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Act of State and the Limits of Adjudication

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This work-in-progress paper concerns ‘justiciability’, or what is ‘proper to be examined in a Court of Justice’ (to take Dr Johnson’s 1755 definition). Propriety refers to the conceptual, pragmatic, epistemic or legitimate limits of adjudication as a means of social ordering. There is a considerable lack of clarity about what these proper limits should be in a well-ordered polity. The paper focuses in particular on ‘act of state’, one longstanding basis on which a court may consider a matter ‘non-justiciable’. ‘Act of state’ doctrine, as it concerns both acts of the Crown itself, and acts of other sovereigns, is bound up with the nature of relations between branches of government, especially as they involve foreign relations and acts abroad; and with the relations between states. The paper takes recent judgments of the Supreme Court in Belhaj and Rahmatullah (2017) – dealing with the UK’s role in Iraq, Afghanistan and ‘rendition’ of suspects for secret detention – as a foil for broader arguments about justiciability, and the accommodation of the courts’ role in upholding rights.

ABOUT THE SPEAKER : Pat Capps is Professor of International Law at the University of Bristol, and has written widely on the workings of law beyond the state.

ABOUT THE SEMINAR : The seminar will proceed on the basis that participants have read the paper in advance. For a copy of the paper (available one week in advance), or to join the seminar mailing list, please contact md718.

The Legal Histories beyond the State series is an initiative of the Lauterpacht Centre for International Law, the Centre for History and Economics, and the Cambridge Centre for Political Thought. It brings together historians, political theorists and lawyers who are interested in the social, economic and political dimensions of law in the early modern and modern periods. We focus on the ways in which law and legal institutions order and organize space and people. This encompasses both imperial and international law, and domestic public and private law in its manifold influences on the nature and form of relations across borders. We are interested in legal actors and institutions, both national and supranational; doctrines and concepts, like jurisdiction; and also diverse forms of legal border-crossing, including the migration of people, ideas and objects across time and place. Embracing new trends in legal and historical research, we pursue the exchange of legal ideas in formal and informal contexts, and the creation, appropriation and interpretation of law by non-traditional actors, and in unexpected places.

Some sessions will be devoted to discussion of new, published work in the field, and others to the sharing of works-in-progress, whether draft articles, chapters or book prospectuses, with a core group of scholars from a variety of disciplines.

All are welcome.

This talk is part of the Legal Histories beyond the State series.

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