Edinburgh Law School Legal Studies Research Paper Series - June 2023
Wed 21 June 2023
The latest in the Legal Studies Research Paper Series (Vol. 11, No. 3: June 13, 2023) from Edinburgh Law School is now available.
View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN
Christianity and International Law
Neil Walker, University of Edinburgh - School of Law
The role of Christianity in the development of international law is complex and contentious. A crude but tenaciously relevant distinction holds between a perspective that views Christianity as marginal to international law and one that views it as fundamental. Support for each approach is found in more general orientations trading upon broader uncertainties and controversies about the character of international law. On one hand, the marginalizing approach is supported by an underlying orientation that treats international law as a modern invention, and thus free of the metaphysical assumptions that granted religion such a wide-ranging authority in premodern times. Instead, according to this approach, the paramount authorities of the modern world are sovereign states. From the late nineteenth century, international law has witnessed the construction by and among these secular “final” authorities of a legal bond within an institutional and cultural framework emphasizing common civilizational progress. On the other hand, there is a historical orientation that attends to the roots of international law in premodernity, prominently including the universalizing language and juristic impulses of the Christian faith. This longer perspective is sensitive to how modern international law remains conditioned by these roots, and to the ways in which the narrative of convergence and progress in international law is challenged and complicated by encounter with a pluralism of beliefs, interests, and identities partly grounded in religious faith. Only by addressing both approaches, and their respective supporting orientations, can we achieve a balanced understanding of the ways in which Christianity affects the theory and practice of international law.
Populism and Constitutional Democracy: Feature or Bug?
Neil Walker, University of Edinburgh - School of Law
In much recent constitutional literature there has been a preoccupation with viewing and demonstrating populism as the stark counterpoint to and ‘other’ of constitutional government. This can produce an intellectual dynamic that is both self-perpetuating in its pursuit of an elusive constitutional purity and polarizing in its exclusion of anything that does not meet that a standard that is itself problematically vague and contested. But how might we frame matters differently and more productively? How can we move beyond the idea of populism as posing a standing contrast and particular threat to constitutional patterns of thought and practice, while holding on to the defensible idea that there are important differences between certain types of constitutional perspective and certain types of populism along a spectrum of political authority? To make this argument requires a number of steps, each of which is elaborated in the paper. First, we need to overcome the tendency, and the assumptions behind the tendency, to treat the ‘constitutionalist’ approach to government - thinner or thicker, spirit or letter - as describing what is common across modern systems of rule. It does not. There is a much wider spectrum of actually existing constitutional types, and those that embrace constitutionalist values and institutions in any strong sense occupy one modest and precarious space towards one end of that spectrum with highly authoritarian forms of government at the other end. They are, in short, the exception rather than the norm. Secondly, populist types are widely distributed across this spectrum, and at least some stand closely adjacent to or overlap the constitutionalist types, with the point of closest adjacency, or overlap, relating to those features of both constitutionalist and populist thought that stress the importance of democratic values. Thirdly, in consequence of this overlap, the key intellectual and practical question concerning populism’s relationship to constitutionalism is whether populism may be viewed as a normal feature of the variant of constitutional government known as constitutional democracy or as its destructive bug – or perhaps even as both. The paper concludes by arguing that populism is best viewed as both normal feature and bug.
Soft Law and Citizenship Regimes
Timothy Jacob-Owens, University of Edinburgh - School of Law
Jo Shaw, University of Edinburgh - School of Law
In this chapter, we explore the intersections between soft law and citizenship regimes, with a focus on soft norms and institutions ‘beyond the state’. The chapter is structured around three core dimensions of soft law: as a counter-paradigm to ‘hard law’ (the law-making or normative dimension); as a tool of governance, especially in the context of multi-level governance (the governance dimension); and as a gateway to a range of new comparative approaches to citizenship studies (the methodological dimension). The analysis of these three dimensions centres on three illustrative ‘sites’ of convergence between soft law and citizenship regimes, namely the right to a nationality, the modes of citizenship acquisition, and multicultural citizenship. Our analysis suggests that soft law is already a significant factor in relation to the progressive evolution of citizenship regimes, especially with respect to norms and institutions ‘beyond the state’, and may come to play an even more substantial role in future.
Europe in the Global Imaginary, the Globe in the European Imaginary: The Legacy of Sovereignty
Neil Walker, University of Edinburgh - School of Law
If we seek to understand the general relationship between the EU and the rest of the world from
either perspective, it is hard to look beyond sovereignty as a point of departure - though it is by
no means the whole story. When we ask how Europe is modelled in the global political imaginary, we are operating in the broadest territory of the self-identification and other identification of collective socio-political entities. Sovereignty offers one default answer to that question, but also, and just as importantly, prompts us that, whatever its answer, the collective self-identification question itself cannot be avoided. It alerts us to the fact that even in the most complex and fine-grained legal inquiries and disputes over the standing, competences and obligations of the EU, the most basic question of the nature of its self-understanding and self identification is implicit. And so the particular relevance of sovereignty should be seen as but one side of a coin. It offers its own answer to the reflexive identity question, but, when the coin is flipped over, a different answer to the same question requires to be carved out. It asks, to the extent that the EU does not conform to a sovereigntist logic, how, if at all, might the global political configuration be (re)modelled in the European political imaginary? The present contribution addresses these two puzzles; or rather these two sides of the one puzzle. In the first place, it poses the question about Europe as it has been framed through the still globally dominant lens of sovereignty, and so very much from the perspective of the global political imaginary. In the second place, the paper reverses focus, now asking how to frame the global level from a distinctly European-centred perspective. It does so by reference to what escapes the lens of sovereignty - to those elements of the European polity and European ‘governance’ that are structured by the absence (and in some measure the rejection) rather than the presence of sovereigntist considerations, and which combine to form a powerful alternative world view within the EU’s own political imaginary.
Constitutional Citizenship and Indigeneity: The Case of Latin America
Juan Pablo Ramaciotti, Pontificia Universidad Católica de Chile
Jo Shaw, University of Edinburgh - School of Law
The article explores the impact of the recognition of plurinationality and related pluralist constitutional concepts on the constitutional construction of the relationship between the modern state and Indigenous nations and citizens. It uses the prism of the Indigenous constitutional citizen in order to undertake this task, focusing on the Latin American region and challenging some settled precepts about the place of the citizen in the modern state. The article concludes that Latin America presents a complex and evolving constitutional framework with regard to citizenship status, rights and identity in relation to the position of Indigenous peoples under the law. In plurinational states, legal conditions are in place for Indigenous peoples to identify both as citizens of the modern, settler state and as members of Indigenous nations. However, thus far, as regards effective implementation the story is somewhat more ambivalent. The enquiry is important, however, as it opens the issue of citizenship up to further enquiry with regard to impact of pluralistic thinking.
Private Purpose Trusts: Good for Scotland?
Alexandra Braun, University of Edinburgh - School of Law
On 22 November 2022 the Scottish Government introduced the Trusts and Succession (Scotland) Bill (hereinafter ‘the Bill’) whose overall aim is to modernise the law of trusts in Scotland and to attract international trust business. Among other things the Bill proposes to introduce a regulatory framework for private purpose trusts in Scotland which is contained in Chapter 6. Private purpose trusts are trusts which are not created for the benefit of one or more beneficiaries, but for the furtherance of a private purpose that is non-charitable. In seeking to introduce private purpose trusts, Scotland looked for inspiration offshore, notably the STAR legislation of the Cayman Islands and Guernsey trust law. The Scottish proposal, however, has arguably gone a step further by proposing a scheme that is even more flexible and user-friendly than that offered by the offshore models.
This paper explores whether this radical break with the past is to be welcomed. It examines the extent to which the proposed regulatory scheme addresses practical as well as conceptual objections commonly raised against private purpose trusts, but also their workability and compatibility with Scots trust law.
The paper argues that the core objections against the admissibility of private purpose trusts have not been satisfactorily overcome by the Bill and that the conceptual and theoretical but also ethical concerns that such trusts raise have not been given sufficient attention. In particular, Chapter 6 of the Bill raises serious concerns about the enforceability of private purpose trusts in Scotland which could potentially be used to make beneficial ownership disappear. This is especially problematic given that in Scotland, trusts can be constituted for whatever duration the truster elects and according to the Bill, private purpose trusts will be very difficult to terminate. Further, Chapter 6 leaves a number of questions unanswered and some of its provisions raise terminological and conceptual questions that are bound to create confusion and uncertainty. Finally, the scope of the proposed legal framework for private purpose trusts is unclear and its provisions could potentially affect a wide range of private trusts, and, in particular, the rights of beneficiaries under such trusts.
Thus, even though the Trusts and Succession (Scotland) Bill is an important piece of legislation for Scotland and has many positive features, Chapter 6 is best dropped, especially given that it is far from certain whether it will lead to new business for Scotland. While it may well be the case that certain types of trusts currently operating in Scotland could be classified as private purpose trusts, the proposed framework runs the risk of opening up Scotland to, and offering a statutory validation of, all manner of private purpose trusts with far-reaching consequences