Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.001.0001
- Subject:
- Law, Philosophy of Law
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit ...
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Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.Less
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.
KEITH CULVER and MICHAEL GIUDICE
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195370751
- eISBN:
- 9780199775903
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370751.003.001
- Subject:
- Law, Philosophy of Law
This chapter analyzes the limits to Hart's account of an official-operated rule of recognition as an account of the existence and borders of legal systems. The argument is developed via assessment of ...
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This chapter analyzes the limits to Hart's account of an official-operated rule of recognition as an account of the existence and borders of legal systems. The argument is developed via assessment of the success of the account's solutions to problems of circularity and indeterminacy in the identification of a distinct class of legal officials whose practices constitute the rule of recognition. It is shown that while the problem of circularity may have been adequately addressed in explanation of state legal systems, its solutions leave intact the problem of indeterminacy and reveal a strong presumption of hierarchy which threatens to run past rather than solve issues at the borders of legality. This is true in explanation of state legal systems, but the difficulties are particularly troubling in explanation of international law, as analysis of Hart's view of international law makes plain.Less
This chapter analyzes the limits to Hart's account of an official-operated rule of recognition as an account of the existence and borders of legal systems. The argument is developed via assessment of the success of the account's solutions to problems of circularity and indeterminacy in the identification of a distinct class of legal officials whose practices constitute the rule of recognition. It is shown that while the problem of circularity may have been adequately addressed in explanation of state legal systems, its solutions leave intact the problem of indeterminacy and reveal a strong presumption of hierarchy which threatens to run past rather than solve issues at the borders of legality. This is true in explanation of state legal systems, but the difficulties are particularly troubling in explanation of international law, as analysis of Hart's view of international law makes plain.
Frederick Schauer
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198267904
- eISBN:
- 9780191683404
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267904.003.0002
- Subject:
- Law, Philosophy of Law
The purpose of this chapter is to enlighten readers on what legal positivism is, far from the current distorted view, which fits the current American caricature of excessive compliance. The chapter ...
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The purpose of this chapter is to enlighten readers on what legal positivism is, far from the current distorted view, which fits the current American caricature of excessive compliance. The chapter first assumes that morally bad results generated by bad laws or by good laws in the area of their inevitable imprecision are to be avoided. It also assumes that a good way of avoiding bad results is for legal officials, as well as other people involved in the process, to refuse to become instruments of morally bad results. Lastly, the chapter argues that there is reason to be concerned about legal officials who lack the will to exercise moral interposition in performing their tasks. These assumptions are not necessarily true, but the chapter wants to work with the archetype that there is sometimes a problem of excessive official compliance, and that it would be beneficial if this problem could be resolved. The chapter wants to address the view of legal positivism as the cause of or the appropriate name for the willingness of legal officials to suspend moral judgment and enforce bad laws, just because they are the law.Less
The purpose of this chapter is to enlighten readers on what legal positivism is, far from the current distorted view, which fits the current American caricature of excessive compliance. The chapter first assumes that morally bad results generated by bad laws or by good laws in the area of their inevitable imprecision are to be avoided. It also assumes that a good way of avoiding bad results is for legal officials, as well as other people involved in the process, to refuse to become instruments of morally bad results. Lastly, the chapter argues that there is reason to be concerned about legal officials who lack the will to exercise moral interposition in performing their tasks. These assumptions are not necessarily true, but the chapter wants to work with the archetype that there is sometimes a problem of excessive official compliance, and that it would be beneficial if this problem could be resolved. The chapter wants to address the view of legal positivism as the cause of or the appropriate name for the willingness of legal officials to suspend moral judgment and enforce bad laws, just because they are the law.
