The aim of this essay is to examine the place of the people in the constitutions of democratic nations. While the meaning of democracy and the degree to which it is achieved vary within the family of nations considered democratic, the idea common to all is that the people are self-governing. In its origins, the idea is tied to liberty: not to be self-governing is to be subject to the will of another and so not to be free. What constitutes (...) self-government is open to interpretation, although this is not the place to examine the possible meanings. Nor is this the place to set out the history of the idea or to show how it became central to modern constitutions, except to note the number of nations qualifying as democratic has steadily increased in recent years to just under a half of the total. It seems reasonable to assume that a democratic nation, a self-governing people, would want to make sure that the constitution, the basic of government and of relations between the people and government, provide for and protect self-government and hence democracy. (shrink)

In his later writings, William Twining has been developing the notion of general jurisprudence, the aim of which is to integrate all theoretical approaches to law in a coherent whole. Central to the undertaking is the relationship between analytical jurisprudence and empirical evidence. Twining is critical of analytical jurisprudence for not adequately taking account of empirical evidence. While he has established a suitable framework within which to develop general jurisprudence, the argument in this essay is that the social understanding of (...) law, which is an essential part of general jurisprudence, cannot be achieved by starting with analytical jurisprudence, but needs to be approached through the methodology of interpretive social theory along the lines advanced by Max Weber. This approach has two main advantages: it enables the social understanding of law to be fully integrated into general jurisprudence, and it shows how analytical jurisprudence, rather than being in opposition to social understanding, can contribute to it. (shrink)

Due Process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this major new book, the author of the widely admired Discretionary Powers offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework. In landmark decisions such as Ridge v. (...) Baldwin the courts in Britain and other parts of the Commonwealth have begun to recognize the importance of procedural fairness across a broad spectrum of official powers and decisions. Principles have begun to emerge, and yet the courts have not yet developed an approach which is entirely adequate to the task. In this timely book, the author traces the development of these principles within a framework which includes analysis and critique of legal developments in the major common law jurisdictions, and which relates these developments to similar ideas under both the European Convention on Human Rights and the American Constitution. Original, scholarly and thought-provoking, this major new study will be required reading for lawyers with interests in public law, civil and criminal procedure, civil liberties, legal theory and comparative law. (shrink)

A significant development in law schools in recent years is the reflowering, or in many cases the first flowering, of interest in legal theory. This may take the form of a greater concern with the jurisprudential and philosophical basis of law; alternatively, it may be represented in attempts to bring to bear on legal issues the knowledge and insights developed in other disciplines. Both directions branch into a multitude of sub-disciplines, any one of which offers rich pickings to the legal (...) academic. The object of these essays, all of which were written specially for the volume by members of the Law Faculty of the University of Melbourne, is to take a number of legal issues which are of particular contemporary interest and to analyse them in a theoretical way or by using knowledge and techniques derived from other disciplines. The authors cover such topics as the patentability of living organisms; the legal and ethical problems that arise from medical research and experiment; the economic basis of property rights; the application to the decisions of officials of values deriving from fairness and rationality; the arguments for and against regulating the professions; the theoretical basis of the law of evidence and how this relates to practical issues; whether legal systems are in fact 'systems'; the relationship between Marxism and positivism; the capacities of the courts in dealing with non-justiciable issues; and the relationship between private and public law concepts. (shrink)

Providing an introduction to law in modern society, D. J. Galligan considers how legal theory, and particularly H. L. A Hart's The Concept of Law, has developed the idea of law as a highly developed social system, which has a distinctive character and structure, and which shapes and influences people's behaviour.The concept of law as a distinct social phenomenon is examined through reference to, and analysis of, the work of prominent legal and social theorists, in particular M. Weber, E. Durkheim, (...) and N. Luhmann. Galligan's approach is guided by two main ideas: that the law is a social formation with its own character and features, and that at the same time it interacts with, and is affected by, other aspects of society. In analysing these two ideas, Galligan develops a general framework for law and society within which he considers various aspects including: the nature of social rules and the concept of law as a system of rules; whether law has particular social functions and how legal orders run in parallel; the place of coercion; the characteristic form of modern law and the social conditions that support it; implementation and compliance; and what happens when laws are used to change society.Law in Modern Society encourages legal scholars to consider the law as an expression of social relations, examining the connections and tensions between the positive law of modern society and the spontaneous relations they often try to direct or change. (shrink)

This article aims at linking empirical research to legal theories, in a way that could enhance the benefits of this synergy. Jurisprudence, until recently the usual term for theoretical approaches to law, is now often replaced by the term legal theory. Difference between legal theory and empirical research is reflected in their consideration of subject matters, aims, and methods of research. However, there also exist commonalities between the two, i.e. both aim at comprehending law and legal systems. While legal theory (...) uses philosophical tools, its subject matter still remains a social phenomenon, for social ends. And since empirical research is a means to gather information about law, it could act as a prime source of information for legal theory. While empirical research has its own end to follow, what is missing is, attention to some legal theory, not just general legal theory, but which can also critique philosophical discourses to legality. (shrink)