(editorial): ‘In the shadow of Paris: theories of justice and principles of
harm’, 7(1) Journal of Human Rights and the Environment 1-6 (editorial,
forthcoming 2016).
'Climate change: too complex for a special regime' J.E.R.L. 2016, 34(1),
51-56.
Reflects on the deficiencies of international climate change
law, and comments on the International Bar Association's 2014 report "Achieving
Justice and Human Rights in an Era of Climate Disruption” within this context.
Discusses the background to the report, its definition of "climate justice", and
the timeliness of its publication.
'Conscience in the Datasphere' Open Democracy (March 14, 2016) [blog
post]
‘Anthropocentric Rights’, Global Policy (November 12, 2015) [blog post]
‘Climate change poses an existential threat to human life’, Open Democracy
(July 15, 2015) [blog post]
‘Conscience in the Datasphere’ (2015) 6(3) Humanity 361-386
Much of the anxiety concerning privacy in contemporary
conditions of data immersion — which I here characterise as 'life in the
dataspher'’ — may be better understood by reference to the neglected notion of
conscience. This article undertakes an historical inquiry into this rich concept
to reframe the debate on privacy, law and technology. To simplify, ‘conscience’
has historically articulated an impulse either to hide from an omniscient moral
authority ('bad conscience') or to act righteously according to informed reason
(‘good conscience’). Originating as a powerful premodern governing principle
combining personal with public morality — notably in the medieval notion of
synderesis — the personal and political content of conscience were each
effectively critiqued by, respectively (in the examples I investigate here),
Freud and Hobbes. The concept itself became ultimately marginal to public life.
In this article I suggest that conscience in both guises returns forcefully
under conditions of data ubiquity, pointing to broader shift in political
settlements.
'The Rule of Law as Morality Play' (2015) 23 Finnish Yearbook of
International Law 3-44.
Since the Cold War ended, the world’s principal financial and
development institutions have focused extensive attention on ‘rule of law
assistance’ or ‘promotion’ in poor and developing countries. This body of work
generally treats law in some isolation from broader social and political
questions, presented as a technical exercise, recalibrating law in pursuit of
undisputed universal goals, such as eradicating poverty or fulfilling human
rights. In this article, I undertake a close reading of the literature of two
major rule of law funders in the field of market-building — as distinct from,
albeit related to, the state-building work also undertaken under this rubric at
the UN and elsewhere. My aim is to show how this body of work promotes a
thoroughgoing vision of a particular social and political order. Noting that the
techniques of rule-of-law promotion align poorly with fundamental principles
generally attributed to the rule of law, and that there is little or no evidence
that this vision does — or even can — achieve its stated aims, I redescribe rule
of law promotion as a kind of rhetorical intervention, a morality play concerned
with the universalisation and naturalisation of certain ideas about society,
polity and economy. In this essentially pedagogical role, rule of law promotion
can claim some modest success.
Stephen Humphreys, ‘Climate Justice: The Claim of the Past’ (2014) 5 Journal
of Human Rights and the Environment, pp.134-148 [also published in in Anna
Grear and Conor Gearty (eds) Choosing a Future: The Social and Legal Aspects
of Climate Change (Edward Elgar, 2014)]
This synthetic appraisal of the collection of papers in this issue argues that historical injustice saturates the problem of climate change. Those most vulnerable to climate change today are largely those who already lack resources – who have been on the wrong end of colonial history, or who have been globalization’s losers, or who have suffered neglect, exclusion or simple rapacity at the hands of their own governments. They are those who have benefitted little or not at all from a carbon-intensive global economy, but who have long suffered its side effects – resource stripping, food price spikes, impoverishment and now the ravages of climate change. Following the other authors in this issue – and examining human rights law, trade law and the overarching ideal of the rule of law – the paper notes that the particular form taken by law in international and transnational affairs, having largely followed the historical progress of industrialism, colonialism and globalization, is peculiarly ill-suited to the task of addressing this vulnerability.
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(with Yoriko Otomo) 'Theorising International Environmental Law' LSE Law
Society and Economy Working Paper Series, 09-2014
This paper, part of a larger work on international
law theory, sketches some early lines of inquiry towards a
theoretical understanding of international environmental law. As the
body of international law regulating human interaction with the
natural world, one might expect this branch of law to be a
cornerstone of the international system. Yet in practice,
international environmental law’s reach is strikingly circumscribed.
Little of the governance of natural resources, for example, is
‘environmental’. Subsisting at the periphery, environmental law
focuses on conserving particular (rare, exotic) species and
‘ecosystems’, and curbing certain kinds of pollution. Its principles
are vague, peppering the margins of rulings within other judicial
fora: it is quintessential soft law. In this paper, we suggest that
international environmental law’s dilemmas are due to two competing
heritages. On one hand, this law enshrines the peculiar pantheism of
the European romantic period, positing the ‘natural world’ as
sacred, inviolable, redemptive. On the other, its main antecedents
are found in colonial era practices, which provided the data for the
earliest environmental science and a laboratory for prototypical
attempts at conservation and sustainable development. Caught between
irreconcilable demands, international environmental law struggles
today to avoid utopian irrelevance or nugatory paralysis.
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'Laboratories of Statehood: Legal Intervention in Colonial Africa and Today'
Modern Law Review, (2012) 75(4). pp. 475-510.
Challenges the contention that the promotion of the rule of law
in foreign jurisdictions is "neo-imperialist". Examines the promotion of the
rule of law with reference to the history of British colonialism in Africa,
looking at the different ways that European colonial powers sought to derive
legitimacy. Argues that the promotion of the rule of law during the colonial
period can be characterised as the instigation of "laboratories of statehood".
'Structural Ambiguity: Technology Transfer in Three Regimes' in Margaret A.
Young (ed.), Regime Interaction in International Law, Cambridge
University Press (2012)
The Fantasy of Success: Climate Change as Discourse’, EUI Working Papers
Series, RSCAS 2012/67 (2012).
In this paper, I aim to think through the significance of what we might call the ‘mainstreaming’ of
climate science. In doing so, I attempt to explain the apparent paradox that, despite the increasing
success of climate change science at discursive level, the failure of that language to frame a viable
solution to the problems climate change poses appear ever starker. The inquiry draws on notions of
(Foucauldian) ‘discourse’ and (Lacanian) ‘fantasy’, which I introduce by reference to two very
different stories to have emerged recently from Norway, a poster child for climate change policy.
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'Climate Change and International Human Rights Law' in Rosemary Rayfuse and
Shirley Scott (eds), International Law in the Era of Climate Change,
Edward Elgar (2012)
'El teatro del rule of law'. Ius et Veritas, (2012) 43. pp. 358-387.
'Das Theater des Rechtsstaates' Peripherie, (2012) 125, 32. Jg (1). pp.
8-43. (2012)
'Competing Claims: Human Rights and Climate Harms', in Stephen Humphreys (ed.),
Human Rights and Climate Change, Cambridge University Press, 2009 (see
Books above)
'Conceiving Justice: Articulating Common Causes in Distinct Regimes', in Stephen
Humphreys (ed.), Human Rights and Climate Change, Cambridge University
Press, 2009 (see Books above)
'Polymorphous Sovereignty' in Charles Barbour and George Pavlich (eds.) After
Sovereignty: On the Question of Political Beginnings, Routledge (2009)
After
Sovereignty addresses the vexed question of sovereignty in contemporary
social, political, and legal theory. The emergence, and now apparent implosion,
of international capital exceeding the borders of known political entities, the
continued expansion of a potentially endless 'war on terror', the often
predicted, but still uncertain, establishment of either a new international
American Empire or a new era of International Law, the proliferation of social
and political struggles among stateless refugees, migrant workers, and partial
citizens, the resurgence of religion as a dominant source of political
identification among people all over the globe - these developments and others
have thrown into crisis the modern concept of sovereignty, and the notions of
statehood and citizenship that rest upon it.
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'The Emptiness of Empire and Other Hazards of Theory', 57 International and
Comparative Law Quarterly 225 (2008)
'Are Social Rights Compatible with the Rule of Law? A Realist Inquiry',
Hauser Global Law Working Paper 10/06 (2007).
The motivating puzzle is: why do the many programs promoting
the rule of law abroad so rarely address social and economic rights? The
approach is to critically examine a view that has been historically central to
the reception of the rule of law as a term of art and has critically shaped its
contemporary usage--according to which social rights are incompatible with the
rule of law. The paper revisits the early twentieth century American legal
realists, whose critiques largely set the terms that came to dominate notions of
the rule of law. The paper traces some later debates that recycled the realist
themes and polarized their terms, and concludes that an insistence on the rule
of law is only rhetorically, rather than substantively, hostile to social
rights. Nevertheless, the fact that social rights fall outside the ordinary
penumbra of a rule of law vocabulary exerts a powerful presumptive force over
the interventions carried out in its name.
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'Legalizing Lawlessness: On Giorgio Agamben's State of Exception', 17
European Journal of International Law 677 (2006)
This review essay examines in some detail Giorgio Agamben's
recent State of Exception, his third in a series of books that reconstruct
sovereignty using a range of interdisciplinary and critical tools. Engaging with
Agamben's text on its own terms - rather than focusing on the potential
deficiencies of an approach that eschews standard doctrinal and empirical
research - the essay seeks to distil a set of conceptual and analogical
perspectives that might help interpret the significance of the present rise of
emergency regimes. The essay concludes by exploring whether Agamben's work might
enrich legal inquiry, despite its often alien tenor, by reviewing some recent
cases in the UK and the US involving exceptional measures.
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'Nomarchy: On the Rule of Law and Authority in Giorgio Agamben and Aristotle',
19 Cambridge Review of International Affairs 331 (2006)
This article suggests that the current rise of the rule of law
as a mobilising political principle may be understood as a response to
contemporary anxiety about authority. It also argues that the recent increase in
states of emergency is complemented by an expansive legalism. First, the paper
reviews Giorgio Agamben's description of legal expansion through states of
emergency (or 'exception') dictated by a language of fear. Second, in a
philological inquiry, it accompanies the 'founding father' of the rule of law,
Aristotle, in his discussion of law's sovereignty. The core question posed by
Aristotle- regarding the inquiry into the ideal relationship between law and its
administration-remains unresolved in his Politics. Finally, the analysis is
grounded in judicial responses to states of emergency. In recent case law, the
courts both facilitate the production of emergency regimes and provide a locus
for contestation of their parameters.
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