Search Results

Introduction

Anver M. Emon

in Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law

This chapter introduces the thesis in terms of the major themes addressed throughout the book.

Sharīʿa as Rule of Law

Anver M. Emon

in Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law

This chapter introduces and explains the analytic purchase of considering Sharīʿa as Rule of Law. The chapter addresses in inductive fashion various features of premodern Islamic law (e.g. ... More

This chapter introduces and explains the analytic purchase of considering Sharīʿa as Rule of Law. The chapter addresses in inductive fashion various features of premodern Islamic law (e.g. curriculum, minstitutions of adjudication, and interpretive theories). It contrasts those features with the contemporary elements that contribute to the legal culture of modern states, and thereby contributes a historical dimension to the Rule of Law analytic framework developed in the Introduction and this chapter.Less

The Rule of Law

Charles Sampford

in RETROSPECTIVITY AND THE RULE OF LAW

After the consideration of the most significant and widely applicable definition of retrospectivity, the chapter undergoes the same endeavour in relation to the ‘Rule of Law,’ which is generally ... More

After the consideration of the most significant and widely applicable definition of retrospectivity, the chapter undergoes the same endeavour in relation to the ‘Rule of Law,’ which is generally viewed to have significant impact on the conceptualization of retrospective law making. Frequently, the phrase is used by conventional thinkers, liberalists and radicals who usually contextualise it with overlapping setting features and components. Despite differences in perception, there is a noticeable consent in terms of particular elements. Furthermore, contradictory statements arise due to the discussion of the normative force of the Rule of Law, referring to its terms, conditions, scope, effectiveness and objectives. Provided here is an evaluation of the validity of major criticisms and commentaries regarding the unsuccessful conformity of retrospective legislation to the Rule of Law.Less

The Rule of Law: Theoretical Principles

RUMU SARKAR

in International Development Law: Rule of Law, Human Rights, and Global Finance

This chapter provides a brief overview of the philosophical background and history of development strategies and approaches, including a discussion of Max Weber's sociological theories and how they ... More

This chapter provides a brief overview of the philosophical background and history of development strategies and approaches, including a discussion of Max Weber's sociological theories and how they affect development thinking. Discourses on development theory (e.g., neoclassical economics, structuralist and dependency theorists, the Washington Consensus) and other approaches are discussed and put into historical perspective. Finally, the tension between modernization theory and dependency theory is examined, and a possible reconciliation of the two is proposed. The manner in which underlying development theories influence that pattern of governance and development approaches is reviewed. A Rule of Law matrix for designing structural legal reforms is thoroughly discussed. The chapter also includes graphics to support detailed discussions of legal reforms. The new concept of the Janus Law Principle (JLP) whereby developing countries can measure their individual need to develop a legal infrastructure is set forth. The JLP permits developing countries to determine where they stand with respect to integrating themselves into the global legal markets in the most efficacious and sustainable way. The multifaceted and practical considerations in making structural legal reforms are put into perspective.Less

Social Foundations of the Rule of Law: Franz Neumann and Otto Kirchheimer

Roger Cotterrell

in Law's Community: Legal Theory in Sociological Perspective

The theme of historical transformations of legal rationality can be further developed through an examination of the changing social foundations of the idea of the Rule of Law, illuminated by Franz ... More

The theme of historical transformations of legal rationality can be further developed through an examination of the changing social foundations of the idea of the Rule of Law, illuminated by Franz Neumann and Otto Kirchheimer. Neumann's view that the Rule of Law reconciles, in specific historical conditions, the contradictory elements of law as sovereign power or will (voluntas)and as reason or principle (ratio) is important to the arguments in Part III of this book. The idea of the Rule of Law recognises centralised political power as the immediate origin of modern law while emphasising certain values that may be asserted against government. But what does that formulation entail in contemporary conditions? Historical evidence suggests why an appropriate reconciliation of ratio and voluntas may be hard to maintain. This chapter discusses the legal invisibility of change, the Rule of Law of competitive society, the ‘England problem’ and the Rule of Law, and the experience of Weimar Germany.Less

Arguments against retrospective laws

Charles Sampford

in RETROSPECTIVITY AND THE RULE OF LAW

The chapter outlines usual debate topics pertaining to retrospective law. These arguments come in four major divisions: first is the assertion that retrospective rules are not laws at all; second is ... More

The chapter outlines usual debate topics pertaining to retrospective law. These arguments come in four major divisions: first is the assertion that retrospective rules are not laws at all; second is the allegation that this type of legislation is undemocratic; third is the declaration that retrospective rules are against the human rights; and lastly, the statement that such kind of legislation does not comply with the Rule of Law, which undermines its foundation’s validity. After reviewing all of these, it is insisted that the first claim is irrational, and among the four, the second declaration has some limitations since it only operates subsequent to specific conditions. To become believable, the third contention should cite examples where the expectations of people about the current laws are not met. Considered to be the most convincing stance, the fourth one generally suggests a prospective law making process.Less

The Rule of Lawyers: Globalization, International Law, and Judicial Reputation

Nuno Garoupa and Tom Ginsburg

in Judicial Reputation: A Comparative Theory

This chapter takes up the impact of globalization on courts, through consideration of the global rule of law movement and the expansion of the international judiciary. The rule of law movement, in ... More

This chapter takes up the impact of globalization on courts, through consideration of the global rule of law movement and the expansion of the international judiciary. The rule of law movement, in which outside actors spend resources to promote judicial reform and independence, obviously expands the external audiences for judicial activity, creating new opportunities to invest in reputation. And recent years have seen a significant proliferation of international courts—now numbering more than twenty-five by some definitions. These courts are interesting environments for testing our theory, because they have from the very beginning sought to merge elements of various legal traditions in defining procedures. We argue that the new global environment has changed the supply and demand of judicial reputation, with a greater emphasis on the collective reputation of courts and the emergence of new external audiences.Less

Proportional Sentences at the ICTY

Jens David Ohlin

in The Legacy of the International Criminal Tribunal for the Former Yugoslavia

Sentences handed down at the ICTY have generally been lower than sentences handed down by the ICTR or by many domestic penal systems punishing individuals for domestic crimes. This chapter diagnoses ... More

Sentences handed down at the ICTY have generally been lower than sentences handed down by the ICTR or by many domestic penal systems punishing individuals for domestic crimes. This chapter diagnoses this situation and concludes that the situation stems from a conflict between two different ideas of proportionality: defendant-relative proportionality and offence gravity proportionality. Although bearing some similarity to the categories first used by A. V. Hirsch, the categories are used to different effect in this chapter. Defendant-relative proportionality insists that defendants with a greater degree of culpability should receive a longer prison sentence compared with defendants with lower culpability, while offence gravity proportionality insists that each defendant should receive punishment that adequate accords with the gravity of the offence. These two senses of proportionality come into conflict at the ICTY when the only way to preserve defendant-relative proportionality is to scale down the punishment of those who are less culpable — a result which conflicts with offence gravity proportionality. The ICTY sentencing jurisprudence has fallen victim to this dilemma. Offence gravity proportionality is normatively prior and that a tribunal — like the ICTY — faced with sacrificing one over the other ought to prioritize offence gravity proportionality. The warrant for this conclusion is that the harsh treatment associated with offence gravity proportionality vindicates the Rule of Law by providing a hypothetical war criminal with a maxim for action (in the Kantian sense) that makes compliance with the law rational.Less

Publicity and the Rule of Law *

Bruno Celano

in Oxford Studies in Philosophy of Law: Volume 2

This chapter explores the requirement that laws should be public. When it is claimed that the Rule of Law requires that the laws should be public, what is to be understood by this claim? How is the ... More

This chapter explores the requirement that laws should be public. When it is claimed that the Rule of Law requires that the laws should be public, what is to be understood by this claim? How is the relevant notion of publicity to be defined? It argues that the Rule of Law requirement of publicity is best understood in terms of the notion of common, or mutual, knowledge. When it is required that the laws should be public, what should be meant by this is not only that each one of the law's addressees should know what the law is, but also that everybody should know that everybody knows what the law is, that everybody should know that everybody knows that everybody knows what the law is, and so on.Less

Conclusions and consequences for the Rule of Law

Charles Sampford

in RETROSPECTIVITY AND THE RULE OF LAW

Generally speaking, the whole volume aims to challenge the conventional and seemingly uncontroversial field of retrospective law making, which is viewed as a system addressing human rights violation ... More

Generally speaking, the whole volume aims to challenge the conventional and seemingly uncontroversial field of retrospective law making, which is viewed as a system addressing human rights violation and abuse of authority. Based on actual examples cited from several countries, retrospectivity is not an absolute system of thoughts; not even exotic and rare, but a usual circumstance. Debates such type of legislation revolve on the propositions and the elements of the Rule of Law as well as on the reliance level of citizens toward the established rules and regulations. Maltreatment, violence and exploitation are some of the offensive conducts that does not only require significant attention from the court officials, but also, the victims of these acts demand reliable and consistent justice system. That is why, despite the flaws of retrospective laws, these are still believed to contribute to the formation and the development of well-ordered societies.Less

Justifications for retrospective law

Charles Sampford

in RETROSPECTIVITY AND THE RULE OF LAW

Two apparent things have emerged in the course of discussing retrospective law making, including the idea that this kind of legislation is widely acceptable and implemented and that, it is a ... More

Two apparent things have emerged in the course of discussing retrospective law making, including the idea that this kind of legislation is widely acceptable and implemented and that, it is a manifestation of an ultimate contradiction against the detrimental notion about retrospectivity. Given the existence of prospective legislation, retroactivity still occupies a significant position in the courts of many nationalities. After such establishment, the next concern is about the determination on when retrospective law is validated. For absolutist critiques, the most convincing justification is to view retrospectivity as a ‘necessary evil’ especially under unusual conditions. Others contest that proper utilization of the concept lead to the endorsement and the realization of values put forward by the legal system. Thus, it is just right to claim that retrospectivity is an innate and a crucial component of a well-organized and a fully established community that operates under the Rule of Law.Less

Feasible Regulation for Democracy and Social Justice

Roger Cotterrell

in Law's Community: Legal Theory in Sociological Perspective

Law and state regulation — what can be collectively termed, following Karl Llewellyn, law-government — are being expected to do more and more to bring about major social changes and economic ... More

Law and state regulation — what can be collectively termed, following Karl Llewellyn, law-government — are being expected to do more and more to bring about major social changes and economic restructuring at a time when those who make use of law in this way proclaim its capacity to do less and less. This chapter explains this ambiguity and, in doing so, derives some conclusions about the limits which contemporary legal ideology sets on efforts to rethink the role of law in society. Very extensive positive and directive use of law to recreate a climate of free enterprise appears largely unquestioned as a matter of legal legitimacy, even if it is viewed as highly controversial politically. The ideology of law's incompatibility with substantial egalitarian policies is not based on specific experiences of regulatory failure alone. It is grounded more fundamentally in what may be termed supporting ideologies of property, liberty, the minimal state, and the Rule of Law. Social justice and democracy are not separate ideals but two aspects of the same aspiration.Less

The Rule of Law

Robert H. Wagstaff

in Terror Detentions and the Rule of Law: US and UK Perspectives

This chapter explores what is meant by the Rule of Law from AV Dicey to Tom Bingham and Ronald Dworkin. Much has been said about the rule of law since September 11, 2001,usually disingenuously by ... More

This chapter explores what is meant by the Rule of Law from AV Dicey to Tom Bingham and Ronald Dworkin. Much has been said about the rule of law since September 11, 2001,usually disingenuously by those who claim they are defending freedom. The Rule of Law is the implicit basis of the Law Lords’ four Belmarsh-based decisions and the four US Supreme Court Guantánamo decisions. These decisions manifest the meaning and history of the due process of law, fair trial, access to the courts, equality, habeas corpus and separation of powers - all core touchstones of the Rule of Law. Tom Bingham’s central premise defining the Rule of Law is that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’. This chapter explores the historical origins of the Rule of Law (Magna Carta) and separation of powers(Aristotle) and modern day developments (Constitutional Reform Act 2005); the writings of Lon Fuller, Joseph Raz, Jeffery Jowell, Jeremy Waldron, John Locke and Thomas Paine with regard to the rule of law; and the Human Rights Act, Parliamentary sovereignty, and fundamental rights today in the UK. A new and truly independent Supreme Court has emerged in the UK and the Rule of Law is the new sovereign.Less

Is Rule of Law an Equilibrium Without (Some) Private Enforcement?

Gillian K. Hadfield and Barry R. Weingast

in Privatization: NOMOS LX

This chapter argue against the presumptive priority of government even in the domain of law: in recent work, the authors have developed a framework for analyzing law in which they suggest that the ... More

This chapter argue against the presumptive priority of government even in the domain of law: in recent work, the authors have developed a framework for analyzing law in which they suggest that the main distinction between legal and other social orders is the presence of an entity capable of changing rules. But an equilibrium in which these rules generate compliance does not require a centralized enforcement authority; indeed, the authors argue that fully centralized enforcement is in fact incapable of sustaining an equilibrium characterized by rule of law. Rather, the need to coordinate and incentivize voluntary participation under decentralized enforcement yields the normatively attractive legal attributes associated with the rule of law, and the authors draw on classical Athens to illustrate this model. On their account, private enforcement – in the sense of social sanctions and exclusion, limited use of force, and cooperation with authorized enforcers – are essential for a legal system to achieve the rule of law..Less

Europe to the Rescue

Wojciech Sadurski

in Poland's Constitutional Breakdown

The Council of Europe (CoE) and the European Union (EU) possess significant legal instruments to affect and reverse anti-democratic changes in Poland, and some of these instruments have already been ... More

The Council of Europe (CoE) and the European Union (EU) possess significant legal instruments to affect and reverse anti-democratic changes in Poland, and some of these instruments have already been used, with varying degrees of success. The chapter opens with the CoE’s, and in particular the Venice Commission and the European Court of Human Rights’ contributions to policing Polish assaults on the rule of law. It then turns to the EU, and reflects upon the question as to whether the EU—with its assortment of different measures of ‘naming and shaming’ (Art. 7.1 Treaty on European Union (TEU)), sanctions (Arts 7.2 and 7.3 TEU), and legal infringement actions, as well as its newly crafted ‘rule of law framework’ (also known as the pre-Article 7 procedure)—has been so far, and can be in the near future, effective in cabining and reversing anti-democratic trends in one of its largest member states. The conclusion is affirmative: the EU has an important, even if limited, role to play in assisting Polish defenders of the rule of law and democracy.Less

Equity’s Own Room

Irit Samet

in Equity: Conscience Goes to Market

This chapter explains why Equity should be kept as an independent vibrant body of law. It opens by discussing two strands of the opposition to the dualist system of Equity and Common Law: the fusion ... More

This chapter explains why Equity should be kept as an independent vibrant body of law. It opens by discussing two strands of the opposition to the dualist system of Equity and Common Law: the fusion project, which advances the idea that the differences between Equity and Common Law ought to be ironed out so as to create one seamless cloth of private law; and the ‘conscionability scepticism’, which rejects the standard of conscience—the most familiar characteristic of Equity. The chapter analyses both views in terms of the Rule of Law (ROL) ideal and goes on to argue that Equity promotes a legal virtue that is neglected by Common Law’s fixation on the ROL ideal: the ‘Accountability Correspondence’. I then attempt to show how Equity reintroduces an essential equilibrium between Accountability Correspondence and the ROL, and the dangers of neglecting to promote such equilibrium. The chapter then explains why the characteristics most associated with Equity, namely, the use of flexible, ad hoc, ex post morally freighted principles, are necessary for the attainment of this goal. Next, I contend that the standard of conscionability—the epitome of Equity’s unique mode of action, is not at all as hostile to the ROL ideal as many conscionability sceptics claim.Less