Law Commons^™

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

Finding Home In The World: A Deontological Theory Of The Right To Be Adopted, Paulo Barrozo

Paulo Barrozo

Because of the continued dominance of consequentialist views, the deontological paradigm that emerges in the form of a human rights approach to adoption faces two major and partially connected obstacles. First, and despite the fact that the human rights approach has found compelling advocates, its jurisprudential basis has yet to be fully articulated. And in part because of insufficient theorization, the emerging deontological adoption is constantly at risk of being rhetorically and practically subsumed or engulfed by the resilient consequentialist-cum-charity paradigm. This article addresses these two obstacles, laying out the foundations of a deontological theory of adoption.After the Introduction, Part …

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Peter G. Danchin

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

David C. Gray

The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the …

Recognition Of Overseas Same Sex Marriages: A Matter Of Equality And Sound Statutory Interpretation, Dr Leonardo J. Raznovich

Dr Leonardo J Raznovich

It is accepted that the institution of marriage is more than economic benefits. The availability of marriage to same sex couples in eight western democratic jurisdictions exerts pressure on courts to consider the substance and ethical dimension of marriage across borders. This paper analyses the legal and ethical problems that exclusion of same sex couples from marriage generates in relation to equality and individual freedoms in a democratic society. The paper focuses on the particular case of overseas same sex married couples that seek to immigrate to England. Part I analyses the legal recognition of overseas same sex marriages under …

Clitoridectomy And The Economics Of Islamic Marriage And Divorce Law - Ryan M Riegg - 2009, Ryan M. Riegg

Ryan M. Riegg

No abstract provided.

Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman

D. A. Jeremy Telman

This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty of …

Reparations: A Remedies Law Perspective, Darren Hutchinson

Darren L Hutchinson

This article provides a general overview of reparations discourse in the United States and offers suggestions concerning how advocates of reparations might frame their claims. The author discusses how remedies law might be a useful means of redress for litigants and examines some of the political and legal barriers to reparations in the United States. The barriers include the failure of opponents to treat remedies for gross human rights or civil rights deprivations as a public good, rather than as a series of private transactions that benefit or burden individuals. The author ultimately sets the litigation model aside as providing …

Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz

Justin Schwartz

Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

What's Wrong With Exploitation?, Justin Schwartz

Justin Schwartz

Abstract: Marx thinks that capitalism is exploitative, and that is a major basis for his objections to it. But what's wrong with exploitation, as Marx sees it? (The paper is exegetical in character: my object is to understand what Marx believed,) The received view, held by Norman Geras, G.A. Cohen, and others, is that Marx thought that capitalism was unjust, because in the crudest sense, capitalists robbed labor of property that was rightfully the workers' because the workers and not the capitalists produced it. This view depends on a Labor Theory of Property (LTP), that property rights are based ultimately …

From Libertarianism To Egalitarianism, Justin Schwartz

Justin Schwartz

A standard natural rights argument for libertarianism is based on the labor theory of property: the idea that I own my self and my labor, and so if I "mix" my own labor with something previously unowned or to which I have a have a right, I come to own the thing with which I have mixed by labor. This initially intuitively attractive idea is at the basis of the theories of property and the role of government of John Locke and Robert Nozick. Locke saw and Nozick agreed that fairness to others requires a proviso: that I leave "enough …

Rights, Communities, And Tradition, Brian Slattery

Brian Slattery