The Law of Other States

The question whether courts should consult the laws of "other states" has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even on the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread belief, accepted by a number of independent actors, is highly likely to be correct. It follows that if a large majority of states make a certain decision based on a certain shared belief, and the states are well motivated, there is good reason to believe that the decision is correct. For the Jury Theorem to apply, however, three conditions must be met: states must be making judgments based on private information; states must be relevantly similar; and states must be making decisions independently, rather than mimicking one another. An understanding of these conditions offers qualified support for the domestic practice of referring to the laws of other states, while also raising some questions about the Supreme Court's reference to the laws of other nations. It is possible, however, to set out the ingredients of an approach that high courts might follow, at least if we make certain assumptions about the legitimate sources of interpretation. Existing practice, at the domestic and international levels, suggests that many courts are now following an implicit Condorcetian logic.

Law in other contexts: stand bravely brothers! a report from the law wars

This essay argues against the two pillars of current research on law and globalisation, from the perspective of legal theory and political philosophy: first, the distinction between ‘well-ordered’ and ‘not so well-ordered’ societies; second, the sociological model of the subject as pacified, fearful and isolated (to sum up, in harmony). It is argued that mainstream legal theory and political philosophy merely reflects the actual rules of the game of competition, dispute and conflict. In contrast, this essay takes sides with the anthropological and philosophical tradition that conceives the subject as antagonistic and in state of lack, profoundly concerned with the other, whom she imitates and whose standpoint she must be able to share if she is to make sense of the world. Furthermore, it is argued that transitivity or imitation lies at the very origin of conflict and dispute; lack and antagonism remain thus at the core of society, in spite of the surface appearance of harmony that characterises post-modern societies. Because of this, any general theory of law and society that wishes to be relevant at the time of globalisation must make the experience of antagonism and violence, motivated by imitation and envy, and its containment, its object of study. To do this, it must abandon the dualist conception of subjects and societies expressed in the distinction between ‘well-ordered’ (more violent) and ‘not-so-well-ordered’ (less violent) societies that has informed its investigation to this day, in order to declare in the most general terms a critique of violence from the standpoint of the victim, as of a piece with its demand for global social and political justice. Description from publisher website at: http://journals.cambridge.org/action/displayIssue?jid=IJC&volumeId=4&issueId=02&iid=243936

Fighting terror with law? Some other genealogies of pre-emption

Within criminology and criminal law the reception of post-9/11 counter-terrorist law has generally been critical, if not hostile. The undeniable proliferation of preventive statutes has been regarded as incompatible with conventional liberal norms and as dangerously innovative in its embrace of new strategies of control. But is such law innovative, and does it threaten to leach into other areas of criminal law, as some have feared? Exploring three governmental innovations – mental health law, habitual criminal controls, and civilian internment in war-time – that developed as expressions of the liberal state’s desire to ensure the safety of its citizens in times of peace and war, the authors argue that a more historically grounded understanding of the governmental and geopolitical contexts of security provides a surer foundation on which to construct the frameworks of interpretation of contemporary counter-terrorism law