The Public in Law: Representations of the Political in Legal Discourse

318 Pages·2012·1.289 MB·English

by  Claudio Michelon, Gregor Clunie, Christopher McCorkindale, Haris Psarras

The Public
in Law
Representations of
the Political in
Legal Discourse
Edited by
Claudio Michelon,
Gregor Clunie,
Christopher McCorkindale
and Haris Psarras
The Public in law
The Edinburgh/Glasgow Law and Society Series
Series Editors: Professor emilios a. christodoulidis and Dr Sharon cowan
Titles in the Series
The Many Constitutions of Europe
Edited by Kaarlo Tuori and Suvi Sankari
Law as Institutional Normative Order
Edited by Maksymilian Del Mar and Zenon Bankowski
Law and Agonistic Politics
Edited by Andrew Schaap
Public Law and Politics
The Scope and Limits of Constitutionalism
Edited by Emilios Christodoulidis and Stephen Tierney
Transformations of Policing
Edited by Alistair Henry and David J. Smith
The Universal and the Particular in Legal Reasoning
Edited by Zenon Bankowski and James MacLean
Law and the Politics of Reconciliation
Edited by Scott Veitch
The Public in law
Representations of the Political in legal Discourse
Edited by

clauDio Michelon
University of Edinburgh, Scotland
GReGoR clunie
University of Glasgow, Scotland
chRiSToPheR MccoRkinDale
Glasgow Caledonian University, Scotland
haRiS PSaRRaS
University of Edinburgh, Scotland
© claudio Michelon, Gregor clunie, christopher Mccorkindale and haris Psarras and the
contributors 2012
all rights reserved. no part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.
claudio Michelon, Gregor clunie, christopher Mccorkindale and haris Psarras have
asserted their rights under the Copyright, Designs and Patents Act, 1988, to be identified as
the editors of this work.
Published by
ashgate Publishing limited ashgate Publishing company
wey court east Suite 420
union Road 101 cherry Street
Farnham burlington
Surrey, Gu9 7PT VT 05401-4405
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www.ashgate.com
British Library Cataloguing in Publication Data
The public in law. – (edinburgh/Glasgow law and society series)
1. Sociological jurisprudence.
i. Series ii. clunie, Gregor.
340.1’15–dc22

Library of Congress Cataloging-in-Publication Data
The public in law / by claudio Michelon … [et al.].
p. cm. – (edinburgh/glasgow law and society series)
includes bibliographical references and index.
1. law—Philosophy. i. Michelon, claudio.
k235.P83 2011
340’.1—dc23
2011039327
iSbn: 9781409419099 (hbk)
iSbn: 9781409419105 (ebk)
IV
For Lilian Moncrieff – for her inspiration
and with best wishes for her young son, Herman Earnest
This page has been left blank intentionally
Contents
List of Contributors ix
Editors’ Introduction 1
1 On the Necessarily Public Character of Law 9
Neil Walker
Part I ConstItuted PublICs
2 Rediscovering ‘The Public’: The Curious Case of
Benjamin Constant 35
Christopher McCorkindale
3 Democracy, Political Parties and the Will of the People 53
Andrew Maloney
4 Between Contract and Constitution: International Organizations
and the Protection of Global Public Interests 69
Richard Collins
Part II unConstItuted PublICs
5 ‘Unconstituted Publics’? 89
Scott Veitch
6 A Dilemma for the Civil Disobedient: Pleading ‘Guilty’
or ‘Not Guilty’ in the Court Room? 99
Piero Moraro
7 Justifying Civil Disobedience With Reference to EU
Public Consensus 115
Haris Psarras
Part III exCluded PublICs
8 Excluded Publics – Included Privates: The Janus Headed
Nature of the Liberal Public-Private Divide 133
Daniel Augenstein
viii The Public in Law
9 The Prisoner’s Right to Vote: The Creation of an Abnormal
and Excluded Public 147
Vanessa De Greef
10 Subjects to Citizens: ‘Native’ Enfranchisement in
Reconstituting the Imperial Public of the British Empire,
c. 1887–1914 161
Coel Kirkby
Part IV PublIC/PrIVate
11 The Public/Private Dichotomy and the Unity of Capitalist
(Re-)production 177
Gregor Clunie
12 The Public Nature of Private Law? 195
Claudio Michelon
13 Between the Public and the Private: Banking Law in
1830s England 205
Iain Frame
14 The Public-ness of Development in the World
Trade Organization 219
Stephanie Switzer
Part V emergIng PublICs: the role of the VICtIm In
InternatIonal CrImInal JustICe
15 The Impact of the Distinction Between Situations and Cases on the
Participation of Victims in the International Criminal Court 235
Ania Salinas and James Sloan
16 Addressing the Interests of Victims: Perspectives from the Office
of the Prosecutor 263
Olivia Swaak-Goldman
17 Victim’s Access to the International Criminal Court:
Much Remains to be Done 287
Gilbert Bitti and Leïla Bourguiba
Index 303
List of Contributors
Daniel Augenstein is Assistant Professor in Legal Philosophy at the University of
Tilburg.
Gilbert Bitti is Senior Legal Adviser to the Pre-Trial Division of the International
Criminal Court.
Leïla Bourguiba is Associate Legal Officer to the Pre-Trial Division of the
International Criminal Court.
Richard Collins is a Lecturer in Law at the University of Sheffield.
Gregor Clunie is a PhD candidate and Tutor in Jurisprudence in the School of Law
at the University of Glasgow.
Vanessa De Greef is a PhD candidate in the Centre for Public Law at the Université
Libre de Bruxelles.
Iain Frame is a SJD candidate at Harvard Law School.
Coel Kirkby is a PhD candidate in the Faculty of Law at the University of
Cambridge.
Andrew Maloney is a PhD candidate in the law school at the University of Dundee.
Christopher McCorkindale is a Lecturer in Law at Glasgow Caledonian University.
Claudio Michelon is a Senior Lecturer in Law at the University of Edinburgh.
Piero Moraro is a PhD candidate in the department of Philosophy at the University
of Stirling.
Haris Psarras is a PhD candidate and Tutor in Jurisprudence in the School of Law
at the University of Edinburgh.
Ania Salinas is a PhD candidate in the School of Law at the University of Glasgow.
James Sloan is a Lecturer in Law at the University of Glasgow.