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What makes it permissible to reach out to hold someone’s hand on a first date, or to rub a friend’s back when she is crying? This paper, a contribution to the special issue on Doug Husak, argues that conventions, context, and relationships play a role in shifting normative boundaries, such that the default rule becomes that it is permissible to touch someone until she dissents (thereby creating a ‘dissent-sensitive permission’). Part I of this paper focuses on convention-type cases, contrasting dates with the intentional touchings that occur on crowded streets or while playing football. Part II then addresses the range of normative justifications that track these different cases. Part III adds a different way that dissent-sensitive permissions can arise—from relationships and common ground. Part IV unearths the underlying rights-structure that my view presupposes and returns to the question of whether the theory I have on offer is one of consent. Part V argues that this approach, that these are alterations of permissibility, is superior to the view that conventions only impact the actor’s blameworthiness by rendering his belief reasonable. Part VI raises questions of whether our understanding of consent dictates our understanding of dissent.

There are different theories to explain judicial dissent in collegial courts or committees. In the Spanish Council of State (Consejo de Estado), councilors can disagree with the majority opinion without filing an individual separate opinion. Drawing on a newly assembled dataset of all nonunanimous decisions for the period 2002–2018, we explore possible determinants to explain the individual decision to file a separate opinion when there is already explicit disagreement. We find that professional background and demographics seem to be the most powerful explanatory variables rather than characteristics of the case.

By assessing the Central Board of Dissenters, arguably the most influential liberal-voluntary group of the mid-nineteenth century and the political wing of Scottish dissent, this article questions whether the Liberal party in Edinburgh was indeed built on ‘bigotry alone’, and asks whether the groups that would later form the backbone of Scottish Liberalism until the Great War were, as John Brown claimed, the enemies of all oppressions and monopolies, or simply the products of sectarian strife. The Central Board of Dissenters acted as the conduit for ecclesiastical and political organisation for Edinburgh's radical voluntaries during the bitter conflict of the pre-Disruption period, and utilised this organisational strength after 1843 to create a pan-dissenting alliance based on the anti-Maynooth campaign. Despite their foundations in the intra-Presbyterian strife of Victorian Scotland, the electoral successes of this period created a base both in Edinburgh and across Scotland for a Liberal party, once it threw off the ideological shackles of these denominational struggles, which would dominate Scottish politics until the Great War.

This paper seeks to enrich existing empirical research on substantive representation in the judicial system by exploring a case study of the Honorable Justice (retired) Salim Joubran, the first ethnic-minority judge appointed to the Supreme Court of Israel. By employing a dual methodology of qualitative discourse analysis and dissenting quantitative studies, the study investigates when, why and how he dissented in controversial cases, which are defined as cases that resulted in non-unanimous votes. The study shows that a quantitative study on dissenting opinions of a minority judge alone did not provide comprehensive conclusions. The complementary qualitative discourse analysis shows that in cases that challenged state actions that impacted his social group, Joubran employed distinct strategies and reasoning that are akin to feminist judgments approach. Hence, the study adds to existing research on judicial diversity indicating that women and ethnic minorities judges not only share common challenges but might also operate similar reasoning strategies. In light of these insights, the study calls for employing the combined qualitative and quantitative methodology on examining judgments focusing on dissenting opinions of women and ethnic minority judges as it offers a complex understanding of substantive representation and provides answers regarding the socio-legal effects of group affiliation on judgments.

The Indian government’s latest series of farm laws (a set of three acts) have sparked protests by farmers around the country. This viewpoint argues that the new farm laws are designed to deepen capitalism within the countryside by liberalising agricultural trade in the country. It highlights the political economic logics of the new farm laws and outlines the contradictions inherent in these laws. It also argues that the agrarian dissent is fractured around the class lines and that we need broad movements for social justice to address growing socio-economic inequalities in the country.

Sonia Sotomayor’s dissent in the Fourth Amendment case Utah v. Strieff (2016) received a great deal of media attention, particularly for its citations to prominent Black political thinkers and its ...

This paper is an attempt to re-imagine a 2016 Division Bench judgement of the Supreme Court of India in an appeal against conviction for rape, through a feminist dissent. The imaginary dissent is s...

State law as the main transformative device to build a ‘modern’ Egypt has encountered tremendous resistance, yet legal scholars seem utterly uninterested in the matter while historians struggle to account for the reasons of the subjects’ resistance by using archival materials often produced by state officials themselves. In this article, I turn to literature to explore and interrogate literary representations of the rural subjects of ‘modern’ law, and their various forms of resistance to ‘modern’ law itself. In an effort to highlight the benefits of ‘turning to literature’ for legal scholars, I begin with one of the most acclaimed masterpieces and foundational works of the modern Egyptian literary canon: Tawfīq al-Ḥakīm’s Diary of a Country Prosecutor (1937). Listening to the awkward silences and garrulous voices of the Diary’s subjects opens a window onto the strained relations between ‘modern’ law and its subjects in which class, language, and centre/periphery dynamics all play a role. Considering what repertoire these subjects ‘spontaneously’ mobilise to challenge the ‘modern’ law further brings into view their alternative doxic understanding of law and justice. Keywords: ‘Modern’ law, hegemonic legal modernity, everyday resist­ance, extra-judicial justice, vocal dissent, rural subjects, rural courtroom, Egypt, 20th-century fiction, Tawfīq al-Ḥakīm, Diary of a Country Prosecutor.

Political dissent has played an important role in giving U.S. citizens a voice and promoting justice for all. But too often, Sarah Stitzlein argues, dissent is underappreciated, especially in schools. Stitzlein discusses the obstacles to teaching dissent, particularly political movements seeking to suppress curricula and ideas that are considered controversial. She suggests that, instead of silencing dissenting voices, teachers should seek out ways to foreground dissent, by teaching the history of political dissent, getting students to practice skills of disagreement, helping students discern which ideas and voices are worthy of consideration, and modeling respectful engagement with a variety of views.

Chief Judge Achilles and Judge Hera – uniqueness of proceedings – the nature of judicial decision-making – the judicial order of Mega-city One – source of judicial power – judicial styles – qualities required for judicial office – context of judicial action – requirement of reflection – interpretation and meaning in enforcement of law – adjudicative models – law as horrific – legal theories – Hans Kelsen – Justice Hercules – Jacques Derrida Judge Howard (dissent) – critical assessment of judicial order of Mega-city One – Hans Kelsen, positivism and democracy – merging of law fondatrice and law conservatrice – the “soul of the law” – fracture of the Rule of Law – fascism – comparisons with fascist regimes of twentieth Century Europe – signifiers in judicial uniform – consequences of dissent – reasons for, and consequences of, resignation Chief Judge Achilles Judge Hera (judgement redacted from published report) Judgement delivered 3 March 2138. Grand Hall of Justice, Mega-city One.

The strengthening of the judge's interpretative activity corroborated to the creation of a scenario of uncertainty arising from the constant divergences in the decisions made by national magistrates. The Civil Procedure Code of 2015 - CCP/2015, vigilant to the situation, brought in its core the figure of binding precedents, aiming to standardize the jurisprudence to guarantee equality and legal security. Considering that, as in the civil field, also in the criminal sphere, the dissent in the interpretation of the law results in similar cases receiving a different jurisdictional response, the present study intends to verify the feasibility of the application of the precedente judicial as provided in CCP/2015, in criminal and criminal procedural. Based on the interaction between Law and Cinema, the film Anatomy of a Crime - which portrays the theme in its plot - is used as a background for the raised hypothesis - analyzing the application of the precedent in the context of the film - and northern law American - and its consequences. It also seeks to address different positions regarding the introduction of a system of precedents in the criminal field, whose strict legality prevails due to the severity of the sanction imposed, that is, the restriction of individual freedom, as well as discussing the existence of legislative gaps to enable the employment of the institute. Also, an examination of the judgments rendered by the Superior Court of Justice is carried out to identify the adoption of the practice in the criminal sphere and its compatibility with the model of the use of precedents portrayed in the aforementioned film. For this, methodologically, the hypothetical-deductive, comparative and dialectic methods are used in a bibliographic and jurisprudencial approach.

This article explores legal consciousness in contemporary British theatre. It is concerned with the messages conveyed about law in society as experienced through participant-observation and textual analysis. The interpretation of meaning will take place within the legal consciousness framework of collective dissent developed by Halliday and Morgan. Using this framework, this article will show that dissent is a reoccurring theme in these performances, with the legitimacy of state law under challenge. Alternative visions of law are pluralistic in nature. By applying a collective dissent narrative to this study, the article tests and further develops collective dissent as an analytical tool for examining legal consciousness for cultural legal studies. Through this framework, it also advances the study of theatrical performance for cultural legal studies in terms of what dramaturgic images, observational and textual, say about the relationship between law and society; specifically, to determine what theatrical performance of British contemporary theatre says about the law in this snapshot of time and place.

A real risk of death, torture, violence, or arbitrary detention is generally sufficient to satisfy ‘persecution’ under the Refugee Convention. Where, however, physical harm will only arise if a claimant were to exercise certain human rights upon return, jurisprudential uncertainty reigns. Only a few individuals are impelled to become ‘martyrs’ through open dissent. Courts strongly endorse these dissenters’ entitlement to international protection even if they could avoid retribution through self-censorship. A second group – ‘a silent minority’ – are those who would actually refrain from exercising their rights to avoid physical harm. Most jurisprudence appears to accept that such a situation may sometimes amount to persecution. Unlike martyrs, however, these claimants are required to meet control devices based upon the severity of the human rights restriction, and/or the mental effects of self-censorship on the claimant. These are, however, both arbitrary and unprincipled. This article argues the real harm felt by martyrs and the silent minority is the same: the forcible suppression of their enjoyment of human rights. Importantly, the United Nations High Commissioner for Refugees’ approach to military service, religious, and sexuality cases already embodies this principle. To generalize, this ‘suppressive’ persecution arises when (a) claimants sincerely wish to engage in actions which (b) are international human rights entitlements and (c) they face objective conditions of sufficient duress such that they cannot reasonably assert their rights through civil disobedience. When States or private actors suppress the exercise of rights by duress in this way, those affected suffer a denial of rights amounting to persecution. This analysis should apply whether a claimant would be a martyr or would be intimidated into self-censorship.

The purpose of this paper analyzes the differences in sanctions regulation for violations of Article 15 and Article 19 of Law No. 24 of 2011 on Social Security Administering Body (Law 24/2011), which is a violation of Article 15 of Law 24/2011 subject to administrative sanctions (based on Article 5 PP 86/2013), while violations of Article 19 paragraph (1) and (2) of Law 24/2011 are subject to criminal sanctions (based on Article 55 of Law 24/2011). This study used normative juridical research methods. The results of this study show that there is a gap in the regulation and application of sanctions between Article 15 and Article 19 of Law 24/2011, whereas substantive violations of both articles are the same, because employers do not register themselves and their workers as participants to the Social Security Administering Body (BPJS). In fact, it aims to avoid the collection and payment of dues of participants who are responsible to BPJS. It should be a violation of Article 15 of Law 24/2011 not subject to administrative sanctions, but criminal sanctions article 55 of Law 24/2011 as well as Article 19 paragraph (1) and (2) Law 24/2011. The problem is constrained by the principle of legality in criminal law and depends on the ‘Courage’ of the judge to make a legal discovery. Conclusions obtained in the study are: (a) open possibility of application of criminal sanctions (ultimum remedium)against violations of Article 15 of Law 24/2011; (b) the occurrence of dissent against the possible application of criminal sanctions for violations of Article 15 of Law 24/2011 due to the separation of sanctions arrangements; (c) Employees of The Manpower Supervisory (PPK) must be observant and committed in law enforcement, especially against violations of Article 15 of Law 24/2011; and (d) on the issue of differences in sanctions it needs a deep understanding and built comprehensive legal construction as well as the need for legal discovery by judges.

Hundreds of Israeli reservists fulfilled their military obligations during the Second Lebanon War—and immediately after, voiced their criticism of it.1 The months-long reserve soldiers’ protest, wh...

Judges and legal scholars have long debated how many cases are easy. Legal realists, critical legal scholars, and political scientists have contended that there are many hard cases that require judges to exercise discretion or law-making authority. Many judges and mainstream legal scholars, however, have argued that most cases are easy and only require fidelity to existing legal sources. Despite the importance of this question, legal scholars and social scientists have struggled to evaluate how many cases are easy, and the existing literature provides wildly disparate estimates. Appellate judges repeatedly report, based on their own experiences, that roughly 90 percent of cases are easy. In stark contrast, economic models on the selection of disputes for litigation predict that most cases that are litigated and appealed will be hard. Empirical indicators have yielded muddled conclusions, especially with regard to the federal courts of appeals. Scholars often cite rates of dissent and unpublished decisions, interpreting these statistics as showing that most cases are easy. On the other hand, studies that compare voting behavior among different types of appellate panels often conclude that many cases are hard. In fact, none of this research directly relates to the proportion of easy cases. This Article critically analyzes existing claims and proposes a new approach for thinking empirically about the proportion of easy cases. Starting from the basic premise that judges cannot reasonably disagree in easy cases, it shows that evidence of disagreement can be decomposed into hard cases and unreasonable errors. It then explains how to estimate the structure of judicial disagreement in the U.S. courts of appeals by examining disagreement both within and between panels. Finally, the article illustrates the framework developed here using two data sets of appeals. An analysis of appeals from the National Labor Relations Board in the D.C. Circuit demonstrates that panels would disagree on the outcome in at least 30 percent of cases. A second data set of asylum appeals in the Ninth Circuit shows that panels would disagree in at least 60 percent of cases. If 90 percent of these cases are easy, as some judges have contended, then at least 5 percent of the NLRB cases and at least 7 percent of the asylum cases must be unreasonable errors.

It is stated that both under the constitution of Nigeria and under the African Charter on Human People’s Rights, persons in any part of Nigeria have the fundamental human right to privately and publicly freely express their disproval or objection over an issue through a protest any time or day. In history, protests have often inspired positive social change and improved protection of human rights, and they continue to help define and protect civic space in all parts of the world. In a democratic Nation like Nigeria, Protests encourage the development of an engaged and informed citizenry and strengthen representative democracy by enabling direct participation in public affairs. They enable individuals and groups to express dissent and grievances, to share views and opinions, to expose flaws in governance and to publicly demand that the authorities and other powerful entities solve problems and are accountable for their actions as seen in the case of the Nigeria Youths protest on police brutality. Yet governments around the world too often treat protests as either an inconvenience to be controlled or a threat to be extinguished. In a democratic Nation, the right to freedom of expression which could come through peaceful protests, involves the exercise of numerous fundamental human rights, and it is essential for securing all human rights, which the citizens should not be denied off by any person in power.

The circumstances in which civil disobedience is appropriate are, in most theories of justice, circumscribed and subject to preconditions. In his justification of the role of ‘ambivalent dissidents’, Habermas emphasizes the role of civil disobedience as a corrective to inadequacies in deliberative democracies. Other commentators have bolstered his commentary by exploring the conditions of social power that would justify civil disobedience in a deliberative democracy. This article continues such reflection on the conditions under which civil disobedience are justifiable in complex modern societies, building in particular, on the mass protests of Extinction Rebellion, and exploring the role of communicative freedom as a necessary precondition to the validity of civil disobedience. Manifestations of modern protest appear to inhibit speech: both progressive and conservative interests utilize strategies with potentially censoring effects. ‘No-platforming’, social media pile-ons and online shaming are deployed to effectuate ‘moral education’ in the face of orthodoxy, and defamation suits and other forms of strategic litigation are deployed to leverage existing forms of power. This article will reconsider Habermas' discursive will formation and the place of ‘no-saying’ and mass protest in an established democracy. Building upon the idea of ambivalent dissidents, the article will use the Australian experience to critique mass protest as dissent, and in particular to consider the conditions of environmental crisis justifying a suspension of discursive mediation of norms.

This article seeks to present a comparison of mediation with teleconference media, both within the PERMA and the scholars of the sect. Mediation is an attempt to resolve conflicts by engaging neutral mediators who do not have the authority to make decisions that help the parties in dispute to reach a resolution or solution accepted by both parties. The multidisciplinary approach used in this article is a juridical, sociological, theological-normative and managerial approach. This article is library research, a study by writing, clarifying, and making data obtained from various written sources. The method of data collection is to use document techniques (library studies). Quoting and analyzing data with document techniques is intended to collect related data contained in documents in the form of books, journals, and research results in the form of thesis, thesis, and dissertation. The results found that the most notable differences regarding the limits of mediation with teleconference media were found in the dissent of the Sect scholars. The Shafi and Hanbali sects argue that the ideal age in marriage is 15 years, while Abu Hanfah argues that the age of maturity comes at 19 years of age for women and 17 years for men, as is the case with Imam Malik arguing that the ideal age of manhood is 18 years for both men and women. The differences between the Imams of the Sect are influenced by the environment and culture in which they live. However, in Islamic law itself there is never a very firm limit, but the most basic thing about the age limit of marriage is that it is already in place

Rad govori o problemu javnoga tretmana povijesnoga naslijeđa iz vremena vladavine komunizma te nastoji prikazati ulogu arhiva u suočavanju s komunističkom prošlošću u Hrvatskoj. Uz prikaz nesuglasja i polemika u široj javnosti o osjetljivom arhivskom gradivu iz razdoblja socijalizma (1945.-1990.), članak prikazuje probleme s kojima su se istraživači, primarno povjesničari, suočavali prilikom istraživanja u proteklih više od dvadeset godina. Prikazani su uvjeti u kojima je istraživano navedeno razdoblje, dostupnost arhivskoga gradiva, ponajprije u vezi s fondovima koji su najčešća tema javnih debata – fond Centralnoga komiteta Saveza komunista Hrvatske (CK SKH) i fond Službe državne sigurnosti (SDS) Republičkoga sekretarijata unutrašnjih poslova (RSUP) Socijalističke Republike Hrvatske (SRH), koji su pohranjeni u Hrvatskom državnom arhivu u Zagrebu (HDA). Od osamostaljenja Hrvatske to je arhivsko gradivo bilo tema brojnih rasprava u javnosti, pogotovo u onoj političkoj, čak i na najvišoj razini. Povjesničari su naglašavali važnost toga gradiva za spoznavanje recentnije hrvatske povijesti, no ono je istodobno bilo korišteno i u dnevnopolitičkim raspravama, koje su dovodile do stanja tzv. rata dosjeima. U hrvatskim medijima često je spominjano “čišćenje” arhiva, što je najviše bilo izraženo u tzv. slučaju Perković. Praksa u prvih dvadesetak godina hrvatske samostalnosti pokazala je da su postojale ozbiljne poteškoće u istraživanju socijalističkog razdoblja hrvatske povijesti, prvenstveno zbog nedostupnosti relevantnoga arhivskoga gradiva. Poteškoće su bile posljedica nedostatka političke volje najvažnijih političkih stranaka za ozbiljnim pristupom toj problematici. No, münchensko suđenje (2014.-2016.) nekadašnjim visokopozicioniranim djelatnicima Službe državne sigurnosti Josipu Perkoviću i Zdravku Mustaču pokrenulo je nove političke i društvene promjene u pogledu dostupnosti toga gradiva. Uskoro je jedna relativno nova politička stranka Most pokrenula inicijativu za otvaranjem i onih dijelova arhiva koji su dotad bili nedostupni ili čija je dostupnost bila ograničena. Inicijativa je 2017. rezultirala izmjenama Zakona o arhivskom gradivu i arhivima, a u srpnju 2018. donesen je potpuno novi Zakon o arhivskom gradivu i arhivima temeljen na prethodnim promjenama. Prema podatcima Hrvatskoga državnoga arhiva, korištenje tih arhivskih fondova drastično je povećano nakon navedenih zakonskih izmjena. Ipak, potpuni utjecaj tih zakonskih promjena vidjet će se tek u budućnosti, odnosno u novim znanstvenim radovima povjesničara i drugih istraživača. Članak je predstavio praktične posljedice primjene tih zakonskih promjena na primjeru rezultata projekta COURAGE: Kulturna opozicija – razumijevanje kulturne baštine neslaganja u bivšim socijalističkim državama, koji je u trogodišnjem razdoblju od 2016. do 2019. financirala Europska unija u okviru programa Obzor 2020.

This Article examines changes in dissent patterns that occurred on the Polish Constitutional Tribunal during a period of intense constitutional and political change in Poland. An analysis of these dissents shows judges only rarely used this opportunity to express the traditional differences of opinion on law or policy. Instead, judges on the Tribunal increasingly used dissents in an altogether new form – as a way to broadcast allegations of legal and procedural violations that occurred within the court’s operation itself. More troublingly, some judges also used their dissents to advance distinctly political narratives and overtly attempt to de-legitimize the court’s announced decisions. Ultimately, these dissents show that constitutional judges may not be immune to participating in the larger social and constitutional battles within society. In fact, these dissent patterns suggest that, in a more fragmented and polarized era of politics, judges can and have made use of the dissent as a way to broadcast distinctly political messages.

This article highlights the origin of the employment at-will rule by providing the contextual contrast of Reconstruction free labor republicanism. To date, no work has situated the doctrine’s emergence in the heady Reconstruction discussions of labor reform that immediately preceded it. This article briefly summarizes how the at-will rule functions to subordinate employees. The article then elaborates upon the pervasive, overarching anti-subordination themes of the Radical Republican debates in Congress as well as their specific initiatives targeted at equalizing power disparities. Further, the article examines the paradox that the Thirteenth Amendment’s minimum constitutional guarantee that workers have a right to quit became doctrinally embedded in the at-will rule’s justification. Third, the article explores the contemporary post-bellum republican alternatives, both in treatises and in the dissent’s critique in the seminal case of Payne v. Western and Atlantic Railroad. While one treatise writer, Horace Wood, advanced the at-will rule, another, James Schouler, imbued with a sense of republicanism, advanced a different rule of duration based upon custom and pay period. Finally, the article examines an early critique that at-will circumstances were so insubstantial as to fail to amount to any contract at all. Overall, this article provides a different perspective from which to view the doctrine’s emergence, that is, as a retrenchment of railroads’ authority over their day laborers at the very time that Reconstruction’s egalitarian reform efforts were fading. Utilizing contract terminology, the constitutionally guaranteed right to quit was bootstrapped into a justification for the prerogative of employers to fire employees at will. Eventually, this legal construct became the predominant employment doctrine, and it continues today.

Michael Butterworth’s lead article in the August-October special issue of Communication & Sport raised important insights about unity within sport. This reply argues that those insights were encumbered by a blind spot: Where Butterworth critiqued examples of unity that minimized the agonistic spirit of sport, he gave free pass to calls for unity on behalf of social justice. My reply works through examples of dissent from protests that marked the sporting landscape following the murder of George Floyd. Specifically, I consider the case of Rachel Hill, an attacker for the Chicago Red Stars of the Women’s National Soccer League, who elected to stand during the national anthem while her entire team kneeled in solidarity with Black Lives Matter. Hill’s “tinted dissent” poses difficult questions for Butterworth’s theorizing about the merits of rivalry and sporting agonism: Thinking beyond the national anthem, how might Hill’s decision to stand, and the backlash she endured, reveal a troubling totalizing logic within calls for social justice? Can our scholarship make space for dispositions that strive to understand, and not solely critique, the strange dynamics of power that pervade sport? How should instances of dissenting athlete-activism be judged?

La proclamation en 2015 du califat en Irak et en Syrie, près d’un siècle après sa suppression sous Atatürk, invite à s’intéresser aux notions de pouvoir et d’autorité en Islam et à la question des rapports entre religion (dîn) et pouvoir temporel (dawla). Ce livre propose d’aborder la question des pouvoirs et autorités en Islam à travers une série de textes portant à la fois sur des notions théoriques en lien avec l’exercice de l’autorité (arts de gouverner, charia), sur des représentants de l’autorité (califes, sultans, émirs, rois, présidents, oulémas), sur les femmes et le pouvoir, et sur des expériences de contestation, voire de violence.

Il y a 5 ans, pratiquement jour pour jour, le pouvoir de Ben Ali tombait en Tunisie. On a alors commencé à discuter de la problématique de la révolution dans le monde arabe, mais dans un cadre tout à fait inédit, à savoir celui des rapports entre démocratie et révolution. Je propose ici une présentation de quelques éléments permettant de comprendre le phénomène révolutionnaire, et plus généralement le phénomène de la dissidence au Moyen-Orient depuis 1906, ou plutôt 1905 – date sur laquelle j...

Les usages politiques qui sont faits de la charia tendent à introduire un certain nombre de biais sur les représentations de celle-ci comme droit. Ce que j’essayerai de démontrer dans cette communication, qui sera une sorte de panorama historique rapide de la charia, c’est que charia et droit ne sont pas toujours équivalents dans le monde musulman, et que leur relation doit être considérée sous le sceau de la complexité. Le droit dit « charaïque » est un droit fluctuant et évolutif, éloigné d...

De la désignation, à la mort de Muhammad en 632, d’Abû Bakr comme premier calife jusqu’à la suppression de cette institution par Mustafa Kemal en 1924, le califat fut l’une des principales instances du pouvoir en Islam. Elle a été incarnée par de grands souverains – qui n’a pas entendu parler de Haroun al-Rashid, le calife abbasside des Mille et Une Nuits ? –, mais aussi, à d’autres époques, privée de toute prérogative et au mieux réduite à un rôle de légitimation. À l’origine de la division ...

Qu’est devenue, à l’époque contemporaine, la relation entre charia, droit et politique ? Comme on va le voir, la charia continue de se situer aux confins du droit et du politique, ce qui conduit souvent à fausser la perception que l’on en a en Occident, mais parfois aussi dans les pays musulmans. Je passerai rapidement en revue les différents domaines du droit où l’on continue de faire référence à la charia, dans les pays du monde musulman, mais surtout du monde arabe, tout en essayant de dét...

Les femmes et l’islam : un problème épistémologique Pour situer ma réflexion, je commencerai par évoquer la montée de l’islamisme radical, et les attentats meurtriers de ces dernières années aux États-Unis, en Europe et en France : ces événements ont popularisé une perspective qui essentialise la différence entre les valeurs dites occidentales et celles imputées aux femmes musulmanes, que ces dernières vivent en Occident ou dans les sociétés majoritairement musulmanes. Dans cette perspective ...

J’ai eu le sentiment, en acceptant de participer à ce cycle de conférences de l’IISMM, d’être décalée par rapport à la plupart des interventions. Non seulement parce que je ne suis pas spécialiste de l’islam comme religion et culture, ni de l’Islam (avec un grand I) comme société, mais surtout parce que ma perspective est une sorte de contrepoint aux réflexions de mes collègues sur « Pouvoirs et autorités en Islam ». Elle propose en effet une approche qui se veut séculière et contemporaine : ...

Je parlerai d’un genre politique qui s’intitule « les miroirs des princes » et de la question de l’art de gouverner en Islam. En guise d’introduction, je partirai de cette très belle phrase de Kant : « Il est deux découvertes humaines que l’on est en droit de considérer comme les plus difficiles : l’art de gouverner les hommes, et celui de les éduquer. » Cette citation m’intéresse beaucoup, parce qu’elle intervient à un moment très intense de la théorisation des arts de gouverner en Occident....

Traiter publiquement du sujet retenu relève d’un réel défi. Nul ne l’ignore, le thème de la « radicalisation » n’est pas « politiquement correct ». Des formules péremptoires tout droit venues du sommet de l’appareil d’État nous l’ont récemment rappelé – « expliquer, c’est déjà excuser ». Pourtant, personne parmi nous ne se réjouit de ces violences, ou n’en excuse le moins du monde les responsables. Je pense seulement, comme d’autres, que pour avoir un espoir sérieux de tourner la page de cett...

This article argues that as a part of the Tory reaction (1680–5) England's church courts were revived and utilised in the prosecution of religious dissent. The records of the church courts in three deaneries in and around London demonstrate that the numbers of prosecutions in the courts increased significantly in the early 1680s after the defeat of the Exclusion Bill and that the vast majority of these prosecutions were for religious offences. This brief flowering of persecution sought to ‘exclude the excluders’ and to remove political and religious dissidents from positions of secular power and from parish vestries.

This paper provides a queer critique of the European Court of Human Rights’ use of ‘European consensus’ as a method of interpretation in cases concerning sexuality rights. It argues that by routinely invoking the notion of ‘consensus’ in such cases, the Court (re)produces discourses and induces performances of sexuality and Europeanness that emphasise sameness and agreement, while simultaneously suppressing expressions of difference and dissent. As a result, this paper contends that the Court’s use of European consensus has ultimately functioned to uphold and sustain the heteronormative order that underpins both the European Convention on Human Rights (ECHR) and European society more generally. This is so, despite the role that European consensus has played in the Court’s recognition of ‘new’ rights for lesbian, gay and bisexual people under the ECHR. Drawing on insights from queer theory, as well as the work of Ranciere and Foucault, this discussion is carried out through a close reading of Strasbourg cases relating to sexuality.

The Supreme Court of Canada (SCC) has stronger norms of consensus and preferences for unanimous decisions than its American counterpart. Given this powerful preference for collegial and unanimous d...

To date, there has been surprisingly little research on separate opinions in legal linguistics literature. Scarce attention has been paid to the linguistic and communicative aspects of how judges frame their disagreements. This paper serves as one of the early attempts to examine the institution ofvotum separatum, or separate opinion, from a comparative, cross-language perspective using a linguistic methodology. The evidence indicates a clear similarity in terms of how separate opinions are integrated within the respective macrostructures of the US SC opinions and the Constitutional Tribunal judgments. This study demonstrates how judges tend to employ highly formulaic expressions to signal their disagreement despite the absence of clear guidelines to communicate such stances. The analysis of their frequent phraseology demonstrates that declaringvotum separatumand providing its justification are two different acts, not only legally but also linguistically, especially in terms of their formulaicity. The Polish and American justifications differ in the degree to which the frequent phraseology reveals peculiarities of judicial argumentation in addition to the presence of strong evaluative concerns.

Religious Dissent was shaped by the law. The Act of Uniformity (1662) set out the terms of conformity, and those who could not accept those terms risked prosecution. A great many were convicted under the earlier Elizabethan and Jacobean recusancy statutes, but new laws, such as the Conventicle Acts (1664, 1670) and the Five Mile Act (1665), were also passed. Anthony Fletcher's essay, published in 1984, remains almost the only study of enforcement, in which he argued that the impact of the penal laws on Dissent has been exaggerated because the Conventicle Acts were not systematically enforced. A range of contemporary accounts will be used to suggest that their impact was greater than has been appreciated because of the enforcement of other statutes and the harassment of ejected ministers and their supporters.

Around the world, many liberal democracies are facing in recent years serious challenges and threats emanating inter alia from the rise of political populism. Such challenges and threats are feeding an almost existential discourse about the crisis of democracy, and recent legal and political developments in Israel aimed at weakening the power of the Supreme Court and other rule of law institutions have also been described in such terms. This Article primarily intends to explore the relevance of the discourse surrounding the decline of liberal democracy, and its possible relevance for Israeli democracy, by examining the principal similarities and differences between specific legislative and administrative measures recently taken or contemplated in Israel and in two Central European states: Poland and Hungary. We focus on three sets of illiberal measures adopted or contemplated in Hungary, Poland, and Israel: (i) measures directed at limiting the power of the judiciary; (ii) measures intended to restrict the operation of civil society organizations; and (iii) measures directed at curbing dissent to governmental policies and at influencing the discourse in the media and academia. Although Israeli democratic institutions still retain much of their independence and vitality, we nonetheless find some degree of similarity between measures taken or contemplated by Hungary, Poland, and Israel, despite the many differences between their legal systems, historical contexts, political cultures, and the distinct stages of backsliding they seem to experience.

Santiago Gamboa’s Plegarias nocturnas (Night Prayers) (2012) depicts Alvaro Uribe’s years in power and the systematic stigmatisation of dissent perpetuated during his mandate (2002–2010). By offeri...

Disagreement among philosophers over the proper justification for political institutions is far from a new phenomenon. Thus, it should not come as a surprise that there is substantial room for dissent on this matter within democratic theory. As is well known, instrumentalism and proceduralism represent the two primary viewpoints that democrats can adopt to vindicate democratic legitimacy. While the former notoriously derives the value of democracy from its outcomes, the latter claims that a democratic decision-making process is inherently valuable. This article has two aims. First, it introduces three variables with which we can thoroughly categorise the aforementioned approaches. Second, it argues that the more promising version of proceduralism is extrinsic, rather than intrinsic, and that extrinsically procedural accounts can appeal to other values in the justification of democracy without translating into instrumentalism. This article is organised as follows. I present what I consider to be the ‘implicit view’ in the justification of democracy. Then, I analyse each of the three variables in a different section. Finally, I raise an objection against procedural views grounded in relational equality, which cannot account for the idea that democracy is a necessary condition for political legitimacy.

In the landmark caseHome Building & Loan Association v. Blaisdell(1934), the Supreme Court of the United States upheld a state-level debt relief statute that was quite similar to those it had long deemed to violate the Contracts Clause. The dissent even argued that the Contracts Clause was written precisely to prohibit this type of state legislation. Rather than seeking to understand or characterize this doctrinal shift, as most work onBlaisdellhas done, this article argues that Contracts Clause doctrine had never actually eradicated the state practice of intervening in contracts. The article both highlights and explains the long-standing mismatch between Contracts Clause doctrine and state legislative practice that preceded this ruling. WhateverBlaisdellmeant as a matter of doctrine, it should also be understood as evidence of a durable state-level commitment to protecting debtors from the potentially ruinous consequences of private economic bargains.

This article argues that at its core, the debate on the role and place of Islam in Pakistan, is constitutional. The issues concerning Islamic law, the raison d’etre of the state, defining the natio...

Most of the empirical work on separate opinion writing by lower federal court judges examines the U.S. Courts of Appeals. Given the Supreme Court's discretionary jurisdiction, it is argued that dissenting opinions operate as a cue signaling that a case is worthy of review. Concurrences, on the other hand, allow judges to join dispositional majorities while still expressing differences in legal reasoning from the majority. Likely in an effort to minimize dissent, the behavior of circuit court judges is found to be less influenced by ideology when potential dissenters serve with them. Despite the specter of Supreme Court review, these works generally find that the motivation to write separately is based largely in ideologically differences among panelists and less so on preferences of the Supreme Court. What, however, does separate opinion writing look like when the Court's jurisdiction is mandatory, as it is over three‐judge district court panels? Among other uses required by law, these district court panels are used to adjudicate cases arising under the Voting Rights Act of 1965. These panels also differ from the traditional judicial structure by placing district court judges, who traditionally decide cases individually, in a multimember setting with another district court judge and a circuit court judge. Examining separate opinion writing on these panels, we find that ideological distance from the majority opinion writer is still an important factor. This, however, is conditioned by the preferences of the Supreme Court, which exert a much stronger influence over behavior than they do in the traditional appellate court setting.