The reconstructive theory of the procedural legitimacy of modern law developed on the basis of the theory of discourse ethics has limited itself solely to the deontological, moral‐normative aspects of the validity claims of legal norms and judgments. However, teleological and axiological aspects are also intertwined with legal validity claims and with the procedures in which legal norms and judgments are produced. The discursive‐procedural concept of legitimacy seems to require as its support, instead of the theory of discourse ethics, a (...) general theory of practical discourses or, more generally, of rational collective will‐formation. (shrink)

SUMMARYThe aim of this article is to analyse the complex roots of Carl Schmitt's theory on dictatorship in the classical world through the lens of classical receptions. It argues that Schmitt was deeply engaged with the classical tradition in formulating his theory on dictatorship. Knowingly or unknowingly, Schmitt legitimates his theory through a foundation in both the Roman idealisation of the virtuous dictators of the early Republic as well as the long tradition of the narrative of the enlightened sovereign as (...) a guarantor of law, present in both Greek and Roman antiquity and in the subsequent European tradition. Schmitt skilfully repurposed the Roman historical tradition on dictators but glossed over the traditional antipathy of Roman republicanism towards sovereign rule. The claim that this article is presenting is that even though it has been overlooked by earlier scholars, Schmitt was both directly and indirectly influenced by the classical tradition of dictatorship and utilised their mythical and symbolic dimensions in the later Roman and the subsequent European legal and political traditions. The reason for this omission was that Schmitt, like his contemporaries, belonged to one of the last generations to be groomed in the classical tradition of literature. (shrink)

In this era of globalisation, different legal systems and structures no longer operate within their own jurisdictions. The effects of decisions, policies and political developments are having an increasingly wide-reaching impact. Nowhere is this more keenly felt than in the sphere of European Union law. This collection of essays contributes to the co-operative search for interpretative and normative grids needed in charting the contemporary legal landscape. Written by leading lawyers and legal philosophers, they examine the effects of law's de-nationalisation by (...) placing European law in the context of transnational law and demonstrate how it forces us to rethink our basic legal concepts and propose an approach to transnational law beyond the dichotomy of national and international law. (shrink)

Properties of Law is a legal-theoretical analysis about modern state law; about sociality, normativity and plurality as its properties, and what will come after modern state law. The main objective of this study is to offer a legal theoretical recapitulation of modern state law that avoids the fallacies of Legal Positivism. This calls for a relationist approach where law's sociality is related to normativity, and normativity to sociality. Avoiding Legal Positivism's fallacies also includes refraining from extrapolating from modern state law (...) to law in general; replacing Legal Positivism's conceptual universalism with sensitivity to the varieties of law, and acknowledging that law existed before modern state law, that it will exist after modern state law, and that other law exists alongside modern state law. The book concludes with a discussion of the impact of digitalization on law. (shrink)

This concluding article draws together some of the connecting strands between the preceding four articles, seeking to outline a number of fundamental issues common to them all and ultimately the legal concept of universality in general. I argue that there is a fundamental Eurocentrism present that has a number of implications, ranging from the hierarchical worldview and its ingrained evolutionary basis to the notion of communities beyond the nation state which would in the guise of benevolence impose and dictate both (...) law and values with an universal reach and finally, an idea that legal concepts were in an by themselves universal. What these had in common was that they were based on an understanding of humanity as universal, a certain concept of concept as universal and, finally, resorting to a very particular concept of universal rights. However, despite the manifold claims of universality, the practical application and interpretation of these rights was exceedingly limited to a certain group and a certain time and a place. (shrink)