Allen Buchanan
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780198295358
- eISBN:
- 9780191600982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295359.003.0003
- Subject:
- Political Science, Political Theory
The purpose of this chapter is to articulate an understanding of basic human rights that is sufficiently clear and cogent to serve as the core of a justice‐based moral theory of international law. To ...
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The purpose of this chapter is to articulate an understanding of basic human rights that is sufficiently clear and cogent to serve as the core of a justice‐based moral theory of international law. To accomplish this goal, the concept of human rights is first analysed into its key elements, and the analysis is used to explain how assertions about human rights can be justified, and show that plausible justifications for basic human rights can be grounded in a diversity of moral and religious perspectives. Next, several objections to the claim that there are human rights or that they can play a fundamental role in a moral theory of international law are refuted, and it is argued that the right to minimally democratic governance should be included among the rights that international law ascribes to all persons—whether it is a human right or of instrumental value in securing human rights, or both. It is then shown that the use of coercion to protect basic human rights is compatible with a proper tolerance for the diversity of values, and the chapter concludes with a discussion of how the international legal order can cope with the ineliminable abstractness of human rights norms. The seven parts of the chapter are: I. Clarifying the Idea of Human Rights; II. The Justification of Assertions about the Existence of Human Rights; III. A Plurality of Converging Justifications for Human Rights; IV. Is democracy a Human Right?; V. Critiques of Human Rights; VI. Human Rights and the Bounds of Toleration; and VII. The Inelimable Indeterminacy of Human Rights and its Implications for the Moral Theory of International Law.Less
The purpose of this chapter is to articulate an understanding of basic human rights that is sufficiently clear and cogent to serve as the core of a justice‐based moral theory of international law. To accomplish this goal, the concept of human rights is first analysed into its key elements, and the analysis is used to explain how assertions about human rights can be justified, and show that plausible justifications for basic human rights can be grounded in a diversity of moral and religious perspectives. Next, several objections to the claim that there are human rights or that they can play a fundamental role in a moral theory of international law are refuted, and it is argued that the right to minimally democratic governance should be included among the rights that international law ascribes to all persons—whether it is a human right or of instrumental value in securing human rights, or both. It is then shown that the use of coercion to protect basic human rights is compatible with a proper tolerance for the diversity of values, and the chapter concludes with a discussion of how the international legal order can cope with the ineliminable abstractness of human rights norms. The seven parts of the chapter are: I. Clarifying the Idea of Human Rights; II. The Justification of Assertions about the Existence of Human Rights; III. A Plurality of Converging Justifications for Human Rights; IV. Is democracy a Human Right?; V. Critiques of Human Rights; VI. Human Rights and the Bounds of Toleration; and VII. The Inelimable Indeterminacy of Human Rights and its Implications for the Moral Theory of International Law.
Allen Buchanan
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780198295358
- eISBN:
- 9780191600982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295359.003.0004
- Subject:
- Political Science, Political Theory
This chapter grapples with the most controversial topic in the discourse of human rights: distributive justice. The chief questions to be addressed are (1) whether a justice‐based international legal ...
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This chapter grapples with the most controversial topic in the discourse of human rights: distributive justice. The chief questions to be addressed are (1) whether a justice‐based international legal order should include rights of distributive justice (sometimes called social and economic rights) for individuals that exceed the right to the means of subsistence that is already widely recognized in international and regional human rights instruments, and (2) whether international law should recognize not only individuals but collectivities such as states or “peoples” or nations as having rights of distributive justice. To situate these questions, the chapter begins by considering alternative explanations for widespread skepticism about the possibility that distributive justice can have a significant place in the international legal order. The remaining sections of the chapter discuss: I. The Place of Distributive Justice in International Law; II. Reasons for Rejecting a Prominent Role for Distributive Justice in International Law Today; III. Deep Distributive Pluralism; IV. Societal Distributive Autonomy; and V. Institutional Capacity and Lack of Political Will.Less
This chapter grapples with the most controversial topic in the discourse of human rights: distributive justice. The chief questions to be addressed are (1) whether a justice‐based international legal order should include rights of distributive justice (sometimes called social and economic rights) for individuals that exceed the right to the means of subsistence that is already widely recognized in international and regional human rights instruments, and (2) whether international law should recognize not only individuals but collectivities such as states or “peoples” or nations as having rights of distributive justice. To situate these questions, the chapter begins by considering alternative explanations for widespread skepticism about the possibility that distributive justice can have a significant place in the international legal order. The remaining sections of the chapter discuss: I. The Place of Distributive Justice in International Law; II. Reasons for Rejecting a Prominent Role for Distributive Justice in International Law Today; III. Deep Distributive Pluralism; IV. Societal Distributive Autonomy; and V. Institutional Capacity and Lack of Political Will.
Allen Buchanan
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780198295358
- eISBN:
- 9780191600982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295359.003.0009
- Subject:
- Political Science, Political Theory
Ch. 8 argued for combining a rather restrained, justice‐based view of the unilateral right to secede, the Remedial Right Only Theory, with a much more supportive stance toward forms of ...
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Ch. 8 argued for combining a rather restrained, justice‐based view of the unilateral right to secede, the Remedial Right Only Theory, with a much more supportive stance toward forms of self‐determination within the state: various forms of intrastate autonomy. This chapter argues that the international legal order ought to acknowledge the importance of self‐determination by supporting intrastate autonomy, and also suggests that, apart from the role that international law should play, individual states should generally give serious consideration to proposals for intrastate autonomy. The chapter first makes the case for including in the domain of transnational justice the monitoring and enforcement of intrastate autonomy regimes under certain rather exceptional circumstances, and then, in the last section, suggests that even where principles of transnational justice do not require it, there are cases in which the international community might play a constructive role by providing diplomatic support and economic inducements or pressure to encourage the creation and well‐functioning of intrastate autonomy regimes. The five sections of the chapter are: I. Intrastate Autonomy and Transnational Justice; II. Indigenous Peoples’ Rights; III. Justifications for Intrastate Autonomy for Indigenous Peoples; IV. Basic Individual Human Rights as Limits on Intrastate Autonomy; and V. International Support for Intrastate Autonomy: Beyond the Requirements of Transnational Justice.Less
Ch. 8 argued for combining a rather restrained, justice‐based view of the unilateral right to secede, the Remedial Right Only Theory, with a much more supportive stance toward forms of self‐determination within the state: various forms of intrastate autonomy. This chapter argues that the international legal order ought to acknowledge the importance of self‐determination by supporting intrastate autonomy, and also suggests that, apart from the role that international law should play, individual states should generally give serious consideration to proposals for intrastate autonomy. The chapter first makes the case for including in the domain of transnational justice the monitoring and enforcement of intrastate autonomy regimes under certain rather exceptional circumstances, and then, in the last section, suggests that even where principles of transnational justice do not require it, there are cases in which the international community might play a constructive role by providing diplomatic support and economic inducements or pressure to encourage the creation and well‐functioning of intrastate autonomy regimes. The five sections of the chapter are: I. Intrastate Autonomy and Transnational Justice; II. Indigenous Peoples’ Rights; III. Justifications for Intrastate Autonomy for Indigenous Peoples; IV. Basic Individual Human Rights as Limits on Intrastate Autonomy; and V. International Support for Intrastate Autonomy: Beyond the Requirements of Transnational Justice.
Letizia Paoli
- Published in print:
- 2008
- Published Online:
- May 2012
- ISBN:
- 9780195157246
- eISBN:
- 9780199943982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195157246.003.0022
- Subject:
- Sociology, Law, Crime and Deviance
Self-excluding from state jurisdiction through secrecy, mafia groups cannot do without violence to solve internal conflicts, defend common interests, or guarantee the effectiveness of their legal ...
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Self-excluding from state jurisdiction through secrecy, mafia groups cannot do without violence to solve internal conflicts, defend common interests, or guarantee the effectiveness of their legal order. In Sicily and Calabria, the groups' adoption of secrecy has never been a matter of principle only, promoted by ideals or by the desire to copy liberal secret sects. Variations and discontinuity in the enforcement of secrecy can be seen in dimensions other than that of time. This is because, far from being an unchanging property, secrecy is relational. As the history of families belonging to Cosa Nostra and 'Ndrangheta demonstrates, the degree to which it is used varies depending on the external referents with whom the individual or the organization has to deal. The cultural code that symbolizes, despite its multivocality, the obligation of secrecy is omertà. In the Cosa Nostra, the boundary between the initiates and the outsiders created by the rite of mafia initiation is strengthened by the rigid obligation to silence on members.Less
Self-excluding from state jurisdiction through secrecy, mafia groups cannot do without violence to solve internal conflicts, defend common interests, or guarantee the effectiveness of their legal order. In Sicily and Calabria, the groups' adoption of secrecy has never been a matter of principle only, promoted by ideals or by the desire to copy liberal secret sects. Variations and discontinuity in the enforcement of secrecy can be seen in dimensions other than that of time. This is because, far from being an unchanging property, secrecy is relational. As the history of families belonging to Cosa Nostra and 'Ndrangheta demonstrates, the degree to which it is used varies depending on the external referents with whom the individual or the organization has to deal. The cultural code that symbolizes, despite its multivocality, the obligation of secrecy is omertà. In the Cosa Nostra, the boundary between the initiates and the outsiders created by the rite of mafia initiation is strengthened by the rigid obligation to silence on members.
Ingo Gildenhard
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199291557
- eISBN:
- 9780191594885
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199291557.003.0007
- Subject:
- Classical Studies, Prose and Writers: Classical, Early, and Medieval
This chapter discusses Cicero's positions on legal matters. After a survey that brings various facets of this complex and complicated topic into view, the analysis focuses on how he deals with the ...
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This chapter discusses Cicero's positions on legal matters. After a survey that brings various facets of this complex and complicated topic into view, the analysis focuses on how he deals with the perceived non‐coincidence, or even conflict, between (positive) laws or legal institutions and justice. Case studies include his philosophy of crime and punishment in the in Pisonem, which serves as a rhetorical substitute for malfunctioning law courts; and his appeal to the authority of natural law as a benchmark and justification of political action, above all in the Philippics.Less
This chapter discusses Cicero's positions on legal matters. After a survey that brings various facets of this complex and complicated topic into view, the analysis focuses on how he deals with the perceived non‐coincidence, or even conflict, between (positive) laws or legal institutions and justice. Case studies include his philosophy of crime and punishment in the in Pisonem, which serves as a rhetorical substitute for malfunctioning law courts; and his appeal to the authority of natural law as a benchmark and justification of political action, above all in the Philippics.
Magdalena Forowicz
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199592678
- eISBN:
- 9780191595646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592678.003.0010
- Subject:
- Law, Human Rights and Immigration
The synthesis of this book evaluates how the Court and the Commission have behaved overall with respect to the areas of international law analysed. The ECHR system is viewed from a wider perspective, ...
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The synthesis of this book evaluates how the Court and the Commission have behaved overall with respect to the areas of international law analysed. The ECHR system is viewed from a wider perspective, namely through the prism of fragmented international law. This chapter evaluates various factors which have played a role in the reception of international law. In this context, the aim is to list the most influential cross-cutting factors which appeared in the case law. The influence of these factors is the evaluated from a comparative perspective in accordance to the research results obtained with regard to each regime. In light of the results obtained, the chapter analyses the nature of the ECHR regime and its interactions with other special and general regimes. The research results are presented in three concise tables.Less
The synthesis of this book evaluates how the Court and the Commission have behaved overall with respect to the areas of international law analysed. The ECHR system is viewed from a wider perspective, namely through the prism of fragmented international law. This chapter evaluates various factors which have played a role in the reception of international law. In this context, the aim is to list the most influential cross-cutting factors which appeared in the case law. The influence of these factors is the evaluated from a comparative perspective in accordance to the research results obtained with regard to each regime. In light of the results obtained, the chapter analyses the nature of the ECHR regime and its interactions with other special and general regimes. The research results are presented in three concise tables.
Mitchel De S.-O.-L'E. Lasser
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199570775
- eISBN:
- 9780191705557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199570775.003.0007
- Subject:
- Law, Comparative Law
This chapter focuses on the interpretive and normative pressures that the national judiciaries routinely exert on the European legal orders. These pressures are of interest for several reasons. ...
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This chapter focuses on the interpretive and normative pressures that the national judiciaries routinely exert on the European legal orders. These pressures are of interest for several reasons. First, although they constantly generate important effects on the two Europes, they function largely on the national judicial plane. As a result, we can keep our comparatists' eyes trained primarily on the French judicial system, even when discussing the pressures being exerted on the European one. Second, this focus allows us to observe the full extent to which national-legal and judicial actors now use the European system as a repository of particularly powerful arguments to be deployed as necessary within the national legal field. Third, this mushrooming use (and development) of European legal norms breaks down the artificial heuristic barrier between the French legal ‘inside’ and the European legal ‘outside’. The chapter concludes that the interpretive empowerment of national legal actors — including judges and litigants — generated by the operation of European law not only constructs at the national level a confluence of interests that reinforces the centrality of European law, but also creates a systemic demand for powerful and justiciable European legal norms.Less
This chapter focuses on the interpretive and normative pressures that the national judiciaries routinely exert on the European legal orders. These pressures are of interest for several reasons. First, although they constantly generate important effects on the two Europes, they function largely on the national judicial plane. As a result, we can keep our comparatists' eyes trained primarily on the French judicial system, even when discussing the pressures being exerted on the European one. Second, this focus allows us to observe the full extent to which national-legal and judicial actors now use the European system as a repository of particularly powerful arguments to be deployed as necessary within the national legal field. Third, this mushrooming use (and development) of European legal norms breaks down the artificial heuristic barrier between the French legal ‘inside’ and the European legal ‘outside’. The chapter concludes that the interpretive empowerment of national legal actors — including judges and litigants — generated by the operation of European law not only constructs at the national level a confluence of interests that reinforces the centrality of European law, but also creates a systemic demand for powerful and justiciable European legal norms.
Andreas L Paulus
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231942
- eISBN:
- 9780191716140
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231942.003.0010
- Subject:
- Law, Public International Law
This chapter explores the extent to which modern recognition of an ‘ international community’ influences the relationship between international and national law. It shows that domestic courts do not ...
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This chapter explores the extent to which modern recognition of an ‘ international community’ influences the relationship between international and national law. It shows that domestic courts do not regard the ‘international community’ as a repository of moral values or laws superior to their own. International law, as the law of the international community, will be regarded as formal authority only in the instance domestic law renders it binding for the court in question. Domestic law, not international law continues to determine the breadth of the influence of international law in the domestic legal order. International community values may however inform the understanding of principles and values enshrined in domestic law. In this respect, the ‘international community’ is not regarded as a higher authority, but as one of several influences that weigh on the decision of an actual case, and often not the controlling one.Less
This chapter explores the extent to which modern recognition of an ‘ international community’ influences the relationship between international and national law. It shows that domestic courts do not regard the ‘international community’ as a repository of moral values or laws superior to their own. International law, as the law of the international community, will be regarded as formal authority only in the instance domestic law renders it binding for the court in question. Domestic law, not international law continues to determine the breadth of the influence of international law in the domestic legal order. International community values may however inform the understanding of principles and values enshrined in domestic law. In this respect, the ‘international community’ is not regarded as a higher authority, but as one of several influences that weigh on the decision of an actual case, and often not the controlling one.
André Béteille
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780198080961
- eISBN:
- 9780199082049
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198080961.003.0008
- Subject:
- Sociology, Politics, Social Movements and Social Change
Some disjunction seems to exist between law and custom, especially in societies that are in transition or are undergoing rapid social change. This is the case in India today, where laws have been ...
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Some disjunction seems to exist between law and custom, especially in societies that are in transition or are undergoing rapid social change. This is the case in India today, where laws have been created based on the principle of equality whereas customs are permeated by hierarchical beliefs, ideas, and values. This article argues that the rhythms of change for customs are not the same as they are for law, particularly in the contemporary world. It discusses the approach to law associated with legal positivism, whose attempt to maintain a strict separation between law and morality has been condemned as sterile. It also examines the concept of law as elaborated by H. L. A. Hart, the attitude of modern Indian law to discrimination on social grounds, whether of gender or of caste, and the legal order created by the Indian constitution.Less
Some disjunction seems to exist between law and custom, especially in societies that are in transition or are undergoing rapid social change. This is the case in India today, where laws have been created based on the principle of equality whereas customs are permeated by hierarchical beliefs, ideas, and values. This article argues that the rhythms of change for customs are not the same as they are for law, particularly in the contemporary world. It discusses the approach to law associated with legal positivism, whose attempt to maintain a strict separation between law and morality has been condemned as sterile. It also examines the concept of law as elaborated by H. L. A. Hart, the attitude of modern Indian law to discrimination on social grounds, whether of gender or of caste, and the legal order created by the Indian constitution.
Christina Eckes
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199573769
- eISBN:
- 9780191722158
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199573769.001.0001
- Subject:
- Law, Human Rights and Immigration, EU Law
Sanctions against private individuals have been widely used in the fight against terrorism, but not without significant controversy. This book examines the complex institutional and substantive ...
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Sanctions against private individuals have been widely used in the fight against terrorism, but not without significant controversy. This book examines the complex institutional and substantive issues arising from the European Union's practice of listing and sanctioning private individuals suspected of supporting terrorism. It provides a comprehensive analysis of the issues raised by individual sanctions adopted to give legal effect to United Nations lists and those drawn up by the EU itself. The book demonstrates that individual sanctions endanger the protection of fundamental rights and the functioning of the European legal order. While the ECJ has in principle confirmed that all Community sanctions are subject to full judicial review irrespective of whether they give effect to UN lists or EU lists, in practice individuals do not have the necessary procedural rights at their disposal. Additionally, protection from listings of individuals as terrorist suspects in the second and third pillar remains very limited. This raises the possibility that national constitutional courts could challenge the supremacy of European law in reaction to this disregard of fundamental rights and foundational principles. The book provides a comprehensive analysis of these complex legal issues, and situates them in their international context. The basis of the book is a critical review of the case-law of the CFI and the ECJ on individual sanctions. Conclusions are drawn as to how the EU Courts should provide fundamental rights protection, and suggestions are made for how the adoption procedure of individual sanctions could comply with general principles of EU law.Less
Sanctions against private individuals have been widely used in the fight against terrorism, but not without significant controversy. This book examines the complex institutional and substantive issues arising from the European Union's practice of listing and sanctioning private individuals suspected of supporting terrorism. It provides a comprehensive analysis of the issues raised by individual sanctions adopted to give legal effect to United Nations lists and those drawn up by the EU itself. The book demonstrates that individual sanctions endanger the protection of fundamental rights and the functioning of the European legal order. While the ECJ has in principle confirmed that all Community sanctions are subject to full judicial review irrespective of whether they give effect to UN lists or EU lists, in practice individuals do not have the necessary procedural rights at their disposal. Additionally, protection from listings of individuals as terrorist suspects in the second and third pillar remains very limited. This raises the possibility that national constitutional courts could challenge the supremacy of European law in reaction to this disregard of fundamental rights and foundational principles. The book provides a comprehensive analysis of these complex legal issues, and situates them in their international context. The basis of the book is a critical review of the case-law of the CFI and the ECJ on individual sanctions. Conclusions are drawn as to how the EU Courts should provide fundamental rights protection, and suggestions are made for how the adoption procedure of individual sanctions could comply with general principles of EU law.
Karen J. Alter
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691154749
- eISBN:
- 9781400848683
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691154749.003.0009
- Subject:
- Political Science, International Relations and Politics
This chapter discusses how the new terrain of international law is an artifact of a number of indirectly connected decisions: the decision to expand the substantive reach of international law, to ...
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This chapter discusses how the new terrain of international law is an artifact of a number of indirectly connected decisions: the decision to expand the substantive reach of international law, to embed international legal rules into national legal orders, to expand the extraterritorial enforcement capacity of domestic judges, and to create more international courts with a compulsory jurisdiction and access for nonstate actors to initiate litigation. International law and the prospect of international court (IC) legal review are now creating a global judicialization of politics regarding a growing range of issues. As the various case studies in the book have demonstrated, international courts are now adjudicating issues that used to be entirely subjects of national determination. And their decisions are affecting both domestic and international politics.Less
This chapter discusses how the new terrain of international law is an artifact of a number of indirectly connected decisions: the decision to expand the substantive reach of international law, to embed international legal rules into national legal orders, to expand the extraterritorial enforcement capacity of domestic judges, and to create more international courts with a compulsory jurisdiction and access for nonstate actors to initiate litigation. International law and the prospect of international court (IC) legal review are now creating a global judicialization of politics regarding a growing range of issues. As the various case studies in the book have demonstrated, international courts are now adjudicating issues that used to be entirely subjects of national determination. And their decisions are affecting both domestic and international politics.
Angelika Nußberger
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199535262
- eISBN:
- 9780191715723
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199535262.003.0010
- Subject:
- Law, Human Rights and Immigration
This chapter discusses the reception of the ECHR in Russian and Ukraine. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, an ...
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This chapter discusses the reception of the ECHR in Russian and Ukraine. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, an overview of the activity of the Court, and the Court's case law and its effect on the national legal order. Despite the similar starting point for the reception of the ECHR in Russia and Ukraine, the later developments are marked by numerous divergences. The development in Russia, after a period of instability in the 1990s, led to the reestablishment of a more authoritarian rule under President Putin. Internally, Russia is struggling with the consequences of the war in Chechnya, but externally it takes a leading role in world politics and, with newly acquired self-confidence, starts to close the doors for criticism from abroad. In contrast, the transitory period in Ukraine continues.Less
This chapter discusses the reception of the ECHR in Russian and Ukraine. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, an overview of the activity of the Court, and the Court's case law and its effect on the national legal order. Despite the similar starting point for the reception of the ECHR in Russia and Ukraine, the later developments are marked by numerous divergences. The development in Russia, after a period of instability in the 1990s, led to the reestablishment of a more authoritarian rule under President Putin. Internally, Russia is struggling with the consequences of the war in Chechnya, but externally it takes a leading role in world politics and, with newly acquired self-confidence, starts to close the doors for criticism from abroad. In contrast, the transitory period in Ukraine continues.
Sacha Prechal and Bert van Roermund
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199232468
- eISBN:
- 9780191716027
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199232468.003.0001
- Subject:
- Law, EU Law
This chapter examines the meaning of conceptual divergence as it applies to EU law. Conceptual divergence is considered to be sub-optimal when it comes to upholding the unity that each and every ...
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This chapter examines the meaning of conceptual divergence as it applies to EU law. Conceptual divergence is considered to be sub-optimal when it comes to upholding the unity that each and every legal order claims in order to pose as binding upon its subjects. Prima facie reasons why the EU law appears to be jeopardized by conceptual divergence are discussed. An overview of the subsequent chapters is presented.Less
This chapter examines the meaning of conceptual divergence as it applies to EU law. Conceptual divergence is considered to be sub-optimal when it comes to upholding the unity that each and every legal order claims in order to pose as binding upon its subjects. Prima facie reasons why the EU law appears to be jeopardized by conceptual divergence are discussed. An overview of the subsequent chapters is presented.
Piet Eeckhout
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199606634
- eISBN:
- 9780191729560
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606634.003.0009
- Subject:
- Law, EU Law
This chapter examines the various legal effects which different forms of international law produce in the EU legal order. The task of discovering and determining those effects has fallen almost ...
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This chapter examines the various legal effects which different forms of international law produce in the EU legal order. The task of discovering and determining those effects has fallen almost exclusively on the Court of Justice. The case law in this area is very much the counterpart of the case law on the direct effect and supremacy of the Treaties and of internal legislation, the defining features of European constitutionalism.Less
This chapter examines the various legal effects which different forms of international law produce in the EU legal order. The task of discovering and determining those effects has fallen almost exclusively on the Court of Justice. The case law in this area is very much the counterpart of the case law on the direct effect and supremacy of the Treaties and of internal legislation, the defining features of European constitutionalism.
Magda Krzyżanowska-Mierzewska
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199535262
- eISBN:
- 9780191715723
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199535262.003.0009
- Subject:
- Law, Human Rights and Immigration
This chapter discusses the reception of the ECHR in Poland and Slovakia. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, the ...
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This chapter discusses the reception of the ECHR in Poland and Slovakia. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, the implementation of international law by domestic courts, an overview of case law, and the European Court's case law and its effects on the national legal system. It is shown that despite the similar historical situation of both countries, the patterns of reception of the ECHR differ considerably. In Poland, the ECHR became immensely popular and gained the status of an instrument of popular justice, resorted to by individuals in a spontaneous and unorganized manner. In Slovakia, it plays a similar role in so far as it is used extremely rarely by organized civil society institutions as a legal advocacy instrument.Less
This chapter discusses the reception of the ECHR in Poland and Slovakia. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, the implementation of international law by domestic courts, an overview of case law, and the European Court's case law and its effects on the national legal system. It is shown that despite the similar historical situation of both countries, the patterns of reception of the ECHR differ considerably. In Poland, the ECHR became immensely popular and gained the status of an instrument of popular justice, resorted to by individuals in a spontaneous and unorganized manner. In Slovakia, it plays a similar role in so far as it is used extremely rarely by organized civil society institutions as a legal advocacy instrument.
Hans Kelsen
- Published in print:
- 1991
- Published Online:
- March 2012
- ISBN:
- 9780198252177
- eISBN:
- 9780191681363
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198252177.003.0031
- Subject:
- Law, Philosophy of Law
The normative legal functions were earlier said to be: commanding, permitting positively, and empowering a certain behaviour. But not the negative permitting of behaviour which is not the object of ...
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The normative legal functions were earlier said to be: commanding, permitting positively, and empowering a certain behaviour. But not the negative permitting of behaviour which is not the object of any legal norm because it is neither commanded nor forbidden by any legal norm. Nevertheless, negatively permitted behaviour can be considered to be legally regulated (not positively but negatively), for it is subject to legal regulation in the sense that it can become the object of a legal norm, and in particular that it can be legally commanded or forbidden. Even behaviour which is not determined by any legal norm is subject to the legal order — if not actually, at least potentially. Behaviour which is not the object of any legal norm, which is legally neither commanded nor forbidden, is free.Less
The normative legal functions were earlier said to be: commanding, permitting positively, and empowering a certain behaviour. But not the negative permitting of behaviour which is not the object of any legal norm because it is neither commanded nor forbidden by any legal norm. Nevertheless, negatively permitted behaviour can be considered to be legally regulated (not positively but negatively), for it is subject to legal regulation in the sense that it can become the object of a legal norm, and in particular that it can be legally commanded or forbidden. Even behaviour which is not determined by any legal norm is subject to the legal order — if not actually, at least potentially. Behaviour which is not the object of any legal norm, which is legally neither commanded nor forbidden, is free.
Geert De Baere
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546688
- eISBN:
- 9780191719998
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546688.003.0007
- Subject:
- Law, EU Law
This chapter first addresses the question how far it can be said that the second pillar already forms part of the ‘new legal order’ established by the EC Treaty. It then considers whether the ...
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This chapter first addresses the question how far it can be said that the second pillar already forms part of the ‘new legal order’ established by the EC Treaty. It then considers whether the Constitution contained and the Treaty of Lisbon contains proposals that would helpfully move the CFSP in the direction of communitarization, by examining the potential applicability of primacy and direct effect in the second pillar and analysing the role that is proposed for the High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP). Finally, the origins of the dichotomy between EC external relations and the CFSP are traced, and it considers whether this dichotomy accurately reflects the current legal and political situation of EU foreign policy.Less
This chapter first addresses the question how far it can be said that the second pillar already forms part of the ‘new legal order’ established by the EC Treaty. It then considers whether the Constitution contained and the Treaty of Lisbon contains proposals that would helpfully move the CFSP in the direction of communitarization, by examining the potential applicability of primacy and direct effect in the second pillar and analysing the role that is proposed for the High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP). Finally, the origins of the dichotomy between EC external relations and the CFSP are traced, and it considers whether this dichotomy accurately reflects the current legal and political situation of EU foreign policy.
Dinah Shelton (ed.)
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.001.0001
- Subject:
- Law, Public International Law
Different countries incorporate and interpret international law in different ways. This book provides a systematic analysis of the domestic constitutional regime of over two dozen countries, setting ...
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Different countries incorporate and interpret international law in different ways. This book provides a systematic analysis of the domestic constitutional regime of over two dozen countries, setting out the status accorded to international law in those countries and its normative weight, as well as problems relating to its implementation. This country-by-country comparison allows the book to examine how the international legal order and domestic legal systems interact and influence each other. Through a series of chapters on the role of international law in twenty-seven countries throughout the world, it shows a growing tendency towards greater democratic participation in treaty-making coupled with a significant utilization of informal agreements that by-pass such participation, as well as a role for non-binding normative instruments as persuasive authority in domestic judicial decision-making. The chapters suggest a stronger attachment to international law in legal systems that have survived a period of repression, resulting in many cases in a higher normative status for international human rights instruments in those states. The impact of the European Union on the constitutional order of its member states is also examined.Less
Different countries incorporate and interpret international law in different ways. This book provides a systematic analysis of the domestic constitutional regime of over two dozen countries, setting out the status accorded to international law in those countries and its normative weight, as well as problems relating to its implementation. This country-by-country comparison allows the book to examine how the international legal order and domestic legal systems interact and influence each other. Through a series of chapters on the role of international law in twenty-seven countries throughout the world, it shows a growing tendency towards greater democratic participation in treaty-making coupled with a significant utilization of informal agreements that by-pass such participation, as well as a role for non-binding normative instruments as persuasive authority in domestic judicial decision-making. The chapters suggest a stronger attachment to international law in legal systems that have survived a period of repression, resulting in many cases in a higher normative status for international human rights instruments in those states. The impact of the European Union on the constitutional order of its member states is also examined.
Mariano Croce and Marco Goldoni
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9781503612112
- eISBN:
- 9781503613126
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9781503612112.003.0003
- Subject:
- Law, Legal History
Chapter title: Santi Romano and the Juristic Point of ViewChapter abstract: This chapter illustrates Romano’s groundbreaking theory by presenting his conceptions of institutionalism and pluralism as ...
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Chapter title: Santi Romano and the Juristic Point of ViewChapter abstract: This chapter illustrates Romano’s groundbreaking theory by presenting his conceptions of institutionalism and pluralism as coherently glued together. All that is organized is an institution; all institutions are legal entities. No privileged legal entity exists that can claim other entities are not legal. Based on this radical view, Romano’s overall contribution comes down to the conclusion that the only way to make social and political pluralism work is to provide a purely jurisprudential account of it—one that remains within the boundaries of the juristic practice and downplays politics as an ancillary, contextual activity of governing. The chapter then makes the case that Romano intended to put forward a conception of legal theory as a technique of description that is capable of engendering particular social outcomes—as well as effects of domestication and compatibility in so far as social pluralism is concerned.Less
Chapter title: Santi Romano and the Juristic Point of ViewChapter abstract: This chapter illustrates Romano’s groundbreaking theory by presenting his conceptions of institutionalism and pluralism as coherently glued together. All that is organized is an institution; all institutions are legal entities. No privileged legal entity exists that can claim other entities are not legal. Based on this radical view, Romano’s overall contribution comes down to the conclusion that the only way to make social and political pluralism work is to provide a purely jurisprudential account of it—one that remains within the boundaries of the juristic practice and downplays politics as an ancillary, contextual activity of governing. The chapter then makes the case that Romano intended to put forward a conception of legal theory as a technique of description that is capable of engendering particular social outcomes—as well as effects of domestication and compatibility in so far as social pluralism is concerned.
Brad R. Roth
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780195342666
- eISBN:
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195342666.003.0002
- Subject:
- Law, Public International Law
This chapter introduces the peculiarities of the ethical questions facing those proposing reforms to the international legal order; those responsible for interpreting international legal standards; ...
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This chapter introduces the peculiarities of the ethical questions facing those proposing reforms to the international legal order; those responsible for interpreting international legal standards; and those having to decide whether moral imperatives justify breaching existing legal standards in a given instance. A drafter of legal reforms must aim to construct a framework for peaceful and respectful cooperation that can be accepted as legitimate, if not by all, at least by all seriously potent elements of an existing political community. In order to satisfy the objective need for accommodation, bearers of diverse interests and values must be prevailed upon to accept outcomes that systematically fall short of fully realizing not only their preferences but also their principles.Less
This chapter introduces the peculiarities of the ethical questions facing those proposing reforms to the international legal order; those responsible for interpreting international legal standards; and those having to decide whether moral imperatives justify breaching existing legal standards in a given instance. A drafter of legal reforms must aim to construct a framework for peaceful and respectful cooperation that can be accepted as legitimate, if not by all, at least by all seriously potent elements of an existing political community. In order to satisfy the objective need for accommodation, bearers of diverse interests and values must be prevailed upon to accept outcomes that systematically fall short of fully realizing not only their preferences but also their principles.
