Peter Langford

The Rwandan Path to Genocide: The Genesis of the Capacity of the Rwandan Post-colonial State to Organise and Unleash a project of Extermination

This article focuses on the link between the capacity to unleash a programme of extermination between 1 January and 31 December 1994 and the particular development and structure of the post-colonial state in Rwanda. It traces this ability to plan, organise and implement such a programme to the character of the institutional framework of the Rwandan state. This premeditated and organised campaign of extermination is the result of the cumulative radicalisation and intransigence of the existing MRND (Mouvement Révolutionaire National pour le Développement) one-party state apparatus to the process of transition towards democracy, between 1990 and 1994, coupled with its retention of an autonomous source of political power. This intransigence, and the facility with which this state apparatus retained an unhindered capacity to institute this programme, are themselves seen to be the product of longer-term continuities between the development of the Rwandan post-colonial state and Belgian colonialism.

Extradition and fundamental rights: the perspective of the European Court of Human Rights

This paper provides a critical examination of the approach of the European Court of Human Rights to the process of extradition. It focuses upon the application of the European Convention of Human Rights to the processes of extradition, in the recent cases of Mamatkulov and Abdurasulovic v. Turkey and Shamayev and Others v. Georgia and Russia, in order to reveal the inconsistencies and difficulties of the position of the European Court of Human Rights. These difficulties and inconsistencies are shown, in turn, to be the product of a broader, two-fold characterisation of extradition. This characterisation defines extradition as a process that involves the individual in an essentially administrative, non-criminal procedure. This definition is the result of the application of the Courts earlier case law, in particular, Maaouia v. France. This application is one in which formal extradition proceedings are held to belong, together with deportation and expulsion, to a wider category of state procedures that, as an integral part of state sovereignty, control the entry, residence and expulsion of aliens.

Conclusion: Positive Law and the Kelsenian Project

The Kelsenian project of a legal science of positive law remains, as demonstrated by the majority of contributions to this volume, a source of continued relevance for contemporary legal theory. In the subsequent development of legal theories of positive law, the Kelsenian project has, however, effectively ceased to be accorded a significant degree of pertinence. The loss of pertinence is marked by the marginalization of the methodological questions and framework of the Kelsenian project and the shift in orientation to other theoretical forms of conceptualization of positive law. The effective jettisoning of the Kelsenian project, predicated upon a transformation in the understanding of the purpose of a theory of positive law, has itself resulted in a significant differentiation and disagreement concerning the foundation for, and parameters of, a legal theory of positive law. This differentiation and disagreement has centred, in contemporary Anglo-American work in particular, upon the question of the degree to which the legal theory of positive law excludes or includes morality (see, for example, Gardner 2001; Kramer 2003; Himma 2001, 2002, 2005; Marmor 2001, 2002, 2007; Raz 1975, 1979, 2011; Shaprio 2009; Waluchow 1994) and upon the wider question of the theoretical or methodological basis for the elaboration of a legal theory of positive law (see, for example, Coleman 2001; Leiter 2007; Shapiro 2013).

Hans Kelsen's Theory of Legal Monism. A Critical Engagement with the Emerging Legal Order of the 1920s

This article concentrates upon Hans Kelsen’s theory of legal monism, as presented in his Lecture delivered at the Academie de droit international, The Hague, in 1926. This Lecture propounds a legal theory which enables a critical engagement with the emerging legal order of the 1920s. The article draws upon recent scholarship regarding the international legal agreements adopted in 1924 (the London Accords) and 1925 (the Locarno Accords) to demonstrate their potential for a new form of European and international stability. This potential, however, remained constrained by the logic and limitations of the primacy of State sovereignty. Within this context, Kelsen’s Lecture sought to set the emerging international order within a unified legal framework of national and international positive law. This framework enabled Kelsen to identify two variants of legal monism, differentiated by the role of State sovereignty in the relationship between national and international law. For Kelsen, it is the choice between the broader ethico-political consequences of these two variants which will shape the further evolution of the global legal order.

The Place of Slavery in the Aristotelian Framework of Law, Reason and Emotion

This chapter considers the Aristotelian examination of slavery in Book I of the Politics in order to question the relationship between slavery and the wider Aristotelian framework of law, reason and emotion. A detailed analysis of Book 1 reveals that it is orientated by an appropriation and transformation of the Platonic conception of virtue and rulership. The Aristotelian response defines the slave as the particular determination of the connection between nature and necessity which, in turn, shape the notions of law, reason and emotion. The relationship between the slave and notions of law, reason and emotion are conferred after the initial determination of, and justification for, the division between (natural) master and (natural) slave. The division is a form of rulership within the household. The slave’s subjection to the master determines that the relationship to law, reason and emotion is coextensive with household management. It is only the free population and, in particular, free men, who are capable of developing a political regime. The political regime is the sole form through which the relationship between law, reason and emotion is to be established in order to realize the ideal or good life. The further development of the Politics is predicated upon the simultaneous recognition and disappearance of a relationship of subjection.

Kelsenian legal science and the nature of law

This book critically examines the conception of legal science and the nature of law developed by Hans Kelsen. It provides a single, dedicated space for a range of established European scholars to engage with the influential work of this Austrian jurist, legal philosopher, and political philosopher. The introduction provides a thematization of the Kelsenian notion of law as a legal science. Divided into six parts, the chapter contributions feature distinct levels of analysis. Overall, the structure of the book provides a sustained reflection upon central aspects of Kelsenian legal science and the nature of law. Parts one and two examine the validity of the project of Kelsenian legal science with particular reference to the social fact thesis, the notion of a science of positive law and the specifically Kelsenian concept of the basic norm (Grundnorm). The next three parts engage in a critical analysis of the relationship of Kelsenian legal science to constitutionalism, practical reason, and human rights. The last part involves an examination of the continued pertinence of Kelsenian legal science as a theory of the nature of law with a particular focus upon contemporary non-positivist theories of law. The conclusion discusses the increasing distance of contemporary theories of legal positivism from a Kelsenian notion of legal science in its consideration of the nature of law.

Introduction: Kelsen, Legal Science and Positive Law

Kelsenian legal science is a distinctive theoretical project for the comprehension of positive law. It distinguishes itself from the broader, nineteenth century German tradition of legal science through a process of critical interpretation and reworking. The process, initiated with Kelsen’s habilitation of 1911, Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze (Kelsen 2008), represents a reconsideration of the fundamental elements of this tradition which preserves the methodological requirement for a theory of law to be a science. The adoption of this interpretative position entails that the Kelsenian project assumes both the continued pertinence of a notion of legal science and the historical legitimacy of the tradition of legal science in relation to preceding conceptions of a theory of law. The tradition of legal science is held, in the 1911 habilitation, to denote the origin from which further work on a theory of law is to develop.

Hans Kelsen’s God and The State : The Theory of Positive Law as methodological Anarchism

Este articulo pone la obra de Hans Kelsen, God and the State, en el horizonte de God and the State de Bakunin. Esto facilita a la metodologia de Kelsen el hecho de manifestarse como una delimitacion del hegelianismo de izquierda de Feuerbach y su ulterior radicalizacion en Bakunin. La separacion del derecho de Kelsen de cualquier fundamento diferente del derecho mismo prefigura la discusion sobre la relacion entre derecho y vida en el estudio teorico italiano contemporaneo sobre el concepto de biopolitica. En lugar de una simple inversion del procedimiento metodologico de Kelsen, la discusion deberia centrarse en la distincion entre derecho y vida, sin detenerse en la oposicion entre materialidad de la vida y abstraccion del derecho prefigurado en la obra de Kelsen.

The ‘Postnational Condition’ of Law and Politics

This book’s formulation of a notion of postnational law seeks to confer a sense upon the development of the global legal system since the end of the Cold War. In the process, this notion fulfils the double purpose of introducing the possibility of periodisation and of normative justification. The diverse legal phenomena resulting from the development of the post-Cold War global legal system are accorded a unified meaning through their increasing manifestation of a postnational configuration. From this periodisation—the emergence of a global legal system as postnational— the notion is then established as the inevitable horizon for all contemporary legal theories of the global legal system. In relation to this horizon, the notion of postnational law becomes one which is most effectively grasped by the adoption of a theory of legal pluralism. This then involves a theory of legal pluralism which combines a justification based upon its coherence as a legal theory with that of its descriptive adequacy. The combination of periodisation and normative justification is itself the result of a particular understanding of the purpose of the elaboration of a legal theory in relation to the contemporary global legal system. In this understanding, the legal theorist confronts merely the initial outlines of postnational law through the far more evident demise or end of constitutionalism and international law in their complementary, classical forms. Hence, the context in which a legal theory is articulated is resolutely historical: it is the formulation of a legal theory which situates itself at this specific juncture within the development of the global legal system. This comprehension is accompanied by an acknowledgement that the legal theory which is elaborated is marked by its strongly provisional character. This, in turn, entails that the dual character of the notion of the postnational is developed through a combination of direct and indirect modes of presentation. The description of the contemporary configuration of the global legal system, as postnational, is undertaken directly. In contrast, the notion of the postnational, as a theory of legal (2012) 3(1) Jurisprudence 295–306