Series Editor's Preface. Introduction by John Breuilly. Acknowledgements. 1. Definitions. State and nation. The nation. 2. Culture in Agrarian Society. Power and culture in the agro-literature society. The varieties of agrarian rulers. 3. Industrial Society. The society of perpetual growth. Social genetics. The age of universal high culture. 4. The Transition to an Age of Nationalism. A note on the weakness of nationalism. Wild and garden culture. 5. What is a Nation. The course of true nationalism never did run smooth. 6. Social Entropy and Equality in Industrial Society. Obstacles to entropy. Fissures and barriers. A diversity of focus. 7. A Typology of Nationalisms. The varieties of nationalist experience. Diaspora nationalism. 8. The Future of Nationalism. Industrial culture - one or many?. 9. Nationalism and Ideology. Who is for Nuremberg?. One nation, one state. 10. Conclusion. What is not being said. Summary. Select bibliography. Bilbliography of Ernest Gellner's writing: Ian Jarvie. Index

Nations and Nationalism

1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

The course is focused on historical texts, most of them philosophical. Context for understanding the texts and the course of democratic development will be provided in lecture and discussions, and by some background readings (Dunn). We begin with the remarkable Athenian democracy, and its frequent enemy the Spartan oligarchy. In Athens legislation was passed directly by an assembly of all citizens, and executive officials were selected by lot rather than by competitive election. Athenian oligarchs such as Plato more admired Sparta, and their disdain for the democracy became the judgment of the ages, until well after the modern democratic revolutions. Marsilius of Padua in the early Middle Ages argued for popular sovereignty. The Italian citystates of the Middle Ages did without kings, and looked back to Rome and Greece for republican models. During the English Civil War republicans debated whether the few or the many should be full citizens of the regime. The English, French, and American revolutions struggled with justifying and establishing a representative democracy suitable for a large state, and relied on election rather than lot to select officials. The English established a constitutional monarchy, admired in Europe, and adapted by the Americans in their republican constitution. The American Revolution helped inspire the French, and the French inspired republican and democratic revolution throughout Europe during the 19 century.

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Democracy and Its Critics

This volume argues that international human rights law has made a positive contribution to the realization of human rights in much of the world. Although governments sometimes ratify human rights treaties, gambling that they will experience little pressure to comply with them, this is not typically the case. Focusing on rights stakeholders rather than the United Nations or state pressure, Beth Simmons demonstrates through a combination of statistical analyses and case studies that the ratification of treaties leads to better rights practices on average. Simmons argues that international human rights law should get more practical and rhetorical support from the international community as a supplement to broader efforts to address conflict, development, and democratization.

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Mobilizing for Human Rights: International Law in Domestic Politics

The article argues that the principle of sovereignty is being ousted from its position as a Letztbegrundung (first principle) of international law. This trend is welcome. Sovereignty must and can be justified. The normative value of sovereignty is derived from and geared towards humanity that is the legal principle that human rights, interests, needs, and security must be respected and promoted. State sovereignty is not merely limited by human rights, but should be seen to exist only in function of humanity. It has thus been humanized. Consequently, conflicts between state sovereignty and human rights should not be approached in a balancing process in which the former is played off against the latter on an equal footing, but should be tackled on the basis of a presumption in favour of humanity. A humanized state sovereignty implies responsibility for the protection of basic human rights and the state's accountability. The humanization of sovereignty also suggests a reassessment of humanitarian intervention. In contrast to sovereignty, non-intervention is constitutive for the international legal order and must be upheld as a rule. Moreover, the independent principles of human rights protection and self-determination constitute additional shields against unilateral interventions. But when human rights, needs, and interests are acknowledged as the systematic and doctrinal point of departure of the legal argument, the focus is shifted from states� rights to states� obligations towards natural persons. A state which grossly and manifestly fails to discharge these duties has its sovereignty suspended. Starting off from human needs leads, in a system of multilevel governance and under the principle of solidarity, to a fall-back responsibility of the international community, acting through the Security Council, for safeguarding humanity. In that perspective, the Council has under very strict conditions the duty to authorize proportionate humanitarian action to prevent or combat genocide or massive and widespread crimes against humanity. The exercise of the veto by a permanent member in such a situation should be considered illegal or abusive. The ongoing process of a humanization of sovereignty is a cornerstone of the current transformation of international law into an individual-centred system.

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Humanity as the A and Ω of Sovereignty

The article conceives international (or global) constitutionalism as a legal argument which recommends and strengthens efforts (legal and political ones) to compensate for ongoing de-constitutionalization on the domestic level. Although the notions ‘international constitution’ and ‘international constitutionalism’ have in the recent years served as buzz-words in various discourses, the many meanings of those concepts have not yet been fully explored and disentangled. The paper suggests a specific understanding of those concepts. It highlights various aspects and elements of micro- and macro-constitutionalization in international law, and identifies anti-constitutionalist trends. On this basis, the paper finds that, although no international constitution in a formal sense exists, fundamental norms in the international legal order do fulfill constitutional functions. Because those norms can reasonably be qualified as having a constitutional quality, they may not be summarily discarded in the event of a conflict with domestic constitutional law. Because the relevant norms form a transnational constitutional network, and cannot be aligned in an abstract hierarchy, conflict-solution requires a balancing of interests in the concrete case. Finally, because constitutionalism historically and prescriptively means to ask for a legitimate constitution, a constitutionalist reading of the international legal order provokes the question of its legitimacy. This question is pressing, because state sovereignty and consent are – on good grounds – no longer accepted as the sole source of legitimacy of international law. International constitutionalism – as understood in this paper – does not ask for state-like forms of legitimacy of a world government, but stimulates the search for new mechanisms to strengthen the legitimacy of global governance.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1564125_code341858.pdf?abstractid=1564125

Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures

1. Setting the Scene 2. Institutions and Competences 3. Law-making and Constitutionalism 4. The International Judiciary 5. Membership in the Global Constitutional Community 6. Dual Democracy 7. Conclusions

The Constitutionalization of International Law

The article conceives international (or global) constitutionalism as a legal argument which recommends and strengthens efforts (legal and political) to compensate for ongoing de-constitutionalization on the domestic level. Although the notions ‘international constitution’ and ‘international constitutionalism’ have in recent years served as buzzwords in various discourses, the many meanings of those concepts have not yet been fully explored and disentangled. This paper suggests a specific understanding of those concepts. It highlights various aspects and elements of micro- and macro-constitutionalization in international law, and identifies anti-constitutionalist trends. On this basis, the paper finds that, although no international constitution in a formal sense exists, fundamental norms in the international legal order do fulfil constitutional functions. Because those norms can reasonably be qualified as having a constitutional quality, they may not be summarily discarded in the event of a conflict with domestic constitutional law. Because the relevant norms form a transnational constitutional network, and cannot be aligned in an abstract hierarchy, conflict resolution requires a balancing of interests in concrete cases. Finally, because constitutionalism historically and prescriptively means asking for a legitimate constitution, a constitutionalist reading of the international legal order provokes the question of its legitimacy. This question is pressing, because state sovereignty and consent are – on good grounds – no longer accepted as the sole source of legitimacy of international law. International constitutionalism – as understood in this paper – does not ask for state-like forms of legitimacy of a world government, but stimulates the search for new mechanisms to strengthen the legitimacy of global governance.

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Compensatory Constitutionalism : the Function and Potential of Fundamental International Norms and Structures

PART ONE: ACTORS PART TWO: THEMES PART THREE: REGIONS I. AFRICA AND ARABIA II. ASIA III. THE AMERICAS AND THE CARIBBEAN IV. EUROPE V. ENCOUNTERS PART FOUR: INTERACTION OR IMPOSITION PART FIVE: METHODOLOGY AND THEORY PART SIX: PEOPLE IN PORTRAIT

Anne Peters

Papers

Humanity as the A and Ω of Sovereignty

Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures

The Constitutionalization of International Law

Compensatory Constitutionalism : the Function and Potential of Fundamental International Norms and Structures

The Oxford Handbook of the History of International Law