Showing papers in "Indiana Journal of Global Legal Studies in 2005"

The Globalization of Multicultural Education

Abstract: The appearance of edited volumes on a topic signals the maturation of scholarly reflection upon it within the field of comparative education. Such is the case with “multicultural education.” In common usage in the United States, multicultural education generally refers to education about different ethnic groups that comprise the U.S. population. Indeed, the vast majority of the literature produced on the subject consists of curricular units for teaching about African-Americans, Native Americans, Latinos/Chicanos, or various AsianAmerican groups. As dialogue on cultural difference and education has spread to other nations, it has become more sharply focused on complex issues of identity, diversity, and citizenship. Advocates of multicultural education define it as having either two or three key features. James Banks, a leading voice in the field, defines three central concerns addressed by multicultural education: validating the identities of socially oppressed groups; teaching the history of exploitation and resistance to it; and providing empowering education to oppressed groups. Others reduce these features to two: “the ‘recognition of diversity’ strand [and] the ‘social equality’ strand.” Scholars of multicultural education agree that it is a social movement for educational reform that initially grew out of civil rights movements in the United States, particularly efforts for the complete enfranchisement of African-Americans.

Science, Globalization, and Educational Governance: The Political Rationalities of the New Managerialism

Abstract: The modern school has been a critical site for imagining possible publics and publicly-defining national purposes. Public education is presumed to provide a collective good to “a public”—“a public” of which the discourse about educational purposes conjures and addresses. Yet the imagined publics and purposes of education have varied considerably at different historic junctures. These variations have been shaped in part by the rise and fall in prominence of two contrasting political horizons and the quite distinctive roles they have envisioned for the state and the market. The first, articulated in classic form by Adam Smith in the Wealth of Nations, privileges the role of the free market, arguing that state efforts to promote the social good are ineffectual compared to unbridled market forces. The second stresses the state’s central role in protecting its citizens from the vicissitudes of the market by insuring social security and increased well-being. Over the past century, assumptions about the state’s responsibility for the social good have been intrinsic to various forms of governance across the globe. Political systems from socialism to social democracy to social liberalism—while differing in ideology and approach—have been founded upon the fundamental principle that issues of governance should be decided on the basis of benefits to “the social.” As Nikolas Rose has argued, “Whatever their differences, in each case the term ‘social’ implied a kind of anti-individualism: the need to conceive of human beings as citizens of a wider collectivity who did not merely confront one another as buyers and sellers on a competitive market.” The social state, to a greater or lesser extent, has been envisioned as a force for social progress, con-

Globalizing What: Education as a Human Right or as a Traded Service?

Abstract: Globalization tends to be described as an extralegal phenomenon. This image does not apply to education for which there is international law, albeit composed of two parallel and disconnected legal regimes. International human rights law defines education as a human right; international trade law defines it as a service. International human rights law is older than the law on trade in services, and domestic educational laws tend to be even older. Most of these define educa-

Programs for Democratic Citizenship in Mexico's Ministry of Education: Local Appropriations of Global Cultural Flows

Abstract: Recent scholarship in comparative education has called attention to the problems and challenges associated with the intensified globalization of educational programs. Structural arrangements for schooling in poorer countries have become increasingly subject to the mandates of neoliberal economic policy as these are dictated by powerful international agencies and national elites. In places like Latin America, the recent predominance of schemes for educational decentralization, privatization, and “accountability” illustrate that, in matters of policy, the sovereign state is indeed strongly “conditioned” by external influences. However, as Arnove and Torres emphasize, globalization processes always entail a “dialectic of the global and the local,” in which the outcome is never foreordained. If structural reforms tend to show the heavy hand of the global market at work, thus favoring the global over the local, then on questions of curricular content, teacher education, textbook production, and the like, the effects of neoliberal globalization are much less clear. Developments in curriculum and pedagogy more explicitly engage the terrain of ideologies and cultural values, and are arguably less malleable to external conditioning or subject to external oversight. Moreover, social actors rooted in local cultural traditions are more likely and able to appropriate such prescribed changes and transform

Good Administration and Administrative Procedures

Abstract: This article examines the relationship between administrative procedures, the duty of giving reasons, and the citizens’ participation in relation to the quality of the administrative behavior. I will take into account some national experiences and will reflect about some crucial issues connected with fundamental rights and administrative procedures in the European Union (EU). The U.S. model will also be considered. This study focuses on adjudicative procedures. I will not analyze rulemaking procedures, but a number of brief considerations about them will be included in the final part. The three fundamental questions are:

The Language of Higher Education Assessment: Legislative Concerns in a Global Context

Abstract: In recent years, state and federal legislatures have taken increasingly outspoken stands as guardians of the public interest regarding the costs and benefits of higher education, particularly state-funded higher education. In the 1980s, several states passed legislation requiring educational outcomes assessment for state-funded colleges and universities. Very recently, federal legislators have, while in the process of reauthorizing the Higher Education Act, begun asking for assessment regulation in all higher education, public and private. Assessment issues are not new. The search for means to measure educational outcomes emerged around 1900 with the development of educational foundations and the movement to accredit higher education institutions. This movement was motivated by a concern for commensurateness, or lack thereof, among the structurally various institutions of higher education of the late nineteenth century. In contrast, current calls for assessment are motivated by concerns for the spiraling cost of education. Nevertheless, throughout the history of U.S. higher education, the question underlying all concerns for assessment is: “What is the outcome of that education supposed to be?” While most academics have never found any simple answers to this question, the corporate and government voices initiating these calls for assessment have tended for the past century to see higher education in terms of workforce preparation. Since 1980 or so, a globalized rhetoric of skills and workforce preparedness has emerged with which U.S. discourses of education, skills, and work have become tightly coherent. In effect, this has become the new global “common sense” rhetoric of workforce preparedness. Moreover, this globalized neoliberal discourse has often taken place in conservative social and political

"Glocalizing" Chinese higher Education: Groping for Stones to Cross the River

Abstract: Over two and one-half decades have passed since Deng Xiaoping proclaimed that Chinese education must face in “three directions”—toward modernization, the world, and the future. At that time leaders had yet to articulate the driving purpose of reform as the creation of a robust market integrated with the global economy. Today Chinese educators and policymakers use “globalization” rather than modernization to approximate the pedagogical and social means (including cultivating a citizenship capable of creativity, flexibility, independent thinking, and innovation) they believe will ensure China’s engagement in an international knowledge economy. In response, Chinese universities grapple with how to shape institutional frameworks that fit the social, political, economic, and intellectual contours of this evolving context. Most Chinese commentators have jumped on the globalization bandwagon, praising globalization for injecting into education a forward-looking “Olympic spirit.” Some, however, describe the impact of globalization on education more cautiously, using a Chinese proverb, “groping for stones to cross the river.” We

To What Ends: Educational Reform Around the World

Abstract: Many “reforms”—such as those related to welfare programs in the United States—can be actually seen as “deforms.” These so-called “reforms” have led to increasing impoverishment and lives of misery for many instead of improving the lives of individuals and their communities. In examining educational initiatives that are purported to contribute to improvements in educational equity, quality, and efficiency—the three major challenges facing educational systems around the world—it is useful to examine who is instituting the changes, based on what assumptions and values (i.e., what ideologies), with what ends in mind, and with what outcomes. In basic policy analysis, a leading question is who pays and who benefits from efforts to change or reinforce the status quo. In attempting to provide a conceptual framework that would simplify and provide coherence to an enormous amount of material at issue, I have decided to adopt a model suggested by Rolland Paulston and Gregory LeRoy to examine nonformal educational programs. The framework consists of two principal axes–a vertical one, concerning where reform is initiated (whether at the top in international and national bureaucracies or at the bottom in grassroots movements), and a horizontal axis, concerning the goals of educational changes —varying between principal economic instrumental goals or sociocultural and political change (often associated with identity

Confronting the Privatization and Commercialization of Academic Research: An Analysis of Social Implications at the Local, National, and Global Levels

Abstract: In the current era of capitalist hegemony, the term “globalization” has become synonymous with the global dominance of private market economies. Though concepts of “internationalism” have long been associated with the political Left, the possibilities of a progressive vision of globalization are currently overshadowed by the deepening of private market policies in existing capitalist economies and the expansion of capitalism to former socialist countries and to developing countries throughout the world. This phenomenon has affected all societal institutions through governmental implementation of privatization policies and deregulation; through the power of global financial institutions—such as the World Bank and the International Monetary Fund—to impose loan conditions that require governments to adopt policies that promote private markets; and through multilateral trade agreements that favor transnational corporations (TNCs) in their pursuit of increased capital mobility and market expansion. This article addresses the impact of privatization on universities in the United States, focusing, in particular, on the effects on the university mission and academic research in the life sciences. Both public and private nonprofit universities have been affected by public policies of privatization, leading to

Privatization, Prisons, Democracy, and Human Rights: The Need to Extend the Province of Administrative Law

Abstract: Administrative law has an important role to play when it comes to providing democratic forums for deliberation and decisionmaking on a wide range of issues. In this paper, I will argue that domestic administrative law potentially offers a means for addressing human rights problems arising from privatization, particularly privatization in the United States dealing with prisons. As this paper will argue, creating opportunities for citizen involvement in what otherwise might be thought of as private decisionmaking processes may help prevent human rights problems before they occur. At a minimum, such an approach can create the forums and information necessary for meaningful and timely politics to develop around issues that, once privatized, can all too easily fall from public view. To make these arguments, this paper will focus exclusively on U.S. law as a case study of these issues.

"Glocalizing" Chinese Higher Education: Groping for Stones to Cross the River, Mo zhe shi tou guo he

Abstract: Over two and one-half decades have passed since Deng Xiaoping proclaimed that Chinese education must face in “three directions”—toward modernization, the world, and the future. At that time leaders had yet to articulate the driving purpose of reform as the creation of a robust market integrated with the global economy. Today Chinese educators and policymakers use “globalization” rather than modernization to approximate the pedagogical and social means (including cultivating a citizenship capable of creativity, flexibility, independent thinking, and innovation) they believe will ensure China’s engagement in an international knowledge economy. In response, Chinese universities grapple with how to shape institutional frameworks that fit the social, political, economic, and intellectual contours of this evolving context. Most Chinese commentators have jumped on the globalization bandwagon, praising globalization for injecting into education a forward-looking “Olympic spirit.” Some, however, describe the impact of globalization on education more cautiously, using a Chinese proverb, “groping for stones to cross the river.” We

Access to U.S. Federal Courts as a Forum for Human Rights Disputes: Pluralism and the Alien Tort Claims Act

Abstract: Courts hearing cases under the Alien Tort Claims Act (ATCA) are asked to consider and evaluate the content of Customary International Law (CIL). These acts of incorporating non-U.S. sources of law can be framed as acts of legal pluralism. This article describes the contributions the ATCA has made toward increasing both civic and legal pluralism and argues that the robust history and tradition of instances of legal pluralism allow the introduction of CIL into the decision making process of U.S. courts without undue difficulty. It also posits that such inclusion has the desirable effect of increasing routes toward civic participation available to victims of human rights abuses.

Rallying the Armies or Bridging the Gulf: Questioning the Significance of Faith-Based Educational Initiatives in a Global Age

Abstract: In some segments of the educational policy world, a shift is underway from regarding schools as secular, modernizing institutions, separate from religious organizations, to thinking about schools as “faith-starved” institutions that can benefit financially as well as spiritually from partnering with religious groups. National and international lending and aid agencies, including the United States Agency for International Development (USAID) and the World Bank, increasingly identify religious organizations as key providers of basic education. Speaking at a March 2004 interfaith conference in Washington, D.C., World Bank President James D. Wolfensohn remarked that “[t]here needs to be something greater than leadership based on economics or leadership based on military power . . . What better place to start than with the faiths?” In 1998,

Bioethics and Law: Between Values and Rules

Abstract: The scientific progress of the last thirty years has opened up new doors in many different fields, such as reproduction (for example, in vitro fertilization and cloning), organ transplants, sexuality, and others. This incredible scientific progress has had a significant social consequence: facts turned into choices. What in the past simply happened, has become a possibility that may be chosen by individuals. The boundaries of existence, its beginning and its end, are less precise, making more and more room for individual choice. With respect to the beginning of life, parents can learn whether their children carry genetic defects, and as a consequence, they can choose whether to bring them into the world, and if the embryos are the result of in vitro fertilization, the parents may even select which embryos to implant. Similarly, the end of life is no longer totally beyond an individual’s control. Scientific progress prolongs the last part of human existence. In many cases, death does not simply happen: it becomes a process in which the choice, and as a consequence the will, of individuals plays a crucial role. These are only two examples that nevertheless highlight the legal consequence of this change: regulating personal choice is undoubtedly more difficult than regulating facts. At first sight, the reaction of many legal frameworks to this incredibly rapid scientific progress has been to allow absolute freedom. Many fields have been characterized by a lack of rules, or at least by the stratification of an inconsistent regulatory system. It may be wrong to describe this phenomenon as a conscious choice by legal systems, at least in the initial phase; rather, it was the result of a shock. It was the shock of individuals facing the possibility of making choices about their own existence and the shock of societies facing newly broadened horizons. It was a shock to political frameworks, which had to deal with ethical dilemmas and with the uncontrollable quickness of new scientific discoveries. Finally, it was a shock to lawyers because scientific progress changed the basis of their “tool kits.” Not only have the legal rules had to face the role of individual choice con-

Functional Participation in EU Delegated Regulation: Lessons from the United States at the EU's "Constitutional Moment"

Abstract: “Delegated regulation,” “delegated legislation,” “administrative rulemaking,” or “regulatory implementation” are well-known phenomena in modern democracies. Given the complexity of contemporary societies and the broad range of issues (often of a technical nature) in which the state intervenes, regulation cannot entirely be assured by normal legislative procedure, as this is too cumbersome, not flexible enough to adapt to rapidly changing conditions, and often not able to integrate the necessary technical expertise. Legislation will, therefore, delegate part of the regulatory process to less cumbersome bodies. Yet while delegated regulation is a general practice, and while its necessity is generally acknowledged, it has not been an easy task to make it fit with the dominant understanding of democracy in which parliament would adopt all measures of a generally binding nature, whereas a “neutral bureaucracy” would ensure the application of the general rule to the specific case. There are considerable differences in the way the United States and the European Union (EU) deal with delegated regulation and how they conceptualize the legitimacy of such regulatory procedures beyond the normal legislative road. In the United States, delegated regulation is the resort of independent regulatory agencies, and the legitimacy of such administrative rulemaking has been thought of mainly in terms of legislative mandate, due process, and participatory rights guaranteed by judicial review. In the EU, delegated regulation is mainly adopted through the so-called comitology procedures, where regulatory powers are not delegated to independent agencies, but are exercised by the European Commis-

Administrative Procedures and Democracy: The Italian Experience

Abstract: The link between participation and democracy is evident: democracy means participation (at least), and participation is ensured by procedures whose goal is to ensure that a “good” decision is made. With regard to democracy, even if the Italian Constitution does not lay down a general rule that refers to administration, there is no doubt that democratic principles also apply to administration, given how important it is. Participation is the presence, within public bodies, of nonprofessional subjects. According to Italian scholars, we can either have institutional participation, which involves people within administrative organs, or functional participation, which relates to procedure. Over the past few years, administrative procedures, and the role of private individuals within them, have been emphasized by Italian administrative science. There is a special reason for this: the approval of an administrative procedure law, which contains a set of minimum principles that apply to the relationship between authorities and citizens, is a basic measure of democracy. I am referring to Law n. 241 of August 7, 1990, which has tried to incorporate the results of a debate that has been going on for many years. Hence, this law is a kind of codification. This debate, which dealt with the crisis of the classic liberal model, was aimed at providing citizens with new channels for representing their interests.

French and U.S. Modes of Educational Regulation Facing Modernity

Abstract: Similar principles guide the educational reforms currently taking place in most countries: ensuring that all eligible people can attend school, ensuring that the skills and knowledge imparted are relevant to the real world, ensuring educational institutions are accountable for results through more frequent use of evaluations and feedback, and ensuring that parents and students assume more responsibility for education. It is tempting to think that these reforms are spreading because they are encouraged by such international organizations as the Organisation for Economic Co-operation and Development (OECD), the European Commission, or the World Bank or, alternatively, by influential countries such as the United States. Some authors consider these reforms as representing a new form of colonialism that endangers national cultures. Some even call it an “epidemic.” The movements behind these reforms are all the harder to explain because rich countries are not economically dependent on international organizations’ subsidies. Institutional theory may provide the answer: countries’ educational systems increasingly look alike because countries copy each other. This copying is facilitated by membership in international organizations. This paper postulates that this common model of education is spreading because it fits the current needs of educational governance in highly industrialized societies. Because the requirements educational systems must satisfy are similar, the solutions are similar. Even a cursory examination of the assumptions that

Terrorism: The International Response of the Courts

Abstract: The events of September 11, 2001 in the United States, of October 12, 2002 in Bali, and during 2004 in Madrid, Breslan, and Jakarta, have brought home to the world the challenge that acts of terrorism present when combined with new means of causing destruction and of enlivening the capacity of the global media to cover the suffering. However, terrorism is not new. The last century was a century of terrorism. It was not always so perceived. Yet from the early days—from the anarchists and communists in 1901 through the colonial unrest that followed, right up to the new century we have entered—that was the reality. The Great War began in 1914 with an act of terrorism. The reality struck home within the British Isles in the Easter Rebellion in Dublin in 1916. Not a year of the century was free from acts of terror. Mahatma Gandhi deployed a very skillful combination of passive resistance, sporadic violence, and political showmanship, ultimately to lead India, the jewel in the Crown, out of British rule. Mohammed Ali Jinnah did the same with Pakistan, obliging the division of the subcontinent that has since witnessed unrest and terrorist acts as a consequence. Over many decades (most of them in prison on Robben Island), Nelson Mandela led the African National Congress (ANC), modeled on that of India. For decades the ANC was branded a “terrorist” organization. What did these three leaders have in common? All were lawyers. All

The Treaty Establishing a Constitution for Europe and the Democratic Legitimacy of the European Union

Abstract: On May 1, 2004, ten new Member States, most of them from Eastern and Central Europe, joined the European Union (EU). This fifth enlargement, the most important undertaken thus far in the history of the EU, closed the book on the small Europe, once centered on the western end of the continent, and paved the way to the development of a much larger Europe that already includes twenty-five Member States, but that is likely to include others—Bulgaria and Romania by 2007, then Croatia, Macedonia, and perhaps (although the topic is much debated) Turkey. Already, to accommodate these new members, EU institutions have been reformed, and the founding treaties were duly amended in the Treaty of Nice of February 28, 2001. As it stands today, the EU system of government functions—and could perfectly well continue functioning—based as it currently is, on treaties. The EU treatybased system, however, has been subject to mounting criticism from a democratic standpoint since 1980, with the completion of the internal market. At some point, Nice seemed likely to be the place where substantial institutional reforms would take place. This was not the case; at the end of the Nice Treaty, however, an appended declaration adopted by the heads of states and governments acknowledged:

Back to Government? Reregulating British Railways

Abstract: This article examines questions of constitutional accountability arising from the privatization of British Rail in the mid-1990s, but I would like to declare a personal interest in this issue at the outset since the manifest shortcomings in rail performance have affected me as one of the many thousands of commuters who rely on trains to get to work each day. Rail privatization in the United Kingdom (U.K.) was a complex affair that involved taking a single industry and breaking it up into distinct parts. It also required separate regimes of statutory regulation to oversee the general operation of the railways, the bidding process for franchised routes, and safety. The entire enterprise lacked a clear rationale. Not only did the proposals appear flawed from the outset, but the policy was pursued by an unpopular government in the face of strong opposition from the rail industry and trade unions, opposition parties in Parliament, and the public at large. After a relatively short time it became obvious that standards of service were declining alarmingly on the entire rail network, and later, the cause of serious rail accidents indicated that passenger safety was being compromised through neglect of the system. The difficulties encountered by government in responding to what had rapidly turned into a crisis raise important legal and constitutional questions. This article begins by explaining the constitutional relationship of Parliament and the executive by mentioning the important convention of individual ministerial responsibility. Secondly, it provides a narrative of the British Rail episode that dis-

Back to Government?: The Pluralistic Deficit in the Decisionmaking Process and Before the Courts

Abstract: “Yesterday, law was such an easy game to play....” In periods of transition, it is common for lawyers to be asked, in light of an allegedly overriding reality, to critically revisit the table of contents or categories of their discipline. In such periods it is also normal for the scientific debate of the law to be pervaded by a deep sense of uneasiness. The physiognomy of the law is, at least to a certain extent, to drive rather than to follow the evolution of reality. Accordingly, it is a symptom of pathology if reality systematically departs from rules or categories still in force. Nonetheless, law is everything but a stable artifact. Only in the easy cases does its evolution comply with the procedures that the law itself provides for its amendment. In the other cases, namely when the reality constantly deranges the rules or the legal categories and imposes itself as dominant, it is up to the science of the law to decide either if (and how) the traditional categories have to be reinforced or if (and how) they are required to be updated, accommodating the law to the reality. An example of this uneasiness emerges from the articles hereafter published as a result of a conference held at the Faculty of Law of Trento, Italy, in June 2004. The debate started from the broadly shared assumption that the performances of the traditional domestic circuits of representative democracy are increasingly challenged when a number of actors do not perceive they are properly involved in the regulatory (legislative and administrative) decisionmaking processes and before the courts. As organizers of the conference, we labeled this reality the pluralistic deficit, and we asked each of our guests to deal with this issue from the perspective of his or her highly differentiated academic background.

Comment: Autonomy and the Public-Private Distinction in Bioethics and Law

Abstract: In American law school classrooms, we have a phenomenon that I expect you experience here in Italy as well. The professor asks a question and the student attempts to avoid answering the question by challenging or seeking to shift the underlying assumptions the teacher has so carefully crafted to frame the issue. We call this “fighting the hypothetical,” and I am afraid that that is what I am about to do. The current debates in biolaw, in Cinzia’s elegant description of them, rest on a particular assumption that I would like to highlight and examine. The assumption is that there is a fundamental difference between private and public systems of ordering and that this difference is, and should be, the salient feature in organizing our thinking about the intervention of law in this social arena. This assumption is, of course, a basic part of the liberal legal tradition, but it is an assumption that has been challenged from a variety of perspectives, including Marxist, communitarian, and feminist approaches. I will focus on the feminist criticism. While I find the critique persuasive, and I hope you will as well, I do not mean to suggest that an appropriate analysis would simply ignore the differences between exercises of power, some of which promote autonomy and some of which frustrate it. The lesson we should take from the critique is not that power, whether public or private, is an undifferentiated whole, but rather that we must be more precise in defining what are the relevant moral differences between exercises of power. Our approach must be more sensitive to the presence or absence of these moral qualities regardless of the nominally public or private identity of the persons who wield that power.

The Functional Representation of the Individual's Interests Before the EC Courts: The Evolution of the Remedies System and the Pluralistic Deficit in the EC

Abstract: Given the democratic deficit affecting Community governance, the representation of the individual’s interests through tools that are different from the traditional political ones is particularly necessary and important in the European Community (EC). Although such alternative tools cannot substitute for the political channels of interest representation, they can integrate them and they are essential to enhance the effectiveness of the representation of the individual’s rights and the respect of the rule of law. Given the difficulties citizens and enterprises experience in making their voices heard by the EC political institutions (Council, Commission, and Parliament) and national governments, sometimes the only feasible channel for effectively pursuing their interests is the judicial one. At the same time, the increasing “juridification” of society has turned judicial processes into sites of policymaking within the Community as well. As a result, the functional representation of individual interests before the courts plays a crucial role in the EC. To be effective, the functional representation of the individual’s interests before courts presupposes three elements. First, individuals must have sufficient access to courts. Second, the individual’s interests must be taken into account in

Reframing the Issue: AIDS as a Global Workforce Crisis and the Emerging Role of Multinational Corporations

Abstract: [Another page, another headline.] “Car plant expansion. 1·5 million rand plan.” Ja. I’ll tell you what that means . . . more machines, bigger buildings . . . never any expansion to the pay-packet. Makes me fedup. I know what I’m talking about. I worked at Ford one time. We used to read in the newspaper . . . big headlines! . . . “So and so from America or London made a big speech: ‘ . . . going to see to it that the conditions of their non-white workers in Southern Africa were substantially improved.’” The talk ended in the bloody newspaper. Never in the pay-packet.

The Concept of Statutory Law in EU Perspective

Abstract: The current meaning of the political concept of law is the result of a long and complex historical evolution. The underlying premise is that law does not always follow the development of democratic values. On the contrary, the political datum of the central role of law is constant in the system of the sources of the right of the state, as law is usually the most important source. Thus, our reflection must look for the political roots of the centrality of the law in contemporary legal systems. We must understand why the doctrines of constitutionalism have assigned to the centrality of the law a role and meaning of fundamental instrument for the democratic construction of the state’s legal system. In order to narrow the scope of our analysis, I would start from the liberal state of the nineteenth century. Therefore, I avoid confronting, for example, the study of the concept of law according to the historical-political doctrines of voluntarism (Volontarismo), or the study of the ethical-religious foundations of law—theories that we still find applied today in both totalitarian and theocratic systems. In different contexts, the law can find its foundation in institutional pluralism,

In Fear of International Law

Abstract: The thesis of this paper is that governments of some otherwise enlightened states are increasingly fearful of acknowledging the restraints imposed on them by existing international law. They are also reluctant to enter into new commitments by way of international conventions that would expand the reach of international law. The paper asks whether these fears are based on a true understanding of international law or on some distorted view of it. It will draw comparisons and some contrasts between Australia and the United States in their reactions to a number of recent events as well as to some enduring situations of contemporary relevance. Had time (and the limits of my research) permitted, one might also have examined public attitudes toward international law in China, Japan, and Russia in this context, where similar fears appear to be entertained. France, Germany, Italy, and the United Kingdom, also enlightened states, appear by contrast to belong to a group more dedicated to international law. As Robert Kagan has recently remarked, the experience of two world wars at close quarters, and the formation of the European Union, have made the European countries more dedicated to process, where the United States is more interested in results.