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Provides an introduction to the book by explaining its origin, purpose, approach, and structure. The first section presents the generic question posed by the book: how is a particular mode of governance, the judicial mode, consolidated as a stable set of practices; it explains that the approach taken combines three strains of theory – theory on judicialization and governance, on the courts as commitment devices, and on the dynamics of judicial rulemaking and precedent. The second section, European Integration and the Legal System, indicates that the book expands on previous efforts to elaborate and test a theory of European integration, and shows that its primary focus is on the impact of adjudicating European Community law on the institutionalization of the European Union (EU), rather than on the impact of EU law on national legal systems. The third section, Determinants of Judicial Discretion in the EU, looks at the question of how the European Court has been able to have such an impact on the course of European integration and the work of the national courts. The fourth section, Precedent and the Path Dependence of Legal Institutions, focuses on why legal institutions tend to develop in path dependent ways; it begins by conceptualizing precedent, and then attempts to show how legal systems can develop in path dependent ways, and discusses how the book goes about analysing precedent in Europe. The last two sections look at the case selection and data used in the book and give a brief outline of its structure.

This chapter presents the elements of an “inter-institutional theory” of legality. It argues that the elements of legality can combine in different ways and at varying levels of intensity, which explains the differing degrees of normative force, scope, and diversity of subject matters that legality covers, both within and without the state. The key to the approach is that it makes minimal use of the ideas of legal officials and legal system in explanation of the existence and borders of legality. Where legal officials and legal system are present, these represent particular combinations of norms, powers, institutions, inter-institutional relations, and subject matter, most often focused in the law-state. The chapter shows how hierarchy is only one among many types of relation between institutions, and is by no means exhaustive as a descriptive-explanatory tool in tracing the borders of legality.

This chapter discusses the importance of property rights in capitalist economies. It provides a general definition of property, and then discusses the institutions that enforce property rights. It notes that complex property rights may not be enforceable in the courts, and discusses theoretical and empirical research into the extra-legal institutions that are required. The chapter then details the nature of the relational contracts that these institutions support. Finally, it notes the tensions between the State and the extra-legal property rights institutions, and it highlights the danger that successful extra-legal institutions will serve as a focus for State rent-seeking.

Ch. 5 outlined an argument for a justice‐based general conception of what might be called internal political legitimacy: the conditions under which the exercise of political power within a political entity's own borders is morally justified. This conception of internal political legitimacy is used in Ch. 6 as a component of an account of recognitional legitimacy (also called international legitimacy). The concept of recognitional legitimacy plays a central role in international legal institutions and international affairs, where states, governments, and insurgency movements may all be recognized or not recognized as legitimate by individual states, groups of states, or regional or international organizations. The primary focus of this chapter is recognitional legitimacy as applied to states—i.e. on the judgement that a particular entity should or should not be recognized as a member in good standing of the system of states, with all the rights, powers, liberties, and immunities that go with that status; the guiding idea of the approach is that recognition is an act with serious moral implications and, as such, ought to be governed by rules that are themselves morally justifiable. The three sections of the chapter are: The Concept of Recognitional Legitimacy; II. Justifying the Justice‐Based Theory of Recognitional Legitimacy; and III. Legitimacy of States Versus Legitimacy of Governments.

This chapter considers what drives differences in political and legal institutions across countries, narrowing the focus to the evolution of legislatures and courts in the American states. The American states have relatively diverse geographic and colonial initial conditions, well-documented historical experiences, and rich data on politics and courts going back to the 1860s, making it ideal for the study methods this chapter introduces. Hence, to document how and why geography and other historical factors have had a persistent influence on political and legal institutions, this chapter plots out the structure of an argument to be used in the remainder of this volume, and argues that initial conditions played early and enduring roles in shaping political and legal institutions in the American states.

This chapter summarizes this volume's main findings with respect to persistence and mechanisms, examines the effect of state political and legal institutions on per capita income, and discusses important areas for future research. The overall focus on state per capita income is important here, because it represents an important measure of total economic activity in a society. Courts and legislatures may have other objectives, but arguably one of their functions is to maximize the size of the societal pie by offering incentives for economic activity. Moreover, the chapter argues that a better understanding of how and why institutions are persistent can inform efforts at change.

This chapter identifies a significant variation in which states have consented to compulsory international judicial oversight. The reach of international courts (ICs) and international law varies, but where there is international law that litigants can invoke in court, the circle of actors involved in defining what international law means, and what it means for governments to be rule of law actors, expands. This expansion brings with it a shift in international relations, away from state control in both the domestic and international realms. The chapter sketches the international judicial landscape today by presenting a bird's-eye overview of the contemporary international judiciary, revealing temporal, substantive, and regional trends in delegating authority to ICs. But the perspective is largely static, a snapshot in time that obscures how legal practice, international law, and international legal institutions evolve.

This chapter focuses on one of the most philosophically puzzling aspects of EU law and its relations with Member States' law: the various rival supremacy claims made by the legal institutions of Member States and the legal institutions of the EU. It suggests that, if taken at face value, the rival supremacy claims are indeed best explained by a clash between Member State legal systems and an EU legal system. That is, if each rival supremacy claim is taken as true or justified, the foundations of EU law and its relations with Member States' law are best explained in terms of the familiar idea of a legal system and the inherent conflict which arises when legal systems attempt to combine. Yet it is argued that this view is ultimately misleading, as there are good reasons not to take such claims at face value. The chapter is organized as follows. Section 1 presents and distinguishes the various supremacy claims made by the legal institutions of Member States and of the EU. Section 2 explains how the various supremacy claims are not only facts to be observed in the EU; they also reflect a distinct philosophical way of understanding law, in which law's foundational unit or home is taken to be the comprehensive, supreme, and open legal system. Section 3 attempts to demonstrate the limits of viewing EU law through the lens of a legal system, and suggests that its limits are sufficiently significant to warrant exploration of an alternative approach. Section 4 lays out in a general way the core elements of an alternative account—an inter-institutional view of law, developed in greater detail elsewhere. Finally, Section 5 applies the account to EU law and its relations with Member States' law.

This chapter examines British justice, English law, and the Canadian legal culture. It clarifies that there is no such thing as British law and it was English law that was introduced in British North America. This chapter analyses the role of the British Parliament, the House of Lords, and the Judicial Committee of the Privy Council in the establishment of the Canadian legal institutions and in the directions taken by Canadian law.

This chapter examines the design of legal institutions, as opposed to the allocation of tasks across institutions whose design is taken as fixed. It argues that epistemic considerations call for professional diversity in the judiciary, specifically on the United States Supreme Court: there should be at least some justices who are not lawyers. The chapter pursues both a substantive and a methodological point. Substantively, when the limits of reason are taken into account, the professional monopoly of judicial positions by lawyers is seen to be undesirable, contrary to a central sociological assumption of epistemic legalism. Methodologically, it shows an epistemic argument that survives all the grounds for skepticism laid out in Chapter 1.

Bartky explores some subtle features of legal institutions that obstruct women’s attempts to use the law to diminish domestic violence. To begin with, legal practice is embodied in buildings of intimidating size and scale. In addition, law is practiced in forms of language that are inaccessible to ordinary women. Furthermore, judges and lawyers may abuse their power, intimidate the women who seek their help, and collude with each other in virtue of gender or class connections that the women do not share. Insofar as women are unable to gain redress from the legal system for the domestic violence they suffer, they fall outside the citizenship protection of the Social Contract, argues Bartky, and are effectively returned to the state of nature.

Chapter 2 explores in detail the novel cultural-institutional theory developed in this book. After a review of the literature on state compliance with international law in the fields of international law and international relations, the chapter highlights the omissions in existing studies which either do not consider legal tradition at all or do so primarily in the context of legal institutions. In this book, legal tradition is defined as including both cultural and institutional components which can facilitate or hinder internalization of international law, thereby shaping state policy. Legal tradition also shapes state interests by setting the parameters in which policymakers act. The more closely the cultural and institutional attributes of a legal tradition align with the characteristics and purposes of international law, the more easily international law will be internalized and the more favorable state policy will be towards international law.

A decisive philosophical intervention pitched at the level of law’s ontology, Gutwirth’s ‘Providing the Missing Link’ renders the difference between law as an institution or a body of norms and law as a mode of existence or value a crucial point of passage for any future philosophy of law. The first, Gutwirth argues, isn’t really law at all, but a political and organisational phenomenon easily confused with other norms and normative systems, from the rules of sporting groups or trade associations to ethical codes. The second is a far narrower concept keyed to the production of novel solutions under a particular kind of constraint and has nothing to do with the establishment of standards to be followed. Gutwirth’s finely tuned theorisation of law, which resonates with the work of Isabelle Stengers and Gilles Deleuze, sounds a laudable alarum designed to compel legal theorists to disencumber law of the formidable demands of the Rechtsstaat, while holding firmly to the evasive thread of legal enunciation. For Gutwirth, statements in the key of [LAW] require, as an absolute condition, the ‘anticipat[ion of] how and what a judge or court would decide’, and we are all jurists engaged in the practice of law, or at the least, we ‘speak legally’ and not merely ‘about law’, insofar as we projectively reason on the basis of that anticipation. The passage of law depends on this anticipatory structure, from which Gutwirth derives the signal operations of law (qualification, hesitation, imputation and so on), which work in essentially the same way as they did for the Romans. Law alone, he concludes – even after it has been unburdened of the political, economic, moral and other duties recklessly imposed on it – remains ‘the rightful and ultimate provider of stability and security’, as the loops of its unique temporality ensure that a resolution to any controversy can indeed be fashioned, even where every other mode fails.

This chapter offers a topography of courts, notaries, and judicial officials, including both how they functioned and how they fit together. It describes how Jews in particular—as subordinate subjects with increasingly international clout—were received in these institutions. The chapter first focuses on the Jewish quarter where the Assarrafs lived, before exploring the notaries public and Jewish courts that together made up the main institutions applying Jewish law. It then turns to the heart of Fez, where the city's main Islamic legal institutions were situated, before expanding this map to include legal networks on a national and international scale. The map drawn in this chapter thus serves as a reminder of how the different legal orders functioning in Morocco stood in relation to one another.

This chapter is concerned with the internal limiting principles of the criminal law. That is, rather than considering the external constraints that can be gleaned from constitutional law or from pragmatic concerns about the costs of enforcement, it focuses simply on what positive rationales for criminalization are consistent with our best understanding of criminal law's role in the legal system. It argues that we are liable to misunderstandings about the proper scope of the criminal law if we think of it as a whole unit, a law unto itself, whose moral value can be fully explained independently of any other area of law. Both schools of criminal law theory that dominate the contemporary debate are guilty of this error. Utilitarians and legal moralists both try to show that the criminal law, understood as a freestanding moral practice, is consistent with their favoured understanding of what morality requires. The chapter argues that we can both make the best sense of a number of key doctrines in criminal law and see the criminal law in an attractive moral light if we understand it to be the enforcement tool of last resort for legal standards set out elsewhere in the law. Rather than trying to show directly how the criminal law serves moral ends, the chapter argues that we can provide a more attractive account if we try to show how criminal law plays a crucial role in a larger system of law that, in turn, accomplishes a crucial moral task. That task is the familiar role of legal institutions in liberal theory: making it possible for individuals to live together secure in their claims of individual freedom. The moral value of the criminal law comes from its role in making real the law's promise of freedom to one and all.