anaya analyzes the divergent assessments of international law's treatment of indigenous peoples' demands to lands and natural resources. The author explores several strains of arguments that have been advanced within this debate, including state-centered arguments and human rights-based arguments. The author also examines the shortcomings of recurring interpretive approaches to international law that consider indigenous peoples' rights to land and resources. From this analysis the author identifies a more promising approach within the human rights framework--which he describes as a realist approach--that focuses on the confluence of values, power, and change. The author …