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Edinburgh Law School Legal Studies Research Paper Series - December 2019

Thu 19 December 2019

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The latest in the Legal Studies Research Paper Series (Vol. 7, No. 16: Oct 23, 2019) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

Papers include:

The Capabilities Approach: A Panacea for Labour Law’s Ills? Review of the Capability Approach to Labour Law
Edinburgh School of Law Research Paper No. 2019/34

David Cabrelli, Edinburgh Law School

Abstract: In recent years, there has been a tendency to view the subject of labour law and its goals through the prism of philosophy, and political philosophy in particular. A veritable “cottage industry” has sprung up devoted to this task. In this paper, I analyse the arguments presented by various authors in a book recently published under the editorship of Professor Brian Langille on the ‘Capability Approach to Labour Law’. The book is an important contribution to labour law scholarship. I make the point that the capabilities approach – a theory belonging to political philosophy - is undoubtedly a useful instrument insofar as it enables labour lawyers to sell the claims and arguments that the subject is attempting to make, but that if it is presented as an ostensibly univocal foundation, it is unlikely to stack up. Instead, by abstracting its partial and pluralist bases from their source, capabilities can be reconceptualised as only one justification for particular labour laws, serving alongside many other political philosophies. In this way, a veritable patchwork quilt of different foundations for specific labour laws can be stitched together, and this extended book review then goes on to make some preliminary observations as to how such a fabric could be embroidered in a coherent and systematic manner.

Christianity and the Global Rule of Law
Edinburgh School of Law Research Paper No. 2019/35
Neil Walker, Edinburgh Law School

Abstract: Religion in general, and Christianity in particular, stands in a complex relationship to the global rule of law. An influential secular narrative assumes that today’s transnational legal order is entirely detached from religion. Yet an alternative account actively attuned to religious involvement in the history of law’s global ambition sees in Christianity a specific source and a deeply sedimented general foundation of a global rule of law, as well as a continuing influence upon its development. It identifies religious actors as key players in formulating a global rule of law. It specifies issues raised by religion around war, mission, intervention and assistance, toleration, and minority protection as important developmental drivers. And in some versions it views contemporary conditions as particularly conducive to an enhanced role for religious influence. This chapter examines the relationship between secular and religious narratives, and also important differences within each. It argues that rather than seeing these narratives as rival external accounts, we should view their mutual tensions and competing projections as internal to - and indelible stamps upon - a still precariously emergent form of law that claims a global jurisdiction.

Habermas’s European Constitution: Catalyst, Reconstruction, Refounding
Edinburgh School of Law Research Paper No. 2019/36
Neil Walker, Edinburgh Law School

Abstract: Jürgen Habermas has long been one of the EU's most prominent and influential critical friends, engaged as much at the level of legal and political praxis as social theory. In particular, he has a close and complex longstanding interest in the idea of an EU constitution. On the occasion of his 90th birthday, I want to discuss three treatments of the EU constitution located in Habermas's work: constitution as political catalyst, as intellectual reconstruction, and as institutional refounding. We find the different treatments, and the priorities that underscore them, emphasised at different times — partly reflecting changing political circumstances. We also observe some tension between the different approaches. Yet, as someone broadly sympathetic to his overall project, I argue that the best understanding of the Habermasian position, and certainly the most attractive version of that position in today's political climate, involves reconciling all three treatments within a single package.