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The Progressive vision of adminsitrative agencies began to be displaced by a pluralist account in which administrative agencies were locations for interest group struggle. The older vision remained strong and guided the Court’s approach to issues such as the standard of review in rate-making cases. The Court also condemned in overstated terms an SEC investigation into probably unlawful speculation by J. Edward Jones, but its decision made only modest inroads in agency procedures. More significant were the Morgan cases, which confirmed the importance to the Supreme Court of the fact that agencies used procedures closely resemeling judicial ones, though the Court allowed some deviations for purely judicial procedures. The chapter concludes with a discussion of the development of the Administrative Procedure, which codified much of what the Court had already done.
This chapter looks at the abuse and regulation of schools. It begins with a brief history of religion and education law before examining the Trojan Horse Affair which began in 2014 and reverberates today. An extraordinary volume of disinformation encrusts this series of events, which is here related via an outline of the salient facts as drawn from official reports and court cases, with minimal reference to newspaper articles and academic commentary. The related issues of illegal schools and unregulated madrassas are touched on. The theoretical discussion illustrates that liberal individualism views education as a means to emancipate the individual into secularism, while multiculturalism treats it as a means to preserve and perpetuate minority cultures. It concludes that these perspectives fail to take schools seriously as institutions whose primary purpose is to provide as many British children as possible with a good education. The pluralist response points to what the Trojan Horse Affair and education law are really about: ensuring that every school, regardless of classification, is properly regulated, well-governed and capable of rebuffing any threat to its good functioning.
This chapter examines the link between election fraud and British Muslim populations. It begins with a brief history of electoral fraud from the earliest times to draw out the recurring challenges and past attempts to meet them. This is followed by an overview of the workings of modern election fraud encompassing systemic vulnerabilities, opportunities and mechanisms as well as the attendant statistical difficulties. This sets the phenomenon in context and explains the nature of its association with South Asian Muslims. The chapter proceeds with a theoretical discussion of the ways in which election fraud can be interpreted and addressed through law. It notes that a liberal individualistic approach can justify strong safeguards against individual wrongdoing but struggles to account for the collective dimensions of elections, while multiculturalism pays greater heed to the importance of groups but suffers from an indiscriminate understanding of the various types. The chapter concludes with a pluralist response which systematises the individual and group elements of the democratic process before developing an historically informed programme for practical reform.
This chapter introduces the thought of Otto von Gierke. It outlines the philosophical tenets of classical pluralism and its rich vocabulary of group entities. It traces the rise of pluralism in nineteenth-century Germany, through its short golden age in early twentieth-century England, to its eclipse and afterlife following World War I. It argues that classical pluralism offers the most comprehensive and convincing theoretical model on which to regulate the relationship among individual, state and civil society in general, and between English law and British Islam in particular.
This chapter analyses the nature, functioning and regulation of Muslim clans. It begins wih a history of the regulation of endogamy in England, as clans are held together through consanguineous marriage and the prohibited degrees of relationship are the most relevant branch of law. Then it analyses the clan as a group unit with negative implications for public health and the nation’s social and political fabric. The point is to demonstrate that clannish behaviours, which present most prominently among British Muslim populations, are the product of a set of institutional norms rather than manifestations of any supposedly inherent ethnic, cultural or religious characteristics. The chapter’s theoretical discussion observes that liberal individualistic approaches tend to focus on rights and demographic statistics while ignoring the clan phenomenon itself, while multiculturalism tends to insist on the integrity of minority cultural forms, over-emphasising the positives and evading difficult questions about the place of clans in the UK. The pluralist response focuses squarely on clans as group entities and constructs the legal argument for their dissolution through marriage law reform.
This chapter addresses the growth of Islamic banks and finance in the UK. It begins with a brief historical overview of the informal institutions that were forerunners to Islamic banks and their development into a thriving global industry in which the UK is a leading player. It proceeds to survey the distinguishing features of Islamic banking and typical financial products before charting the innovative regulatory reforms that permitted the industry to expand. A section on the small volume of English case law highlights the standard but manageable issues arising from its continuing organic growth. The subsequent section models the two conventional theoretical approaches to the rise of Islamic banks and the regulatory means used to achieve it, as well as the problems with these interpretations. The final section sets out a pluralist response offering the best explanation and justification for these developments. It concludes with an appraisal of the problem of informal financial instruments and an optimistic assessment of the industry and the new formal institutions created, falling as they do within the general regulatory framework of the UK’s financial system.
The conclusion summarises the theoretical contribution of Otto von Gierke’s classical pluralism and restates the recommendations made throughout the practical chapters. It emphasises the importance of groups for legal thought, the value of a sophisticated vocabulary of group entities, and the need to guard against institutional entropy. It finishes with an optimistic outlook on the future relationship between British Islam and English law.
This chapter addresses the abuse of charitable religion. It begins with a brief history of the abuse of religious charities. This draws out the entrenched legal requirements for charities to guard against administrative and purposive abuse, and highlights the resourcing and remit issues that the Charity Commission has faced since its inception. It notes the general success of Muslim or Muslim-led charities to contextualise five pressing contemporary concerns: Charity Commission effectiveness, unregulated domestic fundraising, terrorist financing, foreign funding and extremist exploitation. Taking these in order of difficulty, it acknowledges the ‘faith factor’ where relevant and notes the need for theory when addressing unresolved policy questions about potentially dangerous foreign and non-state influence over important domestic institutions. The penultimate section models the two conventional theoretical interpretations of these issues and their attendant problems. The final section offers a pluralist response and details the most sensible reforms.
The cognitive ability to think about other people's psychological states is known as `mindreading'. This Element critiques assumptions that have been formative in shaping philosophical theories of mindreading: that mindreading is ubiquitous, underpinning the vast majority of our social interactions; and that its primary goal is to provide predictions and explanations of other people's behaviour. It begins with an overview of key positions and empirical literature in the debate. It then introduces and motivates the pluralist turn in this literature, which challenges the core assumptions of the traditional views. The second part of the Element uses case studies to further motivate the pluralist framework, and to advocate the pluralist approach as the best way to progress our understanding of social cognitive phenomena.
This chapter discusses Cicero’s views on the relation between ethical theory and the good human life, focusing on his main work on ethical theory, De finibus. Cicero’s critique of Stoic and Epicurean ethics has a common element, all the more striking given the differences between the two doctrines, namely that neither theory is livable with integrity in social contexts. This critique is a reflection both of Cicero’s belief that ethics should engage with lived human experience and of the commitment, in varying degrees, of the Stoics and Epicureans to a conception of the good human life as inherently social. The pluralism of the Old Academy’s ethics discussed in the final part of De finibus escapes this critique but is in danger, through lack of a single supreme value, of failing to offer a basis on which we may structure our lives. Taken as a whole, De finibus can thus be seen to cast a skeptical eye on the viability of ethical theory itself.
This chapter explores the concept of ‘entangled legalities’ in the context of pre-modern and (post-)modern localised legal orders: regional, imperial, national, international, transnational and postnational. The first section explores the juridification of the international legal sphere; it contrasts private international law approaches with postnational law approaches, exploring the ways in which the recent postnational shift from hierarchical to heterarchical governance structures in fact leads us back to fundamental questions first posed by (Classical) Roman law. The second section focuses on the striking predominance of ‘strong’ legal norms in current analyses of transnational and postnational legal entanglements. The third section, in contrast, argues for a shift in scholarly emphasis away from ‘strong’ legal norms towards a more explicit focus on the importance of strategic legal argumentation in the constructing localised legalities, via a case study of the multiple juris(dictional)-generative practices revealed in the record of a specific, sixth-century, Roman (Byzantine) dispute settlement: P. Petra IV.39.
Framing the volume, this chapter introduces the notion of legal entanglements and lays out implications for our understanding of law and its dynamics. Entanglements – relations between norms from different origins that are neither integrated nor fully separated – are a core feature of the contemporary law beyond the state, and have been characteristic of law for much of its history, but they have long been neglected by legal scholars and theorists conceiving of the law through the prism of legal systems. This chapter traces the origins of the concept, manifestations and forms of entanglement, the dynamics behind them, as well as the consequences for the stability of political and social order. It also uses these engagements to introduce the different contributions to the volume and highlight the different ways in which they reconstruct and assess entanglement and its challenges.
This chapter aims to show that the work of the Court of Arbitration for Sport (CAS), which is often identified as the institutional centre of the lex sportiva, can be understood as that of a seamstress weaving a plurality of legal inputs into authoritative awards. In other words, the CAS panels are assembling legal material to produce (almost) final decisions that, alongside the administrative practices of sports’ governing bodies, govern international sports. It is argued that, instead of purity and autonomy, the CAS’s judicial practice is best characterised by assemblage and hybridity. This argument is supported by an empirical study of the use of different legal materials, in particular pertaining to Swiss law, EU law and the European Convention on Human Rights, within the case law of the CAS. The chapter is a first attempt at looking at the hermeneutic practice of the CAS from the perspective of a transnational legal pluralism that goes beyond the identification of a plurality of autonomous orders to turn its sights towards the enmeshment and entanglement characterizing contemporary legal practice.
The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom – freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no federal establishment of religion. Since the 1940s, the US Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This chapter calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.
Law is usually understood as an orderly, coherent system, but this volume shows that it is often better understood as an entangled web. Bringing together eminent contributors from law, political science, sociology, anthropology, history and political theory, it also suggests that entanglement has been characteristic of law for much of its history. The book shifts the focus to the ways in which actors create connections and distance between different legalities in domestic, transnational and international law. It examines a wide range of issue areas, from the relationship of state and indigenous orders to the regulation of global financial markets, from corporate social responsibility to struggles over human rights. The book uses these empirical insights to inform new theoretical approaches to law, and by placing the entanglements between norms from different origins at the centre of the study of law, it opens up new avenues for future legal research. This title is also available as Open Access.
The article explains that the interpretation of the TRIPS Agreement by WTO dispute-settlement panels and the Appellate Body has palpably shifted since the establishment of the WTO in 1995. Some of this shift is also arguably present in disputes concerning other WTO instruments. This progressive shift comes at a time when key debates about TRIPS waivers are taking place on the rue de Lausanne, namely a first for the COVID-19 pandemic and a second possible one for environmental protection measures related to climate change. According to the proposed pluralist analysis of TRIPS, it was less likely as of 2020 that the WTO dispute-settlement system would find unjustifiable inconsistencies between WTO commitments, on the one hand, and measures to protect public health or mitigate climate change, on the other hand. Whether future Appellate Body will follow that jurisprudence is an open question. Though the analysis contained in the article may make the COVID-related TRIPS waivers doctrinally unnecessary and allow Members to take measures now, its main aim is to inform the debates about the waivers and the future interpretation of the TRIPS Agreement, including the three-step test.
This chapter continues the discussion of pragmatism and truth from the first chapter by further investigating pluralism about truth in the context of the philosophy of religion, particularly focusing on the debates on religious diversity. Arguing that pragmatism should firmly side with religious inclusivism instead of exclusivism, the chapter compares Jamesian pragmatic pluralism and individualism to Hannah Arendt's more politically framed conception of natality, i.e., human beings' capacity of spontaneously creating novelties into the world, of beginning something anew. This Jamesian-Arendtian entanglement of individuality and novelty can, the chapter proposes, be illuminated by means of holistic pragmatism (indebted to Morton White). The chapter also contains a critical discussion of Naoko Saito's views on what she calls "philosophy as translation" offering a distinctive perspective on pragmatist views on acknowledging diversity, pluralism, and otherness. A defense of Jamesian meliorism, as distinguished from Saito's Cavell-inspired "perfectionism", is also included.
This chapter addresses what appears to be a puzzling paradox. The Romans enjoyed a reputation for broad-mindedness in matters of religion. Their empire contained a multitude of diverse peoples with varied and sometimes outlandish rites, beliefs, and gods. Far from suppressing such practices, the Romans even imported alien cults and made them part of their own extended system of honoring divine powers. Acceptance and embrace of a wide range of modes of worship characterized Roman image and practice. Could this liberal attitude toward religious pluralism extend even to the Jews, notorious as an exclusivist monotheistic sect? The evidence, on the face of it, suggests hostility among Roman intellectuals toward Jewish separatism and offers disturbing examples of official actions against practitioners of the religion itself. How does one account for this apparent exception to general Roman policy? This chapter questions many of the assumptions behind this ostensible paradox. It argues that Jews were not as separatist as often thought, that their diaspora communities in the empire were acknowledged and supported by Roman authority, that official actions against the religion were decidedly exceptional and not at all characteristic, and that abusive comments by Roman intellectuals were no more meaningful than those expressed about numerous other cults that flourished in the empire.
The first chapter asks whether there is a threatening slippery slope from William James's pragmatist conception of truth (as presented in his 1907 work, Pragmatism), via Richard Rorty's radical neopragmatism, to Donald Trump's and other populists' fragmentation of the concept of truth, or even ultimately to the destruction of truth depicted in George Orwell's dystopic novel, Nineteen Eighty-Four (1949), whose character O'Brien was interestingly analyzed by Rorty in a 1989 essay on Orwell, arguing for the primacy of freedom over truth. The chapter criticizes Rortyan pragmatism by arguing that the concept of freedom also presupposes the concept of truth (and not just the other way round), also suggesting that, despite the unclarity of some of James's original ideas about truth, there is a sound core to the Jamesian conception of the pursuit of truth. It is, furthermore, suggested that the concept of truth may itself receive a plurality of interpretations within a (meta-level) pragmatist understanding of truth, one of them being the realistic correspondence account, which remains highly relevant, e.g., in the context of combatting post-truth politics.
This chapter construes positive freedom as an ideal of individual self-mastery. So understood, positive freedom concerns internal factors that, in Isaiah Berlin’s words, “determine someone to do, or be, this rather than that?” Self-mastery is a matter of being determined in the right ways by these internal factors. This chapter first explains how self-mastery contributes to the quality of the lives of those who achieve it. It does so in different, but complementary ways, ways which have not been distinguished or adequately appreciated in the literature on the topic. The chapter next argues that self-mastery is one component of the kind of freedom that a well-functioning state ought to promote in its members. Self-mastery is an individual achievement, but the state can promote it by establishing conditions that facilitate its realization. In presenting these arguments, the chapter rejects the view – sometimes advanced by proponents of positive freedom – that the value of external negative freedom is reducible to its contribution to positive freedom, but it concurs with the view – often advanced by proponents of positive freedom – that the state’s concern with freedom should not be limited to external factors, such as constraining coercion or ensuring that all have access to an adequate range of options.