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University of Toronto Law Journal

Volume 68, No. 4, Fall 2018

UTLJ Online: http://bit.ly/utlj684

Articles

Counterterrorism on campus

Lucia Zedner

The threat of terrorism and risks of radicalization pervade modern life. Universities are no exception, especially as young people are vulnerable to recruitment by extremist groups. Nonetheless, the decision of the United Kingdom (UK) government to place universities and other educational institutions under the statutory ‘Prevent duty,’ requiring them ‘to have due regard to the need to prevent people from being drawn into terrorism,’ is controversial. This article examines the historical background to this novel development in the complex interplay of hard and soft power security strategies. It asks why universities in the UK have been co-opted as agents of counterterrorism and reflects on the implications of the Prevent duty for fundamental rights, not least freedom of speech and academic freedom. It concludes by considering whether this security obligation is consistent with the larger role of the university in a democratic society. Read at UTLJ Online>>> http://bit.ly/utlj684a

The migration and evolution of programs to counter violent extremism

Kent Roach

The United Kingdom’s approach to Prevent duties to counter extremism is emerging as a negative example. Its focus on extremism is different from the focus on countering violent extremism outlined in United Nations Security Council Resolution 2178. The focus on extremism has been influential in China but not in Canada or other democracies. Going forward, more attention should be paid to equality concerns especially relating to Muslim minorities. It would be premature to reject all attempts to counter violent extremism. Less of a top-down, state-driven approach and the use of independent accountability and evaluation mechanisms have the potential to make countering violent extremism programs more effective, responsive, and legitimate. Read at UTLJ Online>>> http://bit.ly/utlj684b

The law of strangers: The form and substance of other-regarding international adjudication

Sivan Shlomo Agon, Eyal Benvenisti

The ever-intensifying trends of global interdependence have created a complex reality in which decisions of sovereign states, like those of international courts, radiate far beyond their traditional confines, affecting the interests of a range of strangers (third states, individuals, corporations, and others), without being politically accountable to them. Could and should international courts narrow these accountability gaps by insisting that states take the interests of disregarded strangers into account and by opening the courts’ own doors to the strangers affected by their judgments? In this article, we analyze the judicial commitment to bridge these accountability gaps toward globally affected others by (a) ratcheting up the substantive and procedural duties that states owe to strangers affected by their national policies and (b) by facilitating the consideration and voice of affected strangers in the adjudication process itself. In analyzing these two other-regarding judicial responses, we focus on one pivotal site of global judicial governance, the World Trade Organization dispute settlement system (WTO DSS). Based on a close analysis of the rich WTO jurisprudence, the article shows that since its inception in 1995, other-regarding considerations have played a significant role in the WTO DSS operation. This WTO’s adjudicative philosophy of regard for others, the article argues, demonstrates an evolving judicial sensitivity to the challenges of accountability and voice generated by globalization at the national and international levels. Read at UTLJ Online>>> http://bit.ly/utlj684c

The architectural metaphor and the decline of political conventions in the Supreme Court of Canada’s Senate Reform Reference

Christa Scholtz

In 2014, the Supreme Court of Canada rejected the federal government’s Senate reform agenda. This article focuses on the Court’s response to the government’s proposal for consultative (non-binding) elections, which would have had the prime minister consider recommending an electorate’s preferred candidate for nomination by the governor general. The Court rejected the government’s argument that the proposal was consistent with the legally unenforceable parliamentary conventions of responsible government. The Court characterized the proposal as a break in Canada’s ‘constitutional architecture.’ I ask: how is it that Canada’s constitutional architecture has become unconventional? My answer lies in the Court’s theorization of what the Constitution is and how it may be amended. I trace a shift in the Court’s metaphorical reasoning, from the 1981 Patriation Reference’s Constitution as dynamic machine where conventions are its ‘operative force’ to the 1998 Secession and 2014 Senate Reform References, where a static and aesthetically coherent Constitution as architecture emerges. I argue that, in its architectural understanding, the Court understates the role of conventions in constitutional amendment and finally casts conventions as the saboteurs of a unified constitutional design. Read at UTLJ Online>>> http://bit.ly/utlj684d

Review Essay

Politeia’s place in our practical life: Pierre Bourdieu on the modern state

Richard Mullender

Pierre Bourdieu’s account of the modern state’s emergence has affinities with the analyses of legal systems offered by Herbert Hart and Hans Kelsen. Bourdieu, Hart, and Kelsen each describe normative spaces within which practical life unfolds. While Bourdieu’s account of the state as ‘a space of spaces’ is less systematic than the analyses of Hart and Kelsen, he augments their contributions in important ways. He conveys a more definite sense of the texture of lived experience within the space he describes than either Hart or Kelsen on the modern state. Bourdieu’s analysis also affords a basis on which to draw out the significance of institutions that rarely feature in jurisprudential works on the state or legal systems. This article illustrates this point by reference to the public inquiry. It also finds at work within On the State an ideal that gives expression to an egalitarian philosophy of government. This is the ideal of politeia, which, on the view offered here, identifies legal, political, and economic institutions and practices as constituents of ‘community.’ Read at UTLJ Online>>> http://bit.ly/utlj684e

Founded in 1935, UTLJ is the oldest university law journal in Canada. UTLJ publishes the work of internationally known scholars, not only in law but also in a broad range of disciplines relating to law, such as economics, political science, philosophy, sociology, and history. UTLJ is available in print and online.

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