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Volumn 37, Issue 3, 2011, Pages 1095-1112

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

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EID: 79960217384     PISSN: 02602105     EISSN: 14699044     Source Type: Journal    
DOI: 10.1017/S0260210510000604     Document Type: Article
Times cited : (4)

References (83)
  • 2
    • 79960201791 scopus 로고
    • International legal order as an idea
    • Nicholas Greenwood Onuf's piece, on the paucity of international legal theory and his attempt to answer the question of whether international law is really law
    • See Nicholas Greenwood Onuf's piece, 'International Legal Order as an Idea', American Journal of Transnational Law, 73:2 (1979), pp. 244-66 on the paucity of international legal theory and his attempt to answer the question of whether international law is really law.
    • (1979) American Journal of Transnational Law , vol.73 , Issue.2 , pp. 244-66
  • 3
    • 84925678418 scopus 로고    scopus 로고
    • Just such an approach is adopted by David Armstrong, Theo Farrell and Hélène Lambert in their book , Cambridge: Cambridge University Press
    • Just such an approach is adopted by David Armstrong, Theo Farrell and Hélène Lambert in their book International Law and International Relations (Cambridge: Cambridge University Press, 2007).
    • (2007) International Law and International Relations
  • 5
    • 79960285001 scopus 로고    scopus 로고
    • 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
    • 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
    • 0011274122 scopus 로고
    • Introduction
    • David Kairys (ed.), New York: Pantheon Books, at pp. 1-2
    • David Kairys, 'Introduction' in David Kairys (ed.), The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982), pp. 1-7, at pp. 1-2.
    • (1982) The Politics of Law: A Progressive Critique , pp. 1-7
    • Kairys, D.1
  • 7
    • 79960246423 scopus 로고    scopus 로고
    • There is considerable overlap between the popular conception of law and the rule of law. I discuss the rule of law below
    • There is considerable overlap between the popular conception of law and the rule of law. I discuss the rule of law below.
  • 9
    • 79960207440 scopus 로고    scopus 로고
    • Ibid
    • Ibid., p. 8.
  • 10
    • 79960283707 scopus 로고    scopus 로고
    • Ibid
    • Ibid., p. 95.
  • 11
    • 69849097259 scopus 로고
    • Rhetoric and the rule of law
    • Allan C. Hutchinson and Patrick Monahan (eds), (Toronto: Carswell, at p. 163
    • Neil MacCormick, 'Rhetoric and the Rule of Law', in Allan C. Hutchinson and Patrick Monahan (eds), The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), pp. 163-77, at p. 163.
    • (1987) The Rule of Law: Ideal or Ideology , pp. 163-77
    • MacCormick, N.1
  • 12
    • 79960241443 scopus 로고
    • This list is Lon L. Fuller's. See: The Morality of Law (New Haven: Yale University Press
    • This list is Lon L. Fuller's. See: The Morality of Law (New Haven: Yale University Press, 1969).
    • (1969)
  • 13
    • 0003956640 scopus 로고
    • Oxford: Clarendon Press, 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 F. A. Hayek, Constitution of Liberty (London: Routledge, 1960). 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 also Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986). 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 F. A. Hayek, Constitution of Liberty (London: Routledge, 1960). 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.
    • (1986) The Morality of Freedom
    • Raz, J.1
  • 14
    • 0011268036 scopus 로고
    • Law in modern society
    • (London: Collier Macmillan, 1977), and , and Kairys, The Politics of Law
    • See Roberto Unger, Law in Modern Society (London: Collier Macmillan, 1977), and 'The Critical Legal Studies Movement', Harvard Law Review, 96:3 (1983), pp. 561-675, and Kairys, The Politics of Law.
    • (1983) The Critical Legal Studies Movement', Harvard Law Review , vol.96 , Issue.3 , pp. 561-675
    • Unger, R.1
  • 16
    • 79960218088 scopus 로고    scopus 로고
    • Burch writes that: 'I consider law a form of ideology and regard legal discourse as a form of social practice'. See: Kurt Burch, (London: Lynne Rienner
    • Burch writes that: 'I consider law a form of ideology and regard legal discourse as a form of social practice'. See: Kurt Burch, 'Property' and the Making of the International System (London: Lynne Rienner, (1998), p. 70.
    • (1998) 'Property' and the Making of the International System , pp. 70
  • 17
  • 19
    • 0003569260 scopus 로고
    • 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 , London: Harvard University Press
    • 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 Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (London: Harvard University Press, 1983).
    • (1983) Law and Revolution: The Formation of the Western Legal Tradition
    • Berman, H.J.1
  • 20
    • 79960218530 scopus 로고    scopus 로고
    • 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
    • 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.
  • 24
    • 0004071845 scopus 로고    scopus 로고
    • bk 1, chap. 1, available at: , accessed on 1 December
    • 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.
    • (2007) Commentaries on the Laws of England
    • Blackstone, W.1
  • 30
    • 79960253063 scopus 로고    scopus 로고
    • Ibid
    • Ibid., p. 70.
  • 31
    • 79960276367 scopus 로고    scopus 로고
    • Scheingold quoted in Burch
    • Scheingold quoted in Burch, 'Property', p. 71.
    • Property , pp. 71
  • 33
    • 79960260745 scopus 로고    scopus 로고
    • 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
    • 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.
  • 38
    • 79960270669 scopus 로고    scopus 로고
    • Ibid
    • Ibid., p. 268.
  • 40
    • 79960253964 scopus 로고
    • This comes from Punch and is quoted in William Twining and David Miers, (London: Weidenfeld & Nicolson
    • This comes from Punch and is quoted in William Twining and David Miers, How to do Things with Rules: A Primer of Interpretation (London: Weidenfeld & Nicolson, 1982), fn. 9, p. 175.
    • (1982) How to do Things with Rules: A Primer of Interpretation , vol.9 , pp. 175
  • 42
    • 84917105690 scopus 로고    scopus 로고
    • 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'. (London: Harvard University Press
    • 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.
    • (2000) Minding the Law , pp. 111
  • 44
    • 79960259423 scopus 로고    scopus 로고
    • 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
    • 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.
  • 47
    • 33646706362 scopus 로고    scopus 로고
    • 3rd edition London: Blackstone Press
    • James A. Holland and Julian S. Webb, Learning Legal Rules 3rd edition (London: Blackstone Press, 1996), p. 111.
    • (1996) Learning Legal Rules , pp. 111
    • Holland, J.A.1    Webb, J.S.2
  • 49
    • 79960275233 scopus 로고    scopus 로고
    • Quoted in Holland and Webb
    • Quoted in Holland and Webb, Learning Legal Rules, p. 243.
    • Learning Legal Rules , pp. 243
  • 51
    • 37249035161 scopus 로고    scopus 로고
    • See also, 3rd edition (London: Blackstone Press
    • See also Marie Fox and Christine Bell, Learning legal Skills, 3rd edition (London: Blackstone Press, 1999), p. 13 for statistics.
    • (1999) Learning legal Skills , pp. 1
    • Fox, M.1    Bell, C.2
  • 52
    • 79960275233 scopus 로고    scopus 로고
    • Holland and Webb
    • Holland and Webb, Learning Legal Rules, p. 88.
    • Learning Legal Rules , pp. 88
  • 57
    • 79960227319 scopus 로고    scopus 로고
    • 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
    • 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.
    • Obiter dictum
  • 60
    • 79960263248 scopus 로고    scopus 로고
    • Ibid
    • Ibid., p. 35.
  • 61
    • 79960234067 scopus 로고    scopus 로고
    • Ibid
    • Ibid., p. 10.
  • 62
    • 79960207439 scopus 로고    scopus 로고
    • 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
    • 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.
  • 66
    • 79960241898 scopus 로고    scopus 로고
    • 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
    • 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.
  • 67
    • 79960214530 scopus 로고
    • See Plessy v. Ferguson (163 US 537)
    • See Plessy v. Ferguson (163 US 537 (1896)).
    • (1896)
  • 69
    • 79960252089 scopus 로고    scopus 로고
    • 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
    • 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.
  • 72
    • 0040670587 scopus 로고    scopus 로고
    • Bell, emphasis added
    • Bell, 'Dissenting Opinion', p. 198-9, emphasis added.
    • Dissenting Opinion , pp. 198-9
  • 73
    • 79960221549 scopus 로고    scopus 로고
    • 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
    • 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.
  • 74
    • 79960251202 scopus 로고    scopus 로고
    • 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
    • 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.
  • 75
    • 79960225635 scopus 로고    scopus 로고
    • 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
    • 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.
  • 77
    • 79960283337 scopus 로고    scopus 로고
    • Rape case judges fail to abide by consent rule
    • 29 November
    • Frances Gibb, 'Rape case judges fail to abide by consent rule', The Times (29 November 2007).
    • (2007) The Times
    • Gibb, F.1
  • 78
    • 79960282891 scopus 로고    scopus 로고
    • 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
    • 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.
  • 79
    • 0042780996 scopus 로고    scopus 로고
    • Prosecuting and defending rape: Perspectives from the bar
    • Jennifer Temkin, 'Prosecuting and Defending Rape: Perspectives from the Bar', Journal of Law and Society, 27:2 (2000), pp. 219-48.
    • (2000) Journal of Law and Society , vol.27 , Issue.2 , pp. 219-248
    • Temkin, J.1
  • 80
    • 79960253493 scopus 로고    scopus 로고
    • 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
    • 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.
  • 82
    • 79960230626 scopus 로고    scopus 로고
    • Gibb, 'Rape case judges fail to abide by consent rule'
    • Gibb, 'Rape case judges fail to abide by consent rule'.
  • 83
    • 79960257452 scopus 로고    scopus 로고
    • From the first of twelve Lowell Lectures delivered by Homes on 23 November 1880
    • From the first of twelve Lowell Lectures delivered by Homes on 23 November 1880.


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