Anver M. Emon
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199661633
- eISBN:
- 9780191743399
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199661633.003.0001
- Subject:
- Law, Legal History, Comparative Law
This chapter introduces the thesis in terms of the major themes addressed throughout the book.
This chapter introduces the thesis in terms of the major themes addressed throughout the book.
Anver M. Emon
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199661633
- eISBN:
- 9780191743399
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199661633.003.0006
- Subject:
- Law, Legal History, Comparative 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. ...
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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
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.
Charles Sampford
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780198252986
- eISBN:
- 9780191681394
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198252986.003.0003
- Subject:
- Law, Philosophy 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 ...
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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
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.
RUMU SARKAR
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780195398281
- eISBN:
- 9780199866366
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195398281.003.001
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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
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.
Hugh Collins
- Published in print:
- 1984
- Published Online:
- March 2012
- ISBN:
- 9780192851444
- eISBN:
- 9780191670534
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780192851444.001.0001
- Subject:
- Law, Philosophy of Law
In this introduction to Marxism and the law, this book presents a unified and coherent view of Marxism, which it uses to examine the specific characteristics of legal institutions, rules, and ideals. ...
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In this introduction to Marxism and the law, this book presents a unified and coherent view of Marxism, which it uses to examine the specific characteristics of legal institutions, rules, and ideals. The book pays particular attention to the place of ideology in law, the distinction between base and superstructure, and the destiny of law in a Communist society. Its principal theme is the Marxist critique of the ideal of the Rule of Law. The book argues that the main purpose of a Marxist theory of law is to expose the belief in the Rule of Law as being a subtle and pervasive ideology which serves to obscure the structures of class domination within the State. The book frequently subjects the Marxist approach to criticism and it shows that many of the Marxist claims about law are unproven or misconceived.Less
In this introduction to Marxism and the law, this book presents a unified and coherent view of Marxism, which it uses to examine the specific characteristics of legal institutions, rules, and ideals. The book pays particular attention to the place of ideology in law, the distinction between base and superstructure, and the destiny of law in a Communist society. Its principal theme is the Marxist critique of the ideal of the Rule of Law. The book argues that the main purpose of a Marxist theory of law is to expose the belief in the Rule of Law as being a subtle and pervasive ideology which serves to obscure the structures of class domination within the State. The book frequently subjects the Marxist approach to criticism and it shows that many of the Marxist claims about law are unproven or misconceived.
Paulo Sérgio Pinheiro
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198781837
- eISBN:
- 9780191598968
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198781830.003.0011
- Subject:
- Political Science, Democratization
Highlights a fundamental contradiction in Brazil's democracy: the coexistence of political rights with pervasive human rights abuse. Political violence, condoned by the state, inhibits the extension ...
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Highlights a fundamental contradiction in Brazil's democracy: the coexistence of political rights with pervasive human rights abuse. Political violence, condoned by the state, inhibits the extension of citizenship rights. Brazilian Human Rights NGOs have made significant gains in combating societal and state violence. However, NGOs and other civil society actors are limited in their ability to curb the use of extra‐legal force by the extensive corruption within the state's judicial and security systems and by the lack of accountability in its political society. The ability to extend and to consolidate democracy in Brazil is blocked by the persistence of authoritarian practice within society and state.Less
Highlights a fundamental contradiction in Brazil's democracy: the coexistence of political rights with pervasive human rights abuse. Political violence, condoned by the state, inhibits the extension of citizenship rights. Brazilian Human Rights NGOs have made significant gains in combating societal and state violence. However, NGOs and other civil society actors are limited in their ability to curb the use of extra‐legal force by the extensive corruption within the state's judicial and security systems and by the lack of accountability in its political society. The ability to extend and to consolidate democracy in Brazil is blocked by the persistence of authoritarian practice within society and state.
Charles Sampford
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780198252986
- eISBN:
- 9780191681394
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198252986.003.0004
- Subject:
- Law, Philosophy 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 ...
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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 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.
Roger Cotterrell
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198264903
- eISBN:
- 9780191682858
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264903.003.0008
- Subject:
- Law, Philosophy of Law
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 ...
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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
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.
Anver M. Emon
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199661633
- eISBN:
- 9780191743399
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199661633.001.0001
- Subject:
- Law, Legal History, Comparative Law
This book problematizes tolerance as a conceptually helpful or coherent concept for understanding the significance of the dhimmī rules, the Islamic legal doctrines that governed and regulated ...
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This book problematizes tolerance as a conceptually helpful or coherent concept for understanding the significance of the dhimmī rules, the Islamic legal doctrines that governed and regulated non-Muslim permanent residents in Islamic lands. In doing so, it suggests that the Islamic legal treatment of non-Muslims is symptomatic of the more general challenge of governing a diverse polity. Far from being constitutive of an Islamic ethos, the dhimmī rules are symptomatic of the messy business of ordering and regulating a diverse society. This understanding of the dhimmī rules allows us to view the dhimmī rules in the larger context of law and pluralism, and in that fashion, creates new spaces for analyzing Sharīʿa as one among many legal systems that, far from being unique, suffers similar challenges as other legal systems that also contend with the challenges of governing amidst diversity.Less
This book problematizes tolerance as a conceptually helpful or coherent concept for understanding the significance of the dhimmī rules, the Islamic legal doctrines that governed and regulated non-Muslim permanent residents in Islamic lands. In doing so, it suggests that the Islamic legal treatment of non-Muslims is symptomatic of the more general challenge of governing a diverse polity. Far from being constitutive of an Islamic ethos, the dhimmī rules are symptomatic of the messy business of ordering and regulating a diverse society. This understanding of the dhimmī rules allows us to view the dhimmī rules in the larger context of law and pluralism, and in that fashion, creates new spaces for analyzing Sharīʿa as one among many legal systems that, far from being unique, suffers similar challenges as other legal systems that also contend with the challenges of governing amidst diversity.
Jens David Ohlin
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199573417
- eISBN:
- 9780191728822
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199573417.003.0012
- Subject:
- Law, Public International Law, Criminal Law and Criminology
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 ...
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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
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.
Nuno Garoupa and Tom Ginsburg
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780226290591
- eISBN:
- 9780226290621
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226290621.003.0007
- Subject:
- Law, Comparative Law
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 ...
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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
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.
Charles Sampford
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780198252986
- eISBN:
- 9780191681394
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198252986.003.0008
- Subject:
- Law, Philosophy 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 ...
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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
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.
Bruno Celano
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199679829
- eISBN:
- 9780191760051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199679829.003.0004
- Subject:
- Law, Philosophy of Law
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 ...
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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
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.
Roger Cotterrell
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198264903
- eISBN:
- 9780191682858
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264903.003.0012
- Subject:
- Law, Philosophy of Law
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 ...
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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
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.
Robert H. Wagstaff
- Published in print:
- 2013
- Published Online:
- April 2014
- ISBN:
- 9780199301553
- eISBN:
- 9780199344895
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199301553.003.0005
- Subject:
- Law, Public International Law, Comparative Law
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 ...
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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
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.
Laurent Pech
- Published in print:
- 2021
- Published Online:
- October 2021
- ISBN:
- 9780192846556
- eISBN:
- 9780191938887
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780192846556.003.0010
- Subject:
- Law, Public International Law, Private International Law
The history of the rule of law in the EU Treaty framework has been one of gradual but extensive process of entrenchment and formal enshrinement. When comparing the evolution of the Treaty framework ...
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The history of the rule of law in the EU Treaty framework has been one of gradual but extensive process of entrenchment and formal enshrinement. When comparing the evolution of the Treaty framework to the evolution of the EU’s rule of law toolbox, it is difficult not to be struck by the contrast between the gradual evolution of the former with the rapid development of the latter. This swift development of the EU’s rule of law toolbox may be understood both in a positive and negative way: it may be positively understood as the sign of a broad consensus regarding the critical importance to uphold the rule of law. Conversely, this evolution may be understood as a failure to fully confront the ‘rule of law backsliding’ threat by instead focusing in a quasi-permanent new instrument creation cycle at the EU level.Less
The history of the rule of law in the EU Treaty framework has been one of gradual but extensive process of entrenchment and formal enshrinement. When comparing the evolution of the Treaty framework to the evolution of the EU’s rule of law toolbox, it is difficult not to be struck by the contrast between the gradual evolution of the former with the rapid development of the latter. This swift development of the EU’s rule of law toolbox may be understood both in a positive and negative way: it may be positively understood as the sign of a broad consensus regarding the critical importance to uphold the rule of law. Conversely, this evolution may be understood as a failure to fully confront the ‘rule of law backsliding’ threat by instead focusing in a quasi-permanent new instrument creation cycle at the EU level.
Gillian K. Hadfield and Barry R. Weingast
- Published in print:
- 2018
- Published Online:
- September 2019
- ISBN:
- 9781479842933
- eISBN:
- 9781479857609
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9781479842933.003.0011
- Subject:
- Political Science, Political Theory
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 ...
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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
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..
Charles Sampford
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780198252986
- eISBN:
- 9780191681394
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198252986.003.0007
- Subject:
- Law, Philosophy 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 ...
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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
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.
Bruno Celano
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199675517
- eISBN:
- 9780191757280
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199675517.003.0007
- Subject:
- Law, Philosophy of Law
This chapter considers the shape taken by social power when the rule of the law is envisaged as an ethico-political ideal. It discusses the Rule of Law as a specific mode of the exercise of social ...
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This chapter considers the shape taken by social power when the rule of the law is envisaged as an ethico-political ideal. It discusses the Rule of Law as a specific mode of the exercise of social power, and what is valuable in it. It focuses on two Rule of Law requirements, consistency and compliability. It argues that they contribute to defining a distinctive mode of social power, one that shows respect for its subjects. Power can be effectively exercised by systematically flouting these two desiderata. Consistency and compliability are required, however, if the law is to treat its subjects as autonomous, responsible agents.Less
This chapter considers the shape taken by social power when the rule of the law is envisaged as an ethico-political ideal. It discusses the Rule of Law as a specific mode of the exercise of social power, and what is valuable in it. It focuses on two Rule of Law requirements, consistency and compliability. It argues that they contribute to defining a distinctive mode of social power, one that shows respect for its subjects. Power can be effectively exercised by systematically flouting these two desiderata. Consistency and compliability are required, however, if the law is to treat its subjects as autonomous, responsible agents.
Wojciech Sadurski
- Published in print:
- 2019
- Published Online:
- July 2019
- ISBN:
- 9780198840503
- eISBN:
- 9780191876219
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198840503.003.0008
- Subject:
- Law, Constitutional and Administrative Law
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 ...
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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
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.