Kathleen Moore
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195387810
- eISBN:
- 9780199777242
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387810.001.0001
- Subject:
- Religion, Islam
Today there are more Muslims living in diaspora than at any time in history. This situation was not envisioned by Islamic law, which makes no provision for permanent as opposed to transient diasporic ...
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Today there are more Muslims living in diaspora than at any time in history. This situation was not envisioned by Islamic law, which makes no provision for permanent as opposed to transient diasporic communities. Western Muslims are therefore faced with the necessity of developing an Islamic law for Muslim communities living in non-Muslim societies. This book explores the development of new forms of Islamic law and legal reasoning in the U.S. and Great Britain, as well as Muslims encountering Anglo-American common law and its unfamiliar commitments to pluralism and participation, and to gender, family, and identity. The underlying context is the aftermath of 9/11 and 7/7, the two attacks that arguably recast the way the West views Muslims and Islam. Islamic jurisprudence, the book notes, contains a number of references to various “abodes” and a number of interpretations of how Muslims should conduct themselves within those worlds. These include the dar al harb (house of war), dar al kufr (house of unbelievers), and dar al salam (house of peace). How Islamic law interprets these determines the debates that take shape in and around Islamic legality in these spaces. The book's analysis emphasizes the multiplicities of law, and the tensions between secularism and religiosity. It offers a close examination of the emergence of a contingent legal consciousness shaped by the exceptional circumstances of being Muslim in the U.S. and Britain in the 1990s and the first decade of the 21st century.Less
Today there are more Muslims living in diaspora than at any time in history. This situation was not envisioned by Islamic law, which makes no provision for permanent as opposed to transient diasporic communities. Western Muslims are therefore faced with the necessity of developing an Islamic law for Muslim communities living in non-Muslim societies. This book explores the development of new forms of Islamic law and legal reasoning in the U.S. and Great Britain, as well as Muslims encountering Anglo-American common law and its unfamiliar commitments to pluralism and participation, and to gender, family, and identity. The underlying context is the aftermath of 9/11 and 7/7, the two attacks that arguably recast the way the West views Muslims and Islam. Islamic jurisprudence, the book notes, contains a number of references to various “abodes” and a number of interpretations of how Muslims should conduct themselves within those worlds. These include the dar al harb (house of war), dar al kufr (house of unbelievers), and dar al salam (house of peace). How Islamic law interprets these determines the debates that take shape in and around Islamic legality in these spaces. The book's analysis emphasizes the multiplicities of law, and the tensions between secularism and religiosity. It offers a close examination of the emergence of a contingent legal consciousness shaped by the exceptional circumstances of being Muslim in the U.S. and Britain in the 1990s and the first decade of the 21st century.
Tariq Ramadan
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195331714
- eISBN:
- 9780191720987
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195331714.003.0007
- Subject:
- Religion, Islam
This chapter presents a synthesis of discussions in the preceding chapters. It reviews the various classical schools of the fundamentals of usûl al-fiqh. It then proposes a new geography of the ...
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This chapter presents a synthesis of discussions in the preceding chapters. It reviews the various classical schools of the fundamentals of usûl al-fiqh. It then proposes a new geography of the sources of Islamic law and jurisprudence.Less
This chapter presents a synthesis of discussions in the preceding chapters. It reviews the various classical schools of the fundamentals of usûl al-fiqh. It then proposes a new geography of the sources of Islamic law and jurisprudence.
Michelle T. Grando
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199572649
- eISBN:
- 9780191722103
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572649.001.0001
- Subject:
- Law, Public International Law
This book examines the process through which a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a case, i.e., the process of ...
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This book examines the process through which a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a case, i.e., the process of fact-finding or process of proof. The Dispute Settlement Understanding provides general guidance but few direct answers to specific questions regarding the process of fact-finding, which has placed upon panels and the Appellate Body the responsibility to provide answers to those questions as they have arisen in the cases. This book reviews the extensive jurisprudence developed in the 14 years of operation of the WTO dispute settlement system with a view to (a) determining whether panels and the Appellate Body have set out optimal rules to govern the process of fact-finding and, to the extent that that is not the case; and (b) to make suggestions for improvement. This book analyses questions such as: (i) Which party bears the responsibility of ultimately convincing the panel of the truth of a fact (burden of proof)?; (ii) What quantum of proof is necessary to convince the panel (standard of proof)?; (iii) The role of the panel, disputing parties, and non-disputing parties (e.g,. experts, international organizations, private parties) in the development of the evidentiary record on which the panel bases its decision; (iv) The consequences of a party's failure to cooperate in the process of fact-finding; (v) How the parties can access the information which is necessary to prove their allegations; and (vi) The treatment of confidential business and governmental information. In assessing and making suggestions to improve the answers provided by panels to these questions, the book draws on the approaches followed in the two major legal systems of the world — the common law and the civil law — and to the extent possible, the approaches adopted by other international courts and tribunals.Less
This book examines the process through which a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a case, i.e., the process of fact-finding or process of proof. The Dispute Settlement Understanding provides general guidance but few direct answers to specific questions regarding the process of fact-finding, which has placed upon panels and the Appellate Body the responsibility to provide answers to those questions as they have arisen in the cases. This book reviews the extensive jurisprudence developed in the 14 years of operation of the WTO dispute settlement system with a view to (a) determining whether panels and the Appellate Body have set out optimal rules to govern the process of fact-finding and, to the extent that that is not the case; and (b) to make suggestions for improvement. This book analyses questions such as: (i) Which party bears the responsibility of ultimately convincing the panel of the truth of a fact (burden of proof)?; (ii) What quantum of proof is necessary to convince the panel (standard of proof)?; (iii) The role of the panel, disputing parties, and non-disputing parties (e.g,. experts, international organizations, private parties) in the development of the evidentiary record on which the panel bases its decision; (iv) The consequences of a party's failure to cooperate in the process of fact-finding; (v) How the parties can access the information which is necessary to prove their allegations; and (vi) The treatment of confidential business and governmental information. In assessing and making suggestions to improve the answers provided by panels to these questions, the book draws on the approaches followed in the two major legal systems of the world — the common law and the civil law — and to the extent possible, the approaches adopted by other international courts and tribunals.
Keith Culver and Michael Giudice
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195370751
- eISBN:
- 9780199775903
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370751.001.0001
- Subject:
- Law, Philosophy of Law
Analytical legal theories are increasingly sophisticated, yet their development is uneven. While admirably adapted to explaining the unitary law-state, they are poorly suited to characterizing new ...
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Analytical legal theories are increasingly sophisticated, yet their development is uneven. While admirably adapted to explaining the unitary law-state, they are poorly suited to characterizing new law-like phenomena. From international law to the new legal order of the European Union, to shared governance and overlapping jurisdiction in transboundary areas, what at least appear to be instances of legality are at best weakly explained by approaches that presume the centrality of legal system as the mark and measure of social situations fully worthy of the title of legality. What next, as phenomena threaten to outstrip theory? Legality's Borders: An Essay in General Jurisprudence explains the rudiments of an inter-institutional theory of law, a theory which finds legality in the interaction between legal institutions, whose legality is characterized in terms of the kinds of norms they use rather than their content or system-membership. Prominent forms of legality such as the law-state and international law are then explained as particular forms of complex agglomeration of legal institutions, varying in form and complexity rather than sheer legality. This approach enables a fundamental shift in approach to the problems of identity and continuity of characteristically legal situations in social life: once legality is decoupled from legal system, the patterns of intense mutual reference amongst the legal institutions of the law-state can be seen as one justifiably prominent form of legality amongst others including overlapping forms of legality such as the European Union.Less
Analytical legal theories are increasingly sophisticated, yet their development is uneven. While admirably adapted to explaining the unitary law-state, they are poorly suited to characterizing new law-like phenomena. From international law to the new legal order of the European Union, to shared governance and overlapping jurisdiction in transboundary areas, what at least appear to be instances of legality are at best weakly explained by approaches that presume the centrality of legal system as the mark and measure of social situations fully worthy of the title of legality. What next, as phenomena threaten to outstrip theory? Legality's Borders: An Essay in General Jurisprudence explains the rudiments of an inter-institutional theory of law, a theory which finds legality in the interaction between legal institutions, whose legality is characterized in terms of the kinds of norms they use rather than their content or system-membership. Prominent forms of legality such as the law-state and international law are then explained as particular forms of complex agglomeration of legal institutions, varying in form and complexity rather than sheer legality. This approach enables a fundamental shift in approach to the problems of identity and continuity of characteristically legal situations in social life: once legality is decoupled from legal system, the patterns of intense mutual reference amongst the legal institutions of the law-state can be seen as one justifiably prominent form of legality amongst others including overlapping forms of legality such as the European Union.
August Reinisch (ed.)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199595297
- eISBN:
- 9780191595752
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199595297.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book ...
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The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.Less
The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.
Andrew Stewart Skinner
- Published in print:
- 1996
- Published Online:
- October 2011
- ISBN:
- 9780198233343
- eISBN:
- 9780191678974
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198233343.003.0001
- Subject:
- Economics and Finance, Economic History
Following the publication of The Theory of Moral Sentiments, it appears that Adam Smith gave greater emphasis to jurisprudence and economics at the expense of the ethical material. While the lectures ...
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Following the publication of The Theory of Moral Sentiments, it appears that Adam Smith gave greater emphasis to jurisprudence and economics at the expense of the ethical material. While the lectures on theology have not been discovered as yet, it is at least possible that Smith's position would have shown agreement with that of Isaac Newton. Smith made use of a number of Newtonian analogies whose implications are not inconsistent with the view of God as the Divine Architect or Great Superintendent of the Universe. He made wide use of mechanistic (and other) analogies, seeing in the universe a ‘great machine’ wherein we may observe ‘means adjusted with the nicest artifice to the ends which they are intended to produce’. The remaining parts of Smith's lectures — ethics, jurisprudence, and economics — were seen by him as the parts, separate but interconnected, of an even wider system of social science, a point that emerges clearly from the advertisement to the sixth edition of The Theory of Moral Sentiments, published in the year of Smith's death.Less
Following the publication of The Theory of Moral Sentiments, it appears that Adam Smith gave greater emphasis to jurisprudence and economics at the expense of the ethical material. While the lectures on theology have not been discovered as yet, it is at least possible that Smith's position would have shown agreement with that of Isaac Newton. Smith made use of a number of Newtonian analogies whose implications are not inconsistent with the view of God as the Divine Architect or Great Superintendent of the Universe. He made wide use of mechanistic (and other) analogies, seeing in the universe a ‘great machine’ wherein we may observe ‘means adjusted with the nicest artifice to the ends which they are intended to produce’. The remaining parts of Smith's lectures — ethics, jurisprudence, and economics — were seen by him as the parts, separate but interconnected, of an even wider system of social science, a point that emerges clearly from the advertisement to the sixth edition of The Theory of Moral Sentiments, published in the year of Smith's death.
Martin Shapiro
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0001
- Subject:
- Political Science, Comparative Politics
This paper was originally published in the Kentucky Law Journal in 1964, and it is the first of two that elaborate a relatively general approach to judicial politics, which emphasizes the underlying ...
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This paper was originally published in the Kentucky Law Journal in 1964, and it is the first of two that elaborate a relatively general approach to judicial politics, which emphasizes the underlying social logics not only of law and courts but also of politics and government. It gives an account of the then new movement of political jurisprudence, which is described as essentially an extension of certain elements of sociological jurisprudence and judicial realism, combined with the substantive knowledge and methodology of political science. The foundation of the movement is the sociological jurist’s premise that the law must be understood not as an independent organism, but as an integral part of the social system; it is, in one sense, an attempt to advance the earlier movement of sociological jurisprudence by greater specialization. The new movement seeks to overcome the earlier one by concentrating on the specifically political aspects of the law’s interaction with society and describing the concrete impact of legal arrangements on the distribution of power and rewards among the various elements of a given society. Rather than presenting a general analysis of a purportedly complete new philosophical system, the paper attempts to describe it by means of a survey that suggests a general tone and approach as well as indicating some differences, conflicts, and weaknesses.Less
This paper was originally published in the Kentucky Law Journal in 1964, and it is the first of two that elaborate a relatively general approach to judicial politics, which emphasizes the underlying social logics not only of law and courts but also of politics and government. It gives an account of the then new movement of political jurisprudence, which is described as essentially an extension of certain elements of sociological jurisprudence and judicial realism, combined with the substantive knowledge and methodology of political science. The foundation of the movement is the sociological jurist’s premise that the law must be understood not as an independent organism, but as an integral part of the social system; it is, in one sense, an attempt to advance the earlier movement of sociological jurisprudence by greater specialization. The new movement seeks to overcome the earlier one by concentrating on the specifically political aspects of the law’s interaction with society and describing the concrete impact of legal arrangements on the distribution of power and rewards among the various elements of a given society. Rather than presenting a general analysis of a purportedly complete new philosophical system, the paper attempts to describe it by means of a survey that suggests a general tone and approach as well as indicating some differences, conflicts, and weaknesses.
David Lyons
- Published in print:
- 1991
- Published Online:
- October 2011
- ISBN:
- 9780198239642
- eISBN:
- 9780191679971
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198239642.001.0001
- Subject:
- Philosophy, Political Philosophy, History of Philosophy
Although known as the founder of modern utilitarianism and the source of analytical jurisprudence, Bentham today is infrequently read, but often caricatured. This book, based on a study of Bentham's ...
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Although known as the founder of modern utilitarianism and the source of analytical jurisprudence, Bentham today is infrequently read, but often caricatured. This book, based on a study of Bentham's most important works, offers a reinterpretation of Bentham's main philosophical doctrines, his principle of utility and his analysis of law. The evidence indicates that Bentham was no ‘universalist’ in morals, but embraced a dual standard—in politics the community's interest, in ‘private ethics’ the agent's interest—which may in turn be based on the idea that government should serve the interests of those who are ‘governed’. The argument challenges many common assumptions about Bentham's view of human nature and of political institutions. A new reading is also given to his theory of law, which suggests Bentham's insight, originality, and continued interest for philosophers and legal theorists. This book was first published in 1973. This revised edition contains a new preface, a revised bibliography, and two new indexes, one of names and one of subjects, which together replace the original index.Less
Although known as the founder of modern utilitarianism and the source of analytical jurisprudence, Bentham today is infrequently read, but often caricatured. This book, based on a study of Bentham's most important works, offers a reinterpretation of Bentham's main philosophical doctrines, his principle of utility and his analysis of law. The evidence indicates that Bentham was no ‘universalist’ in morals, but embraced a dual standard—in politics the community's interest, in ‘private ethics’ the agent's interest—which may in turn be based on the idea that government should serve the interests of those who are ‘governed’. The argument challenges many common assumptions about Bentham's view of human nature and of political institutions. A new reading is also given to his theory of law, which suggests Bentham's insight, originality, and continued interest for philosophers and legal theorists. This book was first published in 1973. This revised edition contains a new preface, a revised bibliography, and two new indexes, one of names and one of subjects, which together replace the original index.
Pavlos Eleftheriadis
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199545285
- eISBN:
- 9780191719899
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199545285.001.0001
- Subject:
- Law, Philosophy of Law
How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured ...
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How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this ‘legal positivist’ school of jurisprudence, the law endorses rights by some official act suitably communicated. But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.Less
How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this ‘legal positivist’ school of jurisprudence, the law endorses rights by some official act suitably communicated. But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.
Francesco Parisi and Vincy Fon
- Published in print:
- 2009
- Published Online:
- January 2009
- ISBN:
- 9780195374155
- eISBN:
- 9780199871834
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195374155.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional ...
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This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional design in lawmaking. It considers the respective advantages and proper scope of application of four fundamental sources of law: legislation, judge-made law, customary law, and international law. The defining features of these four sources of law are examined using the formal methods of public choice theory: lawmaking through legislation; lawmaking through adjudication; lawmaking through practice; and lawmaking through agreement. The book begins by examining the sources of law dependent on collective political decision-making, such as legislation. Multiple issues are considered, such as optimal specificity of law, optimal timing of legal intervention and optimal territorial scope of law, and include a thorough discussion on the sources of law derived from judges' decisions, such as common law. It provides an extensive study on the roles of litigation and judicial path-dependence on judge-made law, biases in the evolution of legal remedies through litigation, and the effect of alternative doctrines of legal precedent, such as stare decisis and jurisprudence constante. It also considers the customary sources of law, with special attention on the mechanisms that determine their emergence and evolution, and explores sources of law derived from international treaties and conventions. The Economics of Lawmaking is the first systematic law and economics treatment of this field and will shed new light on the process of lawmaking.Less
This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional design in lawmaking. It considers the respective advantages and proper scope of application of four fundamental sources of law: legislation, judge-made law, customary law, and international law. The defining features of these four sources of law are examined using the formal methods of public choice theory: lawmaking through legislation; lawmaking through adjudication; lawmaking through practice; and lawmaking through agreement. The book begins by examining the sources of law dependent on collective political decision-making, such as legislation. Multiple issues are considered, such as optimal specificity of law, optimal timing of legal intervention and optimal territorial scope of law, and include a thorough discussion on the sources of law derived from judges' decisions, such as common law. It provides an extensive study on the roles of litigation and judicial path-dependence on judge-made law, biases in the evolution of legal remedies through litigation, and the effect of alternative doctrines of legal precedent, such as stare decisis and jurisprudence constante. It also considers the customary sources of law, with special attention on the mechanisms that determine their emergence and evolution, and explores sources of law derived from international treaties and conventions. The Economics of Lawmaking is the first systematic law and economics treatment of this field and will shed new light on the process of lawmaking.
Martin Shapiro and Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.001.0001
- Subject:
- Political Science, Comparative Politics
Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and ...
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Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In this book, two leading political scientists present a compilation of their research in 11 papers (some old, some new) that focus on how to build and test a social science and politics of law, courts, and judging. Chapters 1–5 each contain two pieces, one by each author addressing a common topic. Each pair of papers is preceded by co-authored introductions that explain how the materials presented relate to the more general purpose of developing a broad-gauge social science research agenda on law and courts, discuss the original motivations for writing the papers, and trace important (but perhaps not always obvious) connections between the two offerings. Chapter 6 consists of a co-authored piece. The opening chapter features Shapiro’s classic ‘Political Jurisprudence’, and Stone Sweet’s ‘Judicialization and the Construction of Governance’, pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the law-making dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping ‘judicialization of politics’ around the world. Chosen empirical settings include the United States, the GATT–WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria.Less
Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In this book, two leading political scientists present a compilation of their research in 11 papers (some old, some new) that focus on how to build and test a social science and politics of law, courts, and judging. Chapters 1–5 each contain two pieces, one by each author addressing a common topic. Each pair of papers is preceded by co-authored introductions that explain how the materials presented relate to the more general purpose of developing a broad-gauge social science research agenda on law and courts, discuss the original motivations for writing the papers, and trace important (but perhaps not always obvious) connections between the two offerings. Chapter 6 consists of a co-authored piece. The opening chapter features Shapiro’s classic ‘Political Jurisprudence’, and Stone Sweet’s ‘Judicialization and the Construction of Governance’, pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the law-making dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping ‘judicialization of politics’ around the world. Chosen empirical settings include the United States, the GATT–WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria.
Michael Banton
- Published in print:
- 1996
- Published Online:
- November 2003
- ISBN:
- 9780198280613
- eISBN:
- 9780191598760
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280610.003.0009
- Subject:
- Political Science, International Relations and Politics
More detailed consideration is given to CERD's jurisprudence on particular articles, such as the recommendation that Article 3 constitutes a general prohibition of racial segregation and not just of ...
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More detailed consideration is given to CERD's jurisprudence on particular articles, such as the recommendation that Article 3 constitutes a general prohibition of racial segregation and not just of apartheid. The discussion of particular articles is related to the Committee's observations on particular reports. It concludes that the dialogue with European states has been productive because there is also pressure for action arising within these states.Less
More detailed consideration is given to CERD's jurisprudence on particular articles, such as the recommendation that Article 3 constitutes a general prohibition of racial segregation and not just of apartheid. The discussion of particular articles is related to the Committee's observations on particular reports. It concludes that the dialogue with European states has been productive because there is also pressure for action arising within these states.
Gráinne de Búrca
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199257409
- eISBN:
- 9780191600951
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019925740X.003.0003
- Subject:
- Political Science, European Union
Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the ...
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Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the Court. Rather than debating the question of what kind of institutional actor the ECJ is within the EU political system, the chapter proceeds on the premise that the Court is a purposive actor that nonetheless considers itself to be constrained in significant ways by the text of the EC Treaties, by its own previous body of case law, and in different ways by the political and social context within which it operates. Reflects on the polity‐shaping impacts of the case law of the ECJ, including the effects on EU and national political organizations and on the notion of a European citizen, and, finally, how the Court may or may not be responding to the changing nature of EU law. Various case studies on case law are included. The four sections of the chapter are: Introduction; The Court and the Political Decision‐Making Bodies: Policing of the Bounds of EU Power; The Court and the Individual; and Conclusion.Less
Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the Court. Rather than debating the question of what kind of institutional actor the ECJ is within the EU political system, the chapter proceeds on the premise that the Court is a purposive actor that nonetheless considers itself to be constrained in significant ways by the text of the EC Treaties, by its own previous body of case law, and in different ways by the political and social context within which it operates. Reflects on the polity‐shaping impacts of the case law of the ECJ, including the effects on EU and national political organizations and on the notion of a European citizen, and, finally, how the Court may or may not be responding to the changing nature of EU law. Various case studies on case law are included. The four sections of the chapter are: Introduction; The Court and the Political Decision‐Making Bodies: Policing of the Bounds of EU Power; The Court and the Individual; and Conclusion.
Tim Hayward
- Published in print:
- 2004
- Published Online:
- July 2005
- ISBN:
- 9780199278688
- eISBN:
- 9780191602757
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199278687.003.0004
- Subject:
- Political Science, Political Theory
Responds to critical claims that constitutionalising the right to an adequate environment would not be prudent due to difficulties making it justiciable and difficulties that could make success on ...
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Responds to critical claims that constitutionalising the right to an adequate environment would not be prudent due to difficulties making it justiciable and difficulties that could make success on the merits unlikely in cases appealing to it. Shows these difficulties are not insurmountable and do not arise from the inherent nature of rights or of environmental problems. What surmounting them does involve, though, is ensuring that courts have the requisite institutional and constitutional competence, which critics consider to be, respectively, unfeasible and undesirable. It is shown that there is no serious obstacle to the development of the requisite institutional competence, which, if necessary, can be achieved through the establishment of specialist environmental courts. As for questions of courts’ legitimate constitutional competence, these arise not only for environmental rights, but for fundamental rights more generally. Also points out that litigation is not the only, or most significant, purpose in constitutionalising the right.Less
Responds to critical claims that constitutionalising the right to an adequate environment would not be prudent due to difficulties making it justiciable and difficulties that could make success on the merits unlikely in cases appealing to it. Shows these difficulties are not insurmountable and do not arise from the inherent nature of rights or of environmental problems. What surmounting them does involve, though, is ensuring that courts have the requisite institutional and constitutional competence, which critics consider to be, respectively, unfeasible and undesirable. It is shown that there is no serious obstacle to the development of the requisite institutional competence, which, if necessary, can be achieved through the establishment of specialist environmental courts. As for questions of courts’ legitimate constitutional competence, these arise not only for environmental rights, but for fundamental rights more generally. Also points out that litigation is not the only, or most significant, purpose in constitutionalising the right.
Tim Hayward
- Published in print:
- 2004
- Published Online:
- July 2005
- ISBN:
- 9780199278688
- eISBN:
- 9780191602757
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199278687.003.0007
- Subject:
- Political Science, Political Theory
The main question of this chapter is whether the constitutional enhancement of citizens’ environmental rights in affluent states might exacerbate the environmental problems of poorer nations. It is ...
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The main question of this chapter is whether the constitutional enhancement of citizens’ environmental rights in affluent states might exacerbate the environmental problems of poorer nations. It is pointed out in response that the environmental interests of the rich are already better protected than those of the poor because the latter have less power to resist the imposition of threats to them. This is largely a result of market forces operating under a regime of rights that is in principle opposed by the right to an adequate environment. The interests of poorer countries do not oppose the development of constitutional environmental rights in richer countries. Rather, their interest is to bring about conditions that it would make it possible to secure those same rights for themselves. Indeed, some of the most important precedents in the field of constitutional environmental rights have been set in poorer states. The conclusion is that constitutionalising environmental rights contributes to rather than detracts from the process of building environmental justice, both domestically and globally.Less
The main question of this chapter is whether the constitutional enhancement of citizens’ environmental rights in affluent states might exacerbate the environmental problems of poorer nations. It is pointed out in response that the environmental interests of the rich are already better protected than those of the poor because the latter have less power to resist the imposition of threats to them. This is largely a result of market forces operating under a regime of rights that is in principle opposed by the right to an adequate environment. The interests of poorer countries do not oppose the development of constitutional environmental rights in richer countries. Rather, their interest is to bring about conditions that it would make it possible to secure those same rights for themselves. Indeed, some of the most important precedents in the field of constitutional environmental rights have been set in poorer states. The conclusion is that constitutionalising environmental rights contributes to rather than detracts from the process of building environmental justice, both domestically and globally.
Matthias Klatt (ed.)
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199582068
- eISBN:
- 9780191739354
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199582068.001.0001
- Subject:
- Law, Philosophy of Law
This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the ...
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This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the complex relations between rights, law, and morality and reflect on Alexy's distinctive work on these issues. The focus across the chapters is on Alexy's main pre-occupations — his anti-positivist views on the nature of law, his approach to the nature of legal reasoning, and his understanding of constitutional rights as legal principles. In an extended response to the contributions in the volume, Alexy develops his views on these central issues. The volume's juxtaposition of Anglo-American and German perspectives brings into focus the differences as well as the prospect of cross-fertilization between Continental and Anglo-American work in jurisprudence.Less
This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the complex relations between rights, law, and morality and reflect on Alexy's distinctive work on these issues. The focus across the chapters is on Alexy's main pre-occupations — his anti-positivist views on the nature of law, his approach to the nature of legal reasoning, and his understanding of constitutional rights as legal principles. In an extended response to the contributions in the volume, Alexy develops his views on these central issues. The volume's juxtaposition of Anglo-American and German perspectives brings into focus the differences as well as the prospect of cross-fertilization between Continental and Anglo-American work in jurisprudence.
J.W.F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.001.0001
- Subject:
- Law, Comparative Law, Legal History
The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty ...
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The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty about the judicial role. It has provoked a continuing debate on the desirability of distinguishing between basic categories of public and private law. In this debate, a historical and comparative perspective has been lacking. By way of a comparative historical jurisprudence and a Weberian method, this book introduces such a perspective from which to view the problematic English distinction between public and private law as a legal transplant from the Continental civil law to the English common law. It provides a novel application of that method to the distinction's contrasting development in England and France. It compares the relatively recent emergence of a significant English distinction with the entrenchment of the traditional and influential French distinction demarcating the leading system of droit administratif developed by the Conseil d'Etat. Emphasising systemic interconnections between theory, institutions, and judicial procedure in the development of legal system, it explains how persistent problems of English public law are related to fundamental differences between the English and French legal and political traditions — differences in their conception of the state administration, their approach to law, their separation of powers, and their judicial procedures in public law cases. The book shows how a satisfactory distinction between public and private law depends on a particular legal and political context, a context that was evident in late 19th-century France and lacking in 20th-century England. It concludes by identifying the far-reaching theoretical, institutional, and procedural changes required to accommodate English public law.Less
The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty about the judicial role. It has provoked a continuing debate on the desirability of distinguishing between basic categories of public and private law. In this debate, a historical and comparative perspective has been lacking. By way of a comparative historical jurisprudence and a Weberian method, this book introduces such a perspective from which to view the problematic English distinction between public and private law as a legal transplant from the Continental civil law to the English common law. It provides a novel application of that method to the distinction's contrasting development in England and France. It compares the relatively recent emergence of a significant English distinction with the entrenchment of the traditional and influential French distinction demarcating the leading system of droit administratif developed by the Conseil d'Etat. Emphasising systemic interconnections between theory, institutions, and judicial procedure in the development of legal system, it explains how persistent problems of English public law are related to fundamental differences between the English and French legal and political traditions — differences in their conception of the state administration, their approach to law, their separation of powers, and their judicial procedures in public law cases. The book shows how a satisfactory distinction between public and private law depends on a particular legal and political context, a context that was evident in late 19th-century France and lacking in 20th-century England. It concludes by identifying the far-reaching theoretical, institutional, and procedural changes required to accommodate English public law.
Lawrence Rosen
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298854
- eISBN:
- 9780191707452
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298854.001.0001
- Subject:
- Law, Comparative Law
One out of five people in the world today lives subject to Islamic law, but stereotypes of rigid doctrine or harsh punishment obscure an understanding of the values and style of reasoning that ...
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One out of five people in the world today lives subject to Islamic law, but stereotypes of rigid doctrine or harsh punishment obscure an understanding of the values and style of reasoning that characterize everyday Islamic adjudication. By considering its larger social and cultural context, Islamic law is shown to be a kind of common law system: justice is sought through a careful assessment of persons, more than facts, and justice resides not in equality, but in a quest for equivalence. Through ordinary court proceedings the style of reasoning is seen to be embedded in a set of cultural assumptions, thus rendering the study of Islamic legal proceedings a window on Muslim society generally. Using data ranging from the courts of North Africa to the treatment of Islam in American courts, from a reinterpretation of the Prophet's sociological jurisprudence to the analysis of Islamic concepts of responsibility and trust, these essays demonstrate the enduring appeal of Islamic law in the lives of ordinary adherents.Less
One out of five people in the world today lives subject to Islamic law, but stereotypes of rigid doctrine or harsh punishment obscure an understanding of the values and style of reasoning that characterize everyday Islamic adjudication. By considering its larger social and cultural context, Islamic law is shown to be a kind of common law system: justice is sought through a careful assessment of persons, more than facts, and justice resides not in equality, but in a quest for equivalence. Through ordinary court proceedings the style of reasoning is seen to be embedded in a set of cultural assumptions, thus rendering the study of Islamic legal proceedings a window on Muslim society generally. Using data ranging from the courts of North Africa to the treatment of Islam in American courts, from a reinterpretation of the Prophet's sociological jurisprudence to the analysis of Islamic concepts of responsibility and trust, these essays demonstrate the enduring appeal of Islamic law in the lives of ordinary adherents.
Kathleen M. Moore
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195387810
- eISBN:
- 9780199777242
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387810.003.0002
- Subject:
- Religion, Islam
This chapter provides a deconstruction of a British call for the formulation of an Islamic diasporic jurisprudence, in which juridical activity is proposed as a mirror. It begins with a review of ...
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This chapter provides a deconstruction of a British call for the formulation of an Islamic diasporic jurisprudence, in which juridical activity is proposed as a mirror. It begins with a review of theoretical works on diaspora and the legal sociology of jurisprudence. It explains and discusses the author's view of what a “diasporic jurisprudence” is, and uses this concept to examine the text of a speech given by a Muslim intellectual-activist before an assembly of Muslim British college students in London in December 1995. It is argued that in the vein of cultural studies, “culture” is neither an autonomous nor an externally determined field, but a site of social struggle and differences. Thus, when we bring together the analytical concepts “diaspora” and “jurisprudence,” we are juxtaposing two words that reciprocally constitute a particular social field in which symbols and scruples can be appropriated and contested. Although a bit of an oil-and-water combination, these two concepts (diaspora and jurisprudence) hold as if suspended in a colloid, sustained by opportunity spaces allowing them to assert claims for rights and forms of justice.Less
This chapter provides a deconstruction of a British call for the formulation of an Islamic diasporic jurisprudence, in which juridical activity is proposed as a mirror. It begins with a review of theoretical works on diaspora and the legal sociology of jurisprudence. It explains and discusses the author's view of what a “diasporic jurisprudence” is, and uses this concept to examine the text of a speech given by a Muslim intellectual-activist before an assembly of Muslim British college students in London in December 1995. It is argued that in the vein of cultural studies, “culture” is neither an autonomous nor an externally determined field, but a site of social struggle and differences. Thus, when we bring together the analytical concepts “diaspora” and “jurisprudence,” we are juxtaposing two words that reciprocally constitute a particular social field in which symbols and scruples can be appropriated and contested. Although a bit of an oil-and-water combination, these two concepts (diaspora and jurisprudence) hold as if suspended in a colloid, sustained by opportunity spaces allowing them to assert claims for rights and forms of justice.
Matthew H. Kramer
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199264834
- eISBN:
- 9780191705229
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264834.001.0001
- Subject:
- Law, Philosophy of Law
As an uncompromising defense of legal positivism, this book insists on the separability of law and morality. After distinguishing among three main dimensions of morality, the book explores a variety ...
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As an uncompromising defense of legal positivism, this book insists on the separability of law and morality. After distinguishing among three main dimensions of morality, the book explores a variety of ways in which law has been perceived by natural-law theorists as integrally connected to each of those dimensions. Some of the chapters pose arguments against major philosophers who have written on these issues, including David Lyons, Lon Fuller, Antony Duff, Joseph Raz, Ronald Dworkin, John Finnis, Philip Soper, Neil MacCormick, Robert Alexy, Gerald Postema, Stephen Perry, and Michael Moore. Several other chapters extend rather than defend legal positivism; they refine the insights of positivism and develop the implications of those insights in strikingly novel directions. The book concludes with a long discussion of the obligation to obey the law — a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in the domain of jurisprudence.Less
As an uncompromising defense of legal positivism, this book insists on the separability of law and morality. After distinguishing among three main dimensions of morality, the book explores a variety of ways in which law has been perceived by natural-law theorists as integrally connected to each of those dimensions. Some of the chapters pose arguments against major philosophers who have written on these issues, including David Lyons, Lon Fuller, Antony Duff, Joseph Raz, Ronald Dworkin, John Finnis, Philip Soper, Neil MacCormick, Robert Alexy, Gerald Postema, Stephen Perry, and Michael Moore. Several other chapters extend rather than defend legal positivism; they refine the insights of positivism and develop the implications of those insights in strikingly novel directions. The book concludes with a long discussion of the obligation to obey the law — a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in the domain of jurisprudence.
