What are Transitions For? Atrocity, International Criminal Justice, and the Political

This essay offers an answer to the question of what societies afflicted by atrocities ought to transition into. The answer offered is able to better direct the evaluation of previous models and the design of new models of transitional justice. Into what, then, should transitional justice transition? I argue in this essay that transitional justice should be a transition into the political, understood in its robust liberalism version. I further argue that the most significant part of transitions ought to happen in the minds of the members of political communities, precisely where the less tangible and yet most important dimension of the political sets root. Both of these points are missing in transitional justice models and debates. In the current scenario of transitional justice models and debates, transitional justice practices and processes, as well as the normative forms of discourse that accompany them, fail to fully take the political as an end, thus failing in both transition and justice

The Great Alliance: History, Reason, and Will in Modern Law

Paulo Barrozo, Associate Professor, Boston College Law School, offers an interpretation of the intellectual and political nineteenth-century origins of modern law

The Great Alliance: History, Reason, and Will in Modern Law

Paulo Barrozo, Associate Professor, Boston College Law School, offers an interpretation of the intellectual and political nineteenth-century origins of modern law

Critical Legal Thought: The Case for a Jurisprudence of Distribution

Critique is the standard model of legal scholarship. The typical article or book circumscribes an aspect of the legal order, redescribes it as policy, criticizes the policy according to efficiency or axiological criteria, and proposes some minor or moderate improvement to it. This standard model of legal critique and improvement is politically stabilizing, practically effective, and intelligible only because it is set within a powerful paradigm of law and legal thought. I have named this paradigm The Great Alliance. It is great because of its intellectual brilliance and political resilience. It is an alliance because it brings together three of the main forces in thought and politics in modern times: historicism, rationalism, and democracy. Whereas critique is the standard model of legal analysis under The Great Alliance, critical legal thought means something other than this standard model. Critical legal thought faces higher and more demanding theoretical requirements than is generally recognized. Three such requirements set critical legal thought apart from and above not only the critical ethos characteristic of the standard model of legal analysis but also of more ambitious varieties of global critique of law

Law in Time: Legal Theory and Legal History

Over a long period, simple societies achieved social stability as social stasis through normative inertia. Conversely, high-complexity societies achieve social stability as constant functional adaptation and axiological responsiveness through small quotidian and large occasional normative changes. To understand this is to begin to understand the question of law in time. This article outlines a theory of the nature and evolution of law that accounts for the way law operates over time to produce sociological stability out of a normative order. The theory is then presented as an extended argument about why legal history, especially of the grand narrative type, should reflectively adopt a general theory of this kind as part of its methodological commitments. A secondary argument presented here is that legal history itself— whether apologetic or critical, record-setting or sage, specific or sweeping—plays facilitative roles in the stabilization of high-complexity societies

The Jurisprudence of Cruelty in Criminal Law

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca’s De Clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca

Finding Home in the World: A Deontological Theory of the Right to Be Adopted

Because of the continued dominance of consequentialist views, the deontological paradigm that emerges in the form of a human rights approach to adoption faces two major and partially connected obstacles. First, and despite the fact that the human rights approach has found compelling advocates, its jurisprudential basis has yet to be fully articulated. And in part because of insufficient theorization, the emerging deontological adoption is constantly at risk of being rhetorically and practically subsumed or engulfed by the resilient consequentialist-cum-charity paradigm. This article addresses these two obstacles, laying out the foundations of a deontological theory of adoption.After the Introduction, Part II analyzes the consequentialist-cum-charity understanding of adoption. Part III expounds on what I call the value theory of rights. Part IV articulates the jurisprudential foundations of deontological adoption and the human right to be adopted. The reader will probably find that this article operates at a high level of theorization. This is by design, for high theory is needed in order to dispel the confusion and contradictions that plague first order analyses and opinions on the matter. And while the decision to take the theoretical path indicates my ambitions in relation to this article, it also demarcates the limited attention the article is able to give to important details. Hopefully, others will rectify, supplement, and detail the foundations laid out in this work

Comparative Law as a Way of Life: For William P. Alford

Comparative law presents high order ontological, causal, and epistemological difficulties. Those difficulties come to a head in the design of comparative methods. Indeed, the spatial, temporal and cultural range of the legal phenomenon in all its elements – such as types of legal thinking and discourse, constitutional essentials, infraconstitutional institutions or the meaning-orientation and attitudes of legal agents – often strain the methods of comparative law to a point of rupture. William P. Alford makes enduring contributions to comparative methods. In particular, this essay focuses on lessons contained in his early work about the limits and possibilities of theoretical approaches to comparative law, and to him it is my privilege to dedicate it