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

The past ten years have seen an avalanche of literature on the rule of law, but little agreement on a definition of the concept — if it is defined at all. The present article offers a conceptual framework to deal with this situation. Departing from the two main functions the rule of law intends to serve — protecting citizens against the state and against one another — it dissects the various definitions in use into elements. These elements are discussed one by one and arranged in three categories: procedural elements, substantive elements and control mechanisms.The result may not only be helpful in structuring debates about the rule of law, but also in evaluating claims about the success or failure of ‘rule of law development’. Finally, the article contains suggestions on how to use this framework as a starting point for interdisciplinary research into the rule of law.

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Suatu pendekatan elementer terhadap negara hukum [An Elementary Approach to the Rule of Law]

This article discusses three major approaches connecting culture to law. The first is the historical school that arose in German jurisprudence in the first half of the nineteenth century. It views law as a product of a nation’s culture and as embedded in the daily practices of its people. The second approach is the constitutive approach that developed in American jurisprudence in the 1980s. This approach views law as participating in the constitution of culture and thereby in the constitution of people’s minds, practices, and social relations. The third approach, found in twentieth-century Anglo-American jurisprudence, views the law that the courts create and apply as a distinct cultural system. Law practitioners internalize this culture in the course of their studies and professional activity, and this internalization comes to constitute, direct, and delimit the way these practitioners think, argue, resolve cases, and provide justifications. The writings of Karl Llewellyn, James Boyd White, Pierre Bourdieu and Stanley Fish are discussed. Beyond these three approaches the article points out nine additional approaches in legal scholarship concerning the relationship between law and culture. This mapping is tentative. It is hoped, however, that it gives readers a preliminary idea of the widespread use of the concept of culture in the law and that it invites further reflection on other possible ways to employ the concept of culture in legal scholarship for a richer understanding of the legal phenomenon.

Three Approaches to Law and Culture

Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define abusive regimes and transitional justice in contrast to stable states and ordinary justice. It argues that the public face of law in abusive regimes - composed of law, institutional practice, and social norms - is such that reasonable people living under its direction can conclude that abuses are at least not against the law. Given this, prosecuting in transition those who acted consistently with the pre-transitional public face of law would violate commitments to the legality principle. The article argues for an approach to transitional justice organized around the description and provision of an affirmative defense based on legality and defends the proposed excuse against objections from different legal and philosophical perspectives. It concludes that, with the exception of top leaders, appeals to natural law, morality, international law, customary law, deterrence, reform, and incapacitation do not provide warrant for prosecuting most pre-transitional actors. The article further suggests how this excuse-centered approach can provide necessary support and justification for other elements of the hybrid approach, including truth commissions.

An Excuse-Centered Approach to Transitional Justice

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The right to freedom of expression and its role in political transformation in Kenya

While transitional justice and democracy literature bristles with the expectation that human rights conditions would improve with the progression from the “darkness” of a dictatorship to the “light” of democratic rule, Nigeria’s transition to civil rule in 1999 would seem to provide a sobering contra-reality. Democracy does not seem to have produced a better human rights environment in the post-transition Nigerian context. This dissertation answers the question why the restoration of civil rule in Nigeria has not translated to results in human rights practices that come close to matching the expectations of its citizens and the predictions of transitional justice literature? It investigates, however, only the extent to which human rights violations correlates with the lack of effective judicial protection of those rights between 1999 and 2009.
The methodology is mostly interdisciplinary. The discussion is organized around doctrinal legal reasoning and case-law analysis. First analyzed were cases decided prior to 1999 to show the slippery provenance and inadequacy of the current rights-based adjudication standards. Cases decided since 1999 were then evaluated to measure the claim that the judiciary is failing in its duty as guardians of human rights post-transition. To that extent, the dissertation has not limited itself to a single theoretical model.
It was found that some of the biggest problems afflicting human rights adjudication in Nigeria are historically defined. A major challenge is the apparent lack of a clear standard for reviewing laws and actions against the constitutional requirement that they be reasonably justifiable in a democratic society. This creates a culture where human rights cases are approached on an ad hoc case-by-case basis such that contradictory decisions are possible from cases with similar facts. Dealing with this challenge is not helped by the country’s legal history and the doctrines of the British legal system that a colonial relationship fostered after independence. The current approach is still orientated towards British administrative law principles which did not demand the standard of intense scrutiny required for the effective protection of human rights norms. The dissertation therefore recommends a reformed system of legal education with strong comparative approaches to change this orientation.

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Basil Emeka Ugochukwu

Papers

Adjudicating Human Rights in Transitional Contexts: A Nigerian Case-Study, 1999-2009