legal anthropology - law and politics

when did liberalism emerge?

in the context of the enlightenment

what is liberalism?

a family of political philosophies that emphasizes the rights of individuals, negative freedom, toleration, pluralism, and equality

what is negative freedom?

freedom from interference, have the right to do what you want unless it impinges on someone else

what are the rights of individuals emphasized in liberalism?

liberty and dignity

when did liberalism take off in the “First World”?

after WWII

when did liberalism take off in the “Second World”?

after 1989

how was liberalism viewed by the late 90s?

considered to be the only correct option, especially by the Global North

is liberalism exclusively left or right?

no, there are variants on both sides

what is illiberalism?

not well-defined, an oppositional term, the ante-liberalism

when is illiberalism usually discussed?

in the context of a project of an administration that is democratically elected and then weakening separation of powers, etc

is illiberalism and authoritarianism the same thing?

not all illiberal governments are authoritarian but all authoritarian governments are illiberal

what are Scheppele’s three critiques?

law as domination, judicialization of politics, and autocratic legalism

who does Scheppele draw on for her critique of law as domination?

Marx, particularly On the Jewish Question

what kinds of emancipation does Marx differentiate between?

political vs human emancipation

what is political emancipation?

formal equality, liberal rights and liberties

how does Marx feel about political emancipation?

he is for it but doesn’t believe it can deliver full equality

why does Marx feel political emancipation can’t bring full equality?

substantive equality goes further and addresses the inequalities themselves rather than simply allowing unequal people to do the same things

what example does Marx give of political emancipation not granting full equality?

allowing both property owners and non-property owners to vote vs addressing the fact that some own property and others don’t

what is real freedom according to Marx?

something realized with and through one another rather than having freedom from one another

what is Scheppele’s critique of the judicialization of politics?

its slow pace leads to disappointment and it often can’t deliver on its ideals

how has liberal law been used to construct autocracy?

ideology of rule of law has been a powerful point of departure for contemporary autocrats

what is democracy?

a political system in which leaders are accountable to the people

what is constitutionalism?

a political system in which leaders and the people together are additionally accountable within a system of constitutional constraint to uphold basic values that transcend the moment

what is autocracy?

a form of government where one ruler has absolute unchecked control and decision-making power

what is legalism?

law meets a positivist standard for enactment as a technical matter when it follows the rules laid down, regardless of the content or value commitments of those laws

what is autocratic legalism?

when electoral mandates plus constitutional and legal change are used in the service of an illiberal agenda

what is autocratic legalism used to do?

to centralize power

who does Scheppele discuss?

Trump in the US, Putin in Russia, Erdogan in Turkey, Chavez in Venezuela, Correa in Ecuador, Kaczynski in Poland, and Orban in Hungary

what is legal positivism?

focusing on what law is and the rules of the law, not what law should be

is legalism compatible with constitutionalism?

no

what concern is Scheppele getting at?

what happens to politics on the ground, important to fight law with law, but also fight law with politics, judicialization of politics might be at the end of what it can do

what is democratic constitutionalism?

honors democracy by channeling it through institutions that enable it to be self-sustaining

what is liberal constitutionalism?

honors the rights of individuals by setting limits on what governments can do in the name of majorities and requiring that institutions remain accountable and limited

who are the plaintiffs in the Lundin Oil case?

32 current and former residents of South Sudan

what are the allegations in the Lundin Oil case?

Lundin Oil was complicit in war crimes

when did the Lundin Oil case begin?

1992

when was the first Sudanese Civil War?

1958-1969

when was the second Sudanese Civil War?

1985-2003

what happened in Sudan in 2011?

southern Sudanese territory seceded and became South Sudan

when was the third Sudanese Civil War?

2023-present

who is fighting in the third Sudanese Civil War?

Sudanese Armed Forces v Rapid Support Forces

what is the Sudanese Armed Forces?

the nation’s official military, responsible for enforcing the border and internal security

what is the Rapid Support Forces?

a paramilitary organization founded in 2013 to deal with rebel groups, emerged from another group that was notorious for incredible atrocities, scorched earth tactics

what are the demographic differences between North and South Sudan?

North more wealthy, predominantly Muslim and Arab, South more poverty and predominantly Christian and animist

what is the plaintiffs’ argument in the Lundin Oil case?

the company knew full well they were entering a conflict situation and hired the Sudanese government to secure their drilling sites

why was it profitable for Lundin Oil to be in Sudan?

US companies pulled out from Sudan in response to US sanctions on Sudan due to conflict, so they profited from less competition

what made the Lundin Oil case possible?

universal jurisdiction, Sweden’s reputation as a moral superpower, and Swedish law

what is universal jurisdiction?

because laws governing war crimes are agreed on by many nations and because war crimes are of concern to all of humanity, they can be prosecuted in any country

who was Magnus Elving?

a prosecutor on the Lundin Oil case who spent over a decade gathering evidence against the company before the case started

how was Swedish law helpful to the Lundin Oil case?

it includes the idea of reckless intent, which is not present in every jurisdiction

what is reckless intent?

the perpetrator is indifferent to a crime that will likely occur, a variant of indirect intent

what is indirect intent?

the perpetrator was aware that a crime would occur

what does the banality of evil refer to?

Hannah Arendt’s work Eichmann in Jerusalem: A report on

what does Arendt discuss in her work?

the ease with which some people go along with hideous crimes, failure to consider consequences, normal people can commit war crimes for normal e

what does the Lundin Oil case represent?

the possibility to hold corporations accountable for complicity in war crimes