An increasing number of European states have, since 2009, passed laws restricting or prohibiting the practice of Islamic veiling. These laws have been challenged both before the European Court of Human Rights and the United Nations Human Rights Committee. In the former context, these laws have invariably been upheld whereas in the latter, they have always been deemed to be incompatible with the right to freedom of religion under the International Covenant on Civil and Political Rights. Superficial analysis suggests that this is because the ECtHR, unlike the UNHRC, applies a margin of appreciation doctrine to give effect to concerns with subsidiarity. In this Article it is suggested that the better explanation is that the ECtHR (again unlike the UNHRC) accepts assertions of facts from states as to why their laws are justified in the absence of any demonstrable supporting evidence. It is argued that this is of particular concern because these assertions tend to make insidious and pejorative statements about the practice of Islamic veiling that have the capacity to generate stigma and substantive damage for the veil wearing woman. When they are endorsed by a putatively independent body like the ECtHR, these messages, and the accompanying stigma are mainstreamed and legitimized. It is finally argued that this means that the approach of the ECtHR cannot be justified by concerns with subsidiarity but rather reflects an irresponsible abdication of responsibility.
{"title":"Pejorative Assertions, Human Rights Evaluation, and European Veiling Laws","authors":"Neville Cox","doi":"10.1093/ajcl/avad012","DOIUrl":"https://doi.org/10.1093/ajcl/avad012","url":null,"abstract":"\u0000 An increasing number of European states have, since 2009, passed laws restricting or prohibiting the practice of Islamic veiling. These laws have been challenged both before the European Court of Human Rights and the United Nations Human Rights Committee. In the former context, these laws have invariably been upheld whereas in the latter, they have always been deemed to be incompatible with the right to freedom of religion under the International Covenant on Civil and Political Rights. Superficial analysis suggests that this is because the ECtHR, unlike the UNHRC, applies a margin of appreciation doctrine to give effect to concerns with subsidiarity. In this Article it is suggested that the better explanation is that the ECtHR (again unlike the UNHRC) accepts assertions of facts from states as to why their laws are justified in the absence of any demonstrable supporting evidence. It is argued that this is of particular concern because these assertions tend to make insidious and pejorative statements about the practice of Islamic veiling that have the capacity to generate stigma and substantive damage for the veil wearing woman. When they are endorsed by a putatively independent body like the ECtHR, these messages, and the accompanying stigma are mainstreamed and legitimized. It is finally argued that this means that the approach of the ECtHR cannot be justified by concerns with subsidiarity but rather reflects an irresponsible abdication of responsibility.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42194881","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Evaluation of Evidence: Pre-modern and Modern Approaches","authors":"Orna Alyagon-Darr","doi":"10.1093/ajcl/avad019","DOIUrl":"https://doi.org/10.1093/ajcl/avad019","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49226786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Criminalizing Atrocities: The Global Spread of Criminal Laws Against International Crimes","authors":"Demetra F. Sorvatzioti","doi":"10.1093/ajcl/avad017","DOIUrl":"https://doi.org/10.1093/ajcl/avad017","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48260352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Cosmopolitan Jurisprudence: Essays in Memory of H. Patrick Glenn","authors":"Hannah L. Buxbaum","doi":"10.1093/ajcl/avad009","DOIUrl":"https://doi.org/10.1093/ajcl/avad009","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47964046","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Beyond Anti-Anti-Orientalism, or How Not to Study Chinese Law","authors":"Teemu Ruskola","doi":"10.1093/ajcl/avad004","DOIUrl":"https://doi.org/10.1093/ajcl/avad004","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41763438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Constitution of Ireland: A Contextual Analysis","authors":"Rory O’Connell","doi":"10.1093/ajcl/avad008","DOIUrl":"https://doi.org/10.1093/ajcl/avad008","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48985278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scholars who write about the relationship between law and empire tend to adopt one of two frameworks. The first describes imperial rule and the rule of law as fundamentally incompatible. The second praises empires—especially the British Empire—for exporting the rule of law to lands that lacked it. These competing approaches have very different political valences, but they agree in suggesting that colonial rule made no substantial contribution to today’s rule of law tradition. At best, the metropole exported a premade rule of law abroad; at worst, colonialism corrupted preexisting commitments to legality. But in neither case did imperial rule alter rule of law ideals. This Article argues, in contrast, that colonialism helped to reshape how anglophones defined the rule of law. It begins by reconstructing two conceptions of legality in the eighteenth-century British Empire. At the start of that century, most Britons subscribed to what this Article calls the traditional conception of the rule of law. This conception aimed at a thick set of political, social, and economic ends, which proponents sought to advance through specific English institutions, such as juries. A second, thinner conception of legality—what this Article calls the modern rule of law—emerged in the second half of the eighteenth century. Like many rule of law theories today, the modern conception focused on abstract ideals, such as legal certainty, rather than particular institutions. Proponents of the modern rule of law aimed to provide a cosmopolitan standard that would transcend national and cultural boundaries. Although these two conceptions were often compatible, their differences became apparent in the 1770s, as politicians debated whether to extend English law to conquered colonies. Britain’s ultimate decision to embrace colonial legal pluralism encouraged commentators to embrace the newer, thinner conception, which was easier to reconcile with the growing diversity of the empire’s many legal systems. This debate over the colonial rule of law continues to shape our efforts to theorize the rule of law. Understanding the rule of law’s history also offers new insights into the potential utility of different versions of that concept today. Finally, this Article shows how invoking the rule of law in everyday political debates can ultimately redefine the concept itself.
{"title":"Redefining the Rule of Law: \u2028An Eighteenth-Century Case Study","authors":"Christian R. Burset","doi":"10.1093/ajcl/avad006","DOIUrl":"https://doi.org/10.1093/ajcl/avad006","url":null,"abstract":"\u0000 Scholars who write about the relationship between law and empire tend to adopt one of two frameworks. The first describes imperial rule and the rule of law as fundamentally incompatible. The second praises empires—especially the British Empire—for exporting the rule of law to lands that lacked it. These competing approaches have very different political valences, but they agree in suggesting that colonial rule made no substantial contribution to today’s rule of law tradition. At best, the metropole exported a premade rule of law abroad; at worst, colonialism corrupted preexisting commitments to legality. But in neither case did imperial rule alter rule of law ideals.\u0000 This Article argues, in contrast, that colonialism helped to reshape how anglophones defined the rule of law. It begins by reconstructing two conceptions of legality in the eighteenth-century British Empire. At the start of that century, most Britons subscribed to what this Article calls the traditional conception of the rule of law. This conception aimed at a thick set of political, social, and economic ends, which proponents sought to advance through specific English institutions, such as juries. A second, thinner conception of legality—what this Article calls the modern rule of law—emerged in the second half of the eighteenth century. Like many rule of law theories today, the modern conception focused on abstract ideals, such as legal certainty, rather than particular institutions. Proponents of the modern rule of law aimed to provide a cosmopolitan standard that would transcend national and cultural boundaries.\u0000 Although these two conceptions were often compatible, their differences became apparent in the 1770s, as politicians debated whether to extend English law to conquered colonies. Britain’s ultimate decision to embrace colonial legal pluralism encouraged commentators to embrace the newer, thinner conception, which was easier to reconcile with the growing diversity of the empire’s many legal systems. This debate over the colonial rule of law continues to shape our efforts to theorize the rule of law. Understanding the rule of law’s history also offers new insights into the potential utility of different versions of that concept today. Finally, this Article shows how invoking the rule of law in everyday political debates can ultimately redefine the concept itself.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41365734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In both Britain and France, pollution from emergent chemical manufacturing during the early industrial era presented a choice between two regulatory approaches. One option, consistent with longstanding restrictions in both countries on the location of malodorous trades, insisted on the separation of chemical plants from (upper-class) residences. The alternative approach allowed polluting firms to operate near residences, subject to incremental technology-based mitigation. By 1810, France issued a decree that conferred on most chemical manufacturers the right to operate inside cities, subject to permitting requirements. For residents of working-class industrial neighborhoods, who never stood a realistic chance of removing polluters, a regulatory regime geared at incremental mitigation held the potential for modest environmental improvement. For wealthy landowners, however, partial technological mitigation was far inferior to the complete relief obtainable through the removal of pollution sources. France’s example loomed large over chemical pollution debates in nineteenth-century Britain. Manufacturers hoped the courts would remove locational restrictions on chemical plants, while the near absence of pollution mitigation within working-class areas alarmed liberal reformers. The road to a compromise solution patterned after France’s was impeded in Britain, however, by a deep-seated aversion to uniform, centralized pollution control. This reticence was rooted in common-law-inspired understandings of nuisance law as the sole and inviolable constitutional means for the regulation of land use. By the 1860s, through the combined impact of St. Helens v. Tipping (1865) and the Alkali Act of 1863, Britain moved towards the French approach. Nevertheless, compared with France, British law remained more protective of landowners, more reactive in its implementation, and more willing to vary required mitigation based on sociodemographic factors. Beyond its contribution to comparative environmental history, in revealing the legal-ideological underpinnings of the Franco-British divide over the regulation of early chemical pollution, this Article also seeks to shine a light on the lingering role of legal ideology within contemporary cross-national divisions over the efficacy and legitimacy of centralized technology-based regulatory instruments
{"title":"Chemical Pollution and Regulatory Choices at the Start of Industrialization: Comparing France and Great Britain","authors":"Noga Morag-Levine","doi":"10.1093/ajcl/avac046","DOIUrl":"https://doi.org/10.1093/ajcl/avac046","url":null,"abstract":"\u0000 In both Britain and France, pollution from emergent chemical manufacturing during the early industrial era presented a choice between two regulatory approaches. One option, consistent with longstanding restrictions in both countries on the location of malodorous trades, insisted on the separation of chemical plants from (upper-class) residences. The alternative approach allowed polluting firms to operate near residences, subject to incremental technology-based mitigation. By 1810, France issued a decree that conferred on most chemical manufacturers the right to operate inside cities, subject to permitting requirements. For residents of working-class industrial neighborhoods, who never stood a realistic chance of removing polluters, a regulatory regime geared at incremental mitigation held the potential for modest environmental improvement. For wealthy landowners, however, partial technological mitigation was far inferior to the complete relief obtainable through the removal of pollution sources.\u0000 France’s example loomed large over chemical pollution debates in nineteenth-century Britain. Manufacturers hoped the courts would remove locational restrictions on chemical plants, while the near absence of pollution mitigation within working-class areas alarmed liberal reformers. The road to a compromise solution patterned after France’s was impeded in Britain, however, by a deep-seated aversion to uniform, centralized pollution control. This reticence was rooted in common-law-inspired understandings of nuisance law as the sole and inviolable constitutional means for the regulation of land use. By the 1860s, through the combined impact of St. Helens v. Tipping (1865) and the Alkali Act of 1863, Britain moved towards the French approach. Nevertheless, compared with France, British law remained more protective of landowners, more reactive in its implementation, and more willing to vary required mitigation based on sociodemographic factors. Beyond its contribution to comparative environmental history, in revealing the legal-ideological underpinnings of the Franco-British divide over the regulation of early chemical pollution, this Article also seeks to shine a light on the lingering role of legal ideology within contemporary cross-national divisions over the efficacy and legitimacy of centralized technology-based regulatory instruments","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46823890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Constitutional dialogue theory has some great qualities. It is balanced, democratic, and deliberative. It has a special legitimacy-enhancing role due to the place that it gives to legislatures and to the political process. Even its name has a positive aspect. However, this important theory has a major flaw: it does not protect human rights well. This theory puts most of the weight on institutional interaction, and not enough weight on the petitioners’ rights. This Article wishes to strengthen this criticism through a discussion of the strong connection between constitutional dialogue and constitutional remedies. The court choice of remedy can facilitate the legislature’s ability to enact a legislative response as a part of the ongoing dialogue between courts and legislatures. The constitutional remedies are an invitation, directed to the political branches, that can leave the discretion regarding desired policy in the political field, while minimizing the judicial intervention in the legislative fora. An invitation to take (or restore) constitutional responsibility and sensitivity. However, this invitation sees only political institutions, instead of the ones who need the remedy the most: the petitioners. Soft and legitimacy-enhancing designing of constitutional remedies cast the price on the petitioners’ shoulders, who do not win full remedying in the name of constructive inter-institutional dynamics. Thus, using the Israeli Supreme Court’s use of constitutional remedies as a test case, the main argument is a claim in favor of judicial use of strong and status-quo changing remedies that protect the petitioners’ rights. Counterintuitive as it may seem, the dialogue theory—which is built upon the political branches ability to respond—enables and legitimizes the choice to use strong remedies. The latter is the outcome of the responsive nature of the theory and the temporal nature of the constitutional remedies.
{"title":"Constitutional Dialogue Under Pressure: Constitutional Remedies in Israel as a Test Case","authors":"Bell E Yosef","doi":"10.1093/ajcl/avac047","DOIUrl":"https://doi.org/10.1093/ajcl/avac047","url":null,"abstract":"\u0000 Constitutional dialogue theory has some great qualities. It is balanced, democratic, and deliberative. It has a special legitimacy-enhancing role due to the place that it gives to legislatures and to the political process. Even its name has a positive aspect. However, this important theory has a major flaw: it does not protect human rights well. This theory puts most of the weight on institutional interaction, and not enough weight on the petitioners’ rights.\u0000 This Article wishes to strengthen this criticism through a discussion of the strong connection between constitutional dialogue and constitutional remedies. The court choice of remedy can facilitate the legislature’s ability to enact a legislative response as a part of the ongoing dialogue between courts and legislatures. The constitutional remedies are an invitation, directed to the political branches, that can leave the discretion regarding desired policy in the political field, while minimizing the judicial intervention in the legislative fora. An invitation to take (or restore) constitutional responsibility and sensitivity.\u0000 However, this invitation sees only political institutions, instead of the ones who need the remedy the most: the petitioners. Soft and legitimacy-enhancing designing of constitutional remedies cast the price on the petitioners’ shoulders, who do not win full remedying in the name of constructive inter-institutional dynamics. Thus, using the Israeli Supreme Court’s use of constitutional remedies as a test case, the main argument is a claim in favor of judicial use of strong and status-quo changing remedies that protect the petitioners’ rights. Counterintuitive as it may seem, the dialogue theory—which is built upon the political branches ability to respond—enables and legitimizes the choice to use strong remedies. The latter is the outcome of the responsive nature of the theory and the temporal nature of the constitutional remedies.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44306773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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