NICOLAS DE SADELEER
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780199254743
- eISBN:
- 9780191719851
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199254743.003.04
- Subject:
- Law, Environmental and Energy Law
This chapter begins by identifying the various elements that together define modern and post-modern law. It explains how legal principles function within each of these legal models, for both ...
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This chapter begins by identifying the various elements that together define modern and post-modern law. It explains how legal principles function within each of these legal models, for both international and municipal law, with particular attention to the role they assume in the field of environmental law. It highlights the distinction that must be made between General Principles of Law, which are characteristic of modernity, and directing principles, which are better suited to adapting to the shifting forms that characterize current public policies including environmental policy. It demonstrates that directing principles do not represent a complete break with modernity, since they eventually result in the rediscovery of the same values upon which modernity is based. It explains that post-modernity is not merely a chaotic system composed of anti-modern elements; rather, it is a system whereby chaotic elements are ordered differently from modern law.Less
This chapter begins by identifying the various elements that together define modern and post-modern law. It explains how legal principles function within each of these legal models, for both international and municipal law, with particular attention to the role they assume in the field of environmental law. It highlights the distinction that must be made between General Principles of Law, which are characteristic of modernity, and directing principles, which are better suited to adapting to the shifting forms that characterize current public policies including environmental policy. It demonstrates that directing principles do not represent a complete break with modernity, since they eventually result in the rediscovery of the same values upon which modernity is based. It explains that post-modernity is not merely a chaotic system composed of anti-modern elements; rather, it is a system whereby chaotic elements are ordered differently from modern law.
Matthias Goldmann
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199674374
- eISBN:
- 9780191752315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199674374.003.0006
- Subject:
- Law, Company and Commercial Law, Public International Law
This chapter argues that principles in international law have their basis in comparative and analogical reasoning. It provides a taxonomy of principles ranging from general principles of law to soft ...
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This chapter argues that principles in international law have their basis in comparative and analogical reasoning. It provides a taxonomy of principles ranging from general principles of law to soft legal principles and structural principles which are devoid of normative significance. The classification of principles in international law depends on the extent to which they find confirmation in domestic and/or international law and to which their extrapolation to the international level might be suitable. In this regard, international soft law codifications like the UNCTAD Principles on Promoting Responsible Sovereign Lending and Borrowing might corroborate the formation of principles in international law. The chapter analyzes this process by using two examples from the field of fiscal policy: Substantive fiscal policy rules on debt or deficit ceilings; and rules on fiscal transparency. In both respects, the UNCTAD Principles strengthen important trends in domestic fiscal policy and fosters the emergence of an array of principles of varying legal character.Less
This chapter argues that principles in international law have their basis in comparative and analogical reasoning. It provides a taxonomy of principles ranging from general principles of law to soft legal principles and structural principles which are devoid of normative significance. The classification of principles in international law depends on the extent to which they find confirmation in domestic and/or international law and to which their extrapolation to the international level might be suitable. In this regard, international soft law codifications like the UNCTAD Principles on Promoting Responsible Sovereign Lending and Borrowing might corroborate the formation of principles in international law. The chapter analyzes this process by using two examples from the field of fiscal policy: Substantive fiscal policy rules on debt or deficit ceilings; and rules on fiscal transparency. In both respects, the UNCTAD Principles strengthen important trends in domestic fiscal policy and fosters the emergence of an array of principles of varying legal character.
Giacinto della Cananea and Stefano Mannoni (eds)
- Published in print:
- 2021
- Published Online:
- March 2021
- ISBN:
- 9780198867562
- eISBN:
- 9780191904332
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198867562.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book argues that too often the evolution of administrative law in Europe has been considered in the light of legal doctrines fashioned at the national level, if not of few authors, whose works ...
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This book argues that too often the evolution of administrative law in Europe has been considered in the light of legal doctrines fashioned at the national level, if not of few authors, whose works are quoted to stress the different paths undertaken by European countries after the French Revolution. The book deviates from these standard accounts in that it focuses on control of administrative power by the courts and considers, empirically, judicial decisions at the epoch of the Belle Époque, more precisely the years 1890-1910. The legal systems selected for comparison include Austria, Belgium, France, Germany, Italy, and the UK. Some relied on ordinary or generalist courts, while others created administrative courts, The outcome of the analysis confirms that, in contrast with the over-emphasized differences among national legal doctrines, the challenges which those legal systems faced were largely the same. Moreover, and more importantly, the analysis of the standards of conduct defined and refined by the courts reveals that they exercised an increasingly vigorous control over discretion. They gradually opened the gates of judicial review to new interests, intervened on grounds of purpose and defined general principles of law that were very similar, if not the same. The courts, not legislators, thus created the central tenets of administrative law. Finally, various explanations for the role played by the courts are considered in legal, historic, and political perspectives. The book thus provides an unprecedented outlook on the relationship between public authorities and individuals at the zenith of the sovereign state.Less
This book argues that too often the evolution of administrative law in Europe has been considered in the light of legal doctrines fashioned at the national level, if not of few authors, whose works are quoted to stress the different paths undertaken by European countries after the French Revolution. The book deviates from these standard accounts in that it focuses on control of administrative power by the courts and considers, empirically, judicial decisions at the epoch of the Belle Époque, more precisely the years 1890-1910. The legal systems selected for comparison include Austria, Belgium, France, Germany, Italy, and the UK. Some relied on ordinary or generalist courts, while others created administrative courts, The outcome of the analysis confirms that, in contrast with the over-emphasized differences among national legal doctrines, the challenges which those legal systems faced were largely the same. Moreover, and more importantly, the analysis of the standards of conduct defined and refined by the courts reveals that they exercised an increasingly vigorous control over discretion. They gradually opened the gates of judicial review to new interests, intervened on grounds of purpose and defined general principles of law that were very similar, if not the same. The courts, not legislators, thus created the central tenets of administrative law. Finally, various explanations for the role played by the courts are considered in legal, historic, and political perspectives. The book thus provides an unprecedented outlook on the relationship between public authorities and individuals at the zenith of the sovereign state.
