Jeremy Webber

National Sovereignty, Migration, and the Tenuous Hold of International Legality

Only once has Carl Schmitt been more in vogue than he is today: during the 1930s when he was the leading legal theorist of the right in Weimar Germany and then, for a time, constitutional theorist to the Nazis.1 Recent international events have thrust him back into scholarly discourse as commentators reflect upon exceptional threats, executive response, and the supposed need to set aside ordinary legality to meet those threats.2 Schmitt’s reflections on states of exception and decisive sovereign action have rarely seemed more apt.

Empire and Solidarity in International Legal Reform

In the last two decades, aid organizations, led by the World Bank, have advanced legal and political reform as a necessary adjunct of international development assistance. This move has been challenged by critics who argue that institutional reform is inextricably tied to economic liberalization, that it is a form of cultural imperialism, and that it tends to displace domestic struggles for democratic self-determination, replacing them with a uniform model of atomized rights. This paper does not reject those concerns out of hand, but it does argue that they are often exaggerated and liable to undermine a valuable sense of international solidarity. It seeks to redirect the criticisms, confining and targeting them more carefully. It does so first by examining how the institutional reform agenda works in practice, drawing specifically on the experience of legal reform in Vietnam. From that example, it assesses the possibilities, limitations, and constraints of international institutional reform and provides recommendations on how reform might be pursued so as to reinforce, and not abandon, the values of transparency, consistency, popular participation and government responsiveness that animate, at its best, the institutional reform agenda.

Section 7, Insite and the Comptence of Courts

In the Insite case, the plaintiffs came to court with a very specific end in mind: to preserve the Insite safe-injecting facility. They did so for reasons of substantive justice: they wanted to protect drug users from the dangers of injection in the back alleys of the Downtown Eastside and to mitigate the harms common to that drug use—virulent infections and the risk of death from overdose.