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Edinburgh Law School Legal Studies Research Paper Series - December 2021

Fri 14 January 2022

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The latest in the Legal Studies Research Paper Series (Vol. 9, No. 7: Dec 17, 2021) from Edinburgh Law School is now available.

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

The Theoretical Foundations of EU Law

Neil Walker, Edinburgh Law School

This chapter investigates the contribution of legal theory in understanding the distinctiveness of law’s role in the EU. It does so by evaluating which theoretical approach, or approaches, generate the best conception of law’s place in a wider political vision of supranational community. Key candidate conceptions are positivism, culturalism, idealism and pragmatism. For positivism, the focus is on ‘the authorized law’; for culturalism, ‘the appropriate law’; for idealism, ‘the good law’, and for pragmatism, ‘the law that works’. Whereas EU law lacks the direct democratic resources, the common cultural identity and the plausible claim to universalism to support robust versions of positivism, culturalism, and idealism, its investment in the security and versatility of law in providing positive-sum policy outputs has instead supported a primarily pragmatic vison of law’s legitimacy. The chapter concludes by examining the fragility of excessive dependence on pragmatism in an environment where various crises increasingly undermine even modest levels of secondary reliance on positivist, culturalist and idealist justifications, and by addressing the possibilities inherent in an alternative proceduralist model of EU law.

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The Constitutionalisation of Cities and the Future of Global Society

Jo Shaw, Edinburgh Law School
Igor Stiks, Independent

The constitutionalisation of cities is analysed as a process through which urban residents operate as constitutionalising forces within their cities through lived experiences, practices and engagement, and cities try to impose themselves as constitutionalising forces within a rapidly transforming global society. This article explores the tensions generated by the constitutionalisation of cities. It focuses on identifying their character, assessing current economic and socio-cultural processes within cities and articulating a vision of the cityscape. Finally, it applies the idea of chronotopes, as developed in literary studies, to the study of cities. This multidisciplinary approach allows us to understand the constitutionalisation of cities, so far as they seek to break into a global society dominated by states and financial capital. It suggests a vision in which acts of urban citizenship may become emancipatory.

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Citizenship and COVID-19: Syndemic Effects

Jo Shaw, Edinburgh Law School

This article studies the impact of the COVID-19 pandemic in the domain of citizenship. It highlights how the pandemic enhances existing vulnerabilities and inequalities and thus undermines ideas, concepts and practices of membership, especially for some individuals and groups, and suggests areas where strengthening citizenship may also be a strategy for effective recovery after the pandemic. The article combines reflections on the pandemic, which has triggered crises of governance, public health and economic wellbeing, with an articulation of the idea and ideal of constitutional citizenship, as a place where the symbolism of (in)equality is rife. The urgency of the analysis is driven by the significance that citizenship, as membership, can take on in the context of crisis, especially when it becomes a strong marker of entitlement and belonging. Furthermore, citizenship is not only a legal and socio-economic issue, but also a proxy for political questions about legitimate responses to both a public health emergency and its longer term societal and economic consequences. While the approach is not strictly comparative, the article draws on examples to be found in many different countries, reflecting the global nature of the pandemic.

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Queer Conflicts, Concept Capture and Category Co-Option: The Importance of Context in the State Collection and Recording of Sex/Gender Data

Ben Collier, University of Edinburgh
Sharon Cowan, Edinburgh Law School

Queer, trans and non-binary lives, bodies, relationships, and communities often complicate the taken-for-granted processes through which the state manages those under its power. In this article, we explore the forms of power and harm at play in attempts to quantify people through administrative processes of state data collection about sex and gender, and, in the current UK and Scottish context, examine some of the sites for wider conflicts over constructions of sex and gender in public life. We emphasise the need to collect sex / gender data in way that reflects the intersectional lives of data ‘subjects’. We also suggest that governments and public bodies should not adopt a unitary definition of sex or gender in data collection exercises such as the census, or other administrative categories such as criminal justice records, and argue that those who lobby to record ‘sex not gender’ in data collection are engaging in a strategy of concept capture, i.e. replicating a binary, biological model of sex, that excludes trans and non-binary people, through the co-option of number of administrative and legal categories across a wide range of social and political life. We conclude by recommending that public bodies asking about sex and gender should: co-produce questions with the community that is being surveyed; ensure that the wording of each question, and its rubric, is sensitive to the context in which it is asked and the purpose for which it is intended; and avoid attempting to offer any overarching standard definition of sex or gender that would be applicable in all circumstances. To engage in meaningful sex / gender data collection and recording that does not cause harm, governments and public bodies should avoid relying on reductive, over-simplistic and generalistic categories that are designed to fit the standardised norm. In being attentive to individual contexts needs and interests when formulating categories and records, they can make space for more intersectional experiences rather than generalised category-type data to be made visible.

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Divine Intervention: Invoking God in Peace Agreements

Robert Forster, Chr. Michelsen Institute
Christine Bell, Edinburgh Law School

This chapter examines the use of religious language in peace agreements. They authors begin with a statistical analysis showing the significance of religious terminology in peace agreements 1990–2015 (even in today’s supposedly ‘secular’ world). This usage has multiple functions, appealing to different constituencies for different reasons. Forster and Bell highlight six. (1) It reinforces moral obligations to reconcile, creating reputational costs for parties who do not adhere. (2) It affirms unity in a common heritage, as a powerful reminder of shared values, beliefs, identities, and texts. (3) It reinforces shared national ethos. (4) It acknowledges that political forces are subject to overarching divine forces, lifting the burden of responsibility from human will to God’s will. (5) It endorses values associated with ‘the good’, e.g. moral behaviour and human rights. Finally, (6) it brings divine force to bear on implementation, warning of retribution should the agreement be broken.

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