Pub Date : 2022-06-06DOI: 10.1017/s1744552322000192
Sylvie Da Lomba, Saskia Vermeylen
We deploy a novel and radical approach to vulnerability theory to investigate Scotland's response to asylum seekers’ vulnerability during the COVID-19 pandemic and test Scotland's self-affirmation as a hospitable country. Our ethical vulnerability analysis enhances Fineman's vulnerability analysis by denationalising the vulnerable subject and locating her within our ‘uneven globalised world’. We further enrich this fuller version of vulnerability analysis with insights from Levinas's and Derrida's radical vulnerability theory and ethics of hospitality. We demonstrate how our ethical vulnerability analysis enables us to subvert the hostile premise of migration laws and policies, and thus fundamentally redefine relationships between guests and hosts so that the host is compelled to respond to the Other's vulnerability. We argue that this hospitable impulse yields a generous and absolute commitment to progressive social welfare provision for asylum seekers, which brings Scotland closer to fulfilling its aspirations to be a hospitable host by welcoming the Other.
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Pub Date : 2022-06-01DOI: 10.1017/S174455232200012X
C. Kennedy
In her latest monograph, Caritas, leading historian of emotions Katie Barclay explores the ‘emotional ethic’ after which the book takes its name. As Barclay describes it, caritas was a form of grace – God’s working in the Christian – ‘designed to promote a particular type of community relation in early modern Europe’ (p. 3). Operating at the level of the individual and the collective, caritas simultaneously helped inculcate specific conceptions of self-hood and relationality, and encourage a corresponding set of normative expectations and behaviours. Though caritas has been described as an ‘other-worldly love’ that made the mundane appear as a ‘temporal shadow’ (Goodrich, 1996, p. 31), Barclay is interested in caritas’ earthly side. She is concerned with what goes on in the shadows. In keeping with this focus, Barclay examines how caritas was felt, embodied and enacted both inside and outside the home by ordinary eighteenth-century Scots. As an ethic of social relations, caritas might manifest in the reassuring touch of a parent (p. 37) or the act of sharing one’s bed with a guest (p. 153). As an embodied emotion, it might be experienced as ‘the tingling of the nerves and the tightening of the sinews’ (p. 13) or be read as a signifier of maturity, as with the capacity for romantic love that was presumed to accompany sexual desire (p. 78). These examples show that caritas, like grace more generally, involved the performance of ‘pleasurable exchange’ (Mac Carthy, 2020, p. 24) and that this might occur both when prescriptive norms were followed and when they were challenged. One quite moving example of the latter is the relationships that sprung up – partly through pragmatism, but also through affection – between itinerant and outcast individuals. ‘These were not shallow ties,’ Barclay tells us, ‘but they refused the co-dependency and subordination of the patriarchal household for autonomous selves’ (p. 170). As this quotation signals, the book is also committed to charting some of the ways that pursuing the divine/profane ethic of caritas often naturalised unequal distributions of power. One point about Caritas that is likely to be of immediate interest to legal scholars is that many of the book’s arguments are founded on legal records. When setting out her sources, Barclay explains that the papers attached to civil, criminal and church court proceedings are ‘strewn’ with ‘[t]he language of love – amity, friendship, charity, affection’ (p. 1). For scholars working at the intersections of law and the humanities, or within any of the critical legal traditions, this will not be altogether surprising. Despite claims to autonomy, impartiality and objectivity, law borrows from, props up and sometimes clashes with cognate normative and ethical regimes. Furthermore, legal cases are rooted in human stories and represent attempts by needy, feeling creatures to be heard and acknowledged (for some reflections on how artistic methods might help make these dimen
{"title":"Caritas: Neighbourly Love & the Early Modern Self","authors":"C. Kennedy","doi":"10.1017/S174455232200012X","DOIUrl":"https://doi.org/10.1017/S174455232200012X","url":null,"abstract":"In her latest monograph, Caritas, leading historian of emotions Katie Barclay explores the ‘emotional ethic’ after which the book takes its name. As Barclay describes it, caritas was a form of grace – God’s working in the Christian – ‘designed to promote a particular type of community relation in early modern Europe’ (p. 3). Operating at the level of the individual and the collective, caritas simultaneously helped inculcate specific conceptions of self-hood and relationality, and encourage a corresponding set of normative expectations and behaviours. Though caritas has been described as an ‘other-worldly love’ that made the mundane appear as a ‘temporal shadow’ (Goodrich, 1996, p. 31), Barclay is interested in caritas’ earthly side. She is concerned with what goes on in the shadows. In keeping with this focus, Barclay examines how caritas was felt, embodied and enacted both inside and outside the home by ordinary eighteenth-century Scots. As an ethic of social relations, caritas might manifest in the reassuring touch of a parent (p. 37) or the act of sharing one’s bed with a guest (p. 153). As an embodied emotion, it might be experienced as ‘the tingling of the nerves and the tightening of the sinews’ (p. 13) or be read as a signifier of maturity, as with the capacity for romantic love that was presumed to accompany sexual desire (p. 78). These examples show that caritas, like grace more generally, involved the performance of ‘pleasurable exchange’ (Mac Carthy, 2020, p. 24) and that this might occur both when prescriptive norms were followed and when they were challenged. One quite moving example of the latter is the relationships that sprung up – partly through pragmatism, but also through affection – between itinerant and outcast individuals. ‘These were not shallow ties,’ Barclay tells us, ‘but they refused the co-dependency and subordination of the patriarchal household for autonomous selves’ (p. 170). As this quotation signals, the book is also committed to charting some of the ways that pursuing the divine/profane ethic of caritas often naturalised unequal distributions of power. One point about Caritas that is likely to be of immediate interest to legal scholars is that many of the book’s arguments are founded on legal records. When setting out her sources, Barclay explains that the papers attached to civil, criminal and church court proceedings are ‘strewn’ with ‘[t]he language of love – amity, friendship, charity, affection’ (p. 1). For scholars working at the intersections of law and the humanities, or within any of the critical legal traditions, this will not be altogether surprising. Despite claims to autonomy, impartiality and objectivity, law borrows from, props up and sometimes clashes with cognate normative and ethical regimes. Furthermore, legal cases are rooted in human stories and represent attempts by needy, feeling creatures to be heard and acknowledged (for some reflections on how artistic methods might help make these dimen","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"18 1","pages":"275 - 278"},"PeriodicalIF":0.8,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45083654","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-01DOI: 10.1017/S1744552322000210
{"title":"IJC volume 18 issue 2 Cover and Front matter","authors":"","doi":"10.1017/S1744552322000210","DOIUrl":"https://doi.org/10.1017/S1744552322000210","url":null,"abstract":"","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":" ","pages":"f1 - f3"},"PeriodicalIF":0.8,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45227927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In A Liberal Theory of Property (2021), Hanoch Dagan makes an important, thought-provoking contribution to property theory – one that unifies divergent, and at time apparently dichotomous, strands of thought in property theory and revives rich dormant ideas. Dagan persuasively centres property's justification and design on the value of autonomy and on the basic need for reciprocal recognition of the individual right to self-determination. He does so without excluding the relevance and significance of other property values, both public and private. The theory deepens existing debates within property scholarship about values such as freedom and personhood, and provides a wide-reaching analysis of how autonomy functions as property's telos. That telos is used to justify structural pluralism in property law and to delimit owners’ rights. In this way, for Dagan, property's justification determines the nature and ambit of private authority over resources.
{"title":"Distributing the costs of change: property transitions and pacts","authors":"R. Walsh","doi":"10.2139/ssrn.3933026","DOIUrl":"https://doi.org/10.2139/ssrn.3933026","url":null,"abstract":"In A Liberal Theory of Property (2021), Hanoch Dagan makes an important, thought-provoking contribution to property theory – one that unifies divergent, and at time apparently dichotomous, strands of thought in property theory and revives rich dormant ideas. Dagan persuasively centres property's justification and design on the value of autonomy and on the basic need for reciprocal recognition of the individual right to self-determination. He does so without excluding the relevance and significance of other property values, both public and private. The theory deepens existing debates within property scholarship about values such as freedom and personhood, and provides a wide-reaching analysis of how autonomy functions as property's telos. That telos is used to justify structural pluralism in property law and to delimit owners’ rights. In this way, for Dagan, property's justification determines the nature and ambit of private authority over resources.","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"18 1","pages":"233 - 236"},"PeriodicalIF":0.8,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46565692","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-01DOI: 10.1017/S1744552321000677
David A. Dana
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Pub Date : 2022-06-01DOI: 10.1017/S1744552321000665
Hanoch Dagan
{"title":"The ambitions of liberal property","authors":"Hanoch Dagan","doi":"10.1017/S1744552321000665","DOIUrl":"https://doi.org/10.1017/S1744552321000665","url":null,"abstract":"","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"18 1","pages":"259 - 274"},"PeriodicalIF":0.8,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48537320","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-01DOI: 10.1017/S1744552321000653
M. Bartl
Hanoch Dagan is an admirable thinker and a particularly persuasive writer: in fact, only a person with a heart of stone would fail to love his liberalism. Yet, that should also give rise to doubt – how is it possible that many critics of both property and autonomy can so easily line up behind Dagan’s story? Is it really the case that if only we properly incorporate the criticisms of private property, we can end up with an institution of liberal property that works for all? Where commons co-exist with private property, and markets co-exist with other forms of economic provisioning, all on an equal footing, in a state of perfect equilibrium? In this contribution, I do not intend to critique Dagan on the basis that his normative theory is impervious to the harsh realities of contemporary capitalism. That point has been made. Rather, I would like to argue that Dagan’s account does not work even on its own terms. That is, his structural pluralism – a condition for the legitimacy of private property – cannot really exist within his individualist framework. The criticism that I will raise here is a version of the criticism that Dagan himself mounts against the feasibility of Nozick’s utopia:
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Pub Date : 2022-06-01DOI: 10.1017/S1744552321000690
D. Harris
The building engineer ’ s report on the low-rise condominium apartment building details the scope of work required. The roof is leaking, the elevator requires seismic upgrading, the windows and exterior siding are failing, and the heating system needs rebuilding. Although the owners of the individual apartments have been paying monthly fees in anticipation of these common property expenses, each owner faces a substantial special levy to cover the expected costs. The land developer ’ s offer to purchase the complex is eye-popping. Anticipating that the city will permit it to demolish the existing building and construct a high-rise condominium apartment tower on the site, the developer has offered owners a significant premium to induce their collective sale. If they were to accept the offer, owners would receive approximately twice the assessed value of their units based on individual sale. This – and owner interests unanimous consent owners, vote
{"title":"A Liberal Theory of Property in condominium","authors":"D. Harris","doi":"10.1017/S1744552321000690","DOIUrl":"https://doi.org/10.1017/S1744552321000690","url":null,"abstract":"The building engineer ’ s report on the low-rise condominium apartment building details the scope of work required. The roof is leaking, the elevator requires seismic upgrading, the windows and exterior siding are failing, and the heating system needs rebuilding. Although the owners of the individual apartments have been paying monthly fees in anticipation of these common property expenses, each owner faces a substantial special levy to cover the expected costs. The land developer ’ s offer to purchase the complex is eye-popping. Anticipating that the city will permit it to demolish the existing building and construct a high-rise condominium apartment tower on the site, the developer has offered owners a significant premium to induce their collective sale. If they were to accept the offer, owners would receive approximately twice the assessed value of their units based on individual sale. This – and owner interests unanimous consent owners, vote","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"18 1","pages":"245 - 246"},"PeriodicalIF":0.8,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46283601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-01DOI: 10.1017/S1744552321000707
Cathy Sherry
I read A Liberal Theory of Property through the lens of my own area of expertise – multi-owned housing – and I felt my heart lift as many of Dagan’s arguments unfolded. Dagan’s three-pillared liberal theory of property creates a profound and practical tool for ensuring that multi-owned properties manifest as their best, not worst, selves. In this review, I accept Dagan’s invitation to use his book ‘to examine the performance of existing property systems’ against his liberal theory, with a view to accurately identifying the source of problems and finding a clear path to reform (Dagan, 2021, p. 68). The rise of multi-owned properties is the most significant change in modern property landscapes in a century. I do not necessarily mean US-style common-interest communities, which, while important, have limited popularity in countries that lack a strong tradition of small-group autonomy and/or segregation. I mean condominiums. While people have long lived in apartment buildings, without modern engineering, those buildings were human-scale; load-bearing walls cannot go higher than twelve storeys. The invention of steel frames and curtain walls revolutionised our use of land, allowing owners to exploit vast tracts of airspace. High-rise residential buildings now soar 150 storeys into the air; include complex plant, equipment and facilities; and house hundreds of residents. Not only are modern buildings of a scale unknown in human history; the relationships between residents has radically altered. In the past, buildings were typically owned by a single landlord and occupied by tenants. The dominant legal relationship was vertical, and although clearly open to the interpersonal domination that Dagan rightly identifies as inherent to property, the landlord–tenant relationship is relatively easy to regulate with the right political will and/or is inherently limited if its conception is based on Dagan’s third pillar of relational justice. However, in the post-World War II period, countries around the world recognised that (1) increasing numbers of citizens were going to live in mediumor high-rise buildings, (2) that it was ideal for citizens to own their own home and so (3) legal mechanisms would be needed to facilitate this. In most of the common law world – with the notable exception of the US, Israel and Scotland – positive obligations (or ‘real covenants’) on freehold land are still impermissible. This is a fundamental impediment to creating freehold fee-simple titles to apartments, because those titles must be coupled with a necessary positive obligation to maintain the building. As a result, many jurisdictions needed legislation to overcome this prohibition. That legislation is variously called strata title, unit title, sectional title, community title, commonhold or condominiums. It can subdivide buildings or land, creating highor low-rise communities, and its fundamental purpose is to create fees simple coupled with positive obligations and restriction
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Pub Date : 2022-06-01DOI: 10.1017/S1744552321000689
E. du Plessis
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