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Short Talks on the Weightier Matters of Law and Religion
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"Table talks" have long been a familiar genre of writing for jurists, theologians, politicians, and novelists. In this little volume, leading law and religion scholar John Witte offers thirty sage reflections on how to thrive in law school and in the legal profession; short commentaries on controversial matters of faith, freedom, and family; pithy sermons on difficult biblical texts about law and justice; and touching tributes to a few of his fallen heroes. Most of the thirty texts gathered here were made at seminar tables, academic roundtables, editorial tables, and Eucharist tables. Cast in avuncular form, these texts probe what makes life worth living, work worth doing, history worth reading, and Scripture worth heeding. They aim to provide inspiration and edification for readers at different stages of their lives.
Short Talks on the Weightier Matters of Law and Religion
Author:
"Table talks" have long been a familiar genre of writing for jurists, theologians, politicians, and novelists. In this little volume, leading law and religion scholar John Witte offers thirty sage reflections on how to thrive in law school and in the legal profession; short commentaries on controversial matters of faith, freedom, and family; pithy sermons on difficult biblical texts about law and justice; and touching tributes to a few of his fallen heroes. Most of the thirty texts gathered here were made at seminar tables, academic roundtables, editorial tables, and Eucharist tables. Cast in avuncular form, these texts probe what makes life worth living, work worth doing, history worth reading, and Scripture worth heeding. They aim to provide inspiration and edification for readers at different stages of their lives.
Author:
Abstract
“Table talks” have long been a familiar genre of writing for jurists, theologians, politicians, and novelists. In this little volume, thirty sage reflections on how to thrive in law school and in the legal profession are offered: short commentaries on controversial matters of faith, freedom, and family; pithy sermons on difficult biblical texts about law and justice; and touching tributes to a few of his fallen heroes. Most of the thirty texts gathered here were made at seminar tables, academic roundtables, editorial tables, and Eucharist tables. Cast in avuncular form, these texts probe what makes life worth living, work worth doing, history worth reading, and Scripture worth heeding. They aim to provide inspiration and edification for readers at different stages of their lives.
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Table Talk
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Abstract
What are the legal principles of British utilitarianism in the long nineteenth century; and what conception(s) of international law do they offer? The celebrated founder of the utilitarian school is Jeremy Bentham, who categorically rejects all metaphysical natural law thinking by insisting that all positive law ought to be adopted by a legislature. But in the absence of a world legislature, what did this mean for the positivity and normativity of international law? Surprisingly, Bentham and a second generation of utilitarian thinkers can affirm the legally binding nature of international law; yet with John Austin, a radical ‘sovereigntist’ critique subsequently casts doubt over the nature of international law as law ‘properly so called’. This infamous scepticism would have a profound impact on British international thought in the twentieth century; yet in the nineteenth century, the ideas of a third-generation utilitarian became more prominent: the liberal philosophy of John Stuart Mill. Mill’s ‘relativist’ and ‘civilisational’ conception of international law thereby gave the utilitarian project a specifically imperialist dimension that will be analysed, both in its utilitarian-philosophical and practical-legal dimensions. The article however also explores two other legacies of British utilitarianism, namely: the rise of international codification and the emergence of a specifically British conception of private international law during the nineteenth century.
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The Covid-19 pandemic truly has been called a global crisis. To fight the spread of the virus, many States have introduced measures that seriously restrict or affect fundamental rights, ranging from procedural rights to the freedom of movement and the right to personal autonomy. In Europe, it is to be expected that many cases concerning such rights infringements eventually will come before the European Court of Human Rights (ECtHR). This contribution aims to give an insight into how the Court will likely give shape to its proportionality test in such cases. It thereby predicts that open balancing review – for which the ECtHR is famous – will play a much less important role than methods of reasoning by analogy and procedural review.
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International procedural law remains largely party-oriented and directed at the preservation of individual interests. A tension therefore arises when the ICJ is asked to adjudicate “public interest norms”. Against this background, one might ask whether advisory opinions by the ICJ might serve as a more appropriate forum for protecting and enforcing public interests. Among others, they might prove better equipped for, e.g., clarifying and interpreting public interest obligations without a breach thereof necessarily having already occurred, or in the case of breaches by multiple parties. However, among the generally low numbers of requests for opinions by the ICJ so far only two can be classified as “traditional public interest litigation”. Recent initiatives on “community-oriented” interests have not (yet) moved forward, leaving their true potential open for debate.
The article focuses on the ICJ’s procedural framework in advisory proceedings and its suitability as a forum for enforcing public interests. The argument is made that while indeed several rationales can be identified which make this procedure a seemingly well-suited format for public interest litigation, the filing of requests is often subject to political hurdles and dependent on the overall perception of the Court’s exercise of its judicial function. This is rounded off by a discussion of different proposals and an assessment whether these might lead to a strengthening of the Court’s competence when it comes to serving as a forum for “public interest litigation.”
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This article addresses the role of third States in public interest litigation – i.e., ongoing proceedings concerning interests which they share with the international community. It scrutinizes third-State intervention in inter-State cases through the prism of rules and principles arising in public interest litigation, and aims to clarify the limits of such participation. Having synthesized the relevant law and doctrine of intervention practice before the ICJ and other institutional courts, it considers the extent to which third-State interests find expression through Articles 62 and 63 of the ICJ Statute. It examines the invocation of international legal responsibility on the basis of obligations erga omnes and erga omnes partes, as well as the prospect of intervention on this basis. It then identifies and addresses jurisdictional and procedural questions arising in these and other instances of “public interest” intervention. It concludes by envisaging the prospective institutional development of multilateral participation in public interest litigation.
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As climate negotiations fail to deliver the progress that States, activists, and others desire to see in tackling climate change, attention is rapidly turning to potential legal responses. This article investigates the potential of the ICJ’s contentious procedure as a forum for climate-related complaints, and focuses in particular on the provisional measures phase of a case. We consider the potential for a climate-related application for interim protection to meet the test set down by the Court for the issuing of a provisional measures order: prima facie jurisdiction, plausibility, and an urgent risk of irreparable prejudice. We conclude that a carefully constructed climate application could meet these criteria, but that it would be important to foresee and take account of a future application for interim protection from the outset in designing a case.
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To decide on the question of material jurisdiction under a compromissory clause, the World Court has at times interpreted treaties provisionally, seeing whether these could reasonably, though not per se correctly, be read so as to apply to acts of which an applicant complains. Other times it has interpreted treaties definitively, to assess whether the respondent actually has the obligations it allegedly violated. The former method may be criticised for not basing jurisdiction in consent; the latter for prejudging the merits. This article shows that the Court has nevertheless made the latter its standard approach. But to avoid prejudging the merits, it will only use definitive interpretations to resolve those preliminary objections, or aspects of an objection, which it perceives as raising issues relevant to its material jurisdiction, as opposed to the merits. The article argues this innovation creates uncertainty for the parties and could be a misuse of the definitive approach.