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Waibel M: Substantive Protections in
International Investment Law

Substantive Protections in International Investment Law

Analysis, Cases and Commentary

Law as a Human Science argues for the reintroduction of crucial aspects of the humanist tradition in legal thinking.

Law as a Human Science argues for the reintroduction of crucial aspects of the humanist tradition in legal thinking.

Law as a Human Science

Human Rights Law in Perspective

This book conceptualises the European Court of Human Rights' judgments on Islamic dress as manifestations of the fascist impulse in modern human rights law. The author argues that human rights are thus not an antidote to fascism but are constituted through a fascist inflection and implicated in circulating fascism in the everyday. The inability of human rights to say 'no' to laws regulating and criminalising Islamic dress in Europe engenders an institutional Islamophobia in the law and Islamic dress debate in Europe. The author interrogates the historical emergence of human rights, through a methodology of interdisciplinary, theoretical oscillations between feminism, decolonial, phenomenological and neo-Marxist thought to establish the rights/fascism dialectic. She argues that beyond exclusion and erasure the ownership of rights discourse enables the exploitation of racialised and gendered bodies for the maintenance of material and epistemological privilege with a white, Christian, male norm. It is this moment of ownership, where rights are both propertied and property, that constitutes the rights/fascism dialectic. The author goes on to argue that the rights/fascism dialectic operates at the heart of the Islamic dress debate in Europe to create the impossibility and instrumentalisation of Muslim women's bodies in European public space. The book challenges shifting legal justifications by exposing the functioning of capital, colonialism, patriarchy and power at the European Court of Human Rights in key cases such as Sahin v Turkey and SAS v France. Theoretical insights of the rights/fascism dialectic are applied to the law and Islamic dress debate in the multicultural UK, assimilationist France and at the ECtHR. The conclusion is that the Islamic dress debate in Europe manifests the gender and racial differentiation and instrumentalisation that is essential to the maintenance of human rights and the modern, capitalist state in which rights are enmeshed.

This book conceptualises European Court of Human Rights’ judgments on Islamic dress as manifestations of the fascist impulse in modern human rights law. The author argues that human rights are thus not an antidote to fascism but are constituted through a fascist inflection and implicated in circulating fascism in the everyday. The inability of human rights to say ‘no’ to laws regulating and criminalising Islamic dress in Europe engenders an institutional Islamophobia in the law and Islamic dress debate in Europe.

The author interrogates the historical emergence of human rights, through a methodology of interdisciplinary, theoretical oscillations between feminism, decolonial, phenomenological and neo-Marxist thought to establish the rights/fascism dialectic. She argues that beyond exclusion and erasure the ownership of rights discourse enables the exploitation of racialised and gendered bodies for the maintenance of material and epistemological privilege with a white, Christian, male norm. It is this moment of ownership, where rights are both propertied and property, that constitutes the rights/fascism dialectic. The author goes on to argue that the rights/fascism dialectic operates at the heart of the Islamic dress debate in Europe to create the impossibility and instrumentalisation of Muslim women’s bodies in European public space.

The book challenges shifting legal justifications by exposing the functioning of capital, colonialism, patriarchy and power at the European Court of Human Rights in key cases such as Sahin v Turkey and SAS v France. Theoretical insights of the rights/fascism dialectic are applied to the law and Islamic dress debate in the multicultural UK, assimilationist France and at the ECtHR. The conclusion is that the Islamic dress debate in Europe manifests the gender and racial differentiation and instrumentalisation that is essential to the maintenance of human rights and the modern, capitalist state in which rights are enmeshed.

Rights and Fascism in Europe

Law and Islamic Dress

Róisín Á Costello provides a critical analysis of the ways in which law is portrayed in Irish literature and argues that authors from Ireland (writing in both Irish and English) have consistently used literature as a mechanism to challenge and critique institutional power. In doing so, she argues that Irish literature, and the narratives it has created about law, have been used to re-assert and recomplicate Irish identities at sites of conflict and to interrogate the legitimacy of power and how it is exercised. Drawing on a range of texts including novels, poetry, plays, song and satire, Costello illustrates that Irish literature has acted as a decolonial and intersectional force in critiquing the institution of law and constructing national, linguistic and political identities in Ireland. She traces a pattern in which Irish authors consistently used literature as a lens for legal analysis in Ireland, using their work to address fundamental concerns about the legitimacy of law, the role of doubt in legal proceedings, the need for popular accountability, and the marginalisation of minority groups an identities by formal institutions and system.

Critical Approaches to Institutions, Power and Identity

Law in Irish Literature

Before the Cradle to Beyond the Grave

Technology, Health, and Law in Life and Death

Sharing economy promised a way of using property for the mutual benefit of owners and consumers, but in the last decade it has only worked to profit large commercial platforms. This book shows how institutions of risk management are part of this problem and offers a solution: collaborative risk structures. The book uncovers risk as the missing element in accounts of property theory and sharing economy. Drawing on diverse insights from economic theory and legal studies, it explains how property and private law form a risk management infrastructure which reinforces private property, and examines the paralysing effects this has on sharing, by constraining it to extractive market relations and stifling its collaborative potential. The book argues that overcoming these constraints is key to realising collaborative property and curbing the drawbacks of private ownership. It proposes institutional design principles and offers heuristic solutions such as radical uses of private law tools and insurance mechanisms to build a collaborative risk system capable of supporting more equitable and diversified forms of sharing.

Risk in the Sharing Economy

Foundations, Flaws, and Futures

Fundamental Rights for Non-Humans

Discourses of Law

Introduction to the Work of Pierre Legendre

This book offers an analysis of how the European Court of Human Rights engages with identity and emotion, revealing both the promise and the limitations of human rights law in addressing the complexities of human experience. The book explores how human rights law, often framed as universal and abstract, responds to deeply personal questions of identity, belonging, and emotional impact. Based on a systematic study of over 3,300 judgments, the book shows how the European Court of Human Rights has increasingly made identity central to its reasoning - particularly in cases involving sexuality, ethnicity, and family life. In these areas, the Court acknowledges how state actions shape emotions such as fear, humiliation, and dignity. Yet, in other domains - migration, religion, professional life - the Court avoids emotional engagement, leading to troubling inconsistencies. The book argues that when emotions are excluded from legal reasoning, individuals are reduced to formal entities, stripped of depth and interiority. Combining doctrinal analysis with insights from social theory and psychology, the book presents a new framework for understanding how emotions and identity interact with law. It traces the evolution of identity references across categories and highlights the Court's uneven treatment of emotional harm. This timely and original contribution speaks to legal scholars, practitioners, and theorists interested in human rights, identity politics, and the emotional dimensions of law. It calls for a more responsive and empathetic human rights jurisprudence - one that reflects the lived realities of those it seeks to protect.

A Sentimentalist Analysis of Human Rights

Identity and Emotions at the European Court of Human Rights

Anthropology, Law, and Political Morals

Some Versions of Legalism

This book discusses the 'theory of dematerialised property', a constructivist property theory that applies to tangible and intangible property alike. It explains the way in which this theory regards 'property' as a creation of the law, whereby the property object (res) is a normative conception brought into existence by the property rights in it, and an actual corporeal thing is merely a practical incidence of the abstract-normative idea of the property object. The discussion of dematerialised property is founded on a theoretical examination of definitions, terminologies and concepts of property, particularly ownership and possession, and restricted real rights, as well as a comparative law overview of concepts of ownership and the acquisition and transfer of property rights in the different Common law and Civil law property systems. The concept of dematerialised property serves as a good theoretical basis for explaining and defining forms of tangible and particularly intangible property, like debts, money and shares, and modern forms of property, such as electronic money, non-fungible tokens or data. The book also features the ideas of property theorists in law and in political philosophy, such as the classical theories by Grotius, Pufendorf, Locke and Hegel, and it revisits modern legal theories of property. It then deals with economic, sociological and psychological dimensions of property which are behind the legal concept of property, aspects that are generally disregarded in traditional texts on property theory.

Theories about the Nature and Concept of Property

The Laws of Property

The lack of a social scientific foundation across the field of negligence means that social life and scientific knowledge are transformed and mutated by a negligence paradigm that is unable to fulfil the social purposes typically attributed to it. Analysing the extent to which the reparation ideal has polluted and confused attempts to find radical alternatives to negligence, this book argues for a critical separation between the issue of harm minimisation and reparation; a separation that, it is argued, provides the basis for a different policy approach to the human experience of injury, error and misfortune.

Beyond the Negligence Paradigm offers a novel engagement with key problems and failings which have long been identified with the operation of the negligence system. Connecting a broad range of critical approaches in private legal theory that laments the disconnection between negligence and the 'real world', the author analyses the various obstacles – including the very nature of law and scientific knowledge – which make inevitable a difficult and incomplete intersection. Illustrating how a stronger appreciation of the nature of science helps to achieve a better appreciation of law, in particular underpinning the importance of exploring non-legal approaches, the author seeks to provide a fresh vantage point from which policy-makers and socio-legal scholars can identify new and more honest strategies for addressing and managing the incidence of error, accidents and injury. Recommending a de-centring of negligence-style thinking, the work argues in favour of a more open-ended inquiry about the mechanics of social life and our ignorance of it.

Developing a Regulatory Ergonomic Approach to Error and Injury

Beyond the Negligence Paradigm

Substantive Protections in International Investment Law

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