From Public Law to State Punishment: A Review of Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law.

This article adopts what Frederick Schauer calls a ‘non-essentialist’ approach to understanding the nature of law, which can be contrasted with the widely practised method of ‘conceptual analysis’. Instead of seeking a set of necessary conditions for the existence of law in all possible worlds, non-essentialism reflects upon pervasive features of actual legal systems. The article focuses on constitutional and administrative law and contrasts modern standard accounts of public law with HLA Hart’s highly influential threefold list of ‘necessary’ types (...) of public ‘secondary rules’: rules of recognition, change and adjudication. The argument is that non-essentialist methodology not only yields a rich descriptive account of certain fundamental characteristics of modern legal systems but also provides theoretically significant insights into how law is conceived in many contemporary societies. Because the resulting account is firmly rooted in actual social and legal practices, it provides a more fine-grained and less abstract theory of those practices than is offered by Hart’s approach, based as it is on hypothetical stories about how law ‘might have developed’. (shrink)

This article offers a theoretical and doctrinal solution to a vexing question in public law: how to determine the justifiability of Charter rights-limiting administrative decisions. The jurisprudence suggests three approaches, or modes of reasoning: minimal impairment analysis, ‘interest balancing’, and ‘values-advancing reasoning’. Like Cerberus, the guard dog of Hades, Canadian public law has become three-headed. While scholars and courts argue about which mode of reasoning is categorically best, the culture of justification compels us to ask instead which provides (...) the most compelling explanation for each rights-limiting decision. Just as cutting off one of Cerberus’s heads would diminish his effectiveness as a guard dog, rejecting either of the modes of reasoning would limit decision makers’ capacity to explain their decisions and undermine a culture of justification. The article makes a theoretical case for retaining all three modes of reasoning and sets out a doctrinal approach to determining when each is applicable. (shrink)

The practice of using courts to foster social change, once confined to the USA, has emerged as a worldwide phenomenon. Foreign practice reflects indigenous forms but faces criticisms similar to that in the USA: that it is ineffective, antidemocratic, and counterproductive. The essay meets these criticisms, first, by recasting US public law litigation as a form of politics that challenges the status quo by forging alliances, changing discursive frames, and disciplining private and public decision making. Looking abroad, the (...) essay emphasizes public law litigation as a meditative institution that facilitates political action and aids in regulatory enforcement where administrative mechanisms are weak or regulation requires ongoing elaboration. Finally, the essay suggests that criticisms of public law litigation tend to neglect three factors: the actual and not assumed comparative advantages of different institutional actors, the role of temporal conditions in affecting social change, and the ubiquity of complex, not dichotomous, relations. (shrink)

This book tackles the relationship between the common law of judicial review, the written constitution and public international law.

In an earlier article, it was established that the rules which govern the relations between universities and their students may find their legal source in prescription, royal charter, parliamentary legislation or contract. This article compares judicial review of student rules according to these different sources, whether this review forms part of public law (the review of byelaws, delegated legislation or the expression of other statutory rule‐making powers) or of contract law (as a matter of the fairness of the rules (...) as terms of the student contract or by the inherent qualification of any contractual rule‐making power in a university by reference to reasonableness). Both similarities and differences in these different types of review are identified and their implication in the student context assessed (notably, as to the exclusivity of the visitorial jurisdiction in the case of chartered universities). Finally, it is argued that the compatibility of student rules with students' human rights may be relevant to review in contract law as well as in public law as a result of the very inclusive nature of the grounds of this review. (shrink)

The Article explores relationships between contemporary international human rights and democracy. In what respects are they two sides of the same coin, in what respects are they different coins? Do they depend on and complete each other? Can the two be in contradiction? The Article looks at these questions from several perspectives, including their historical connections, the changing definitions and understandings of each, their functional links, their determinacy, and their character as universal phenomena. It also indicates ways in which courts, (...) which have long interpreted and applied human rights, now also reach decisions about constitutional issues by drawing on their conception of democracy. (shrink)

The book outlines the historical development of Public Law and the state from ancient times to the modern day, offering an account of relevant events in parallel with a general historical background, establishing and explaining the relationships between political, religious, and economic events.

The two standard interpretations of Kant’s view of the relationship between external freedom and public law make one of the terms a means for the production of the other: either public law is justified as a means to external freedom, or external freedom is justified as a means for producing a system of public law. This article defends an alternative, constitutive interpretation: public law is justified because it is partly constitutive of external freedom. The constitutive view (...) requires conceiving of external freedom in a novel, second-personal way, that is, as an irreducibly relational norm. (shrink)

The volume ‘Questioning the Foundations of Public Law’ is co-edited by Michael. A Wilkinson and Michael W. Dowdle and its core aim is to engage critically with the magnum opus of Martin Loughlin, ‘...

American public law scholarship views law as a purposive instrument for the achievement of democratic purposes. It has analyzed how this instrument can best be employed within the historical context of the legal institutions and traditions of particular nation-states. Emerging forms of international law, articulated by international tribunals, challenge these fundamental premises of American public law scholarship. Much international law does not reflect the will of an indentifiable demos, and it is articulated through innovative legal institutions that combine (...) the procedures and organizational forms of many distinct states and legal cultures. Attempting to omprehend the sources and limitations of the legitimacy of this kind of international law will force American public law scholarship to re-examine deep and implicit presuppositions, inherited from legal realism, about the inherent normativity of the rule of law. The author speculates about possible effects of this re-examination on the substantive and methodological agenda of American public law scholarship. (shrink)

The ArgumentIn this we explore some of the ways in which a state scientific laboratory (Daresbury SERC) reacted to the rtetoric and forces of the marketpace in the 1980s. We describe laboratory attempts to create what we call “good customers” while converting itself into a “good seller” by developing a particulat set of costing practicting that were closely related to the implementation of a management accounting system. Finally, we consider how Daresbury response to “market forces” influenced scintific and organzational practice, (...) and arsponse that the social technologies of governmentality performed by accountancy — but also by scientific and bureaucratic practice are complex, discursively heterogeneou, and used in context-sensitive ways. This means, or so we suggest, that it is difficult to mount general argunents about “science” and “the market,” and that the use of such large-scale institions impedes impedes analysis. (shrink)

The present religious constitution of the Federal Republic of Germany is the product of protracted historical conflicts and political settlements that began in the sixteenth century. The mediation of these conflicts and settlements and the piecemeal establishment of the constitution was the achievement of imperial public law and diplomacy. Germany’s religious constitution—a secular and relativistic juridical framework protecting a plurality of confessional religions—pre-dated liberalism and democracy, and owes nothing to normative philosophical constructions of individual freedoms and rights, or social (...) justice and moral community. Rather, it was the product of a political compromise between warring confessional blocs, and of the institutions of public law that were the instruments and effects of this compromise. (shrink)

At first sight constitutionalism appears to be a key concept in public law discourse in the United Kingdom. It appears in all the major academic discussions from the rule of law and judicial review to the ‘new constitutional settlement’ and in relation to constitutional culture. And yet attempts to define the scope, meaning and role of constitutionalism remain vague. This article discusses the different fields in which constitutionalism is discussed and the different meanings that are attributed to the concept. (...) It shows that constitutionalism is routinely conflated by public law scholars with other constitutional values and principles, like the rule of law or separation of powers. This article argues that constitutionalism should either be conceived as distinct from those concepts or, failing that, can safely be eliminated from public law discourse. The article concludes by asking whether a nuanced and normative discussion of constitutionalism could have any meaningful application in the United Kingdom constitution. (shrink)

ABSTRACTThis article critically considers a state-centred approach to public law that has been epitomised in Martin Loughlin’s claim that the concept of the state is the sine qua non of public law....

The obligation of the legalization of entrepreneurial activity from Article 14 of The Act of July 2, 2004 on the freedom of entrepreneurial activity caused deliberations regarding constitutive or declarative character of the legalization entry and as a result, created a problem with indication of the moment when the public law status of an entrepreneur is acquired. The answer to the question whether Central Register and Information of Entrepreneurial Activity or the register of entrepreneurs of the National Court Register (...) have also the creation function incites many controversies and is subject to discussions, in the process of which two main standpoints were formed. It is also important to note that the resolution of the discussed issue not only holds scientific value, but above all, it has significant importance in practice. Therefore, it is necessary and even essential. Furthermore, it is typical for this issue that concerns related thereto and arguments raised during the discussion have their basis in the legislation in force and in fact, encapsulate the favoured path of its interpretation. (shrink)

This article analyses the work of Martin Loughlin on the nature of public law, and in particular, his ostensibly strident anti-positivism. It is argued that despite this, Loughlin's work can be reconciled with a normative account of legal positivism, based on the work of Jeremy Waldron. The article maintains that Loughlin's account of public law as political jurisprudence is methodologically compatible with, and potentially even substantively complementary to, normative legal positivism. It is ultimately suggested that this reconciliation provides (...) a methodology for public law scholarship which is both positivist and political, and which may offer insight into the subject beyond that which either approach might generate alone. (shrink)

Robert Post's work in constitutional theory is engaging in an exceptional way: it always forces one to rethink and reconsider the basic tenets of the field. In his article The Challenge of Globalization to American Public Law Scholarship, Post discusses American public law and human rights scholarship in the age of globalization. In this comment, I will make a few remarks on some of the points raised in the article.

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for (...) legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

This paper provides a critical analysis of Martin Loughlin's pure theory of public law as developed in his more recent work. I argue that the pure theory makes a series of errors and rests on a set of assumptions that make it inappropriate to provide the legal framework for any social‐democratic polity. Specifically, the theory concedes too much latitude to the functional needs of the state and organised politics, and pays too little deference to processes of political opinion and (...) will formation in civil society. As such, it only succeeds in establishing law's connection to the public realm, at the cost of effacing its internal relationship to the rule of law and democracy. (shrink)

The recent research of Helena Rosenblatt, Hilail Gildin, Arthur Meltzer, and John Scott calls for a reconsideration of Rousseau's stance towards and effect on the natural public law tradition. This reconsideration is especially called for given the persuasive evidence and arguments that these scholars marshal to demonstrate the positive contribution of Rousseau to that tradition and to suggest that his pre-Kantian rational law teaching in the Social Contract is rooted in his post-Hobbesian stance towards natural law, especially in the (...) Second Discourse. The work of these scholars builds upon others, especially on Leo Strauss, Victor Gourevitch, Jean Starobinski, Marc Plattner, Roger Masters and John Charvet, as well as Asher Horowitz, R. A. Leigh, Franz Haymann, and Robert Derathe, and completes the full range of alternative answers to our question. Their contributions are an invaluable scaffolding for fully grasping the issue and for proposing theses that could resolve it. Given the great debt owed to these scholars, the present inquiry begins with an overview and general assessment of their opinions on the issue, which is then followed by a close analysis of the relevant texts of Rousseau, especially the “Preface” to the Second Discourse. (shrink)

An important feature of some recent jurisprudential writings is the tendency to reject the precept of liberal individualism which affirms the priority of the principles of the "right conduct" over the substantive conceptions of "the good". This rejection, explicit in a recent book by Rogers M. Smith, and implicit in a recent work by Guido Calabresi, leads to strikingly illiberal consequences; hence, this provides indirect confirmation that the priority of the right over the good constitutes the most reliable defense of (...) individual liberty against majoritarian oppression. In Smith, an attempt to replace this priority with the principle of "rational liberty" leads to the disappearance of the guarantees of minority rights against orthodox majorities; in Calabresi, the doctrine of weighing and balancing competing moral principles of "the good" fails to provide an explanation for the strongly held moral intuition that some external preferences have to be disqualified at the outset, before they enter the forum of moral bargaining. (shrink)

Proportionality is a German, and thus continental European, concept in public law that is applied by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The principle specifies that measures adopted by executive authorities should not exceed the limits of what is appropriate and necessary in order to achieve legitimate objectives in the interest of the public. Using a functional comparative approach, this book evaluates the extent to which proportionality (...) has been integrated into the English and Hong Kong judicial systems by comparing case law in these courts with that of the CJEU and the ECtHR. The text also reviews the development of proportionality and presents a topical understanding of why its adoption and application have encountered difficulties, particularly regarding socio-economic rights, in some jurisdictions, such as the United Kingdom and Hong Kong. Written by a scholar with experience from both within the Hong Kong judicial system and from international research, this book is the first all-encompassing reference for legal practitioners worldwide." -- Provided by publisher. (shrink)

The evolution of the present legal system is powered by the contradictory double-structure of a law that is at once is repressive and emancipatory. I take three examples, one from the early stage of the twentieth century’s legal transformations, and two from the present. They all show that the latent emancipatory potential of public law can be activated to challenge repressive function of hegemonic law. The first example is concerned with the challenge of imperial law from within the managerial (...) mindset of the legal system, the second shows that every modern constitutional law “can strike back”. The third one emphasizes the tension between the Kantian constitutional mindset and the managerial mindset that dominates present international law. (shrink)

The Oxford Handbook of Law and Economics provides a broad overview of numerous current and developing topics in the field of law and economics. With contributions by over one-hundred experts in the field within one work, the volume covers issues ranging from as far as Law and Neuroeconomics to European Union Law and Economics to Feminist Theory and Law and Economics. Its detail and breadth make it an invaluable reference book and contribution to the field.

"Public reason" is one of the central concepts in modern liberal political theory. As articulated by John Rawls, it presents a way to overcome the difficulties created by intractable differences among citizens' religious and moral beliefs by strictly confining the place of such convictions in the public sphere. Identifying this conception as a key point of conflict, this book presents a debate among contemporary natural law and liberal political theorists on the definition and validity of the idea of (...) public reason. Its distinguished contributors examine the consequences of interpreting public reason more broadly as "right reason," according to natural law theory, versus understanding it in the narrower sense in which Rawls intended. They test public reason by examining its implications for current issues, confronting the questions of abortion and slavery and matters relating to citizenship. This energetic exchange advances our understanding of both Rawls's contribution to political philosophy and the lasting relevance of natural law. It provides new insights into crucial issues facing society today as it points to new ways of thinking about political theory and practice. (shrink)

The U.S. Supreme Court’s approach to human rights is a global outlier. In conceiving of rights adjudication in categorical terms rather than embracing proportionality analysis, the Court limits its ability to make the kinds of qualitative judgments about rights application required to adjudicate claims of disparate impact, social and economic rights, and horizontal effects, among others. This approach, derivative of a private-law model of dispute resolution, sits in tension with the rights claims typical of a pluralistic jurisdiction with a mature (...) rights culture, in which litigants more often disagree, reasonably, about the scope of rights rather than deny that others have them at all. In order to overcome the mismatch between the nature of the rights claims the Court faces and its anachronistic technology of adjudication, it will need not only to adopt a form of proportionality analysis but it will also need to adjust the ways in which it receives and assesses empirical social facts and it will need to broaden its remedial toolkit to include, for example, suspensions of invalidity. While proportionality is far from perfect, its flaws are anticipated by the challenges of constitutional democracy itself under conditions of pluralism. (shrink)

si quis patriae meae pecuniam credat, non dicam me illius debitorem nec hoc aes alienum profitebor aut candidatus aut reus: ad exsoluendum tamen hoc dabo portionem meam.If anyone were to lend money to my country, I will not call myself his debtor nor will I declare this as money owed either when a candidate or when prosecuted: nevertheless, I will contribute my share to paying off the debt. Miriam Griffin drew attention to the comment of Justus Lipsius: ‘a defendant might (...) have to make such a declaration in cases involving financial penalties, such as extortion and peculation, for when the litis aestimatio [‘assessment of damages’] was made, it would be important to know who the other claimants to the convicted man's assets were, and how encumbered his property was.’ No further elucidation, however, has been made since Lipsius. Mommsen failed to record this passage in his Staatsrecht and Strafrecht, and, as far as we know, no monograph on Roman criminal law mentions the passage of Seneca. (shrink)

"Case notes." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (199), pp. 34–35.