Law

Martha Albertson Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition,” Yale Journal of Law & Feminism Vol. 20, no. 1 (2008)
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This essay develops the concept of vulnerability in order to argue for a more responsive state and a more egalitarian society. Vulnerability is and should be understood to be universal and constant, inherent in the human condition. The vulnerability approach is an alternative to traditional equal protection analysis; it represents a post-identity inquiry in that it is not focused only on discrimination against defined groups, but concerned with privilege and favor conferred on limited segments of the population by the state and broader society through their institutions. As such, vulnerability analysis concentrates on the institutions and structures our society has and will establish to manage our common vulnerabilities. This approach has the potential to move us beyond the stifling confines of current discrimination-based models toward a more substantive vision of equality.

Martha Albertson Fineman, “The Neutered Mother, 1992,” University of Miami Law Review Vol. 46 (1992)
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“The Neutered Mother” scrutinizes the definitions of family and mother throughout the volume while paying close attention to issues of race, class and sexuality. In addition, Fienman convincingly contests society’s refusal to dignify, support and respond to the needs of caregivers and illustrates the burden they must bear due to this treatment. This book is a crucial step toward defining America’s most pressing social policy problems having to do with women, motherhood and the family.

Wolfrum, Rudiger, Roeben, Volker (eds), Legitimacy in International Law (Springer, 2008)
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In recent years the question of the legitimacy of international law has been discussed quite intensively. Such questions are, for example, whether international law lacks legitimacy in general; whether international law or a part of it has yielded to the facts of power; whether adherence to international legal commitments should be subordinated to self-defined national interests; whether international law or particular rules of it—such as the prohibition of the use of armed force—have lost their ability to induce compliance (compliance pull); and what is the relevance of non-enforcement or failure to obey for the legitimacy of that particular international norm? This book contains fresh perspectives on these questions, offered at an international and interdisciplinary conference hosted by the Max Planck Institute for Comparative Law and International Law.

Susan Marks, “Human Rights and Root Causes,” The Modern Law Review Vol. 74, no. 1 (2011)
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The human rights movement has traditionally focused on documenting abuses, rather than attempting to explain them. In recent years, however, the question of the ‘root causes’ of violations has emerged as a key issue in human rights work. The present article examines this new (or newly insistent) discourse of root causes. While valuable, it is shown to have significant limitations. It foreshortens the investigation of causes; it treats effects as though they were causes; and it identifies causes only to put them aside. With these points in mind, the article counterposes an alternative approach in which the orienting concept is not root causes, but ‘planned misery.’

Tamara Relis, “Human Rights and Southern Realities,” Human Rights Quarterly Vol. 33 (2011), pp. 509–551
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HLA Hart, The Concept of Law, Chapter 10 (Oxford University Press, 1961)
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A critique of John Austin’s theory that law is the command of the sovereign backed by sanction. A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows the creation, alteration, or extinction of primary rules.

Alicia Ely Yamin, Power, Suffering, and the Struggle for Dignity: Human Rights Frameworks for Health and Why They Matter (University of Pennsylvania Press, 2015)
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Directed at a diverse audience of students, legal and public health practitioners, and anyone interested in understanding what human rights-based approaches (HRBAs) to health and development mean and why they matter, Power, Suffering, and the Struggle for Dignity provides a solid foundation for comprehending what a human rights framework implies and the potential for social transformation it entails. Applying a human rights framework to health demands that we think about our own suffering and that of others, as well as the fundamental causes of that suffering. What is our agency as human subjects with rights and dignity, and what prevents us from acting in certain circumstances? What roles are played by others in decisions that affect our health? How do we determine whether what we may see as “natural” is actually the result of mutable, human policies and practices?

Bill Quigley, “Letter to a Law Student Interested in Social Justice,” DePaul Journal for Social Justice Vol. 1, no. 1, Article 4 (Fall 2007)
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Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (New York University Press, 2007)
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In this well-known critique, Duncan Kennedy argues that legal education reinforces class, race, and gender inequality in our society. However, Kennedy proposes a radical egalitarian alternative vision of what legal education should become, and a strategy, starting from the anarchist idea of workplace organizing, for struggle in that direction. Legal Education and the Reproduction of Hierarchy is comprehensive, covering everything about law school from the first day to moot court to job placement to life after law school. Kennedy’s book remains one of the most cited works on American legal education.

Anthea Roberts, “Traditional and Modern Approaches to Customary International Law: A Reconciliation,” American Journal of International Law Vol. 95, no. 4 (October 2001), pp. 757-791
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The demise of custom as a source of international law has been widely forecasted. This is because both the nature and the relative importance of custom’s constituent elements are contentious. At the same time, custom has become an increasingly significant source of law in important areas such as human rights obligations. Codification conventions, academic commentary, and the case law of the International Court of Justice (the Court) have also contributed to a contemporary resurrection of custom. These developments have resulted in two apparently opposing approaches, which Roberts terms “traditional custom” and “modern custom.” The renaissance of custom requires the articulation of a coherent theory that can accommodate its classic foundations and contemporary developments. This article seeks to provide an enriched theoretical account of custom that incorporates both the traditional and the modern approaches rather than advocating one approach over the other.

Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, 1995)
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This text offers an original and scholarly introduction to a number of key topics which lie at the heart of modern international law. Based upon the author’s highly acclaimed Hague Academy lectures, the book introduces the student to a series of pressing problems which help reveal the complex relationship between legal norms and policy objectives which define contemporary international law.

Mary Anne Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, 2002)
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A World Made New is the dramatic and inspiring story of the remarkable group of men and women from around the world who participated in this historic achievement and gave us the founding document of the modern human rights movement. Spurred on by the horrors of the Second World War and working against the clock in the brief window of hope between the armistice and the Cold War, they grappled together to articulate a new vision of the rights that every man and woman in every country around the world should share, regardless of their culture or religion.

Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press, 2000)
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The first book-length treatment of the application of feminist theories to international law. Its central argument is that the absence of women in the development of international law has produced a narrow and inadequate jurisprudence that has legitimated the unequal position of women worldwide rather than confronted it. Provides a feminist perspective on the structure, processes and substance of international law dealing with its sources, treaty law, the concept of statehood and the right of self-determination, the role of international institutions, and the law of human rights. They finally consider whether inclusion of women in the jurisdiction of international war crimes tribunals represents a significant shift in the boundaries of international law. Aims to encourage a rethinking of the discipline of international law so that it can offer a more useful framework for international and national justice.

Hilary Charlesworth, Christine Chinkin and Shelley Wright, “Feminist Approaches to International Law,” American Journal of International Law Vol. 85, no. 4 (October 1991), pp. 613-645
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The development of feminist jurisprudence in recent years has made a rich and fruitful contribution to legal theory. Few areas of domestic law have avoided the scrutiny of feminist writers, who have exposed the gender bias of apparently neutral systems of rules. A central feature of many western theories about law is that the law is an autonomous entity, distinct from the society it regulates. A legal system is regarded as different from a political or economic system, for example, because it operates on the basis of abstract rationality, and is thus universally applicable and capable of achieving neutrality and objectivity. These attributes are held to give the law its special authority. More radical theories have challenged this abstract rationalism, arguing that legal analysis cannot be separated from the political, economic, historical, and cultural context in which people live. Some theorists argue that the law functions as a system of beliefs that make social, political, and economic inequalities appear natural. Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more focused and concrete, however, and derives its theoretical force from immediate experience of the role of the legal system in creating and perpetuating the unequal position of women.

B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (Cambridge University Press, 2017)
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In International Law and World Order, B. S. Chimni articulates an integrated Marxist approach to international law (IMAIL), combining the insights of Marxism, socialist feminism, and postcolonial theory. The book uses IMAIL to systematically and critically examine the most influential contemporary theories of international law, including new, feminist, realist, and policy-oriented approaches. In doing so, it discusses a range of themes relating to the history, structure, and process of international law. The book also considers crucial world order issues and problems that the international legal process has to contend with, including the welfare of weak groups and nations, the ecological crisis, and the role of human rights. This extensively revised second edition provides an invaluable, in-depth and updated review of the key literature and scholarship within this field of study. It will be of particular interest to students and scholars of international law, international relations, international politics, and global studies.

Saira Mohamed, “Of Monsters and Men: Perpetrator Trauma and Mass Atrocity,” Columbia Law Review Vol. 115, no. 5 (2015), pp. 1157-1216
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In popular, scholarly, and legal discourse, psychological trauma is an experience that belongs to victims. While we expect victims of crimes to suffer trauma, we never ask whether perpetrators likewise experience those same crimes as trauma. Indeed, if we consider trauma in the perpetration of a crime at all, it is usually to inquire whether a terrible experience earlier in life drove a person toward wrongdoing. We are loath to acknowledge that the commission of the crime itself may cause some perpetrators to experience their own psychological injury and scarring.

This article aims to fill this gap in our understanding of crime and trauma by initiating a long-overdue conversation about perpetrator trauma. Specifically, this article argues that perpetrator trauma exists and merits attention. In doing so, it traces a cultural evolution in the concept of trauma from a psychological category to a moral one, and in response, it proposes a counternarrative of trauma—one that recognizes trauma as a neutral, human trait, divorced from morality, and not incompatible with choice and agency.

Finally, this article argues that we ignore this counternarrative of trauma at our peril. Acknowledging the reality of perpetrator trauma can improve reconciliation efforts in the aftermath of mass atrocity by exposing the need to rehabilitate perpetrators. As importantly, recognizing perpetrator trauma erodes the all-too-common perception of perpetrators as cartoonish monsters by exposing their ordinariness and humanity. The point is not to generate sympathy for a génocidaire. But recognizing him as a person who chose to kill, and who now suffers because of it, can illuminate both the roots of his crimes and the real horror undergirding them— that perpetrators are merely people, and that any other person could do the same. In exposing these overlooked aspects of crime, this article unsettles understandings of suffering and violence, challenges the categories of perpetrator and victim, and makes clear that the question of how to respond to mass atrocity is even more complex than we know.

Corri Zoli, M. Cherif Bassiouni and Hamid Khan, “Justice in Post-Conflict Settings: Islamic Law and Muslim Communities as Stakeholders in Transition,” Utrecht Journal of International and European Law Vol. 33, no. 85 (2017), pp. 38-61
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This essay is one of the first collaborative efforts to identify the underlying norms embedded in diverse traditions of Islamic law as these apply to contemporary Muslim communities experiencing conflict or transitioning from conflict. This long overdue endeavor draws upon comparative legal analyses, postconflict justice traditions, global governance, and empirical conflict studies to explore why Islamic legal norms are not often used as a resource for restraint and guidance in contemporary conflict settings. In exploring this puzzle, the authors make the case for strengthening commensurate Islamic and international conflict norms for complex conflicts and postconflict tradition. They also situate Islamic postconflict justice norms—which are too often confined to religious and natural law discussions—into contemporary problems of security policy, conflict prevention, and problems of governance. They indicate the many benefits of such a comparative approach for citizens of diverse Muslim and Arabs states and communities, trying to build pathways out of conflict, and for humanitarian and human rights practitioners working in such arenas toward similar goals. An additional, important benefit in excavating such shari’a norms is in providing the intellectual basis to counter politicized, extremist, and instrumentalist uses of Islamic law to justify extreme uses of political violence across the Middle East, Central and South Asian, and African regions.

Tom Bingham, Rule of Law (Penguin, 2011)
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“The Rule of Law” is a phrase much used but little examined. The idea of the rule of law as the foundation of modern states and civilizations has recently become even more talismanic than that of democracy, but what does it actually consist of? In this brilliant short book, Britain’s former senior law lord, and one of the world’s most acute legal minds, examines what the idea actually means. He makes clear that the rule of law is not an arid legal doctrine but is the foundation of a fair and just society, is a guarantee of responsible government, is an important contribution to economic growth and offers the best means yet devised for securing peace and cooperation. He briefly examines the historical origins of the rule, and then advances eight conditions which capture its essence as understood in western democracies today. He also discusses the strains imposed on the rule of law by the threat and experience of international terrorism.

Makau W. Mutua, “Savages, Victims, and Saviors: The Metaphor of Human Rights,” Harvard International Law Journal Vol. 42, no. 1 (2001), pp. 201-245
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This article looks critically at the human rights project as a damning three-dimensional metaphor that exposes multiple complexes. It argues that the grand narrative of human rights contains a subtext which depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other. The savages-victims-saviors construction lays bare some of the hypocrisies of the human rights project and asks human rights thinkers and advocates to become more self-reflective. The piece questions the universality and cultural neutrality of the human rights project. It calls for the construction of a truly universal human rights corpus, one that is multicultural, inclusive, and deeply political.

Martha Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law (Oxford University Press, 2010) 
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A distinguished professor of law and philosophy at the University of Chicago, a prolific writer and award-winning thinker, Martha Nussbaum stands as one of our foremost authorities on law, justice, freedom, morality, and emotion. In From Disgust to Humanity, Nussbaum aims her considerable intellectual firepower at the bulwark of opposition to gay equality: the politics of disgust.

William Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (Oxford University Press, 2012)
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As international criminal courts and tribunals have proliferated and international criminal law is increasingly seen as a key tool for bringing the world’s worst perpetrators to account, the controversies surrounding the international trials of war criminals have grown. War crimes tribunals have to deal with accusations of victor’s justice, bad prosecutorial policy and case management, and of jeopardizing fragile peace in post-conflict situations. In this exceptional book, one of the leading writers in the field of international criminal law explores these controversial issues in a manner that is accessible both to lawyers and to general readers.

Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press, 2011)
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The universal promise of contemporary international law has long inspired countries of the Global South to use it as an important field of contestation over global inequality. Taking three central examples, Sundhya Pahuja argues that this promise has been subsumed within a universal claim for a particular way of life by the idea of ‘development.’ As the horizon of the promised transformation and concomitant equality has receded ever further, international law has legitimized an ever-increasing sphere of intervention in the Third World. The post-war wave of decolonization ended in the creation of the developmental nation-state, the claim to permanent sovereignty over natural resources in the 1950s and 1960s was transformed into the protection of foreign investors, and the promotion of the rule of international law in the early 1990s has brought about the rise of the rule of law as a development strategy in the present day.

David Kennedy, “Autumn Weekends: An Essay on Law and Everyday Life,” in Law in Everyday Life (University of Michigan Press, 1993), pp. 191-236
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Amartya Sen, “Human Rights and the Limits of Law,” Cardozo Law Review Vol. 27 (2006)
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Pierre Legrand, “Au lieu de soi,” in Comparer les droits, résolument (Presses Universitaires de France, 2009), pp. 11-37
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Philip Allott, “Review Essay Symposium: Philip Allott’s Eunomia and The Health of Nations Thinking Another World: ‘This Cannot Be How the World Was Meant to Be,’” European Journal of International Law Vol. 16, no. 2 (2005), pp. 255-297
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Patricia Williams, The Alchemy of Race and Rights (Harvard University Press, 1992) 
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The Alchemy of Race and Rights is an eloquent autobiographical essay in which the author reflects on the intersection of race, gender, and class. Using the tools of critical literary and legal theory, she sets out her views of contemporary popular culture and current events, from Howard Beach to homelessness, from Tawana Brawley to the law school classroom, from civil rights to Oprah Winfrey, from Bernhard Goetz to Marth Beth Whitehead. She also traces the workings of “ordinary racism”—everyday occurrences, casual, unintended, banal perhaps, but mortifying. Taking up the metaphor of alchemy, Williams casts the law as a mythological text in which the powers of commerce and the Constitution, wealth and poverty, sanity and insanity, wage war across complex and overlapping boundaries of discourse. In deliberately transgressing such boundaries, she pursues a path toward racial justice that is, ultimately, transformative.

Williams gets to the roots of racism not by fingerpointing but by much gentler methods. Her book is full of anecdote and witness, vivid characters known and observed, trenchant analysis of the law’s shortcomings. Only by such an inquiry and such patient phenomenology can we understand racism. The book is deeply moving and not so, finally, just because racism is wrong—we all know that. What we don’t know is how to unthink the process that allows racism to persist. This Williams enables us to see. The result is a testament of considerable beauty, a triumph of moral tactfulness. The result, as the title suggests, is magic.

Aileen Moreton-Robinson, The White Possessive: Property, Power, and Indigenous Sovereignty (University of Minnesota Press, 2015)
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The White Possessive explores the links between race, sovereignty, and possession through themes of property: owning property, being property, and becoming propertyless. Focusing on the Australian Aboriginal context, Aileen Moreton-Robinson questions current race theory in the developed world and its preoccupation with foregrounding slavery and migration. The nation, she argues, is socially and culturally constructed as a white possession.

Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2007) 
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This book argues that the colonial confrontation was central to the formation of international law and, in particular, its founding concept, sovereignty. Traditional histories of the discipline present colonialism and non-European peoples as peripheral concerns. By contrast, Anghie argues that international law has always been animated by the ‘civilizing mission’—the project of governing non-European peoples, and that the economic exploitation and cultural subordination that resulted were constitutively significant for the discipline. In developing these arguments, the book examines different phases of the colonial encounter, ranging from the sixteenth century to the League of Nations period and the current ‘war on terror.’ Anghie provides a new approach to the history of international law, illuminating the enduring imperial character of the discipline and its continuing importance for peoples of the Third World. This book will be of interest to students of international law and relations, history, post-colonial studies and development studies.

Martti Koskenniemi, “International Law and Hegemony: A Reconfiguration,” Cambridge Review of International Affairs Vol. 17, no. 2 (2004), pp. 197-218
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Martti Koskenniemi, “The Politics of International Law—Twenty Years Later” European Journal of International Law Vol. 20, no. 1 (2009), pp. 7-19
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Martti Koskenniemi, “Occupied Zone—‘A Zone of Reasonableness’?” Israel Law Review Vol. 41, no. 1-2 (2008), pp. 13-40
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Ronald Dworkin, Law’s Empire (Harvard University Press, 1988)
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Dworkin begins with the question that is at the heart of the whole legal system: in difficult cases how do (and how should) judges decide what the law is? He shows that judges must decide hard cases by interpreting rather than simply applying past legal decisions, and he produces a general theory of what interpretation is—in literature as well as in law—and of when one interpretation is better than others. Every legal interpretation reflects an underlying theory about the general character of law: Dworkin assesses three such theories. One, which has been very influential, takes the law of a community to be only what the established conventions of that community say it is. Another, currently in vogue, assumes that legal practice is best understood as an instrument of society to achieve its goals. Dworkin argues forcefully and persuasively against both these views: he insists that the most fundamental point of law is not to report consensus or provide efficient means to social goals, but to answer the requirement that a political community act in a coherent and principled manner toward all its members. He discusses, in the light of that view, cases at common law, cases arising under statutes, and great constitutional cases in the Supreme Court, and he systematically demonstrates that his concept of political and legal integrity is the key to Anglo-American legal theory and practice.

Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977)
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What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? Must everyone always obey the law? If not, when is a citizen morally free to disobey?

Paul Ricoeur, Le Juste (Esprit, 1995)
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Raymonde Monnier, “Droit et démocratie. Entre faits et normes,” Annales historiques de la Révolution française Vol. 317 (1999), pp. 545-547
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John Rawls, A Theory of Justice (Harvard University Press, 1999)
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Rawls aims to express an essential part of the common core of the democratic tradition—justice as fairness—and to provide an alternative to utilitarianism, which had dominated the Anglo-Saxon tradition of political thought since the nineteenth century. Rawls substitutes the ideal of the social contract as a more satisfactory account of the basic rights and liberties of citizens as free and equal persons. “Each person,” writes Rawls, “possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.” Advancing the ideas of Rousseau, Kant, Emerson, and Lincoln, Rawls’s theory is as powerful today as it was when first published.

Michael Walzer, Sphere of Justice: A Defense Of Pluralism And Equality (Basic Books, 1984) 
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Analyzes how society distributes note just wealth and power but other social “goods” like honor, education, work, free time—even love.

Philippe Sands, East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” (Random House, 2017)
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East West Street looks at the personal and intellectual evolution of the two men who simultaneously originated the ideas of “genocide” and “crimes against humanity,” both of whom, not knowing the other, studied at the same university with the same professors, in a city little known today that was a major cultural center of Europe, “the little Paris of Ukraine,” a city variously called Lemberg, Lwów, Lvov, or Lviv. It is also a spellbinding family memoir, as the author traces the mysterious story of his grandfather, as he maneuvered through Europe in the face of Nazi atrocities.

Philip Allott, Eunomia: New Order for a New World (Oxford University Press, 1990/2001) 
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The end of the Cold War has brought a new form of world disorder. The systems and strategies imposed by the global balance of power of the Cold War have evaporated. The international system is seeking a new equilibrium between global integration and global disintegration. Natural forces of economic and cultural integration are opposed by equal and opposite forces of national and cultural particularism, and by the conflicts flowing from gross inequalities and injustices of social and economic order. New threats to international public order have been added to centuries-old forms of international conflict. 

Our national societies have always had systems of ideas and ideals to help us to cooperate as effectively as possible for our survival and prospering. The international system has never had a greater need for a philosophy of society and law to explain and to guide the coexistence and cooperation of all human beings, as inhabitants of a habitat which we all must share. Eunomia: New Order for a New World is an attempt to provide such a universal philosophy of society and law. It is a philosophy of social idealism, in which all human beings and all human societies might find a means of taking power, through the power of ideas, over the overwhelming complexity and energy of the new world in which we find ourselves—a world full of danger and full of hope. This paperback edition contains a new analysis of the state of that world and new proposals for the practical application of a philosophy of social idealism.

Mirjan Damaška, “Should National and International Justice be Subject to the Same Evaluative Framework?” in G. Sluiter et al., International Criminal Procedure, Principles and Rules (Oxford University Press, 2013), pp. 1418-1422
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Mirjan Damaška, “Reflections on Fairness in International Criminal Justice,” Journal of International Criminal Justice Vol. 10, no. 3 (2012), pp. 611-620
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Colin Dayan, The Law is a White Dog (Princeton University Press, 2013)
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Abused dogs, prisoners tortured in Guantánamo and supermax facilities, or slaves killed by the state—all are deprived of personhood through legal acts. Such deprivations have recurred throughout history, and the law sustains these terrors and banishments even as it upholds the civil order. Examining such troubling cases, The Law Is a White Dog tackles key societal questions: How does the law construct our identities? How do its rules and sanctions make or unmake persons? And how do the supposedly rational claims of the law define marginal entities, both natural and supernatural, including ghosts, dogs, slaves, terrorist suspects, and felons? Reading the language, allusions, and symbols of legal discourse, and bridging distinctions between the human and nonhuman, Colin Dayan looks at how the law disfigures individuals and animals, and how slavery, punishment, and torture create unforeseen effects in our daily lives.

Moving seamlessly across genres and disciplines, Dayan considers legal practices and spiritual beliefs from medieval England, the North American colonies, and the Caribbean that have survived in our legal discourse, and she explores the civil deaths of felons and slaves through lawful repression. Tracing the legacy of slavery in the United States in the structures of the contemporary American prison system and in the administrative detention of ghostly supermax facilities, she also demonstrates how contemporary jurisprudence regarding cruel and unusual punishment prepared the way for abuses in Abu Ghraib and Guantánamo. Using conventional historical and legal sources to answer unconventional questions, The Law Is a White Dog illuminates stark truths about civil society’s ability to marginalize, exclude, and dehumanize.