Private ordering-i.e., development of extralegal forums and forms of dispute processing by nonhierarchical groups-has preoccupied legal economists for nearly three decades. According to the prevailing analysis, private orders grow in socially-flat market communities without any intervention by the state. This article challenges the received view on two fronts: First, it establishes a causal connection between the development of private orders and a social hierarchy. Second, the article demonstrates that the state often intentionally assumes a proactive role in the creation of these orders. To illustrate this two-pronged theory of private ordering, this article offers a detailed analysis of three well-known cases that have been considered prototypes of private ordering by market communities: the Diamond Dealers Club of New York, the kibbutz in Israel, and ranch owners in Shasta County, California. Finally, the article argues for a need to re-evaluate the feasibility and desirability of private ordering and privatization of law.Thomas Hobbes (1909) argues that in the absence of government, people do not cooperate voluntarily to provide themselves with public goods. He is specifically concerned that this is the case when it comes to order-that is, security and domestic peace. To him, this concern justifies the state, which he links with the administration of law. Hobbes's view has been challenged by legal pluralists, multiculturalists, libertarians, and utilitarian legal scholars. These approaches suggest that the state does not, or should not, have a monopoly over coercive social control.I am grateful for the support of the E. David Fischman Scholarship, the John M. Olin
This article describes the practices of the United Nations High Commissioner for Refugees (UNHCR) relating to the protection of refugees’ rights to physical security and access to justice as observed by the author in the Buduburam refugee camp in Ghana (2005–2007). It argues that UNHCR worked to ‘privatize’ these rights. The article suggests that the failure of UNHCR to administer criminal law in the camp is a breach of its obligations under the International Covenant on Civil and Political Rights. Furthermore, since no political authority assumes the duty to protect refugees’ rights to physical security and access to justice, according to standard conceptions of ‘human right’, refugees have no human rights to physical security and access to justice. The article concludes that ‘human rights’ are not universal and that those who are excluded from the human rights framework are the same persons who were excluded from the citizenship rights framework.
This article is about the rights of disempowered individuals within autonomous cultural groups. For more than a decade, multiculturalism theorists have been struggling to find a suitable balance between the policies they advocate and the need to protect the vulnerable members of the groups they seek to empower. One of the most convincing and innovative solutions to emerge has been Ayelet Sachar’s model of transformative accommodations (TA). Yet, the main argument presented in this article (based on an ethnographic study) is that this model is unfeasible due to the rule of conservation of power. This claim is illustrated by two case studies: the case of the Beit Ya’acov Primary School for Girls in Emmanuel in the Israeli Occupied Territories and the case of the Buduburam refugee camp in Ghana. The article concludes by suggesting that multiculturalists have yet to produce a satisfying response to what seems to be the principal challenge to the policy they advocate.
This article describes the experience of Tel Aviv University students starting Israel's first sexual harassment hotline. The article describes the problem of sexual harassment in Israeli culture, depicts the barriers faced by the founders of the hotline, and examines the feminist theoretical underpinnings of the sexual harassment hotline within Israeli culture.
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