Pluralism of pluralisms [Post 14]

 

Africa: natives and settlers

There are several issues at stake in any situation that involves the intersection between sovereignty and cosmopolitanism. They may center on any of the elements that characterize a political community—i.e.  territory, population, government and law. For instance, in the particular case of territorial disputes, they may be characterized by reference to territorial sub-elements such as strategic location, territorial integrity and natural resources, to name a few. Yet, territorial disputes may be as well based on population—e.g. bordering minorities, refugee’s crisis, common ethnicity, etc. —government and law—e.g. political unification, leader’s prestige, legal entitlement. Similar to the Americas, territorial disputes in Africa [1] include several agents including (but not limited to) states.

Africa

Africa presents several territorial disputes[2] that are are either a) international differences, between African and non-African parties; or b) regional differences, between African parties only. The usual current causes have to do with natural resources and bordering minorities.

Resembling the cases in the Americas, they all share a common origin: European colonialism. The times of colonialism and Empire are long gone. Surprisingly, former colonial powers have still presence in Africa and dictate directly or indirectly the internal and international agenda in what geographically is a different continent, and legally and politically, a different entity. Currently, France—e.g. Banc du Geyser, Basas da India, Europa island, Juan de Nova island, Glorioso islands, Spain—e.g. Ceuta, islas Chafarinas, Melilla, and the United Kingdom—e.g. pervasive direct or indirect interference in many African regimes and direct right-peopling in Chagos islands—have a presence in these disputes.

Locally and regionally, whether autocracies or democracies, all governments face similar incentives.[3] With an estimate of more than 600 million people, Africa’s population growth rate is the highest in the world.[4] Africa’s population characteristics are tightly linked to natural resource conflicts. That is to say, although Africa is rich in natural resources there are significant challenges in terms of their management that might engender disputes and potential escalation into conflicts.[5]

Moroccan settlers in Western Sahara includes traits of both colonial past and socio-political more modern elements.[6] More precisely, since taking control of former Spanish Sahara, Morocco has encouraged migration into what is nowadays known as Western Sahara where we find the indigenous Sahrawi population. This results in tension between natives and settlers. Moreover, Frente POLISARIO (Frente Popular para la Liberación de Saguia el-Hamra y Río de Oro) counts with Algerian support in the area.

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Next theme:

Middle East: natives and settlers

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Thursday 29th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] For a detailed account about territorial disputes in the Africa and Middle East see Jorge E. Núñez, Territorial Disputes and State Sovereignty: International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020), chapter 8.

[2] For a brief, yet informative account see Alan Day, ed., Border and Territorial Disputes, London: Longman, 1987, 95-96; David Downing, An Atlas of Territorial Border Disputes, London: New English Library Limited, 1980, 58. For a complete and updated detail of territorial disputes in Africa see CIA’s Factbook (country by accessed 29/04/2021country)  available at https://www.cia.gov/library/publications/the-world-factbook/wfbExt/region_afr.html accessed 29/04/2021.

[3] Christopher Macaulay and Paul R. Hensel, “Natural Resources and Territorial Conflict,” Department of Political Science, University of North Texas, 2014, available athttp://www.paulhensel.org/Research/isa14.pdf accessed 29/04/2021.

[4] The Demographic Profile of African Countries, United Nations, Economic Commission for Africa, 2016, available athttps://www.uneca.org/sites/default/files/PublicationFiles/demographic_profile_rev_april_25.pdf accessed 29/04/2021; Dilek Aykut and Monika Blaszkiewicz-Schwartzman, “Shaping the Future of Africa: Markets and Opportunities for Private Investors,” International Finance Corporation, 2018, available at https://www.ifc.org/wps/wcm/connect/5c9e9f2f-779a-4ab7-beb6-e3aa65b00a85/Africa+CEO+Forum+Report_FIN3_Web-lores.pdf?MOD=AJPERES accessed 29/04/2021

[5] Abiodun Alaw, Natural Resources and Conflict in Africa: The Tragedy of Endowment, University of Rochester Press, 2007.

[6] Jacob Mundy and Stephen Zunes, “Moroccan Settlers in Western Sahara: Colonists or Fifth Columns?” in Oded Haklai and Neophytos Loizides, eds., Settlers in Contested Lands. Territorial Disputes and Ethnic Conflicts (Stanford, California: Stanford University Press, 2015), 40-74.

Law as multidimensional phenomena [Post 3]

 

Law as science of realities

Legal science is a science of realities and, therefore, a science of experience. To be more precise, law is human-made[1] and, therefore, law is a science of human cultural experience and not of natural or caused experience.

The famous Indian story “The Blind Men and the Elephant” illustrates our current understanding of law. John Godfrey Saxe’s (1816-1887) version[2] of Blind Men and the Elephant:

“It was six men of Indostan,
To learning much inclined,
Who went to see the Elephant
(Though all of them were blind),
That each by observation
Might satisfy his mind.

The First approach’d the Elephant,
And happening to fall
Against his broad and sturdy side,
At once began to bawl:
“God bless me! but the Elephant
Is very like a wall!”

The Second, feeling of the tusk,
Cried, -“Ho! what have we here
So very round and smooth and sharp?
To me ’tis mighty clear,
This wonder of an Elephant
Is very like a spear!”

The Third approach’d the animal,
And happening to take
The squirming trunk within his hands,
Thus boldly up and spake:
“I see,” -quoth he- “the Elephant
Is very like a snake!”

The Fourth reached out an eager hand,
And felt about the knee:
“What most this wondrous beast is like
Is mighty plain,” -quoth he,-
“‘Tis clear enough the Elephant
Is very like a tree!”

The Fifth, who chanced to touch the ear,
Said- “E’en the blindest man
Can tell what this resembles most;
Deny the fact who can,
This marvel of an Elephant
Is very like a fan!”

The Sixth no sooner had begun
About the beast to grope,
Then, seizing on the swinging tail
That fell within his scope,
“I see,” -quoth he,- “the Elephant
Is very like a rope!”
And so these men of Indostan
Disputed loud and long,
Each in his own opinion
Exceeding stiff and strong,
Though each was partly in the right,
And all were in the wrong!

MORAL,

So, oft in theologic wars
The disputants, I ween,
Rail on in utter ignorance
Of what each other mean;
And prate about an Elephant
Not one of them has seen!”

The previous post introduced briefly two accounts of law: a factual conception of law a conceptual conception of law. The multidimensional theory of law[3] differs from both rationalism and empiricism. The former maintains that the object to be known by the jurist is the norm and that positive law is intuited or captured differently, not by our five senses but by our reason or intellect. For this view, legal science would be a science of ideal objects because norms are known by using our intellect (as we do with the objects of mathematics) but they are not perceived by our five senses. 

The empiricism opposes this ideal view of law and accepts its inter-socio and psychological reality. Consequently, legal knowledge is based on what the sociological or psychophysical experience reveal. Empiricism does not recognize any other contact with experience than that by means of sensible intuition. This way of knowing helps us understand the nature with which legal knowledge dissolves the distinction between the knowledge of our data by reference to another event that occurs. These facts may refer to the rules they originate from or the rules they apply to. For example, by interpreting the law it may be possible to know the real intention of those who are sanctioned based on the mere link of existence present between the fact and the law. 

Consider Judges and their decisions. For rationalism, the law is a norm in all its possible significance (e.g. a negative sanction applied by the Judge to a particular case). For empiricism, however, it is a psychological fact with its circumstantial socio-environmental relationship.

The multidimensional analysis of law accepts that norm and facts are not at odds. The object to be known by the jurist is not the norm or the naked fact, but human behaviour centre of legal norms. The view focuses on a particular angle in the same way that the object of knowledge of the astronomer are the stars and not the relevant laws. This does not mean that, for example, Newton’s laws are not of use to the astronomer. These laws are concepts, intellectual constructions by which it is possible to know the stars. Similarly, for legal science the object of knowledge of the jurist is not the norm, but human behaviour in its interference or interrelations with others because legal norms are only concepts with which that conduct is known. Norms are, therefore, simply the concepts with which we think and understand that behaviour.  In that sense, norms are ideal objects of a logical type like Kelsen’s Pure Theory of Law.

Just as natural experience puts into physics something that does not come from the mere logical structure of knowledge of nature, the science of law as a science of realities contains a difference from the merely logical side. The difference comes directly and immediately from human experience.

Contrary to legal empiricism, a multidimensional view of law considers human behaviour is an object of experience radically different from that of natural objects. While natural objects constitute an experience of necessity governed by the relationship between cause and effect, human behaviour constitutes an experience of freedom where the creation of something axiologically original emerges at every moment.

This theory accepts normative logic such as, for example, Kelsen’s Pure Theory of Law that shows us that norms are precisely a concept. It also adds the specific intuition of law as the intuition of freedom and therefore axiological intuition as an additional of knowledge to add to the legal logical structure on behalf of human experience.

Previous post:

https://london1701.blogspot.com/2021/04/law-as-multidimensional-phenomena-post-2.html

Next theme:

Law as culture: understanding different objects and methods

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Thursday 29th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

---

[1] The author uses intentionally gender-neutral language. The paper will not include discussions about natural law theories and how or by whom law is created.

[2] In All About Philosophy, available at  https://www.allaboutphilosophy.org/blind-men-and-the-elephant.htm accessed 29/04/2021.

[3] Carlos Cossio, La Teoría Egológica del Derechi y el Concepto Jurídico de Libertad (Argentina: Abeledo-Perrot, 1964).

“The Johnsonian Revolution” by Dr Bruce Ackerman (Yale) [video]

 

“The Johnsonian Revolution: The Prime Minister’s Domination over the Civil Service, the Judiciary, and Parliament — and Its Democratic Dangers.”

Dr Bruce Ackerman

Sterling Professor of Law and Political Science, Yale University

https://law.yale.edu/bruce-ackerman​

Juris North Monthly Discussion

Wednesday 28th April 2021.

Thursday 29th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Pluralism of pluralisms [Post 13]

 

The Americas: natives and settlers.

With little regard to the original occupants of the land, the European colonial times marked a change in the socio-political dynamics across the Americas.[1] Although English, French, Dutch, Portuguese and Spanish conquests have their own peculiarities in the way they dealt with local populations, all cases resulted in a profound change. The former Aztec, Mayan and Incan Empires were dismantled and many tribes simply became extinct.[2] In terms of territorial definition, European rulers created borders using European understanding of concepts such as sovereignty and state. Unsurprisingly, none of these documents mention the indigenous population.

The states formed after colonial times applied the principle of uti possidetis juris by which they assumed to have sovereignty over their formerly-colonial areas.[3] Nevertheless, these previously “settled” borders proved to be unclear or non-existent and generated competing claims that resulted in territorial disputes.[4]

There are a few remaining cases in America of European presence. The Hans island dispute between Canada and Denmark[5] and the Marouini River tract dispute between Suriname and French Guiana[6] are part of the colonial legacy in the new continent. Arguably, the most notable ongoing territorial dispute in the Americas that include a former colonial power is over the Falklands/Malvinas Islands. This dispute started as early as 1833, since the British settled.[7]

There are several territorial disputes in the Caribbean. Most of them have their origin in colonial times. However, since many of the Caribbean states are islands and all of them have maritime borders, the 1982 United Nations Convention on the Law of the Sea resulted in other differences due to the legally redefined areas such as exclusive economic zones. Moreover, new technologies and the presence of natural resources in these areas have fostered disagreements.  Similar to the previous cases, the territorial dispute with regard to the archipelago of San Andres, Providencia and Santa Catalina is rooted in colonialism. As a result of migration, slavery and the different cultural influences at play, the Raizal community has struggled between Anglophone/Protestant and Hispanic/Catholic views.[8]

The Amazon rain forest[9] is located in South America and is part of the territories of Brazil, Peru, Colombia, Venezuela, Ecuador, Bolivia, Guyana, Suriname and French Guiana. The area is within domestic, regional and international contexts and several agents such as sovereign states, indigenous people, non-governmental organizations, multi-national private companies, and scientists.[10]

Some partial conclusions indicate that any population in a disputed territory, whether implanted for “right-peopling” reasons or indigenous, may present a different interest to the ones represented by the claimant sovereign states.

Previous post:

https://london1701.blogspot.com/2021/04/pluralism-of-pluralisms-post-12.html

Next theme:

Africa: natives and settlers.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Wednesday 28th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] For a detailed account about territorial disputes in the Americas see Jorge E. Núñez, Territorial Disputes and State Sovereignty: International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020), chapter 6.

[2] Linda A. Newson, “The Demographic Collapse of Native Peoples of the Americas, 1492-1650,” in Proceedings of the British Academy 81 (1993): 247-288.

[3] Steven R. Ratner, “Drawing a Better Line: Uti Possidetis and the Borders of New States,” in American Journal of International Law 90:4 (1996): 590-624; Malcom N. Shaw, International Law (Cambridge: Cambridge University Press, 2003), 446-451; Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 2003), 129-130; and many others.

[4] Alan J. Day, ed., Border and Territorial Disputes (Essex: Longman, 1982), 332-333.

[5] Christopher Stevenson, “Hans Off!: The Struggle for Hans Island and the Potential Ramifications for International Border Dispute Resolution,” in Boston College International and Comparative Law Review 30:1 (2007): 263-275; A. H. Kessel, “Canadian Arctic Sovereignty: Myths and Realities,” in  Governing the North American Arctic, edited by D. A. Berry, N. Bowles and H. Jones, (London: Palgrave Macmillan, 2016), 242-246.

[6] Thomas W. Donovan, “The Marouini River Tract and Its Colonial Legacy in South America,” in Chicago-Kent Journal of International and Comparative Law 4 (2004): 1-28.

[7] See Jorge E. Núñez, Sovereignty Conflicts and International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2017), chapter 7. For official historical accounts see http://www.falklands.gov.fk/our-people/our-history/ (UK) and https://www.cancilleria.gob.ar/es/politica-exterior/cuestion-malvinas/antecedentes/antecedentes-historicos (Argentina).

[8] James Ross, “Routes for Roots: Entering the 21st Century in San Andrés Island, Colombia,” in Caribbean Studies 35:1 (2007): 3-36.

[9] Note the author uses the terms Amazonia or Amazon rainforest to refer to the geographical area in which many sovereign states in South America may sovereignty claims.

[10] Paul E. Little, Amazonia: Territorial Struggles on Perennial Frontiers (Baltimore: Johns Hopkins University Press, 2001).

Law as multidimensional phenomena [Post 2]

 

Law: concepts and conceptions

Every scientific discipline has certain methods by which it comes to understand its object, and certain presuppositions without which its questions, methods, and provisional knowledge are meaningless. By “scientific discipline” this blog series means only a practice aiming at understanding that is organized and privileges reason.

Legal scholarship as a scientific study, like the legal norms and procedures in which it is interested, has certain absolute presuppositions: the capacity for responsibility of those who can legitimately stand trial, for example—and indeed their empirical existence in the first place.

In the philosophy of law, however, what must be presupposed by legal scholars can be questioned. The roots of what appear as intractable disagreements between Anglo-American and Continental jurists’ understanding, characterization, and definitions of “law” can be exposed.[1] For the first school, law is characteristically “factual”, for the latter it is characteristically “abstract.” Part of the reason for this is that Anglo-American and Continental jurists view validity and efficacy differently, and posit different relations between them in the meaning of “law”.

Whilst Anglo-American scholars claim to study law as it is (broadly, empiricism or, specifically in law, factual conception of law) their Continental peers question how law ought to be (broadly, rationalism or, specifically in law, abstract conception of  law).[2] For instance, on the one hand, some classical definitions of law in the Continental tradition like the ones proposed by Weber, Hoebel and Kelsen seem to suggest that in order for a normative system to be law it ought to include coercion.[3] On the other hand, the Anglo-American tradition lead by Hart seems to be more interested in the empirical side of the law, as the Fuller’s desiderata appears to suggest.[4]

When Hart and others criticize Continental conceptions of law they do so by asking empirical questions that cannot be answered by definitions.[5] Indeed, there is a confusion here between conceptual and substantive issues. Whilst accounts like Fuller’s maybe a substantive theory of law (factual conception of law), Kelsen and other Continental authors offer a conceptual understanding of this “phenomenon” (abstract conception of law).

Law has to do with at least two realms: norms and facts.[6] Any reference to law and its basic defining elements immediately includes, for example, norms, human conduct, crime, punishment and a few others. Similarly, each of these elements exists in at least two realms.[7] “Norms”, “human conduct”, “crime”, and “coercion” may refer to abstract legal terms, and may describe empirical entities or their attributes. Norms and facts have to do with law as a whole, and with each of its particularities. Yet norms and facts are not the same. Hence, using the term “law”, to refer either to an abstract concept or to factual elements of legal and political discourse, means applying the same term but relying on different meanings—i.e. using the same word to refer to slightly different conceptions. What appears to be a unitary concept actually invokes an ambiguity.

On the one hand, law must relate to human conduct and its regulation—at least to some conduct. On the other hand, “law” does more than describe the facts or general patterns of conduct. It is normative, it seems to prescribe, whether by way of a command, a permission, a prohibition, etc. In one case of the other, it is plausible to argue that legal science is a science of realities and, therefore, a science of experience. To be more precise, law is human-made[8] and, therefore, law is a science of human cultural experience and not of natural or caused experience, whether law itself may centre on rules or human conduct.

Previous post:

https://london1701.blogspot.com/2021/04/law-as-multidimensional-phenomena-post-1.html

Next theme:

Law as science of realities.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Wednesday 28th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] There are other ways to distinguish the different conceptions in law. See, for example, the difference between verbal realism and conceptual pragmatism devised in H. Kantorowicz, The Definition of Law (Cambridge University Press, 2014), Chapter I. For more details about a bridge between Anglo-American and Continental styles in legal philosophy see Jorge E. Núñez, “The Logical Analysis of Law as a Bridge between Legal Philosophical Traditions,” Jurisprudence (2016), 627-635. See also P. Navarro and J. Rodriguez, Deontic Logic and Legal Systems (Cambridge: Cambridge University Press, 2014).

[2] There is a third facet, that of how law should be or axiological law.

[3] The assumption by Hart and his followers that for Kelsen law must be coercive is mistaken. See Jorge E.Núñez, “The Many Forces in Law: Rational, Physical and Psychological Coercion,” in Nicoletta Ladavac and Christoph Bezemek, eds., The Normative Force of the Factual (Switzerland: Springer, 2019), 135-149..

[4] Jack P. Gibbs, “Definitions of Law and Empirical Questions,” Law and Society Review 2:3 (1968), 429-446.

[5] Jack P. Gibbs, “Definitions of Law and Empirical Questions,” Law and Society Review 2:3 (1968), 429-446, 446.

[6] I leave aside intentionally and for future research the third realm: values, or the “axiological” side of law.

[7] I understand law as phenomena existing in three realms: norms, facts and values (deontology, ontology and axiology).

[8] The author uses intentionally gender-neutral language. The blog series will not include discussions about natural law theories and how or by whom law is created.

Pluralism of pluralisms [Post 12]

 

Individuals, communities and states: native and implanted populations

In addition to what platform we may use to define and characterize individuals, communities and states (see previous post), there is yet another point that deserves further exploration, in particular if we aim to incorporate both cosmopolitanism and sovereignty in order to offer a thorough analysis of territorial disputes.

In principle, all individuals, communities and states are equal in relation to law. Internationally, the principle of sovereign equality of the states[1] applies. Domestically, at least democratic regimes recognize the same legal status and consequent rights and obligations to people. However, cases such as the Falkland/Malvinas Islands, the Archipelago of San Andrés, Providencia and Santa Catalina, the Israel-Palestine difference, the Western Sahara and Moroccan settlers, Amazon region, Indonesia and East Timor, Cyprus and Iraq and Kirkuk clearly show the distinction between native and implanted populations.

Native populations

The end of colonial times left an unanswered question, with many indigenous groups in territorial disputes with “civilized” states over what had been classed as “non-civilized” territories.[2] Colonial governments assumed in law and politics either that the indigenous people were not legally “persons”; or that, if they existed legally, they were inferior.

For the former assumption, if they were not “persons” the territories they inhabited were open to acquisition. For the latter understanding, the indigenous populations could have had title to the territories before the colonization but it ended when more developed societies arrived. Therefore, the legal and political justification in colonial times for discarding indigenous people and their claims to the territories they lived in had to do either with acquisition or extinguishment.[3]

Internationally, there seems to be a move towards supporting indigenous rights but in relation to human rights, health, education, etc. In addition to this, the United Nations Declaration is not legally binding. [4] At best, indigenous populations are treated fairly in terms of human rights and are somehow in control of their lives[5], yet their territorial claims remain unanswered.

Regionally, Latin American states are leaving behind the European understanding and changing the way they interact with these populations.[6]

Whether there are new normative grounds for territorial claims based on indigenous rights is still debatable.[7]

Settlers or implanted populations

 “Right-peopling”[8] the territory with settlers was a way in which some former colonial powers (and some modern states like Israel) secured their claim to sovereignty over new territories.

Whether these populations have the right to self-determination is a matter of further and detailed research.

What remains puzzling at this point is that in the context of international law and politics settlers are considered “persons” and may be able to claim the territory they inhabit, while the legal and political status of indigenous populations is still unsettled.

Previous post:

https://london1701.blogspot.com/2021/04/pluralism-of-pluralisms-post-11.html

Next theme:

The Americas: natives and settlers.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Tuesday 27th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] Hans Kelsen, “The Principle of Sovereign Equality of the State as a Basis for International Organization,” Yale Law Journal 53:2 (1944): 207-220. Note that there is more current academic literature related to the sovereign equality of states. The author includes Kelsen’s 1944 work intentionally to demonstrate how little academia has worked in a multi-disciplinary manner since then to bring a joint solution to long-standing international disputes based on pluralism of states.

[2] M. F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion (New York: Negro University Press, 1969), 11-12.

[3] Jérémie Gilbert, Indigenous People’s Land Rights under International Law: From Victors to Actors (Ardsley, New York: Transnational, 2006), 1-2.

[4] Jeremie Gilbert, “Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples,” in International Journal on Minority and Group Rights 14 (2007): 207-230.

[5] S. James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 2004).

[6] Austen L. Parrish, “Changing Territoriality, Fading Sovereignty, and the Development of Indigenous Rights,” in American Indian Law Review 31 (2006): 291-314.

[7] See, for example, Avery Kolers, Law, Conflict and Justice: Theory of Territory (New York: Cambridge University Press, 2009).

[8] Brendan O’Leary, “The Elements of Right-sizing and Right-Peopling the State,” in Right-sizing the State: The Politics of Moving Borders, edited by Brendan O’Leary, Ian S. Lustick and Thomas Callaghy(Oxford: Oxford University Press, 2001), 15-73.

Law as multidimensional phenomena [Post 1]

 

Introduction

Some questions seem simple on the surface. Yet, after the scholar has to face them, the simplicity vanishes. One such question concerns the core concept of legal philosophy: What is “law”?[1] To what exactly is the user of the term referring when they name it is a matter of controversy. Several answers to this ostensibly “simple” question suggest themselves:  

“What officials do about disputes is…the law itself; the prophecies of what the courts will do…are what I mean by the Law; statues are sources of Law…not parts of the Law itself; Constitutional law is positive morality merely; One shall not steal; if somebody steals he shall be punished…If at all existent, the first norm is contained in the second norm which is the only genuine norm…Law is the primary norm which stipulates the sanction.”[2]

The differences between all such definitions—and others might of course be offered—pertain to the frame of reference. For example, in a political context “law” may mean the monopoly of power: “Under such a system”, someone might say, “the president’s word is law.” And new piece of legislation that is “unenforceable” can be recognized as a “real” law in a sense that is obvious limited compared with a law that is effective.

In other contexts, “law” means a validly-constituted rule—or, in others, the full collection of such rules. In such contexts, the coercive effect of a law is irrelevant to its recognized status as law. Similarly, a person, a government, or a non-governmental institution may create, apply, and therefore define law.

To share an understanding of “law”, and therefore its conceptual or normative and substantive or factual implications, a context of discussion must be shared; a shared platform of certain presuppositions must be agreed. This blog series aims to show how the normative and the factual might interact.

The normative maintains that the object to be known by the jurist is the norm and that positive law is intuited or captured differently than by the senses. For this view, legal science would be a science of ideal objects because norms are known by using our intellect (as we do with the objects of logic and mathematics) but they are not, for example, seen or felt by our senses. 

A factual understanding of law opposes this ideal view and accepts its inter-psychological reality so that legal knowledge will be based on what the psychophysical experience reveals. A factual view of law does not recognize any other contact with experience than sensible intuition. This way of knowing helps us understand the nature with which legal knowledge dissolves the distinction between the knowledge of our data by reference to another event that occurs. These facts may refer to the rules they originate from or the rules they apply to.

For example, by interpreting the law it may be possible to know the real intention of those who are sanctioned based on the mere link of existence that exists between the fact and the law.  Consider a Judge and his decisions. For a normative view, the law is a norm in all its possible significance (e.g. the sanction applied by the Judge to a particular case). For a factual view, however, it is a psychological fact with its circumstantial environmental relationship.

The blog series will outline an account of “law” according to which different “ontological” statuses are recognized but, it is explained, these different meanings of “law” remain related, and are indeed “synergetic.” Although we may argue about “what is law?” the different answers to that question have to do with something different than law itself. These different answers are inter-linked with the assumptions we depart from and, therefore, we should acknowledge these answers are normatively and factually different conceptions of law.

Next theme:

Law: concepts and conceptions.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Tuesday 27th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

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[1] See Jules L. Coleman and Ori Simchen, “Law,” Legal Theory 9 (2003) 1-41, 5, who identify different questions often conflated within current debates in the philosophy of law.

[2] H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1997), 1-2.

Pluralism of pluralisms [Post 11]

 

Individuals and states, self-ownership and sovereignty

Although many sciences refer to cosmopolitanism and sovereignty—i.e. law, political science, international relations, only to name a few—these disciplines apply different methodological approaches, assumptions, views and conceptual basis resulting in, for example, incomplete views about the same territorial dispute.

There may be different ways to understand the relationship between an agent and itself, and consequently, its relationships with other agents. Arguably, both individuals and states have supreme authority over themselves. Furthermore, both individuals and states have relationships of different kinds with their respective peers and other agents. Possibly to subtle for the unaware eye, the paragraph includes a particular view, and therefore, an implicit assumption, in relation to individuals and states: self-ownership and sovereignty.

Self-ownership and sovereignty

One of the ways to understand the relationship between an individual and himself, other people and all that surrounds him is self-ownership (also called property in the person).[1] In self-ownership, each individual owns both morally and legally his person and natural talents and is free to use them and is morally obliged not to invade someone else’s sphere of freedom.

As in the case of sovereignty, self-ownership establishes a particular relationship between an agent and something: supreme authority. Unlike sovereignty, this supreme authority is present at the level of the individual. In other words, self-ownership defines the supreme authority an individual has over himself; sovereignty defines the supreme authority a State has over a territory and people. Thus, at first glance both self-ownership and sovereignty appear to be supreme, singular and hence not shareable. More explicitly, self-ownership has the same kind of relation to an individual that sovereignty has to a State: both self-ownership and sovereignty are essential characteristics in defining a free individual and a free State, respectively.

A state is sovereign—as an individual has self-ownership—if and only if its representatives are free to decide how the State acts or omits to act both internally and internationally. If a spectrum of options was to be considered in terms of and individual and self-ownership, one of the extremes would be given by the fully free being and the other one, by a slave: anyone bound to limit his actions or omissions upon someone else’s volition by way of following his orders, even arbitrary, or prohibitions without being able to disagree—without being able to exercise his free will and hence, there is domination.[2] In turn, if a state was not fully free to decide its way of action in relation to its internal or international affairs, its sovereignty—self-ownership—would be somehow affected—as it happens to pseudo-States, failed States, etc.

It is not that the understanding about an individual and his self-ownership or a state and its sovereignty are obsolete, somehow wrong or biased. The previous paragraphs intended to show that there may be different ways to understand what an “individual” and a “state” may imply depending several factors.

Despite the fact there are several theories[3] in the legal and political sciences that refer to the state and its nature, depending on which of the state’s element the theory focuses on, the theory will mainly refer to law, realpolitik, or the internal or external facets of the same entity: the state.[4] The same is true about individuals.[5]

In the particular case of individuals and communities, there is a further point that needs precision when understanding cosmopolitanism and sovereignty. In territorial disputes, we may refer broadly to people. However, cases such as the Falkland/Malvinas Islands, the Archipelago of San Andrés, Providencia and Santa Catalina, the Israel-Palestine difference, the Western Sahara and Moroccan settlers, Amazon region, Indonesia and East Timor, Cyprus and Iraq and Kirkuk clearly show the distinction between native and implanted populations. The following posts will refer to this aspect.

Previous post:

https://london1701.blogspot.com/2021/04/pluralism-of-pluralisms-post-10.html

Next theme:

Individuals, communities and states: native and implanted populations.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Monday 26th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

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[1] The expression ‘property in the person’ is from Carole Pateman, “Self-ownership and Property in the Person: Democratization and a Tale of Two Concepts,” The Journal of Political Philosophy 10 (2002): 20-53. For a relation between self-ownership and property see Lloyd P. Gerson, “Who Owns What? Some Reflections on the Foundation of Political Philosophy,” Social Philosophy and Policy 29 (2012): 81-105; Alan Ryan, “Self-ownership, Autonomy, and Property Rights,” Social Philosophy and Policy 11 (1994): 241-258; Eric Mack, “Self-ownership and the Right of Property,” The Monist 73 (1990): 519-543.

[2] For a view on domination see Lovett, op. cit. For a detailed account about positive and negative liberty and domination, see in partic. pp. 152-154. For a conception of republican liberty defined as “the absence of domination”, see in partic. pp. 155-156.

[3] See, for example, A. Vincent, Theories of the State (Oxford: Blackwell, 1987) and Erika Cudworth et al, The Modern State: Theories and Ideologies (Edinburgh University Press, 2007).

[4] For a detailed account about different theories related to the state see Jorge E. Núñez, Territorial Disputes and State Sovereignty: International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020), chapter 2.

[5] For the authors views about individuals and communities refer to Jorge E. Núñez, Sovereignty Conflicts and International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2017), chapter 4.