Hidden Continuities?: The Avatars of “Judicial Lustration” in Post-Communist Romania

This Article grapples with the instrumentalization of the past in Romania, in the specific context of “judicial lustration” measures. It argues that decommunization and lustration policies, which could not be pursued in the immediate aftermath of the collapse of state socialism in 1989, were weaponized much later and used in order to advance other purposes. In 2006, an expedited judicial vetting procedure, in the context of the EU-driven fight against corruption, was repurposed by the center-right as a lustration instrument. In the same year, the dismantling of an intelligence service created after 1991 in the Justice Ministry (SIPA) to monitor ‘vulnerabilities’ in the justice system has set in motion a long series of failed attempts to bring closure to the question regarding the service’s archives, fomenting continuities of suspicion until today. More recently, in 2018, a form of ‘mock-judicial lustration’ has been used by the political left to deflect or at least delegitimize repressive anti-corruption policies. The new “lustration procedure” implicitly equated the recent cooperation between prosecutors and intelligence officers, in the context of the fight against corruption, with past practices of collusion between the members of the judiciary and the communist Securitate. These three episodes of ‘dealing with the past’ are reviewed in order to showcase path-dependencies. Such path-dependencies are not linked only with carryovers from or throwbacks to the communist past. Rather, pre- and post-communist deficiencies of modernization, combined more recently with gaps in post-accession monitoring by the EU Commission, create continuities of peripheral instrumentalism. Various narratives, such as decommunization, the fight against graft, judicial reform and the rule of law are used to legitimize short-term consequentialism, evincing a resilient, structural resistance to legislative and legal normativity.

Pandemic, Exception and the Law: Notes on the Shattered Nomos of Europe

In this article I propose a critical evaluation of the current European politico-legal landscape that unfolds under the conditions of the COVID-19 pandemic. My aim is to off an analysis of the symbolic status of legality in this context and to reflect on its historical trajectory, by introducing it in a longer historical timescale than usually proposed as well as by insisting on the specific nexus between emergency legislation and authoritarian ideologies within Europe. In doing so I propose a new genealogy of the state of exception apt to articulate the relationship between the force of law, legal normativity, and ideology in modern capitalism. The thesis that I defend here is a simple one: the ongoing pandemic has operated a historical acceleration that the law, understood here as medium that articulates power symbolically in a public and ostensible manner, is not able to catch up with. To substantiate this thesis, I venture first to take stock of the existing theories, analyses and narratives on the relation between the pandemic and the politico-legal landscape of Europe. In doing so I shall focus fi on traditional constitutional law accounts and on Italian philosopher Giorgio Agamben’s criticism of the legal responses to the pandemic. Following this analysis, I move towards a situation of the pandemic within the sphere of the multiple crises befalling Europe that have become visible since 2015. At this stage I draw attention to the manifold layers of emergency legality and states of exception that have been sapping the liberal democratic nomos putatively defended within Europe. In a third move, I embark on a synoptical clarification of the relationship between law, ideology and the history of class struggle. In a fourth and last intervention I intend to assess the current nexus between the pandemic, exception and the law as a specific form of dissolution of the liberal nomos.

On Emad Atiq’s Inclusive Anti-positivism

In this discussion of Emad Atiq's article "There are No Easy Counterexamples to Legal Anti-Positivism" I pose three challenges to his construction of an Inclusive Anti-positivism. I firstly argue that, contra Atiq, the moral facts that both ground IAP and allow it to satisfy the extensional challenge are sometimes reducible to social facts. In Section II, I briefly discuss internal- and external-to-practice appraisals of legal norms. Finally, in Section III, I touch upon the divergent explanations of legal normativity IAP and positivism offer.

Conclusion

The rebel administration of justice can be a social good provided by non-state armed groups in situations of armed conflict. International humanitarian law and international human rights law provide parameters that can guide this practice, calling for more detailed studies of rebel justice that will allow precise legal analyses. State and non-state law interact in complex patterns in zones of conflict, opening new avenues for an understanding of legal normativity inspired by legal pluralism. Finally, decisions of rebel courts do not lose all significance once war is over. Transitional justice must recognise that the rebel administration of justice is a practice that has factual and legal consequences that keep producing effects long after hostilities have ceased.

Killing Time: Law Like Death

This article takes Peter Fitzpatrick’s writings on the modern death penalty, published over roughly a decade from the late 1990s, as a point of departure for considering wider themes in his scholarship, and reflecting on its significance and particular qualities. In these texts we see Fitzpatrick, as a legal theorist, engaging with a pressing political issue of, literally, life, death and the law. I take this textual archive and show how it illustrates Fitzpatrick’s mode of critique, his form of poststructural legal normativity, and the kinds of resistant and responsiveness-generating legal subjects he encourages us to be.

Kerahasiaan Bank Kontra Akses Informasi Perpajakan Ditinjau Dari Maqashid Syari’ah Multidimensi

The issuance of Law No. 9 of 2017 concerning Establishment of PERPU No. 1 of 2017 Becoming an Act not only signals the end of the Bank's confidentiality era, but also shows the limitations of juridical studies in resolving conflicts of interest in law. Therefore, in this paper there will be an examination through the theory of Maqashid Shari'ah, with the hope of mapping the contradictions between the existing norms of rules, and then finding patterns of resolution through multidimensional studies that are free from rigid legal normativity. From the results of the study it was found that according to the normative juridical perspective, the cancellation of the Bank's Confidentiality provisions for taxation information in the event of a legal conflict was the most likely offer to be implemented. This perspective is most likely to be applied despite the limitations of classical normative juridical studies, which only examine in a monodimensional, and rigid manner. Meanwhile in the analysis using the perspective of Maqashid Syari'ah which is Multidimensional, two offers are found to resolve patterns of legal conflict, namely making the needs / conditions of state emergencies as part of Priority Maqashid, or making Protection a part of priority Maqashid, by combining the goals / the purpose of Bank Confidentiality (customer protection), the purpose / purpose of Accessing Tax Information (state development), becomes a new principle, namely, the principle of Customer Health

Law and Religion: Reimagining the Entanglement of Two Universals

In the last few decades, the study of law and religion has undergone considerable reconstruction. Less and less constrained by modern statist construals of rights talk or tied to confessional contexts, the comparative study of the intersection of law and religion by anthropologists, historians, sociologists, and religious studies scholars is undergoing a real renaissance. Exciting new work explores the entanglement of legal and religious ideas, institutions, and material objects across the entire space and time of human history. This article models an engagement between the academic study of religion and sociolegal scholarship by introducing scholars in both fields to contemporary debates in the study of law and religion. These debates examine how and when state law persists as a meaningful arena of contestation; the role of indigenous elites and arrangements of legal pluralism in colonial contexts; and new approaches to economy, race, and sovereignty and citizenship. By mobilizing an understanding of law that does not take for granted the state's alleged monopoly on generating and regulating legal normativity, the article argues that holding law and religion in abeyance as normative traditions invites a far more expansive imaging of these universals in their singularity, in their copresence, and as overlapping domains.

Legal rights for animals: aspiration or logical necessity?

Whereas regulation relating to minimum standards of animal welfare is increasingly uncontroversial in contemporary popular discourse, the same cannot be said of viewing animals as legal persons possessing legally enforceable rights in and of themselves. The purpose of this article will be to explore this reticence and ask whether the continued anthropocentricity of legally enforceable rights is compatible with the very concept of law itself. The article will draw heavily on the moral writing of Alan Gewirth, engaging with his justification for why human beings themselves can make philosophically valid claims to be rightsholders. Taking Gewirthian ethical rationalism as providing a universally applicable hypothetical imperative which binds all agents to comply with its requirements, the article will move on to discuss the implications of the theory on our understanding of legal normativity. If we accept that the purpose of law is to guide action, and that legal normativity therefore operates at the level of practical rationality, the Gewirthian project necessarily limits the content of law to those norms which are compliant with the moral underpinning of all normative reasons for action. A necessary connection between law and morality can therefore be established which requires equal respect for all agents. By creating this necessary connection, it is possible to move beyond an anthropocentric conception of legal normativity to one that necessarily must instead respect the basic rights possessed by all agents – regardless of species. Legal rights for animals that are capable of acting within Gewirth's conception of agency must therefore be seen not to be a mere aspiration for a well-meaning society, but a logical necessity within any legal system.