The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further (...) constitutive rules, in addition to the rule of recognition as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule. (shrink)

There are multiple and diverse voices of jurists who have expressed their fear of the unrestricted power of law enforcement and have announced the crisis of the formalist sense of Law. The widespread reaction against the abstract and formalist character of the positivist theory of law manifested itself as the Krausist philosophy of law and was backed by the philosophy of Krause, Schelling, Hegel and the most recent Natural Law theories that seek to establish substantial criteria for moral action. This (...) distrust was caused by the heteronomy of modest and obedient civil servants of the judicial order that rely on political balance of power in which nothing depends on the human bottom of institutions. Let us consider briefly the impressive analyses performed by different thinkers on this issue, which they considered characteristic of their era, but that continues to constitute a difficulty that challenges contemporary society. (shrink)

There are multiple and diverse voices of jurists who have expressed their fear of the unrestricted power of law enforcement and have announced the crisis of the formalist sense of Law. The widespread reaction against the abstract and formalist character of the positivist theory of law manifested itself as the Krausist philosophy of law and was backed by the philosophy of Krause, Schelling, Hegel and the most recent Natural Law theories that seek to establish substantial criteria for moral action. This (...) distrust was caused by the heteronomy of modest and obedient civil servants of the judicial order that rely on political balance of power in which nothing depends on the human bottom of institutions. Let us consider briefly the impressive analyses performed by different thinkers on this issue, which they considered characteristic of their era, but that continues to constitute a difficulty that challenges contemporary society. (shrink)

Introduction -- Australia : 1788-2001 -- Kelsen : authorised constitutional change -- Application of Kelsen's account -- Raz : continuity of social form -- Application of Raz's account.

This article uses Ernst Fraenkel’s dual-state framework as an analytical tool to study those conflicting imperatives and constitutional tensions with a focus on the power to detain. This article makes the argument that China has emerged as a dual state with a normal state that functions increasingly with a rule-based government in inter-personal matters and a prerogative state that solidifies control in areas that are regarded as political sensitive. Overall, while the equilibrium between the normative and prerogative states has (...) been evolving in China, it has remained stable. The Party has been able to build a relatively self-defined and self-referencing legal system to provide the certainty and order that the Chinese political economy demands while maintaining a zone of exception, expansive and continuing to evolve, for the prerogative state to safeguard authoritarian rule. (shrink)

The aim of this research paper is to examine Latin in the context of legal translation between the Polish, English and French languages. Latin ap- pears in contemporary legal discourse in the form of maxims, short phrases and terms. Even though it constitutes an integral element of legal drafting, Latin often attracts little attention from legal translators. It is falsely assumed that Latin elements of the text do not require translation due to several miscon- ceptions related (...) to the Latin language. Firstly, Latin is generally perceived as a global language with no local variations in form. Secondly, Latin is believed to be the universal point of reference in international communication. Thirdly, Latin legal phrases or maxims are thought to originate solely from Roman law, thus they express only Roman legal thought. In the first part of the paper we will address the above issues. To this end, we will briefly discuss the historical presence of Latin in the European lin- guistic context. We will then present the results of our research into the use of Latinisms in the Polish, French and English legal systems. The subject of our research was a set of twenty Latin maxims and phrases that frequently appear in the decisions of the Polish courts. During the first stage of the analysis, the items in question were verified in Legalis. The second stage of the research involved the consultation of monolingual dictionaries of French and English legal language to verify the universal charac- ter of the analyzed Latinisms. During the third stage of the analysis, we looked at the practical use of Latinisms in online databases of legal texts. The paper concludes with some comments on Latinisms in lexicographical publications and online sources. (shrink)

In a new book-length treatment, Tara Smith, who has written extensively on the intersections of Objectivist philosophy and law, explains how judicial review, a feature of non-Objectivist jurisprudence, should function in a truly Objectivist legal system. Divided into two halves, Judicial Review in an Objective Legal System first sets forth what Objectivism is and how Objectivists understand law. Of particular importance in this regard, Smith stresses, is the written constitution, which Smith, following the logical premises of (...) Objectivism, calls “bedrock legal authority.” In the second half of the book, Smith moves to narrower considerations of judicial review proper. Smith’s first task in those sections is to critique the “failures” of “the reigning accounts” to understand judicial review. After dispensing with the various mistaken versions of judicial review as she sees them, Smith defines Objectivist judicial review before providing a handful of examples of how such a process might work in “contemporary conditions.”. (shrink)

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts (...) and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies. (shrink)

While analysing constitutions of various countries in the legal literature, usually not only the form and the content but also the structure of the constitution is discussed. The structure of the constitution is an internal organisational order of the norms of the constitution. Although every state has a unique structure of their constitution, however, certain regularities can be discerned. The analysis of the structure of various constitutions leads to a conclusion that normally each constitution consists of the following standard (...) structural parts: the preamble, the main part, the final, transitional or additional provisions, in some constitutions there can also be annexes. The article ascertains that most of the constitutions begin with the introductory part, the preamble. Only the constitutions of several countries (e.g. Norway, the Netherlands, Belgium, Italy, Greece) contain no preamble. After analysing the preambles of the Lithuanian Constitutions adopted in 1918-1940, the Lithuanian Constitution of 1992, the Constitution of the United States of America of 1787, the Constitution of Federal Republic of Germany of 1949, and the constitutions of several Central and Eastern European countries (the Constitution of the Republic of Estonia of 1992, the Constitution of Czech Republic of 1992 and the Constitution of the Republic of Poland of 1997) it is stated that a preamble is considered as an inseparable part of an official text of a constitution. The preamble reflects the historical context and the circumstances of the adoption of a constitution, names the goals of the constitutional regulation, fortifies the values to be attained, declares the key political principles or even the fundamental human rights and freedoms, etc. Often the preamble reveals the methods of adoption of a constitution. The preamble is an important structural part of the constitution that helps to understand the established constitutional regulation. The principles enshrined in it can be considered as significant argument for the constitutional justice institutions while solving the case of whether the law or any other legal act in question contradicts with the constitution. While interpreting and applying the constitution as a single act, its separate sections, clauses or certain provisions it is necessary to take the content of the preamble into account, since no text of the constitution shall be interpreted in a way to contradict the statements of the preamble and its spirit. The preamble is not only a category of a political, ideological or philosophical nature, it undoubtedly has the legal burden, therefore it is considered to have legal validity. Constitutions usually do not contain any particular preamble amendment procedures. The preambles are characterised to have the so-called higher style; they are usually formulated not in compliance with the requirements of legal technique. Therefore, they differ from other constitutional provisions that are usually set out in official writing style according to certain rules of legal technique. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and (...) custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and (...) custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

The article focuses on the problem of constitutional symbolism in functionally differentiated societies and its relevance to legal, political, and moral systems. The first part analyses differences between the three systems and their constitutional context. The second part concentrates on the moral symbolic function of modern constitutions and its temporal dimension. It shows that the “good/bad” moral code of constitutions draws on expressive symbolism and transforms it into evaluative symbolism and dogma of morality. The final part analyses (...) the prospective character of modern constitution‐making and its symbolic selectivity regarding the past. The paper concludes by emphasising the systemic pluralisation effect of constitution‐making and the impossibility of constituting systems of “pure” law, morality, and politics. (shrink)

This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution. The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on "weak judicial review". Although different in their approach, the (...) chapters all focus on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their "deliberative performance" or to create constitutional juries that may be more aware of a community's constitutional morality than constitutional courts are. The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review. (shrink)

An influential strand in recent action-theory employs constitutivist arguments in order to present accounts of individual agency and practical identity. I argue for an extension of this framework into the interpersonal realm, and suggest using it to reassess issues in jurisprudence. A legal system is an instantiation of the solution to the inescapable tasks of self-constituting action and identity-formation in the presence of other agents. Law's validity and normativity can be enlightened when the constitutivist approach considers the external (...) prerequisites of individuals' self-conceptions qua agents. More specifically, this argumentative strategy allows a reassessment of Fuller's “internal morality of law.” Whereas, pace Fuller, morally substantive conclusions cannot be derived from formal criteria of legality, there are unconditional normative requirements that constrain law. (shrink)

A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. The failure to recognize system effects leads to fallacies of division and composition, in which the analyst mistakenly assumes that what is true of the aggregate must also be true of the members, or that what is true of the members must also be true of the aggregate. Examples are (1) the fallacious assumption that if the overall (...) constitutional order is to be democratic, each of its component institutions must be democratic, taken one by one; (2) the fallacious assumption that if judges are politically biased, courts will issue politically biased rulings. In these cases and many others I will discuss, system effects are an indispensable analytic tool for legal theory. A systemic approach implies that the choices of legal actors are strategically interdependent: the best course of action for any given actor will depend upon what other actors do. Judges deciding how to interpret statutes and the constitution, for example, cannot simply assume, idealistically, that it would be best for them to adopt the approach that would be best for all if adopted by all. If others do not adopt that approach, then the nature of the best approach for the given judge may itself change, taking others' actions as nonideal constraints. The implication is a second-best approach to constitutionalism and legal interpretation.The judge who takes system effects into account may change her approach in light of the behavior of her colleagues and the behavior of other institutions. Although such a judge is strategic, it does not follow that she is unprincipled. Rather, under identifiable conditions, the systemically-minded judge will be a strategic legalist who attempts to act, within the constraints that arise from others' behavior, so as to nudge the legal system toward the best possible state, according to her view of the law. Indeed, the systemically-minded judge may even be a legal chameleon who changes her approach as the legal environment, including the behavior of other judges, changes around her, until the court as a whole reaches an equilibrium of optimal diversity. Although such a course of action is psychologically demanding, the systemic benefits that the legal chameleon creates can be attained at the systemic level instead. Wise appointments by Presidents and Senators aiming to diversify the judiciary would mimic, in a second-best way, the diversity that a bench of legal chameleons would produce"--John M. Olin Center for Law, Economics, and Business web site. (shrink)

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of ``methodological'' or ``conceptual'' positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law represents (...) a point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the ``neutrality thesis'' in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism. (shrink)

The Constitution is considered as an informal axiomatic system. The strategy proposed by the authors rests on the following propositions: axioms are considered as contextual definitions of those concepts by means of which they are formulated; and the main requirement for this type of system is internal consistency. The first proposition is necessary for considering the Constitution as an informal axiomatic system, while the second is sufficient, because the approach proposed, apart from consistency, must certainly consider the (...) requirements for formal axiomatic systems, such as independence and completeness. The authors argue that the Constitution can be compared to axiomatic constructions in modern science in the sense that is given in the research on the logic and methodology of deductive sciences. This analogy is appropriate to the extent to which constitutional provisions are interpreted as the basic elements of the legal system, just as in the formal sciences axioms are regarded as basic principles that define the main features of the formal system. This means that the Constitution itself is seen as coherent, consistent discourse that contextually defines the meaning of the basic terms of the legal system. (shrink)

Este artículo presenta a Weber y Habermas como los umbrales o polos de una modernidad que tiene al progreso como horizonte teórico-práctico. El diagnóstico weberiano sobre la modernidad y su proceso de desencantamiento del mundo y la injustificada reducción de la actividad racional a una actividad utilitario-estratégica desprovista de su carácter veritativo y de su orientación valórica, Habermas la utiliza para justificar su propuesta teórico-crítica respecto a la modernidad y la "paradoja de la racionalización", distinguiendo "sistema" y "mundo vital". Aquí (...) "desencantamiento del mundo" y "consenso del proyecto de lamodernidad", se encuentranThis article presents Weber and Habermas like the thresholds or poles of a modernity that has to the progress as theoretical- practical horizon. The diagnosis weberiano on the modernity and his process of disenchantment of the world and the unjustified reduction of the rational activity to a utilitarian-strategic activity devoid of his character of truth, Habermas uses to justify his theoretical-critical offerwith regard to themodernity and the "paradox of the rationalization", distinguishing "system" and "vital world". Here "disenchantment of the world" and "consensus of the project of the modernity", they are. (shrink)

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of “methodological” or “conceptual” positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law represents (...) a point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the “neutrality thesis” in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism. (shrink)

RESUMEN La construcción de las repúblicas iberoamericanas, si bien no contaba con un programa definido, tenía una pretensión de sistematicidad expresada en cada una de las Constituciones de los nuevos Estados. Esta pretensión, además de buscar un orden interno, también establecía un vínculo con las teorias politicas modernas que durante siglos se habían desarrollado en Europa. Se investiga este lazo tendido entre el Viejo y el Nuevo Continente, a través de la clave interpretativa de la idea de sistema, para explicar (...) y comprender los proyectos jurídico-políticos elaborados en América y sus posibles consecuencias en la vida de los pueblos. ABSTRACT Although there was no defined program for the construction of the Ibero-American republics, there was an aspiration to systematicity, expressed in the Constitutions of all the new States. Besides seeking domestic order, this aspiration also established a connection with the modern political theories developed in Europe for centuries. The article inquires into this link between the Old Continent and the New World, using the idea of system as an interpretive tool to explain and understand the legal-political projects designed in the Americas, as well as their possible consequences on the life of the people. (shrink)

This article reinterprets the Kelsen-Schmitt debate in the context of social systems theory and rethinks its major concepts as part of legal and political self-reference and systemic differentiation. In Kelsen?s case, it is the exclusion of sovereignty from juridical logic that opens a way to the self-reference of positive law. Similarly, Schmitt constructed his concept of the political as a self-referential system of political operations protected from the social environment by the medium of power. The author argues that (...) the process of legal and political globalisation rules out the possibility of formulating substantive theories of the state associating this particular social organisation with metaphysical values and a self-validating collective identity. Kelsen and Schmitt continue to inspire current theories of non-metaphysical globalised law and politics. However, the constitutional state and sovereignty need to be reformulated as a meeting point of functionally differentiated and globalised legal and political communications and not as their ultimate end. (shrink)

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial (...) intelligence (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate. (shrink)

This is a study of what constituted legality and the role of law in ancient societies. Investigating and comparing legal codes and legal thinking of the ancient societies of Mesopotamia, Egypt, Greece, India, the Roman Republic, the Roman Empire and of the ancient Rabbis, this volume examines how people used law to create stable societies. Starting with Hammurabi's Code, this volume also analyzes the law of the pharaohs and the codes of the ancient rabbis and of the Roman (...) Emperor Justinian. Focusing on the key concepts of justice equity and humaneness, the status of women and slaves, and the idea of criminality and of war and peace; no other book attempts to examine such diverse legal systems and legal thinking from the ancient world. (shrink)

This book provides insights into the viability of the idea of global constitution. Global constitutionalism has emerged as an alternative paradigm for international law. However, in view of the complex and varied structure of contemporary constitutionalism, in reality it is extremely difficult to use constitutional law to provide a new paradigm for international law. The book argues that the cultural paradigm can offer functional tools for the global constitutionalism discourse. In other words, global constitutionalism could be handled in the (...) context of a global "constitutional culture" instead of a global constitution. This would provide a more realistic basis for discussing global constitutionalization of a society as diverse as the international community, where a globalized polity and a globalized legal system have not yet been achieved. (shrink)

This book investigates law's interaction with practical reasons. What difference can legal requirements—e.g. traffic rules, tax laws, or work safety regulations—make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. -/- At the outset, (...) two competing positions are pitted against each other: Joseph Raz's view that (legitimate) legal authorities have pre-emptive force, namely that they give reasons for action that exclude some other reasons; and an antithesis, according to which law-making institutions (even those that meet prerequisites of legitimacy) can at most provide us with reasons that compete in weight with opposing reasons for action. These two positions are examined from several perspectives, such as justified disobedience cases, law's conduct-guiding function in contexts of bounded rationality, and the phenomenology associated with authority. -/- It is found that, although each of the above positions offers insight into the conundrum at hand, both suffer from significant flaws. These observations form the basis on which an alternative position is put forward and defended. According to this position, the existence of a reasonably just and well-functioning legal system constitutes a reason that fits neither into a model of ordinary reasons for action nor into a pre-emptive paradigm—it constitutes a reason to adopt an (overridable) disposition that inclines its possessor towards compliance with the system's requirements. (shrink)

I shall compare two views of legal concepts: as nodes in inferential nets and as categories in an ontology (a conceptual architecture). Firstly, I shall introduce the inferential approach, consider its implications, and distinguish the mere possession of an inferentially defined concept from the belief in the concept’s applicability, which also involves the acceptance of the concept’s constitutive inferences. For making this distinction, the inferential and eliminative analysis of legal concepts proposed by Alf Ross will be connected to (...) the views on theoretical concepts in science advanced by Frank Ramsey and Rudolf Carnap. Consequently, the mere comprehension of a legal concept will be distinguished from the application of the concept to a particular legal system, since application presupposes a doctrinal commitment, namely, the belief that the inferences constituting the concept hold in that system. Then, I shall consider how concepts can be characterised by defining the corresponding terms and placing them within an ontology. Finally, I shall argue that there is a tension between the inferential and the ontological approach, but that both need to be taken into account, to capture the meaning and the cognitive function of legal concepts. (shrink)

The Constitution of Independence is a contribution to the newly rejuvenated subject of comparative Commonwealth constitutional law, politics, and history. In Australia, Canada, and New Zealand, a series of fascinating developments have been under way for more than a decade, characterized by independent thinking, experimentation, and cross-Commonwealth borrowing of constitutional ideas. These include the final termination of constitutional ties with the United Kingdom Parliament and the emergence of controversial issues including variably entrenched or implied rights and freedoms; (...) wide-ranging claims by indigenous peoples; republicanism; and assertions of national, popular, and sectional sovereignty.This book explores the development of constitutional thinking in Australia, Canada, and New Zealand from early domination by Imperial ideas, through the adoption of the Statute of Westminster and the contemplation of severing Imperial connections, to irreversible acquisition of constitutional independence in the 1980s. This book focusses primarily on sovereignty and the legal system, concepts which are also central to contemporary constitutional theory in Europe and the United States. The book closes with an evaluation of recent varied and often contradictory accounts of the constitutional foundations of Australia, Canada, and New Zealand, which depict a wide range of scenarios: from constitutional continuity and respect for the rule of law, to popular sovereignty and disguised revolution. Oliver argues that explanations of constitutional independence are characterized by their reliance on independent, country-specific constitutional thinking that evolved over the last century. on. (shrink)

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and (...) to elaborate the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism. (shrink)

Appearing in the “Cairo Declaration on Human Rights in Islam” as an undefined referent for the limits on freedom of expression in Islam, Shariah is still to be chased as an indefinable referent which restricts freedom of the expression in the Islamic Republic of Iran. Iran’s Press Law as well as Constitution unveil Shariah’s referent to be a person: the Jurist-Ruler around whom a cult of personality is legalized in terms of “Imamate” and around whom all the limits on freedom (...) of expression revolve. Interpretation of Shariah is not a solution but part of the problem in Iran. Such problem can be dealt in terms of three modes of self-expression which were invented by the Iranian Reformists to avoid self-censorship. The notion of master-signifier can be the key to unraveling the problem of self-referentiality in freedom of expression and its Reformist solution in Iran’s legal system. (shrink)

Examining legal ethics within the framework of modern practice, this book identifies two important ethical issues that all lawyers confront: the difference between the role of lawyers and the role of judges in pursuing justice, and the conflicting responsibilities lawyers have to their clients and to the legal system more broadly. In addressing these issues, Legal Ethics provides an explanation of the duties and dilemmas common to practicing lawyers in modern legal systems throughout the world. (...) The authors focus their analysis on lawyers in independent practice in modern capitalist constitutional regimes, including the United States, Japan, Europe, and Latin America, as well as the emerging legal systems in China and the former Soviet bloc, to develop connections between the legal profession and political systems based on the rule of law. They find that although ethical tension is inherent in the legal practice of all these societies, the legal profession is essential to stable political institutions. (shrink)

In the following paper sources of a constitution are put in question in general, and more specifically, the constitutional culture of the European Union Law is being investigated in-depth with regard to principles of deliberative democracy and rulings of the Court of Justice of the European Union. The change of a law application paradigm as well as the change of a legal systems’ nature are taken into account.

Resumo O autor defende uma descrição normativa fraca do constitucionalismo internacional à luz de dois factos: a contínua relevância da soberania do Estado face à hegemonia de superpotências e a necessidade imperiosa de um regime supranacional eficaz de direitos humanos. Ao defender uma institucionalização constitucional de direitos humanos, que inclui aspectos de justiça processual e material, mostra-se que, como nos casos domésticos, tal institucionalização pode e, talvez deva, incorporar um procedimento de controlo judicial que ascende ao nível de controlo constitucional. (...) De facto, o parecer do Tribunal Europeu de Justiça no caso Kadi estabeleceu um possível precedente para o controlo do Conselho de Segurança no sentido do cumprimento dos direitos humanos e outras normas peremptórias. Dada a necessidade de perícia técnico legal para a elaboração de tal controlo, um caso prima facie pode ser feito para o estabelecimento de um Tribunal Constitucional especializado ao nível internacional. Contudo, dado o impacto desempenhado pelo poder político na resolução técnica da adjudicação de casos específicos e concretos, dentro de um sistema jurídico altamente fragmentado, e dado o facto de que o controlo constitucional também toca questões mais abstractas e menos técnicos de justiça social, o autor recomenda, que a função de controlo constitucional seja disseminada por várias instituições globais, incluindo a actual Assembleia Geral das Nações Unidas e na esfera pública global. O controlo constitucional pluricêntrico, bem como a institucionalização dos direitos humanos decorre do desacordo multicultural existente acerca do significado desses direitos e da ameaça da hegemonia de superpotências sobre as instituições globais. Assim antecipa-se também a realização de uma constitucionalização mais monista no Direito Internacional com o crescimento da solidariedade global entre os povos. Palavras-chave : Constitucionalização, Controlo Constitucional, Direitos Humanos, Habermas, Nações Unidades, Pluralismo LegalI defend a weakly normative description of international constitutionalism in light of two facts: the continued salience of state sovereignty in the face of superpower hegemony and the overriding need for an effective supranational human rights regime. In arguing for a constitutional institutionalization of human rights that includes aspects of procedural and substantive justice, I show that, as in the domestic case, such an institutionalization could and perhaps should incorporate a procedure for judicial review ascending to the level of constitutional review. In fact, the European Court of Justice’s review of the Kadi case establishes a possible precedent for reviewing Security Council compliance with human rights and other peremptory norms. Given the need for technical legal expertise in elaborating such review, a prima facie case can be made for establishing a specialized constitutional court at the international level. However, given the impact that political power plays in the technical resolution of concrete, case-specific adjudication within a highly fragmented legal system, and given the fact that constitutional review also touches on more abstract and less technical issues of social justice, I recommend that the function of constitutional review be dispersed in several global institutions, including the current United Nations General Assembly and a global public sphere. The pluralization of constitutional review and the accompanying interpretation and institutionalization of human rights recognizes existing multicultural disagreement on the meaning of human rights and the threat of superpower hegemony over global institutions while anticipating the realization of a more monistic constitutionalization of international law with the growth of global solidarity between peoples. Keywords : Constitutional Review, Constitutionalization, Habermas, Human Rights, Legal Pluralism, United Nations. (shrink)

The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.

In lieu of an abstract, here is a brief excerpt of the content:85, LEGAL OBLIGATION IN HUME There is one aspect of the thought of David Hume that seems to me to be important and topical, especially if considered in relation to two reductionist and dogmatic tendencies that are still noticeable in the general theory of law. By dogmatic I understand conceptions that are insufficiently founded on experience. The first of these two dogmatic tendencies is the emphasis placed on (...) the notion of sanction which is viewed by some as prevailing over the concept of obligation to the point of absorbing it within itself. Law is that which the superior bodies of the dominant class impose. This doctrine has been affirmed even recently. But the master example is given by Bentham. To say that a man has the obligation to behave in a certain way is equivalent to saying that if he does not behave so, he will experience pain (or the absence of pleasure). Legal sanction is the source from which this pain comes. Thus Bentham goes so far as to say that pain is constitutive of 2 obligation in all its forms. This seems to be contrary to experience and common sense. In fact, one can observe a legal obligation independently of the consideration of the consequences inherent in its violation. For this and other reasons the doctrinal tendency to give prevalence to the notion of sanction over the notion of obligation does not take account of experience and is dogmatic. Against this dogmatism one observes even today that the concept of an obligation that arises from a constriction, the concept 3 of Zwangspflicht, is a contradictio in adjecto. Nevertheless, in order to avoid the contradiction inherent in the prevalence of sanction over obligation and the dependence of law on political power and on the power of those who command, it is easy to fall into a second and opposite dogmatism. This second dogmatism consists in affirming the existence of fundamental legal obligations deducible from a priori principles understood platonically 86. as Ol·(fO- T"*) WVXt\S and as vision of the mind. But demonstrative reason, so understood, is determined exclusively through relations of ideas which, in Hume's opinion, cannot themselves constitute legal obligation. A legal system requires modifications and limitations to the passions and interests of individuals. As is well known, Hume argues that a passion and an interest cannot be modified by selfevident rational principles. No criterion that is deducible from demonstrative reason can function as a guide to human behaviour. Now between the two dogmatisms to which I have referred, Hume represents a third way on the basis of experience and of common sense. The advantage offered by Hume's thought is that of showing both the distinction between and the complementary nature of legal obligation and sanction. In what follows I shall discuss what I consider to be the kernel of Hume's legal theory as contained in his conception of human nature, setting aside secondary elements that do not directly concern the subject proposed. First: A legal system is not conceivable without setting up fundamental legal rules which, in Hume's opinion are the rules of justice. Consequently, the discussion of law implies the discussion of justice. And the discussion of justice is part of legal theory. Here I restrict my consideration to the obligations that are expressed by fundamental legal rules which are: stability of possession transference of possession by consent, and performance of promises. We know that, according to Hume, such rules cannot be derived from demonstrative or a_ priori reason but are revealed to empirical knowledge. Second: Hume distinguishes between the setting up of legal obligation and the moral evaluation of the legal obligation. In order to grasp the peculiarity of legal obligation as compared with moral evaluation, I refer here to the constitution of legal obligation. In order to understand the third book of the Treatise, it is in my 87. opinion absolutely necessary to take into account the distinction between the setting up of the legal obligation and its moral evaluation. Third: The obligations expressed in fundamental legal rules do not arise through a natural inclination but by artifice or by convention. The concept of artifice implies in Hume... (shrink)

“[T]he current state of professional ethics instruction leaves much to be desired. In most law schools, it is relegated to a single required course that ranks low on the academic pecking order. Many of these courses, which focus primarily (and uncritically) on bar disciplinary rules, constitute the functional equivalent of ‘legal ethics without the ethics', and leave future practitioners without the foundations for reflective judgment. Although ethical issues arise in every subject, that would not be apparent from the core (...) curriculum …”1. (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning (...) and Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

The article is concerned with the question of how legal institutions are structured with the use of constitutive, institutive, consequential, and terminative rules. To that end, the regulation of international treaties as laid down in the Vienna Convention on the Law of Treaties of 1969 is analysed. This leads to the discovery of two additional categories of rules: content rules and invalidating rules. Finally, the special status of unique legal institutions is investigated. Unique legal institutions – for (...) example, heads of state, parliaments, and supreme courts – enjoy validity in a legal system to the exclusion of the validity of any other legal institution of the same category in that system. (shrink)

Legal norms are an invention. This paper advances a proposal about what kind of invention they are. The proposal is that legal norms derive from rules which specify role functions in a legal system. Legal rules attach to agents in virtue of their status within the system in which the rules operate. The point of legal rules or a legal system is to solve to large scale coordination problems, specifically the problem (...) of organizing social and economic life among a group of people and their successors, though not every legal rule pertains to a coordination problem. The framework for thinking about legal norms that I describe is a framework for thinking about institutions and policies more generally. The idea is to show that legal norms are a species of institutional norm. There are two central ideas. The first is the idea of a role in an institution. The second is the idea of proxy agency. Proxy agency involves one agent or group acting under the authorization of another agent or group (perhaps subsuming it) in a way that makes the actions of the proxy count as actions (under a description) of the individual or group for which it is a proxy. We get the characteristic structure of a legal system by conceiving of an institutional group, itself conceived of as a set of interlocking roles realized in individuals, as having one or more roles for proxy agents who are authorized by the group to make policy for the group. The set of rules governing the basic constitution of the group and spelling out the powers of the policy proxies determine fundamental norms for the group with specific role responsibilities attaching to particular positions in institutional arrangements. The policies determine further norms whose force derives from the fundamental norms. We must then say some further things to distinguish institutions and policies which we wish to designate as legal. (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning (...) and Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

_An examination of how two fundamental concepts of order influence our ideas about sovereignty, citizenship, law, and history_ Western accounts of natural and political order have deployed two basic ideas: project and system. In a project, order is produced by the intentional act of a subject; in a system, order is immanent in the world. In the former, order is made; in the latter, discovered. Paul W. Kahn shows how project and system have long been at work (...) in our theological and philosophical tradition. Against this background, Kahn explains the development of the modern legal imagination in the nineteenth century as a movement from project to system. Americans began the century imagining the constitutional order as their common project: a deliberate construction of We the People. They ended the century imagining that order is continuous with the common law: an immanent development of the principles of civilization. This imaginative shift affected ideas of legal text, sovereignty, citizenship, interpretation, history, and science. (shrink)

In this paper, we discuss the problem of the relationship between legal concepts and legal norms. We argue that one of the widespread theories of legal concepts, which we call ‘the embedding theory’, is false. The theory is based on the assumption that legal norms are central for any legal system and that each legal norm establishes an inferential link between a certain class of facts and a certain class of legal consequences. (...) Alf Ross’s embedding theory was presented in his famous paper “Tu–Tu”. According to Ross, the sole function of legal concepts is to simplify normative information. Hence, the use of legal concepts may be a matter of convenience, rather than necessity. We criticize this approach mainly by pointing to the existence of so-called second order substantive concepts, which are not reducible to any determined set of conditional sentences (inferential links). In short, second order substantive concepts play the role of general standards, and general standards are used to provide flexibility for a particular legal system. In addition, general standards are ‘value loaded’, since they serve as a frame of reference for judges applying law to particular cases. To understand such general standards as a predefined set of conditionals means to overlook their ‘open’ content, and thus their function. In our opinion, the acceptance of the embedding theory means to misinterpret the function of general standards. We also argue that Giovani Sartor’s idea of defective legal concepts doesn’t help to clarify or defend the embedding theory. (shrink)

Abstract. In this paper I shall take an inferential approach to legality (legal validity), and consider how the legality of a norm can be inferred, and what can be inferred from it. In particular, I shall analyse legality policies, namely, conditionals conferring the quality of legality upon norms having certain properties, and I shall examine to what extent such conditionals need to be positivistic, so that legality is only dependant on social facts. Finally, I shall consider how legality is (...) transmitted from norm to norm and whether the ultimate legality policies (the rules of recognition) of a legal system need to be constituted by social facts. (shrink)

Two narratives have emerged to describe recent health care reforms in the United States of America and the United Kingdom. One narrative speaks of revolution, that the adoptions of the Affordable Care Act 2010 in the US, and the Health and Social Care Act 2012 in the UK, have resulted in fundamental, large-scale philosophical, political and legal change in the jurisdictions’ respective health care systems. The other narrative evokes evolution, identifying each new legislative scheme as a natural development of (...) existing governance structures. Policymakers in both the US and UK face the problem of a health care system which, as traditionally envisaged, cannot offer universal access to health care at a reasonable, or politically acceptable, price. (shrink)

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal (...) system (H.L.A. Hart's rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions. (shrink)