Mortimer Newlin Stead Sellers

Ideals of Public Discourse

“Public discourse” signifies speeches, publications and other statements made in pursuit of the public good. If (as it is for republicans) the sole aim of government, laws and the state is to serve the common good of the people, then public discourse offers the primary practical technique for finding (or clarifying) what the laws should require. “Public discourse” (in this sense) regards public policy as distinguished from “private discourse” among citizens seeking to develop their own private friendships and interests. This line between “public” and “private” discourse may be difficult to draw, because it concerns the fundamental division of power within society and the state. Public discourse defines and limits the powers of the government, but also of individuals. That which is not public is private, and vice versa, but it is public discourse itself that must, in the end, decide the boundaries. The standards of behavior that should govern public discourse constitute “civility”. Many of these same standards also extend to private discourse, with some exceptions.

The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal

Notes on contributors Foreword Sir John Lyons Introduction Alan Diamond 1. The Victorian values of Sir Henry Maine George Feaver Part I. Maine and the Idea of Progress: 2. Henry Maine and mid-Victorian ideas of progress John W. Burrow 3. Maine, progress and theory Raymond Cocks 4. Maine and the theory of progress Krishan Kumar 5. Democracy and excitement: Maines political pessimism Stefan Collini Part II. Maine and the Social Sciences: 6. The rise and fall of Maines patriarchal society Adam Kuper 7. Some contributions of Maine to history and anthropology Alan D. J. Macfarlane 8. Henry Sumner Maine in the tradition of the analysis of society Edward Shils 9. Maine as an ancestor of the social sciences J. D. Y. Peel 10. Ancient Law and modern fieldwork Ray Abrahams Part III. Maine on Law, Legal Change and Legal Education: 11. Maine and legal education Peter G. Stein 12. Maine and legal education: a comment William Twining 13. A wake (or awakening?) for historical jurisprudence Calvin Woodard 14. Further thoughts on Maines historical jurisprudence David E. C. Yale 15. Fictions, equity and legislation: Maines three agencies of legal change Alan Diamond 16. Law and language: a metaphor in Maine, a model for his successors? Bernard S. Jackson 17. Linguistics and law: the legacy of Sir Henry Maine John Lyons Part IV. Maine and India: 18. The influence of Sir Henry Maine on agrarian policy in India Clive Dewey 19. India and Henry Maine Gordon Johnson 20. Maine and change in nineteenth-century India C. A. Bayly Appendix: the conference programme Bibliography Index.

The Internationalization of Law and Legal Education

Preface.- Notes on Contributors.- 1. The Internationalization of Law and Legal Education Mortimer Sellers.- 2. Reflections on Globalization and University Life Jan Klabbers.- 3. Building the World Community Through Legal Education Claudio Grossman.- 4. Integrating Practical Training and Professional Legal Education James Maxeiner.- 5. Internationalizing the American Law School Curriculum (in Light of the Carnegie Foundations Report) Larry Cata Backer.- 6. Resolving Multicultural Legal Cases: A Bottom Up Perspective on the Internationalization of Law Wibo Van Rossum.- 7. Maternity Leave Laws in the United States in the Light of European Legislation Candace Kovacic-Fleisher.- 8. Convergence and Mutual Recognition in European Asylum Law Ida Staffans.- 9. Copyright Protection for Works of Foreign Origin Tyler Ochoa.- 10. The Internationalization of Internet Law Paul Przemyslaw Polanski.- Index.

The Rule of Law in Comparative Perspective

An Introduction to the Rule of Law in Comparative Perspective.- The Rule of Law in Ancient Greek Thought.- The Liberal State and Criminal Law Reform in Spain.- Some Realism About Legal Certainty in the Globalization of the Rule of Law.- Is Goal-Based Regulation Consistent with the Rule of Law?.- Reflections on Shakespeare and the Rule of Law.- Americas Constitutional Rule of Law: Structure and Symbol.- Constitutions Without Constitutionalism: The Failure of Constitutionalism in Brazil.- Rule of Law, Power Distribution, and the Problem of Faction in Conflict Interventions.- The Rule of Law in Transitional Justice: The Fujimori Trial in Peru.- The Interaction of Customary Law with the Modern Rule of Law in Albania and Kosova.- Dualism, Domestic Courts, and the Rule of International Law.

Republicanism, Liberalism and the Law

Much recent scholarship contrasts republicanism with liberalism as the two central and contradictory ideals of modern legal and constitutional thought.1 Both terms continue to attract new meanings, in pursuit of various legal and political goals.2 Recently, some lawyers have contrasted that liberalism which regards law as a necessary evil with republican visions of cultural self-expression through law.3 This misstates the historical origins and best usage of both terms. Looking more closely at the origins and fundamental doctrines of republicanism and liberalism reveals that their principles do not necessarily conflict, and that each endorses law as the necessary vehicle of social justice. Republicanism is the parent of liberalism in Western Europe. They share a fundamental commitment to liberty and differ only in their relative ambition. Liberalism grew out of republican theory, and has never found stability or security, without the protection of a republican form of government.

What is the Rule of Law and Why is It so Important

This chapter considers the rule of law from within the rule of law tradition to clarify what the rule of law is, why it is so valuable, and how we can secure it. The rule of law in its original, best and most useful sense signifies the “imperium legum” of the ancients and enlightened modernity: “the empire of laws and not of men”. This requires removing the arbitrary will of public officials as much as possible from the administration of justice in society. The rule of law implies constitutionalism, and all states and societies that struggle toward the rule of law are also working towards constitutional government, because well-constructed constitutions alone hold out the hope of controlling the governors as well as the citizens. Above all the rule of law requires an independent and self-confident judiciary, with power to interpret and apply the laws impartially, without fear or favor. The rule of law may be difficult to obtain, but its absence is never hard to perceive. Whenever power and naked self-interest can prevail against reason and the common good, the rule of law is not complete. The ultimate goal of every society and every legal system should be equal and impartial justice for all, free from oppression and arbitrary power.

An Introduction to the Rule of Law in Comparative Perspective

The rule of law has a long history in the aspirations of oppressed peoples everywhere1. Developing societies seek to establish the rule of law, well-regulated societies seek to preserve it, and most governments claim to maintain it, whatever the nature of their actual practices2. This makes the rule of law a nearly universal value, endorsed by the United Nations General Assembly, for example, which has repeatedly identified “human rights, the rule of law and democracy” as “universal and indivisible core values and principles of the United Nations.”3 The Universal Declaration of Human Rights, approved by the Assembly without dissent, recognized that “…it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law.”4 These ringing assertions, repeated or paraphrased by the European Convention on Human Rights5 the American Convention on Human Rights,6 the African Charter on Human and Peoples Rights7 and numerous other regional agreements and national constitutions,8 illustrate the necessary moral component always present in appeals to the “rule of law.” The “rule of law” in its usual sense implies the fulfillment of justice and the negation of government by and for the benefit of those in charge.9

The Influence on Marcus Tullius Cicero on Modern Legal and Political Ideas

Marcus Tullius Cicero is the father of modern law and politics. Ciceros influence was significant throughout subsequent European history, but never so much nor so directly as in the emergence of modernity and in the development of modern law and constitutional government. The early moderns became faithful apostles of Ciceros thought and ideals because their world and political circumstances were in many ways closer to those of Cicero than to those of any intervening centuries. The influence of Ciceros legal and political ideas on the modern world illustrates the decisive importance that the study of history can have on legal innovation and social change. The modern world would not have developed where it did, when it did, nor as it did were it not for the life and writings of Marcus Tullius Cicero.

Universal Human Rights

One central measure of a government’s legitimate membership (or not) in the international community of nations is the respect that it demonstrates (or not) for fundamental human rights. Human rights are justified moral claims that human beings make on other human beings on the basis of their common humanity. Universal human rights are an important measure of any government’s legitimacy, because they apply in all societies everywhere. This does not mean that all peoples should demand exactly the same structure of rights in their different communities. Circumstances differ from place to place and are never exactly the same. But sincere deliberation about the application of universal human rights to a particular set of circumstances yields remarkable consensus across cultures. Circumstances vary, but human nature does not. Disagreements about the sources, application, enforcement, and limits of universal human rights usually turn on private interests, rather than real differences of perception or understanding.

The Origins of Republican Legal Theory

The first self-consciously “republican” ideology originated in the senatorial opposition to Gaius Julius Caesar, and implies a procedural commitment to certain “republican” political and legal institutions, usually attributed to Rome’s republican constitution of 509–49 BC. The basic desiderata of republican government, as articulated in the republican legal tradition derived from Rome, secure government for the common good through the checks and balances of a mixed constitution, comprising a sovereign people, an elected executive, a deliberative senate, and a regulated popular assembly, constrained by an independent judiciary, and subject to the rule of law. Some republicans would add representation, the separation of powers, or equality of material possessions, to protect public liberty (“libertas”) and avoid Rome’s eventual descent into popular tyranny and military despotism. Republican liberty signifies subjection to the law and to magistrates, acting for the common good, and never to the private will or domination “dominatio” of any private master.1