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The European Union structure of rights is now being built upon the preexisting rights practices of the member states, which in turn developed in part in the light of US experience. In Europe, like in the USA, constitutional judicial review has moved on to more and more rights announcing and protecting review by more and more courts over time. Still, European judicial action favoring rights developed by somewhat different routes and continues to exhibit certain features that reflect specifically European heritages and contrast with the US.

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.

This chapter provides an outline of the types of rules which are found within state constitutions. It argues that state constitutions contain both legal and non-legal rules, and that constitutions may include laws drawn from a number of different legal systems. The chapter begins by reflecting on Hans Kelsen's account of the constitution and, by derivation, state. It introduces Kelsen's legalistic account of the constitution not only because of its inherent interest, but also because it has proved attractive to many British writers on the constitution. This attraction is curious, as it is in conflict with an established feature of British constitutional scholarship: the recognition of the plurality of sources of the constitution. The chapter argues that an appreciation of the strengths of this approach requires the rejection of the Kelsenian model. Legalistic accounts of state constitutions provide a distorted picture of the state.

This chapter argues that the narrow definition of conflict prevailing in international law is problematic in legal terms. It submits that an adequate definition of conflict of norms firstly has to be a wide one that includes incompatibilities between permissions and obligations, permissions and prohibitions, and obligations and prohibitions; and secondly should to rely on a ‘test of violation’. Additionally, this chapter clarifies misunderstandings in panel practice and academic writings relating to WTO Appellate Body rulings which have not in fact addressed the issue of conflicting norms of conduct, but the problem of inconsistent norms granting competences. In conclusion, the definition of conflict of norms in legal theory, in any given legal fields and in international law should read: There is a conflict between norms, one of which may be permissive, if in obeying or applying one norm, the other norm is necessarily or potentially violated.

This chapter advances the thesis that far from constituting a problem for democracy, moral relativism is actually the most solid intellectual foundation for it in the first place, through an analysis and discussion of the work of Hans Kelsen.

This chapter analyses the nature of collective identity implicit in the notion of a political community. Taking the debate between Hans Kelsen and Carl Schmitt on the competing claims to priority of the legal-normative and the political as exemplary of influential and opposing positions in constitutional theory, it argues (against both) that collective identity is reflexive identity, that self-constitution is constitution both by (political) and of (legal-normative) a collective self, and that the paradoxical relation of constituent power and constitutional form — of democracy and legality — is in a certain sense specious. The chapter sets a frame for addressing the arguments of the papers that follow.

This chapter views discretion not only as the scope of legal power, but also as power over the scope of the law. This sheds light on the process by which the EC and its Member States negotiate the unity and divergence of their respective legal orders in the context of the public policy exception. Section 2 considers the case law of the discretionary exercise of the public policy reserve to show that there is little hope of confirming the hypothesis of conceptual divergence. Drawing on Hans Kelsen's analysis of the indeterminacy of legal norms, Section 3 introduces the twofold sense of discretion. Section 4 situates discretion in a general theory of constituent and constituted power. Section 5 examines public policy in the light of this denser notion of discretion. Section 6 radicalizes the analysis of ‘playing for time’, suggesting that the negotiation of divergence does not merely take place in time but is also and perhaps primarily about the unity of time.

Starting from the perception that jurisprudence still predominantly but mostly unconsciously operates under the paradigm of logical empiricism, this chapter presents the following arguments: (i) logical empiricism is a doctrine that stands under fundamental tensions, namely between its logicistic and its empiristic tenets; (ii) Quine tried to solve this incompatibility by redefining the ambit of logicism and by saving empiricism in its redefined form of naturalism; (iii) Wilfrid Sellars, on the other hand, resolved the incoherence of logical empiricism by attacking its core thesis of empiricism as such; (iv) insight into Quine's arguments necessitate a move from legal positivism to legal naturalism; and (v) insight into Sellars' arguments necessitate a move from legal positivism to a non-empiricist theory of law of which so far we have only two (probably flawed) examples: Hegel's theory of Objective Spirit and Kelsen's Pure Theory of Law.

This introductory chapter situates Kelsen's Pure Theory in the context of contemporary legal positivism. The Pure Theory is typically considered to be a forerunner of purely descriptive legal positivist approaches. But this classification does not sit well with Kelsenian doctrines and texts that are typically overlooked by legal theorists: the thesis of the identity of law and state, Kelsen's defence of democracy and constitutionalism, and his advocacy of international legality. These parts of Kelsen's oeuvre suggest that the Pure Theory is driven by the normative ambitions of offering a defence of the rule of law, of democracy, of constitutionalism, and of international legalization. These ambitions cohere in the political ideal of a utopia of legality that is to be spelled out in this book.

Public lawyers in the Weimar Republic conceptualized the law as a novel means of performing the following pressing tasks that confronted state and society in the twentieth century: the regulation of an industrial economy, the amelioration of economic inequality, and the negotiation of cultural disagreement. During the Kaiserreich, monarchically legitimated elites unilaterally executed comparable tasks. However, in the Weimar Republic, previously excluded social groups—for instance, those represented by the Catholic, Social Democratic, Communist and National Socialist parties—now vied with traditionally represented social forces in electoral and parliamentary fora to formulate and direct regulatory, redistributive, and socially integrative policy. This chapter focuses on the fraught but not necessarily hopeless relationship of law and the welfare state or Sozialstaat. It traces the way liberal and social democratic lawyers like Richard Thoma and Hermann Heller attempted to constitutionally legitimize novel efforts at political regulation, economic redistribution and social integration while avoiding the intellectual either/or's insisted upon by the dominant legal theorists of the epoch, Hans Kelsen and Carl Schmitt.

This chapter discusses Hans Kelsen's influential attempt to present a “pure” theory of law, and the reasons for its failure. It tries to show that Kelsen's pure theory of law is the most striking—and in many ways, still the most interesting—defense of a complete detachment view, both in method and substance. It argues that the main reason for the failure of this project is that it identified the detachment view with antireductionism. Kelsen thought that a theory about the nature of law should avoid any reduction of legal facts to facts of any other type, either social or moral.

This chapter addresses the implications of vagueness for understanding the nature of law, and the nature of adjudication, through an argument that ‘higher-order’ vagueness (the vagueness of phrases like ‘clear case’ and ‘borderline case’) poses an overwhelming objection to various popular accounts of adjudication that take the standard view of adjudication (notably Ronald Dworkin's account). Those theories apply to law a version of the ‘principle of bivalence’ (the principle that every meaningful assertion is either true or false). This chapter rejects the application of bivalence as well as the contention that propositions of law are ‘neither true nor false’ in borderline cases. This chapter also discusses a characteristic feature of legal practice termed ‘juridical bivalence’ — the practice of treating people as if the application of the law to their situations were bivalent.

This chapter discusses the emergence of formal law-ascertainment as it growingly manifested itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) in general legal theory and in the theory of sources of international law. It starts with a sketch of the role played by formalism in the writings of Hobbes, Bentham and Austin — those who adhered to a restrictive source thesis — before turning to Kelsen and Hart who reinforced the source thesis by the so-called social thesis. Mention is also made of Hart’s followers, Raz, McCormick, Coleman as well as others who have been inspired by him like Bobbio Tamanaha and Twining. The chapter then turns to international law to examine how such a conception of formalism has been received and transposed in the mainstream theory of sources. In doing so, the chapter points to the anti-theoretical postures of most 20^th and early 21^st century international lawyers which, despite adhering to the source thesis in their great majority, barely explored the theoretical foundations of the mainstream theory of sources of international law. Particular attention is also paid to the place and role of formalism in the constitutionalist theories of international law.

This chapter attempts an original explanation of the independence of legal systems. The assumption made here is that constitutional independence can be explained, first, by observing that questions of sovereignty are closely related to issues which are central to the concept of a legal system; and secondly, by asserting the independence of local constitutional theory. A credible explanation for independence is set out in a series of propositions. The virtue of this explanation is that it provides an account of what lawyers, politicians and the public apparently assume: that Australia, Canada, and New Zealand are now independent and that that independence was achieved by legal means.