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It is a struggle to hold society together. Historically, that task has fallen both to law and religion. Sovereignty, the source of law’s binding power, like the miracle in Carl Schmidt’s political theology, lies outside law itself. That origin coincides with the kenotic excess of the sacred.
This chapter explores that strange excess through a visual genealogy of shifting sovereign imaginaries. They range from early modern legal emblems picturing the transcendental body of the King, to modern and late modern paintings and films depicting a metaphysical shift to the sacred body of the People. The question this visual history confronts is not whether the sacred binds the nomos of law, but how?
The corporeal image goes beyond conceptual abstraction. It is a site from which desire (what Freud calls the cathexis of libido) binds us to values, rituals, and institutions. Libidinal investment ties us to a shared symbolic identity; disinvestment, by contrast, invites psychic and political-legal collapse.
As the contemporary crisis in liberal democracy deepens, we ask: what sovereign imaginary will break the pall of collective anxiety and unrest, and will it come in the service of human flourishing?
Homeless squatting on empty land is a local challenge, replicated on a world-wide scale. While some have argued that neoliberal globalization has had a homogenizing effect on domestic legal systems generally, and on states’ responses to squatting more specifically, domestic institutions retain significant capacity and capability to govern; and their resilience critically determines economic success and political stability and nation-states adapt to changing circumstances. This chapter frames our analyses of state responses to homeless squatting on empty land in the context of nation state norms and narratives: what we describe – adapting Robert Cover – as the property “nomos” of each jurisdiction. We argue that state responses to squatting are framed by the “foundational” regime goals through which the state’s role and relationships to citizens with respect to property were articulated and understood, and examine how these foundational goals with respect to private property, housing and citizenship emerged in each of the five primary jurisdictions from which we draw insights and illustrations in this book: the United States of America, Ireland, Spain, South Africa, and England and Wales. In doing so, we aim to better understand how domestic institutions, norms and narratives in each of these jurisdictions have shaped the nomos within which “the state” acts in response to homeless squatting on empty land.
The relationship between law and religion can be imagined as a conjunction or a disjunction. Beginning with the suggestion that the terms “law” and “religion,” when their meaning has not been taken for granted, have become too invested with ideological weight, as a result of debates over secularism, to be of much use for analytical purposes, this essay substitutes a series of alternative dichotomies: among others, auctoritas versus potestas, the constituting versus the constituted power, and charisma versus law. Examining the history and interplay of such categories, I suggest that such dualities often describe the dynamic tension between sovereignty and legality that defines an existing order. Special attention is given to the historical examples of the pardon power and the Pauline opposition between charis and nomos, as well as to David Daube’s argument that redemption in biblical traditions was a sacralized legal concept. Through a series of thought experiments, I suggest that law and religion may be understood in some cases as twins, born together and inseparable, just as law cannot be fully distinguished from sovereignty.
This chapter explores the legal history of dispossession in the nineteenth century. It argues, first, that the failure to sign a treaty with Aboriginal and Torres Strait Islander peoples for land in Australia was a significant act of dispossession. While there was no declaration that Australia was ‘terra nullius’ in 1788, the failure to treat has been wielded since to dispossess Aboriginal and Torres Strait Islander people of land rights and sovereignty. The chapter then explores dispossession through the legal history of expansion – the mixture of legality and lawlessness that fed the pastoral boom in Australia after 1824. With the advent of self-government, Australian legislation facilitating the breaking up of some pastoral leases into fee simple farms from 1861 effected a more complete dispossession by closing Country to Indigenous Australians. These varied processes of dispossession by tenure were fed by acts and omissions of jurisdiction. For many decades, Aboriginal people were not protected by settler law because their legal status was unclear. The designation of Aboriginal and Torres Strait Islander people as subjects of the British crown after 1836 resulted in an uneven mix of hyper-policing and under-policing.
This chapter examines how we think about questions of plurality and the relations between legal orders. It does so through a specific history of the engagement between Indigenous legal orders and the Australian common law from the perspective of the latter. This chapter approaches legal plurality through the specific lens of thinking, both conceptually and practically, with jurisdiction. It looks at the ways in which the technology of jurisdiction has worked to obscure Indigenous legal orders and hence plurality. The chapter notes the increasing division between the approach of the High Court of Australia to plurality – as a matter to be contained or ignored – and the increasingly careful histories being written of our plural pasts and present.
Building on the discussion of the Belt and Road Initiative, the chapter offers a comprehensive inquiry into China’s economic statecraft. It first argues that the analogy often drawn between the BRI and the Marshall Plan misconstrues contemporary China’s economic statecraft. It then examines how the interest communities and partnership diplomacy serve as mechanisms for China’s economic influence. The next section considers how, with Chinese economic ascendancy in Asia, a semblance of Chinese centrality in Asia is emerging. The following section looks at China’s global influence effect in terms of the international discourse on its great-power standing as well as its drive for technical standard-setting in key industries. Lastly, the chapter discusses the built-in limits of the BRI and broad limitations of the Chinese economic statecraft in the twenty-first century.
Gentili sought to develop a set of rules to help regulate warfare. However, given his positions on absolutism and the value of the reason of state tradition, it is hard to see what resources he had available for encouraging sovereigns to actually play by those rules. In this chapter, I argue that Gentili squared the circle through a dichotomy at the heart of his legal framework: the distinction between violence carried out by a “public” entity and all other forms of violence. In Gentili’s framework, those carrying out the latter would immediately be discredited as “pirates” or “enemies of mankind.” The key, of course, was what Gentili meant by “public.”
One particular twentieth-century scholar stands out in how influential he was in ensuring Gentili’s position as a key protagonist in the history of international law: Carl Schmitt. This chapter argues that Schmitt’s influential emphasis on Gentili is not simply an inheritance of nineteenth-century narratives. Rather, Schmitt places Gentili at the heart of his history of the development of international law and the evolution of the concept of war in a move that should be understood as part of his broader attempt to defend authoritarian rule. In particular, I argue that placing so much emphasis on Gentili provided Schmitt with a way to make absolutist forms of rule seem normatively desirable. Schmitt came to associate absolutism with the humanization and the rationalization of warfare, not through an analysis of historical facts (which would have made the endeavor difficult) but through a partial interpretation of the works of some “great” thinkers, most importantly Gentili’s treatise on war.
All states are riven by political histories of the exclusion and oppression of so-called “minorities” and “aliens”. The uniqueness of settler states is in terms of degree. While all states deal with conflicts arising from issues of membership, within settler states the entirety of their claim to territory rests on the legal exclusion and/or diminishment of Indigenous peoples. This difference of degree is particularly important to the future of democracy, as settler states face a strongly amplified version of the problem of membership. As a result of this unique pressure on the question of membership, settler states have developed extensive and complicated legal and political structures. Political histories of membership in settler states can provide us with concrete examples of situations where the presuppositions of membership in nation-states are exposed and contradicted by the demands of factual situations.
The purpose of this chapter is to clarify some of the disagreements that have arisen regarding Gentili’s ideas by closely examining Gentili’s use of sources in De iure belli (DIB). More specifically, through this focus on sources, the chapter seeks to resituate Gentili’s DIB beyond the immediate legal debates that have conventionally framed its analysis, and to place the text within the broader political thought of the period. Gentili’s text, the chapter claims, is particularly noteworthy in its attempt to straddle the legal and political debates of its epoch, looking beyond legal sources and turning to various contemporary political writers in what was quite a remarkable move at the time.
The previous chapter outlined the personal, institutional, and political dynamics that played a part in Alberico Gentili’s nineteenth-century revival, in particular the emergence of the academic discipline of international law and the crafting of a historical narrative about its past. What we have yet to uncover is the specific story that emerged about Gentili’s greatness in his nineteenth-century context. In Chapter 3, we saw that in the aftermath of his death, Gentili had been remembered primarily for his absolutist writings. Two and a half centuries later, what story did his revivers tell to justify celebrating him as a founder of international law? This chapter argues that nineteenth-century international lawyers painted Gentili as the man who had invented the modern definition of war. In doing so, they gave us a popular narrative about the history of the laws of war that has prevented us from appreciating the profound changes that occurred in the regulation of war in course of the nineteenth century.
This chapter strikingly demonstrates the importance of medieval literary representations of the environment for more contemporary concerns. Amy Mulligan analyzes the medieval figure of the Sovereignty Goddess in literature written in the Irish language and shows its centrality in the environmental education of male rulers. Further relevance of the medieval for the contemporary ecological regime is revealed in treating medieval literature as one that provides a systematic understanding, often surprisingly scientific, such as Gerald of Wales’s accounts, “of Ireland’s birds and fishes” that are “invaluable in describing species, some of which are now extinct” and can act as guide to understand the nature of “ecological imperialism” in Ireland. Mulligan concludes that “All these medieval practitioners of Irish nature-writing develop a mode of thinking about the environment as a creative and generative space, one which is highly anthropocentric but which, through adoration, wonder, even recognition of something divine in the trees, soil, water, and animals” makes continued human habitability on this planet a historical possibility.
This paper historicizes the current challenges brought about by digitization to the Third World by revisiting a movement launched by the Non-Aligned Movement countries during the 1970s and early 1980s. Also known as the New World Information and Communication Order (NWICO), the movement contested the dominant liberal notion of freedom of information and spotlighted the critically material inequality and power asymmetry often concealed by the liberal vision of the free flow of information. Not only did NWICO present a counter-model to the liberal notion of freedom of information, it also provides a vital case for understanding the interrelations between information and domination and the role of international law therein. This paper retells the story of NWICO, its normative ambition as well as its internal contentions and practical limitations, and reflects on its legacy for TWAIL scholarship and the current politics of digitization.
Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international law of jurisdiction. It surveys the possible remedies available to both injured states and, in light of the fact that neither state has sought any such remedy, examines possible remedial routes for the victims of the Saudi nationals’ crimes. It remarks upon the utter failure of either Canada or the United States to address these acts, concluding that such wilful neglect both corrodes sovereignty and undermines the will to address sexual crimes.
This article reviews the “gaps” that allow for the creation of the “offshore” in international law and argues that these are instead constituted by constraints on our spatial imaginary of law than by any “real” gaps between state jurisdictions. The modern practices of sovereignty by states and non-state actors are at odds with the implicit geography of international law that assumes a static and fixed concept of territory. By rethinking the relevant legal spaces of international law and the sovereign practices that constitute the supposedly deterritorialized offshore, we can see that the offshore is actually onshore somewhere; we can reterritorialize the supposed deterritorialized competences. This article identifies a desynchronization between state territories and the actual exercise of sovereignty that presents as pseudo deterritorialization. Yet if both the concept of sovereignty and the implicit geography of international law confirm and reinforce one another in international law discourse, international lawyers are blind to the changing “landscape” of sovereignty in international law.
This article explores how sovereignty fictions have been used to advance different legal, political and economic aims in the articulation of the United Kingdom's future approach to global regulation. By mapping the transformative shifts in sovereignty paradigms, this article highlights the disconnect between the absolutist sovereignty popularised in the UK government's political rhetoric and the concept of regulatory sovereignty that underpins the UK's future trading strategy. To maintain its status as a global leader in regulation and standards-setting, the UK government will need to diffuse power and delegate autonomy through networked orders of public and private actors. These competing sovereignty paradigms are analysed with reference to European Union (EU) law and practice, to highlight the opportunities and challenges for the UK as an independent trade actor. This article concludes by evaluating how sovereignty fictions can disrupt the objectives of the UK's proposed ‘common law’ approach to regulatory governance and discusses the policy interventions that may be required to enable the UK to harness its potential as a regulatory leader.
At the outset, this Chapter will show that officials from the United States resolve the most important insular matters not solely undemocratically but especially taking U.S. interests into account. It will affirm that they may have thus contributed to the territorial socio-economic ails, which have, in turn, fueled the current debt debacle. From this perspective, the United States should strive to democratize the dependency. It may advance such democratization outside rather than inside the Union in light of Congressional or on-site opposition to the latter option.
The cogitation will contemplate and ultimately reject the contention that the ex-isting arrangement violates individual civil rights or that Puerto Rico must become a state in order to vindicate them. It will stress that no such violation transpires since the treatment of Puerto Ricans does not differ from that of their fellow U.S. citizens. Specifically, anyone bearing the citizenship of the United States can exercise all the guaranties in question if she resides on the mainland (or Hawaii) yet not on the island (or any other territory, or abroad).
The discussion will then establish that the extant regime encroaches not upon the islanders’ personal entitlements but instead upon their collective self-determination. Ergo, vindication may consist in permitting the island to rule itself just as much as in admitting it into the federation. From this standpoint, the U.S. political establish-ment could simply amend the 1950 statute presently in force and pursue more suc-cessfully the same goal: namely, granting the dependency “self-governance” as an “as-sociated free state.” Within this wide framework, the association could flexibly develop over time toward either more or less cooperation between the parties.
During the continent’s colonization, the monarchical mandate directed specifical-ly for the colonies seemingly strove to safeguard the natives and to shield them from exploitation. It purported to conserve their customs, traditions, or institutions, pro-vided that they accepted the empire’s sovereignty and religion. Apparently, this well-intentioned disposition mostly came to naught. The imperial emissaries inexorably devastated countless cultures and civilizations.
Ostensibly, the winds of independence brought with them a dissimilar, liberal approach to aboriginal affairs. They carried it to constitutional, statutory, and regu-latory standards. It amounted to granting the victimized collectivity’s members civil and political liberty equivalent to that of their fellow citizens. Reflecting France’s rev-olutionary ideology, the fresh regimen welcomed each one of them individually into the republic yet none of their respective subgroups.
Worldwide, a clamor against the underlying proceduralist paradigm seems to have resounded relatively recently. Partly, it may have cropped up internally as a re-sult of the politicized and militarized mobilization of native communities along Mexi-can, Ecuadorian, or Bolivian latitudes and beyond. However, transnational factors, like the advent of a third generation of collective entitlements for minorities in the context of the human-rights revolution, may have played a role too.
dated conception of international law that refuses to die lies at the heart of today’s global refugee crisis. It posits states as sovereignly impervious and self-contained units and as the only apposite actors on the world stage. Efforts to incentivize countries generally to welcome more people seeking refuge and specifically to adopt fair standards of entry crash against this still entrenched outlook. Activists and practitioners must simultaneously debunk the prevailing standpoint and, against all odds, construct an alternative. The latter desperately needs definition and elaboration. As a whole, it must re-imagine the planet as inclusive of the traditionally excluded: such as nongovernmental organizations; non-organized groups; societal communities; persons of all races, ethnicities, genders, and religions; animals; plants; minerals; and so forth. As a most elemental part of this narrative, self-determining and solely partially sovereign nations may neither do as they please within or at their borders nor expect to be left alone in so doing. Instead, they must honor their responsibilities to a wide array of private and public parties, both at home and abroad, while acting autonomously and resisting heteronomy or domination.
Chapter 4 presents international wildlife law as an institutional governance system relevant to local responses to human–wildlife conflict. It finds that there is a lack of any real ‘conflict’ language within the framework and this limits the ability of international law to deal with the problem at the outset. Further, the value orientations discussed within Chapters 2 and 3 are all present in international wildlife law to some extent and so the framework has the same conflict of values that are present in situations of human–wildlife conflict. The chapter traces the development of ‘dominance’ in international law and finds that there are specific principles and legal developments that continue to prevent a positive relationship that is beneficial to both people and wildlife. In addition, the underlying constraints of capitalism, neo-liberalism and sustainable development are discussed. Finally, this part posits that the failure of international law to implement a meaningful interpretation of intrinsic value and animal welfare has meant that such language has not been able to minimise the damage done by the dominant framework. The chapter concludes with suggestions for eco-vulnerability principles to be incorporated into international law.