Legality

Author: Scott J. Shapiro

Publisher: Harvard University Press

ISBN: 0674058917

Category: Law

Page: 488

View: 602

Legality is a profound work in analytical jurisprudence, the branch of legal philosophy which deals with metaphysical questions about the law. In the twentieth century, there have been two major approaches to the nature of law. The first and most prominent is legal positivism, which draws a sharp distinction between law as it is and law as it might be or ought to be. The second are theories that view law as embedded in a moral framework. Scott Shapiro is a positivist, but one who tries to bridge the differences between the two approaches. In Legality, he shows how law can be thought of as a set of plans to achieve complex human goals. His new “planning” theory of law is a way to solve the “possibility problem”, which is the problem of how law can be authoritative without referring to higher laws.

Legality and Legitimacy

Author: Carl Schmitt

Publisher: Duke University Press

ISBN: 9780822331742

Category: Law

Page: 166

View: 2597

DIVFirst English-language translation of one of Schmitt’s major works, providing a missing link in the oeuvre of this influential and controversial political theorist./div

Cultures of Legality

Judicialization and Political Activism in Latin America

Author: Javier Couso,Alexandra Huneeus,Rachel Sieder

Publisher: Cambridge University Press

ISBN: 0521767237

Category: Law

Page: 287

View: 4970

Ideas about law are undergoing dramatic change in Latin America. The consolidation of democracy as the predominant form of government and the proliferation of transnational legal instruments have ushered in an era of new legal conceptions and practices. Law has become a core focus of political movements and policy-making. This volume explores the changing legal ideas and practices that accompany, cause, and are a consequence of the judicialization of politics in Latin America. It is the product of a three-year international research effort, sponsored by the Law and Society Association, the Latin American Studies Association, and the Ford Foundation, that gathered leading and emerging scholars of Latin American courts from across disciplines and across continents.

Legality and Locality

The Role of Law in Central-local Government Relations

Author: Martin Loughlin

Publisher: Oxford University Press

ISBN: 9780198260158

Category: Political Science

Page: 427

View: 3987

This work traces the main dimensions of the relationship between central and local government, concentrating upon the role played by law in shaping that relationship. It demonstrates how the issues raised are linked to the system of parliamentary democracy, and to the tradition of public law.

A Modern Treatise on the Principle of Legality in Criminal Law

Author: Gabriel Hallevy

Publisher: Springer Science & Business Media

ISBN: 9783642137143

Category: Law

Page: 199

View: 2765

This book is a scientific treatise on the principle of legality in criminal law. It explores the relation between the principle of legality and the general theory of criminal law and contains definite rules emphasized for practitioners as well as academia.

Producing Legality

Law and Socialism in Cuba

Author: Marjorie Zatz

Publisher: Routledge

ISBN: 1136651829

Category: Political Science

Page: 320

View: 9975

Producing Legality provides a window into the official construction of socialist legality in Cuba and the dissemination of this legal consciousness throughout the country. It links abstract theories of lawmaking and the state with the specific dilemmas confronting individual policymakers to detail the inner workings of the Cuban legal order.

The Eclipse of the Legality Principle in the European Union

Author: Leonard F. M. Besselink,Frans Pennings,Sacha Prechal

Publisher: Kluwer Law International B.V.

ISBN: 9041132627

Category: Law

Page: 312

View: 1724

Legality is a traditional normative concept to regulate the relationship between those in power and those subjected to that power. The principle of legality protects the citizen against the arbitrary use of power, or, more precisely, it demands a legal basis (which itself must be of a certain standard) to legitimize State action. Is legality under siege in Europe? The authors contributing to this provocative and important book answer this question in the affirmative. Twenty-one outstanding European legal scholars expose a spectrum of ways in which the traditional legality principle is under pressure because of the creation of new legal orders, including that of the EU, and the interaction between these new orders and that of the State, combined with such factors as expertise driven governance, difficulties of international organizations to meet their objectives due to a lack of adequate powers, and lack of parliamentary control. The question of whether the main functions of legality - legitimating, attributing and regulating the exercise of public authority - are still fulfilled in the context of the overlapping, interacting, and mutually dependent legal orders of the EU, the ECHR, and the Member States is at the background of all the essays in this volume. Recognizing that legality, if it is to survive, demands rigorous reconsideration of its scope and application, the authors interrogate not only such fundamental democratic issues as who has legitimate power to perform legislative acts and through these to exercise of public power over citizens, but also such urgent European problems as the following: ; the use of the precautionary principle in EU decision-making; the scope of the principle that the exercise of public authority must rest on an act of Parliament; the extent to which the EU can provide a legal basis for action of Member State authorities in the absence of such a basis within Member State legal orders; the constitutional position of independent 'regulators'; the requirements that ECJ and ECHR case law impose on the exercise of public authority; whether legislative results are coherent in the sensitive area of equal treatment; transparency, legal certainty, enforceability, and implementation of EC Directives in the field of workers' involvement; new instruments as the Open Method of Coordination and the involvement of social partners in decision-making; the de facto harmonization of national criminal justice systems; and the prominent role of the EU in the field of data protection. There can be little doubt that the issue of legality and to whom it applies - in a world in which the role of the modern State is changing profoundly - is a crucial one. It is highly important in the context of the ongoing discussion on the meaning of democracy and citizenship. This volume, with its clear message that reconsidering legality demands taking serious issue with the uncertainty engendered by the processes of globalization, will resonate profoundly among practitioners and policymakers in this time of momentous change.

Unjust Legality

A Critique of Habermas's Philosophy of Law

Author: James L. Marsh

Publisher: Rowman & Littlefield

ISBN: 9780742512610

Category: Law

Page: 203

View: 4529

This book is an interpretation and critique of Habermas's philosophy as contained in his book, Between Facts and Norms. The main argument is that while Habermas does succeed in laying out foundations, conceptual and methodological, for the philosophy of law, the book is flawed by a fundamental contradiction between a democracy ruled by law and capitalism. Visit our website for sample chapters!

Legality and Community

On the Intellectual Legacy of Philip Selznick

Author: Philip Selznick

Publisher: Rowman & Littlefield

ISBN: 9780742516250

Category: Law

Page: 415

View: 8620

Bridging sociology, legal and social theory and moral philosophy, this volume explores the significance of Philip Selznick's work in a variety of social contexts, particularly the search for responsive law and governance, humane institutions and a balance between freedom and communal life.

The Legality of Threat Or Use of Nuclear Weapons

A Guide to the Historic Opinion of the International Court of Justice

Author: John Burroughs

Publisher: LIT Verlag Münster

ISBN: 9783825835163

Category: Law

Page: 169

View: 558

" ""The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law ... There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control."" - Advisory Opinion of the International Court of Justice, 8 July 1996 ""This book shows how courageous states from the developing world, working in concert with visionary lawyers, physicians and other sectors of international civil society, boldly obtained astonishing results from the highest court in the world. The World Court clearly ruled that the threat or use of nuclear weapons is illegal in almost all conceivable circumstances. The Court further underlined the unconditional obligation of the nuclear weapon states to begin and conclude negotiations on nuclear disarmament in all its aspects. It is now up to all of us to determine the follow-up, whatever the opposition. We cannot end this century without clear commitments and steps to eliminate nuclear weapons."" - Razali Ismail, Permanent Representative of Malaysia to the United Nations, President of the United Nations General Assembly, 1996-1997 ""It is not often that a judicial opinion on a given question is both hailed and criticized by participants on all sides of the question. This book, written by a leading member of the team that helped to prepare the case on the illegality of the threat and use of nuclear weapons, explains succinctly what the World Court, and the judges in their separate statements, did and did not say. In so doing, it makes a compelling case for the proposition that the Opinion represents a milestone on the road to nuclear abolition."" - Peter Weiss, Co-President, International Association of Lawyers Against Nuclear Arms The 20th century has been defined in large part by the unleashing of the terrible destructive power of the atom, and the subsequent struggle to overcome the threat of nuclear annihilation. If humankind survives, the 8 July 1996 Advisory Opinion of the International Court of Justice, and the extraordinary process that led up to it, will have played an essential role. The (Il)legality of the Threat or Use of Nuclear Weapons is a concise yet thorough guide to the case. In straightforward language, it describes the history of this unprecedented initiative and summarizes and explains states' arguments to the Court, the Court's findings, and the separate statements of the judges. The author provides cogent expert analysis and, most importantly, reveals how the opinion imparts hope and points the way to the future: "" The Court has authoritatively interpreted law which states acknowledge they must follow, including humanitarian law protecting civilians from indiscriminate effects of warfare, the United Nations Charter, and the Nuclear Non-Proliferation Treaty. The implications are profound: abandonment of reliance on the threat and use of nuclear weapons as an instrument of national policy, and expeditious elimination of nuclear arsenals. The opinion can be cited as an authoritative statement of the law in any political or legal setting - including the United Nations and national courts and parliaments - in which nuclear weapon policies are challenged."" John Burroughs, an attorney for the Western States Legal Foundation in California, served as the legal coordinator for the World Court Project/International Association of Lawyers Against Nuclear Arms at the November 1995 hearings before the International Court of Justice. "

Sovereignty, Emergency, Legality

Author: Austin Sarat

Publisher: Cambridge University Press

ISBN: 1139483773

Category: Law

Page: N.A

View: 8034

It is widely recognized that times of national emergency put legality to its greatest test. In such times we rely on sovereign power to rescue us, to hold the danger at bay. Yet that power can and often does threaten the values of legality itself. Sovereignty, Emergency, Legality examines law's complex relationship to sovereign power and emergency conditions. It puts today's responses to emergency in historical and institutional context, reminding readers of the continuities and discontinuities in the ways emergencies are framed and understood at different times and in different situations. And, in all this, it suggests the need to be less abstract in the way we discuss sovereignty, emergency, and legality. This book concentrates on officials and the choices they make in defining, anticipating, and responding to conditions of emergency as well as the impact of their choices on embodied subjects, whether citizen or stranger.

Limits of Legality

The Ethics of Lawless Judging

Author: Jeffrey Brand-Ballard

Publisher: Oxford University Press, USA

ISBN: 0195342291

Category: Law

Page: 354

View: 3032

Combining ethical theory with discussions of caselaw, Jeffrey Brand-Ballard challenges arguments for the traditional view, including arguments from the fact that judges swear oaths to uphold the law, and arguments from our duty to obey the law, among others.

Politics, Postmodernity and Critical Legal Studies

The Legality of the Contingent

Author: Costas Douzinas,Peter Goodrich,Yifat Hachamovitch

Publisher: Routledge

ISBN: 1134883579

Category: Social Science

Page: 240

View: 8409

This timely and assured book provides a unique guide to critical legal studies which is one of the most exciting developments within contemporary jurisprudence. It is the first book to systematically apply a critical philosophy to the substance of common law. The book develops a coruscating and interdisciplinary overview of the politics and cultural significance of the institutions of the law.

The Power of Legality

Practices of International Law and their Politics

Author: Nikolas M. Rajkovic,Tanja Aalberts,Thomas Gammeltoft-Hansen

Publisher: Cambridge University Press

ISBN: 1316684121

Category: Law

Page: N.A

View: 9112

From an airstrip in Saudi Arabia, the CIA launches drones to 'legally' kill Al-Qaida leaders in Yemen. On the North Pole, Russia plants a flag on the seabed to extend legal claim over resources. In Brussels, the European Commission unveils its Emissions Trading System, extending environmental jurisdiction globally over foreign airlines. And at Frankfurt Airport, a father returning from holiday is detained because his name appears on a security list. Today, legality commands substantial currency in world affairs, yet growing reference to international legality has not marked the end of strategic struggles in global affairs. Rather, it has shifted the field and manner of play for a plurality of actors who now use, influence and contest the way that law's rule is applied to address global problems. Drawing on a range of case studies, this volume explores the various meanings and implications of legality across scholarly, institutional and policy settings.

Transnational Legality

Stateless Law and International Arbitration

Author: Thomas Schultz,Thomas Schultz (Lawyer)

Publisher: Oxford University Press

ISBN: 0199641951

Category: Law

Page: 205

View: 8832

International law can be created by other means than treaties between states. This book investigates the philosophical questions posed by the treatment of international arbitration as law, such as those relating to sovereignty and territoriality, and sets out conditions which international arbitration must meet in order to form legitimate law.

Legality's Borders

An Essay in General Jurisprudence

Author: Keith Culver,Michael Giudice

Publisher: Oxford University Press

ISBN: 0199708061

Category: Law

Page: 224

View: 9256

English-speaking jurisprudence of the last 100 years has devoted considerable attention to questions of identity and continuity. H.L.A. Hart, Joseph Raz, and many others have sought means to identify and distinguish legal from non-legal social situations, and to explain the enduring legality of those typically dynamic social situations. Focus on characterization of legality associated with the state, the most prominent legal phenomena available, has led to an analytical approach dominated by the idea of legal system and analysis of its constituent norms. Yet as far back as Hart's 1961 encounter with international law, the system-focussed approach to legality has experienced moments of self-doubt. From international law to the new legal order of the European Union, to shared governance and overlapping jurisdiction in transboundary areas, what at least appear to be instances of legality are at best weakly explained by approaches which presume the centrality of legal system as the mark and measure of social situations fully worthy of the title of legality. What next, as phenomena threaten to outstrip theory? Legality's Borders: An Essay in General Jurisprudence explains the rudiments of an inter-institutional theory of law, a theory which finds legality in the interaction between legal institutions, whose legality we characterise in terms of the kinds of norms they use rather than their content or system-membership. Prominent forms of legality such as the law-state and international law are then explained as particular forms of complex agglomeration of legal institutions, varying in form and complexity rather than sheer legality. This approach enables a fundamental shift in approach to the problems of identity and continuity of characteristically legal situations in social life: once legality is decoupled from legal system, the patterns of intense mutual reference amongst the legal institutions of the law-state can be seen as one justifiably prominent form of legality amongst others including overlapping forms of legality such as the European Union. Identity over time, on this view, is less a fixed set of characteristics than a history of intense mutual interaction of legal institutions, comparable against similar other agglomerations of legal institutions.

Legitimacy and Legality in International Law

An Interactional Account

Author: Jutta Brunnée,Stephen J. Toope

Publisher: Cambridge University Press

ISBN: 1139491474

Category: Law

Page: N.A

View: 749

It has never been more important to understand how international law enables and constrains international politics. By drawing together the legal theory of Lon Fuller and the insights of constructivist international relations scholars, this book articulates a pragmatic view of how international obligation is created and maintained. First, legal norms can only arise in the context of social norms based on shared understandings. Second, internal features of law, or 'criteria of legality', are crucial to law's ability to promote adherence, to inspire 'fidelity'. Third, legal norms are built, maintained or destroyed through a continuing practice of legality. Through case studies of the climate change regime, the anti-torture norm, and the prohibition on the use of force, it is shown that these three elements produce a distinctive legal legitimacy and a sense of commitment among those to whom law is addressed.

The Habits of Legality

Criminal Justice and the Rule of the Law

Author: Francis A. Allen

Publisher: Oxford University Press

ISBN: 9780195356496

Category: Social Science

Page: 168

View: 1674

The Habits of Legality provides a broad survey of American criminal justice in a time of troubles. It asks the central questions: In what degree are the justice system's functions guided by ascertainable legal norms? How accountable are public officials who wield the rigorous sanctions of the penal law? Where the habits of legality are weak, how can they be invigorated? A number of factors combine to constrict the rule of law in the criminal process. A crime epidemic of alarming proportions places enormous burdens on the system and gives rise to a "war on crime" that often oversteps the limits of legality. The institutional structure of the United States is severely fragmented, rendering coherent penal policy difficult or impossible and often freeing public officials of accountability for their uses of public authority. Even the courts and legislatures, the primary law-making agencies of society, often operate to weaken rather than strengthen the rule of law. Francis A. Allen asserts the vital and continuing importance of the legality principle to democratic societies, discusses how the habits of legality in American criminal justice can be strengthened, and demonstrates that a closer adherence to the rule of law may not only protect the rights of persons more efficiently, but also contribute to more rational and effective penal policy. The Habits of Legality offers solutions on how to revitalize the rule of law. It will be of interest to scholars and students of criminology and law, as well as the general reader concerned with issues of criminal justice.

Non-Legality in International Law

Unruly Law

Author: Fleur Johns

Publisher: Cambridge University Press

ISBN: 1139619594

Category: Law

Page: N.A

View: 9097

International lawyers typically start with the legal. What is a legal as opposed to a political question? How should international law adapt to the unforeseen? These are the routes by which international lawyers typically reason. This book begins, instead, with the non-legal. In a series of case studies, Fleur Johns examines what international lawyers cast outside or against law - as extra-legal, illegal, pre-legal or otherwise non-legal - and how this comes to shape political possibility. Non-legality is not merely the remainder of regulatory action. It is a key structuring device of contemporary global order. Constructions of non-legality are pivotal to debate in areas ranging from torture to foreign investment and from climate change to natural disaster relief. Understandings of non-legality inform what international lawyers today do and what they refrain from doing. Tracing and potentially reimagining the non-legal in international legal work is, accordingly, both vital and pressing.