Legality

Author: Scott J. Shapiro

Publisher: Harvard University Press

ISBN: 0674058917

Category: Law

Page: 488

View: 7005

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.

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: 4763

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.

Legality and Legitimacy

Author: Carl Schmitt

Publisher: Duke University Press

ISBN: 0822385767

Category: Law

Page: 211

View: 7305

Carl Schmitt ranks among the most original and controversial political thinkers of the twentieth century. His incisive criticisms of Enlightenment political thought and liberal political practice remain as shocking and significant today as when they first appeared in Weimar Germany. Unavailable in English until now, Legality and Legitimacy was composed in 1932, in the midst of the crisis that would lead to the collapse of the Weimar Republic and only a matter of months before Schmitt’s collaboration with the Nazis. In this important work, Schmitt questions the political viability of liberal constitutionalism, parliamentary government, and the rule of law. Liberal governments, he argues, cannot respond effectively to challenges by radical groups like the Nazis or Communists. Only a presidential regime subject to few, if any, practical limitations can ensure domestic security in a highly pluralistic society. Legality and Legitimacy is sure to provide a compelling reference point in contemporary debates over the challenges facing constitutional democracies today. In addition to Jeffrey Seitzer’s translation of the 1932 text itself, this volume contains his translation of Schmitt’s 1958 commentary on the work, extensive explanatory notes, and an appendix including selected articles of the Weimar constitution. John P. McCormick’s introduction places Legality and Legitimacy in its historical context, clarifies some of the intricacies of the argument, and ultimately contests Schmitt’s claims regarding the inherent weakness of parliamentarism, constitutionalism, and the rule of 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: 4949

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.

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: 7529

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.

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: 1773

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.

Hans Kelsen's Pure Theory of Law

Legality and Legitimacy

Author: Lars Vinx

Publisher: Oxford University Press, USA

ISBN: 0199227950

Category: Law

Page: 230

View: 7169

By showing how Kelsen's theory of law works alongside his political philosophy, the book shows the Pure Theory to be part of a wider attempt to understand how political power can be legitimately exercised in pluralist societies.

The Constitution of Law

Legality in a Time of Emergency

Author: David Dyzenhaus

Publisher: Cambridge University Press

ISBN: 1139460501

Category: Law

Page: N.A

View: 5509

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

Human Rights Related Trade Measures Under International Law

The Legality of Trade Measures Imposed in Response to Violations of Human Rights Obligations Under General International Law

Author: Anthony Cassimatis

Publisher: Martinus Nijhoff Publishers

ISBN: 9004163425

Category: Political Science

Page: 474

View: 8119

When does international law allow a State or group of States to adopt trade measures in order to "coerce" another State to comply with its international obligations to ensure respect for human rights? In answering this question this book draws together complex areas of international law which include the rules prohibiting interference in the internal affairs of sovereign States, the rules regulating extra-territorial exercises of jurisdiction, the law of State responsibility and the international legal rules requiring the protection of human rights and regulating international trade. The literature on "Trade "and" ..." issues invariably focuses on a limited number of these areas, or approaches the issues from an international relations or economic perspective. This book will assist specialists in international human rights law and international trade law, academic and government lawyers who advise on or implement international trade policy and those studying the use of human rights related trade measures.

Emergency Powers in Asia

Exploring the Limits of Legality

Author: Victor V. Ramraj,Arun K. Thiruvengadam

Publisher: Cambridge University Press

ISBN: 052176890X

Category: Law

Page: 517

View: 4931

What role does, and should, legal, political, and constitutional norms play in constraining emergency powers, in Asia and beyond.

Law and Legality in the Ottoman Empire and Republic of Turkey

Author: Kent F. Schull,M. Safa Saraçolu,Robert F. Zens

Publisher: Indiana University Press

ISBN: 0253021006

Category: History

Page: 216

View: 4431

The editors of this volume have gathered leading scholars on the Ottoman Empire and the Republic of Turkey to chronologically examine the sweep and variety of sociolegal projects being carried in the region. These efforts intersect issues of property, gender, legal literacy, the demarcation of village boundaries, the codification of Islamic law, economic liberalism, crime and punishment, and refugee rights across the empire and the Aegean region of the Turkish Republic.

Legality and Community

On the Intellectual Legacy of Philip Selznick

Author: Philip Selznick,Robert A. Kagan,Martin Krygier

Publisher: Rowman & Littlefield

ISBN: 9780742516250

Category: Social Science

Page: 415

View: 6795

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.

Legality and Legitimacy in Global Affairs

Author: Richard Falk,Mark Juergensmeyer,Vesselin Popovski

Publisher: OUP USA

ISBN: 0199781583

Category: History

Page: 459

View: 3182

This book focuses on the problematic relationship between legality and legitimacy when a nation (or nations) intervene in the work of other nations. Bringing together a wide range of contributors with a broad set of cases that consider when such intervention is legitimate even if it isn't legal--and vice versa--the chapters cover humanitarian intervention, nuclear nonproliferation, military intervention, international criminal tribunals, interventions driven by environmental concerns, and the export of democracy. By focusing on a diverse array of cases, this volume establishes a clear framework for judging the legitimacy of such actions.

Homicide Justified

The Legality of Killing Slaves in the United States and the Atlantic World

Author: Andrew Fede

Publisher: University of Georgia Press

ISBN: 0820351121

Category: Law

Page: 343

View: 6183

This comparative study looks at the laws concerning the murder of slaves by their masters and at how these laws were implemented. Andrew T. Fede cites a wide range of cases--across time, place, and circumstance--to illuminate legal, judicial, and other complexities surrounding this regrettably common occurrence. These laws had evolved to limit in different ways the masters' rights to severely punish and even kill their slaves while protecting valuable enslaved people, understood as "property," from wanton destruction by hirers, overseers, and poor whites who did not own slaves. To explore the conflicts of masters' rights with state and colonial laws, Fede shows how slave homicide law evolved and was enforced not only in the United States but also in ancient Roman, Visigoth, Spanish, Portuguese, French, and British jurisdictions. His comparative approach reveals how legal reforms regarding slave homicide in antebellum times, like past reforms dictated by emperors and kings, were the products of changing perceptions of the interests of the public; of the individual slave owners; and of the slave owners' families, heirs, and creditors. Although some slave murders came to be regarded as capital offenses, the laws con-sistently reinforced the second-class status of slaves. This influence, Fede concludes, flowed over into the application of law to free African Americans and would even make itself felt in the legal attitudes that underlay the Jim Crow era.

Limits of Legality

The Ethics of Lawless Judging

Author: Jeffrey Brand-Ballard

Publisher: Oxford University Press, USA

ISBN: 0195342291

Category: Law

Page: 354

View: 9799

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.

The Power of Legality

Practices of International Law and their Politics

Author: Nikolas M. Rajkovic,Thomas Gammeltoft-Hansen

Publisher: Cambridge University Press

ISBN: 1107145058

Category: Law

Page: 408

View: 6311

Legality today commands substantial currency in world affairs, and this volume examines the struggle over its meaning in diverse practices.

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: 9504

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: 2686

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.