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Law, caution: towards a better understanding of law for IR theorists

Published online by Cambridge University Press:  14 July 2010

Abstract

The aim of this article is to provide International Relations (IR) theorists with a better understanding of law. This is important for all IR theorists, not just those who focus on international law, because the legalistic way of viewing the world colours all aspects of our world, from teaching us what justice is and providing the means to achieve it, to framing our understanding of human relations and giving us the language of rights with which to articulate it. This article has two main goals: first, to question our own assumptions about law; and second, to introduce IR theorists to the basics of legal methodology and demonstrate how law actually operates.

Type
Research Article
Copyright
Copyright © British International Studies Association 2010

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References

1 Smart, Carol, Feminism and the Power of Law (London: Routledge, 1989), p. 12CrossRefGoogle Scholar .

2 See piece, Nicholas Greenwood Onuf's, ‘International Legal Order as an Idea’, American Journal of Transnational Law, 73:2 (1979), pp. 244266Google Scholar on the paucity of international legal theory and his attempt to answer the question of whether international law is really law.

3 Just such an approach is adopted by Armstrong, David, Farrell, Theo and Lambert, Hélène in their book International Law and International Relations (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar .

4 Shklar, Judith N., Legalism: Law, Morals and Political Trials (London: Harvard University Press, 1986), p. 109Google Scholar .

5 Of course, cases in court are only the most visible manifestation of the law in action. The law affects our daily lives in a myriad of ways including how you buy your house, drive your car or what information you read on the back of food packets. Most of us interact with law on a daily basis, being guided by it, rather than butting up against it.

6 Kairys, David, ‘Introduction’ in Kairys, David (ed.), The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982), pp. 17Google Scholar , at pp. 1–2.

7 There is considerable overlap between the popular conception of law and the rule of law. I discuss the rule of law below.

8 Shklar, Legalism, p. 35.

9 Ibid., p. 8.

10 Ibid., p. 95.

11 MacCormick, Neil, ‘Rhetoric and the Rule of Law’, in Hutchinson, Allan C. and Monahan, Patrick (eds), The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), pp. 163177Google Scholar , at p. 163.

12 This list is Lon L. Fuller's. See: The Morality of Law (New Haven: Yale University Press, 1969). See also Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986)Google Scholar . This idea of law has been attacked from both the right and the left. In F. A. Hayek's version of the rule of law it is only the minimum of rules needed to allow individuals to go about their business without colliding with each other, see Hayek, F. A., Constitution of Liberty (London: Routledge, 1960)Google Scholar . There has been a sustained attack on the concept of the rule of law from the left, which sees it as a mask for oppression and exploitation, and has developed into a separate debate. See Unger, Roberto, Law in Modern Society (London: Collier Macmillan, 1977)Google Scholar , and ‘The Critical Legal Studies Movement’, Harvard Law Review, 96:3 (1983), pp. 561–675, and Kairys, The Politics of Law.

13 Shklar, Legalism, p. 9.

14 Burch writes that: ‘I consider law a form of ideology and regard legal discourse as a form of social practice’. See: Burch, Kurt, ‘Property’ and the Making of the International System (London: Lynne Rienner, (1998), p. 70Google Scholar .

15 Tigar, Michael E. and Levy, Madeleine R., Law and the Rise of Capitalism, 2nd edition (New York: Monthly Review Press, 2000)Google Scholar , passim.

16 Pocock, J. G. A., The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1987)CrossRefGoogle Scholar , see chaps 2 and 3.

17 There is some disagreement over when the idea of law peculiar to the Western world emerged. Berman argues that it emerged as a consequence of the Gregorian Revolution and the Investiture Struggle (1075–1122). The Church established its political and legal unity and its independence from emperors, kings and feudal lords and it is from this period that the idea of integrated legal systems emerged. See Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition (London: Harvard University Press, 1983)Google Scholar .

18 There is debate over when capitalism can be said to have emerged. While capitalism truly grew and flourished during the nineteenth century the conceptual ground for its existence were laid down much earlier, in the seventeenth, and maybe even the sixteenth, century.

19 Burch, ‘Property’, p. 85.

20 Tigar, Law and the Rise of Capitalism, p. 20.

21 Locke, John, Two Treatises of Government with notes and introduction by Laslett, Peter (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar , bk. 2, chap. 5, para. 27.

22 William Blackstone, Commentaries on the Laws of England, bk 1, chap. 1, available at: {http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm} accessed on 1 December 2007.

23 Blackstone, Commentaries, bk. 1, chap. 1.

24 Charlesworth, Hilary, and Chinkin, Christine, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000), p. 233Google Scholar .

25 Charlesworth and Chinkin, The Boundaries of International Law, p. 209.

26 Pocock, The Ancient Constitution, p. 320.

27 Burch, ‘Property’, p. 78.

28 Ibid., p. 70.

29 Scheingold quoted in Burch, ‘Property’, p. 71.

30 Pocock, The Ancient Constitution, p. 16.

31 Common law draws abstract rules from specific cases whereas civil law starts with abstract rules which judges ten apply to cases. These two systems account for the vast majority of the world's legal system and both of them originated in the West. There are also some mixed systems like Scotland. International law derives from four sources: international conventions, that is, treaties; international custom; general principles of law recognised by civilised nations and, as a subsidiary means, the opinion and writings of expert jurists.

32 Pocock quoting Sir John Davies, Attorney-General for Ireland in 1612, The Ancient Constitution, p. 33.

33 Pocock quoting Davies, The Ancient Constitution, p. 34.

34 Burch, ‘Property’, p. 71.

35 Tigar, Law and the Rise of Capitalism, p. 9.

36 Ibid., p. 268.

37 Burch, ‘Property’, p. 81.

38 This comes from Punch and is quoted in Twining, William and Miers, David, How to do Things with Rules: A Primer of Interpretation (London: Weidenfeld & Nicolson, 1982)Google Scholar , fn. 9, p. 175.

39 Shklar, Legalism, p. 2.

40 This idea of story-telling comes from Anthony G. Amsterdam and Jerome Bruner: ‘Clients tell stories to lawyers who must figure out what to make of what they hear. As clients and lawyers talk, the client's story gets recast into plights and prospects, plots and pilgrimages into possible worlds […] If circumstances warrant, the lawyers retell their clients’ stories in the form of pleas and arguments to judges and testimony to juries […] Next, judges and jurors retell the stories to themselves or to each other in the form of instructions, deliberations, a verdict, a set of findings, or an opinion'. Minding the Law (London: Harvard University Press, (2000, p. 111.

41 Naffine, Ngaire, Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney: Allen & Unwin, 1990), p. 44Google Scholar .

42 This is particularly pronounced in the Anglo-American common law system. The continental civil law system is more oriented to finding the truth though the process of classification remains the same.

43 Ehrlich, Susan, Representing Rape: Language and Sexual Consent (London: Routledge, 2001)CrossRefGoogle Scholar . See also Greg Matoesian, Law and the Language of Identity: Discourse in the William Kennedy Smith Trial (Oxford: Oxford University Press, 2001).

44 Holland, James A. and Webb, Julian S., Learning Legal Rules 3rd edition (London: Blackstone Press, 1996), p. 111Google Scholar .

45 Holland and Webb, Learning Legal Rules, p. 242.

46 Ibid.

47 Quoted in Holland and Webb, Learning Legal Rules, p. 243.

48 Lees, Sue, Carnal Knowledge: Rape on Trial (London: The Women's Press, 2002), p. 244Google Scholar . See also Fox, Marie and Bell, Christine, Learning legal Skills, 3rd edition (London: Blackstone Press, 1999), p. 13Google Scholar for statistics.

49 Holland and Webb, Learning Legal Rules, p. 88.

50 Levi, Edward H., An Introduction to Legal Reasoning (Chicago: Chicago University Press, 1949), pp. 12Google Scholar .

51 Levi, An Introduction, p. 3.

52 Twining and Miers, How to do Things with Rules, p. 313.

53 Holland and Webb, Learning Legal Rules, p. 148.

54 Obiter dictum is ‘a thing said by the way’: anything else said in a case that does not relate to the material, that is, important, facts of a case. Such statements are not binding.

55 Kairys, ‘Introduction’, pp. 1–2.

56 Shklar, Legalism, p. 10.

57 Ibid., p. 35.

58 Ibid., p. 10.

59 The case referred to as Brown was a collection of five cases which were heard together because each dealt with the constitutionality of racially segregated schools, with the exception of Bolling v. Sharpe (347 US 497), which dealt with the federal government's duty to respect racial equality. The other cases were: Gebhardt v. Belton (33 Del. Ch. 144 (1952)), Briggs v. Elliott (347 US 483 (1954)), and Davis v. County School Board of Prince Edward County (103 F. Supp. 337 (1952)). The Supreme Court's ruling on remedy, referred to as Brown II, was handed down on 31 May 1955.

60 Balkin, Jack. M., ‘Brown as Icon’, in Balkin, (ed.), What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decisions (New York: New York University Press, 2001), pp. 3–28Google Scholar , at p. 3.

61 Kluger, Richard, Simple Justice: the History of Brown v. Board of Education and Black America's Struggle for Equality (London: Deutsch, 1977), p. ixGoogle Scholar .

62 Balkin, ‘Brown as Icon’, p. 5.

63 Ibid.

64 Plessy v. Ferguson (163 US 537 (1896)). Plessy was a test case set up by the railway workers, who were opposed to segregation, and Homer Plessy. Plessy, who was seven eighths white, agreed to board a whites only railroad car in order to be thrown off by a porter who knew he was one-eighth black. It back-fired badly.

65 See Plessy v. Ferguson (163 US 537 (1896)).

66 Klarman, Michael J., From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2004), p. 449Google Scholar .

67 The studies cited were widely derided, in particular Kenneth C. Clark's doll study. Here, black and white children were given a black doll and a white doll and asked to chose which one was the ‘good doll’, which had a ‘nice colour’, and so forth. Both sets of children favoured the white doll, leading Clark to conclude that black children felt ashamed of their colour and inferior to whites. However, Chief Justice Warren's opinion failed to mention that black children living in the segregated South had higher approval rates for the black doll, than black children living in the unsegregated North. The basic premise of the study, that segregation makes black children feel inferior, could not therefore be borne out by the study.

68 Balkin, ‘Rewriting Brown: A Guide to the Opinions’, in Balkin, What Brown v. Board of Education Should Have Said, pp. 44–76, at p. 49.

69 Derrick A. Bell, ‘Dissenting Opinion’, in Balkin, What Brown v. Board of Education should have said, pp. 185–200, at p. 198.

70 Bell, ‘Dissenting Opinion’, p. 198–9, emphasis added.

71 Because Brown concerned segregation in public schools and Plessy concerned segregation on railroads, Warren was able to leave Plessy untouched although the constitutionality of segregation was the central issue in both. This should raise some doubts as to the rigidity of stare decisis. Brown did not actually overturn segregation. Plessy was not actually overturned until 1957 in Simkins v. City of Greensboro (149 F. Supp. 562) and the first clear statement of it by the Supreme Court was not until 1970 in Oregon v. Mitchell (400 US 112): Balkin, ‘Rewriting Brown’, p. 48.

72 According to Home Office statistics, in 1977 the conviction rate for rape was 32 per cent, in 1987 it was 18 per cent, in 1997 it was 10 per cent and it was 5.7 per cent in 2006.

73 The Sexual Offences (Amendment) Act (1976) stated that sexual history evidence should only be admitted if relevant to the offence but was left up to judges' discretion. The extent to which a complainant can be questioned about her sexual history and behaviour was further curtailed by the Youth Justice and Criminal Evidence Act (1999). It stated that such evidence would only be admissible if sexual intercourse took place at or about the time of the alleged offence, or were so similar as to constitute a pattern of sexual behaviour. However, an exemption was added which ruled that while sexual history evidence was not relevant to consent, it was relevant to belief in consent. In other words, a complainant's sexual past will be admissible in court.

74 Lees, Carnal Knowledge, p. xxiii.

75 Gibb, Frances, ‘Rape case judges fail to abide by consent rule’, The Times (29 November 2007)Google Scholar .

76 In 1986 in Billam, the Court of Appeal explicitly stated that there were two instances which could not amount to mitigation: the victim's previous sexual experience; and where the victim exposes herself to danger by acting imprudently, for example, hitchhiking.

77 Temkin, Jennifer, ‘Prosecuting and Defending Rape: Perspectives from the Bar’, Journal of Law and Society, 27:2 (2000), pp. 219248CrossRefGoogle Scholar .

78 The defence are given access to the medical examination of the complainant taken by the police doctor and this can include all manner of personal and medical history information that defence can use to undermine the credibility of the complainant but also to simply unnerve her.

79 Lees, Carnal Knowledge, p. xxi.

80 Gibb, ‘Rape case judges fail to abide by consent rule’.

81 From the first of twelve Lowell Lectures delivered by Homes on 23 November 1880.

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