The Rise and Fall of International Law in the Post-Lisbon AFSJ Legislation Cycles

The article focuses on the output and incidence of international law in the adopted AFSJ law-making for the period between 2009−14 and 2014−19, with particular emphasis upon asylum and immigration law. The article thus overall shows an initially rising but subsequently falling ‘international’ influence upon EU AFSJ directives and regulations. International law usage is significant even in times of populism or times of crisis-related law-making, particularly as to asylum and immigration law. However, the waning presence of international law also arguably indicates the development of the AFSJ as a booming legal field, where there is an operationalisation of a vast field of new actors, institutions, and systems through EU law. This account demonstrates how the EU shows a tangible intent to permit the influence of international law upon the AFSJ which supports well its general efforts to participate and engage as a global legal actor.

Application of Muslim Family Law as a Form of Customary Law in Accra, Ghana

This article examines the central role of the malam (Islamic scholar) in the application of Muslim family law in a legal plural tradition in Accra, Ghana. It demonstrates that the role of the malam as a legal actor is one which is not self-ascribed, yet his deployment of such role is significant in how we understand the interaction of various bodies of laws and their hierarchies. The article shows that women form the majority of the litigants who seek to improve their wellbeing by appealing to Islamic legal norms through the malamai. It argues that, through the judicial practices of the malamai of the two dominant Islamic groups, the Tijāniyya and the Salafiyya, the manner in which the malam himself deploys his legal role reveals how his position is relevant for his predominantly female clients. In the end, this article contributes to how we understand the practice of legal pluralism through the application of Muslim family law as a form of customary law.

Foucault’s Keystone: Confessions of the Flesh

The fourth and final volume of The History of Sexuality offers the keystone to Michel Foucault’s critique of Western neoliberal societies. Confessions of the Flesh provides the heretofore missing link that ties Foucault’s late writings on subjectivity to his earlier critique of power. Foucault identifies in Augustine’s treatment of marital sexual relations the moment of birth of the modern legal actor and of the legalization of social relations. With the appearance of the modern legal subject, Foucault’s critique of modern Western societies is complete: it is now possible to see how the later emergence of an all-knowing homo œconomicus strips the State of knowledge and thus deals a fatal blow to its legitimacy. The appearance of both the modern legal actor and homo œconomicus makes it possible to fold the entire four-volume History of Sexuality back into Foucault’s earlier critique of punitive and biopolitical power. And it now challenges us to interrogate how we, contemporary subjects, are shaped in such a way as to implicate ourselves—both willingly and unwittingly—in the social order within which we find ourselves and that, through the interaction of knowledge-power-subjectivity, we reproduce.

The Litigious Widow in South Asia: A Study in Paradoxes

While widowhood in India is synonymous to destitution – economically and symbolically – the right of widows as primary heirs with equal property rights as men owes its advent to both colonial and postcolonial lawmaking. Feminist discourses have since found these laws lacking both in gender neutral conceptualisations, as well as fruitful implementation. Within the present market-driven economy where land is a primary productive resource, the idea of a widow as a legal actor to claim property is an anathema, especially in a rural, agrarian setting. Rarely, she becomes the individual who must address the law, given her identity is subsumed under the rubric of family and work, and imbued with the circumstance of ‘have-nots’ facing difficulty in ‘coming out ahead in litigation’ against their superiors. Even as ‘a field of one’s own’ promises sustainable livelihood, status and increased bargaining power for women, can the widow successfully activate the legal system and gain land as property? I will engage with this paradox from the viewpoint of the Bengali Hindu widow; taking into account parallel developments in the fate of widows in other South Asian countries, where widowhood acquires similar social meanings due to shared gendered norms. The aim is to compare, contrast and analyse the specificity that post-colonial law making in India, especially Bengal, has brought about in the widows’ position in the society.

Liability for the Fact of Autonomous Artificial Intelligence Agents. Things, Agencies and Legal Actors

European Union institutions are currently studying the regulatory intervention needed to face liability problems solicited by the use of autonomous artificial agents, whose unforeseeable actions may result in damage for their users or third parties. This paper intends to analyze some of the solutions proposed, by putting in relation – also from a historical perspective – the possibility of widening producers’ or users’ strict liability for actions by artificial agents even when they are not fully predictable and that of extending the status of legal actor to some of these artificial agents, so as to attribute the damaging fact directly to them.

Other Views of the Cathedral

Many other authors have attempted to define deference, though none of those definitions were grounded in a full description of the practices of US federal courts. Many of those other efforts were overtly normative, aimed at deriving an ideal structure for deference that can be used to criticize actual practices. Nonetheless, some of those efforts offer valuable insights even for a purely descriptive project. We reject efforts to limit the definition of deference only to instances in which the deferring body changes its decision in some way; mere consideration of another’s decision is sufficient to constitute deference. From Paul Horwitz we take the idea that deferees must be attentive to their role in a system of deference, and from Aileen Kavanaugh we take the idea that deference can sometimes be justified on prudential, or strategic, grounds. But consideration of others’ views does not change our basic definition of deference as: “The giving by a legal actor of some measure of consideration or weight to the decision of another actor in exercising the deferring actor’s function.”

Defining Deference

Ordinary language often treats deference as an all-or-nothing matter; if one defers to another’s judgment (for example, about where to go to dinner), one effectively lets the other party make the decision. Very few of the doctrines identified by federal courts as instances of deference meet this standard. Instead, the term “deference” is applied in a wide range of circumstances involving varying weights, ranging from Skidmore deference, in which the decision-maker must at least take into account the prior decision but need not give it any pre-fixed degree of weight, to rational basis review, in which the prior decision controls unless it is so absurd that no reasonable person could have reached it on any conceivable set of facts. Any inductively derived definition of deference must capture this range. Accordingly, deference is best defined through an inductive methodology such as “The giving by a legal actor of some measure of consideration or weight to the decision of another actor in exercising the deferring actor’s function.” Deference can be mandatory, because it is commanded by positive law, or discretionary, and it can be justified in particular settings for reasons of legitimacy (legitimation deference), accuracy (epistemological deference), cost (economic deference), or communication (signaling deference).

The Problem of Legal Regulation of Claims

Legal practice is characterized by cases when legal regulation does not achieve its goals in view of ignoring the claims of legal actors. The article searches for ways to solve this problem. The concepts of legal regulation and legal impact are distinguished in the context of their connection with the mechanism of legal claim and the mechanism of its implementation. The main features of legal regulation of legal claims, which are largely due to the nature of the nature of legal claims, are highlighted. The content of legal claims in this case is the main subject of legal impact, while the object of legal regulation are social relations. Legal regulation of legal claims is carried out indirectly, that is, through the creation, modification or cancellation of the conditions for the recognition of their content as legal. The main legal form of recognition of legal claims is their formal legal recognition by authorized state bodies and officials. The conditions for recognizing legal claims presuppose, first of all, the formalization of a person’s legal qualities - legal capacity and legal active capacity, securing the status of a subject of law for a person. In the next turn, the conditions for the recognition of legal claims, in order to ensure acceptable and the most optimal models of social interaction, provide as one of the tools of legal regulation of the relevant subjective rights and legal obligations. At the same time, the excessive complexity of the procedure for the implementation of legal claims creates conditions for illegal ways to ensure the needs and interests. It underlines the pattern of strengthening the degree of legal influence on a legal actor if the subject of legal regulation and the subject of formal legal recognition of legal claims are united in the person of one state body or official.

10. State responsibility

This chapter illustrates the concept of responsibility in international law. Within international law, the term ‘responsibility’ has long been understood to denote how fault or blame is attributable to a legal actor for the breach of an international legal obligation. State responsibility remains the archetypal and thus most developed form of international responsibility. Nevertheless, other international actors apart from States may also bear rights and obligations under international law. The result of such capacity is the potential to bear responsibility for a breach of an international legal obligation. International law also provides for what are termed ‘circumstances precluding wrongfulness’, through which an act which would normally be internationally wrongful is not deemed as such. In such situations, international responsibility is not engaged. These are akin to defences or excuses in municipal legal orders.