Faculty of Law

David M. Buss is a professor of psychology at the University of Texas at Austin, and well known among evolutionary psychologists and human ethologists for his books, such as The Evolution of Desire: Strategies of Human Mating,1 The Dangerous Passion: Why Jealousy is as ...

Johan MG van der DennenPh.D. ... Keith F. Otterbein, How War Began (College Station: Texas A&M Press, 2004), xv + 292 pages. ISBN:1-58544-330-1. ... Douglas P. Fry, The Human Potential for Peace: An anthropological challenge to assumptions about war and violence (New ...

Drawing on the fact that justice is never explained in European legal discourse, but is used in conjunction with other principles and institutional decisions, this contribution argues that justice is used as a rhetorical tool to provide legitimacy to such principles and decisions. An analogous process is at work in scholarly critique of institutional justice, where the way justice is understood is made subservient to scholarly preferences for other principles. This process is most notably at work in making justice subservient to particular ways of understanding and advocating the importance of democracy and fair process. Assuming that it is desirable for justice to have a voice of its own, the chapter argues that it is necessary to identify and work against the ‘inverse monism’ that justice suffers; where institutional speech-acts shape the discourse of social organisation and individual contestation. The inevitability of defining justice according to institutional preferences tempts the conclusion that justice cannot possibly have a voice of its own within the institutional constrains of the European legal order. This may be true if the aim is to give space to all the meanings that justice can possibly have, but the chapter recognises the necessity for institutional violence upon infinite meanings to maintain social order. What is advocated instead is working towards the construction of a legal space that facilitates the assessment and contestation of institutional violence. Such a legal space may require institutional change as well as interpretive ingenuity. The interpretive techniques found in some of the case law on citizenship demonstrate that it is possible for a citizen to seek justice understood in ways that are different from maintaining the stability of the common market.  However, other cases with respect to citizenship and other areas of law serve to foreclose this endeavour.

In this paper I seek to de-tether the idea of agency from the epistemic pursuits of philosophers and legal scholars working on adaptive preferences and moral responsibility. What is common to such scholars is a move away from conceptualising agency as subject-related individual acts of conscious deliberation. While I support a shift in the way agency is understood, I do not find in their work an account of locating and promoting agency as a primary good. While findings from various psychological sciences are endorsed for their objective findings on individuals, there is very little guidance on what such findings mean for how people negotiate social spaces. As a first step, I suggest that an appropriate paradigm for agency would be responsiveness rather than adherence to responsibility.  I then proceed to identify properties of a responsiveness paradigm, concentrating on transpositional deliberation, mediation and intelligibility.

This article situates the judgement of The Hague District Court in Urgenda Foundation v. the Kingdom of the Netherlands within the life of global climate change litigation. To do so, the paper concentrates on the legal particulars of Dutch law, elements of ‘diffused’ jurisprudence from other jurisdictions, and the reasoning of the judgement that is ‘diffusible’. Firstly, the Court’s mandate for the State to take more robust and immediate climate mitigation action were informed by particulars of Dutch civil and constitutional law. Such particulars assisted with crossing the hurdles of standing of Dutch citizens in a climate change case, and the imposition of liability on the State for transboundary harm. Second, in relation to the separation of powers, there is clearly a marriage of ‘diffused’ jurisprudence from other jurisdictions and Dutch legal particulars with the primary effect of providing Connecticut v. AEP a second life. Third, aspects of the Court’s reasoning are ‘diffusible’ or amenable to transnational borrowing. Notable in this regard is the Court’s adoption of a procedural version of the precautionary principle, whereby the onus of proving adequacy and effectiveness of climate policy is shifted onto the State.  However, caution must be exercised in adopting the Court’s reasoning as to why the international (namely the IPCC) is identified as a preferred benchmark for allocation of climate targets as against the supranational (namely the Effort-Sharing decision of the EU), and the implicit economic reasoning as to why the State’s policies are ineffective. To overcome this problem, it is suggested that the appointment of experts by judicial bodies may be the way forward.