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.
KEITH CULVER and MICHAEL GIUDICE
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195370751
- eISBN:
- 9780199775903
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370751.003.005
- Subject:
- Law, Philosophy of Law
Separation of legality from the state is what enables our view to better explain without distortion the various forms of non-state prima facie legality whose emergence is too pervasive to leave ...
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Separation of legality from the state is what enables our view to better explain without distortion the various forms of non-state prima facie legality whose emergence is too pervasive to leave outside the scope of a balanced general jurisprudence. This chapter returns to the prima facie legalities identified in Chapter 1, and shows fully how freedom from the ideas of legal official, legal system, and hierarchy (and so in general the idea of “chains of validity”) is crucial to responsive descriptive-explanation of legality broadly.Less
Separation of legality from the state is what enables our view to better explain without distortion the various forms of non-state prima facie legality whose emergence is too pervasive to leave outside the scope of a balanced general jurisprudence. This chapter returns to the prima facie legalities identified in Chapter 1, and shows fully how freedom from the ideas of legal official, legal system, and hierarchy (and so in general the idea of “chains of validity”) is crucial to responsive descriptive-explanation of legality broadly.
Lars Vinx
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199227952
- eISBN:
- 9780191711077
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199227952.001.0001
- Subject:
- Law, Philosophy of Law
Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked. This book ...
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Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked. This book argues that Kelsen's Pure Theory of Law needs to be read in the context of Kelsen's political theory. It offers the first comprehensive interpretation of the Pure Theory that makes systematic use of Kelsen's conception of the rule of law, his theory of democracy, his defense of constitutional review, and his views on international law. Once it is read in the context of Kelsen's political works, Kelsen's conception of legality provides the basis for a notion of political legitimacy that is distinct from any comprehensive and contestable theory of justice. It shows how members of pluralist societies can reasonably acknowledge the binding nature of law, even where its content does not fully accord with their own substantive views of the requirements of justice, provided it is created in accordance with an ideal of fair arbitration amongst social groups. This result leads to a fundamental re-evaluation of the Pure Theory of Law. The theory is best understood as an attempt to find a middle ground between natural law and legal positivism. Later positivist legal theorists inspired by Kelsen's work failed to appreciate the political-theoretical context of the Pure Theory and turned to a narrow instrumentalism about the functions of law. The perspective on Kelsen offered in this book aims to reconnect positivist legal thought with normative political theory.Less
Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked. This book argues that Kelsen's Pure Theory of Law needs to be read in the context of Kelsen's political theory. It offers the first comprehensive interpretation of the Pure Theory that makes systematic use of Kelsen's conception of the rule of law, his theory of democracy, his defense of constitutional review, and his views on international law. Once it is read in the context of Kelsen's political works, Kelsen's conception of legality provides the basis for a notion of political legitimacy that is distinct from any comprehensive and contestable theory of justice. It shows how members of pluralist societies can reasonably acknowledge the binding nature of law, even where its content does not fully accord with their own substantive views of the requirements of justice, provided it is created in accordance with an ideal of fair arbitration amongst social groups. This result leads to a fundamental re-evaluation of the Pure Theory of Law. The theory is best understood as an attempt to find a middle ground between natural law and legal positivism. Later positivist legal theorists inspired by Kelsen's work failed to appreciate the political-theoretical context of the Pure Theory and turned to a narrow instrumentalism about the functions of law. The perspective on Kelsen offered in this book aims to reconnect positivist legal thought with normative political theory.
Martha Alter Chen
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780199204762
- eISBN:
- 9780191603860
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199204764.003.0005
- Subject:
- Economics and Finance, Development, Growth, and Environmental
This paper explores the relationship of the informal economy to the formal economy and to the formal regulatory environment. It begins with a comparison of the earlier concept of the ‘informal ...
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This paper explores the relationship of the informal economy to the formal economy and to the formal regulatory environment. It begins with a comparison of the earlier concept of the ‘informal sector’ with the new expanded concept of the ‘informal economy’, which includes microentrepreneurs, own account operators, informal wage workers, and industrial outworkers. It argues that (a) most informal enterprises and workers are intrinsically linked to formal firms; (b) different segments of the informal economy are over-regulated, de-regulated, or under-regulated; and (c) there are benefits and costs to both formality and informality. The paper concludes that the appropriate role for government is (i) to ensure that the formal regulatory environment is not biased in favour of formal firms and workers over informal enterprises and workers (or vice versa) and (ii) to regulate the commercial and employment relationships between formal firms, informal enterprises, and informal wage workers.Less
This paper explores the relationship of the informal economy to the formal economy and to the formal regulatory environment. It begins with a comparison of the earlier concept of the ‘informal sector’ with the new expanded concept of the ‘informal economy’, which includes microentrepreneurs, own account operators, informal wage workers, and industrial outworkers. It argues that (a) most informal enterprises and workers are intrinsically linked to formal firms; (b) different segments of the informal economy are over-regulated, de-regulated, or under-regulated; and (c) there are benefits and costs to both formality and informality. The paper concludes that the appropriate role for government is (i) to ensure that the formal regulatory environment is not biased in favour of formal firms and workers over informal enterprises and workers (or vice versa) and (ii) to regulate the commercial and employment relationships between formal firms, informal enterprises, and informal wage workers.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.003.0005
- Subject:
- Political Science, Political Theory
The second‐order problem of knowledge is the need to communicate knowledge of justice in a manner that makes the actions it requires accessible to everyone. The need for this message to be conveyed ...
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The second‐order problem of knowledge is the need to communicate knowledge of justice in a manner that makes the actions it requires accessible to everyone. The need for this message to be conveyed in advance of persons taking action (ex ante) influences the form of the message in at least eight ways: (1) general rules or principles that are (2) publicized, (3) prospective in effect, (4) understandable, (5) compossible, (6) possible to follow, (7) stable, and (8) enforced as publicized. These formal requirements that are needed to communicate the message of justice ex ante are part of what is known as the rule of law. The need for ex ante information about allocation of several property rights also influences the substance of these rights including the prohibition on force and fraud.Less
The second‐order problem of knowledge is the need to communicate knowledge of justice in a manner that makes the actions it requires accessible to everyone. The need for this message to be conveyed in advance of persons taking action (ex ante) influences the form of the message in at least eight ways: (1) general rules or principles that are (2) publicized, (3) prospective in effect, (4) understandable, (5) compossible, (6) possible to follow, (7) stable, and (8) enforced as publicized. These formal requirements that are needed to communicate the message of justice ex ante are part of what is known as the rule of law. The need for ex ante information about allocation of several property rights also influences the substance of these rights including the prohibition on force and fraud.
Aoife Nolan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199652501
- eISBN:
- 9780191739217
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652501.003.0029
- Subject:
- Law, Family Law, Human Rights and Immigration
Litigation efforts seeking the prohibition of parental physical punishment (PPP) have met with mixed success. While some judicial and quasi-judicial bodies have been prepared to hold that such ...
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Litigation efforts seeking the prohibition of parental physical punishment (PPP) have met with mixed success. While some judicial and quasi-judicial bodies have been prepared to hold that such activity is a violation of a variety of children's rights, others have refused to do so. This chapter focuses on a number of recent rulings by courts and international quasi-judicial bodies involving challenges to state permission of physical punishment of children by their parents. It analyses these decisions by identifying common or contrasting elements in terms of the reasoning employed by judges and other decision-makers in either upholding or striking down the legality of PPP. It argues that approaches adopted by the decision-makers under consideration to the issue of PPP vary widely in terms of, amongst other things, judicial or quasi-judicial understandings and weighting of children's rights, the balance struck between such rights and parental autonomy, and the role played by international child rights standards and comparative experiences in relation to the prohibition of PPP. The chapter considers how these variations operate in relation to determining whether or not a court will be prepared to find in favour of a prohibition of PPP.Less
Litigation efforts seeking the prohibition of parental physical punishment (PPP) have met with mixed success. While some judicial and quasi-judicial bodies have been prepared to hold that such activity is a violation of a variety of children's rights, others have refused to do so. This chapter focuses on a number of recent rulings by courts and international quasi-judicial bodies involving challenges to state permission of physical punishment of children by their parents. It analyses these decisions by identifying common or contrasting elements in terms of the reasoning employed by judges and other decision-makers in either upholding or striking down the legality of PPP. It argues that approaches adopted by the decision-makers under consideration to the issue of PPP vary widely in terms of, amongst other things, judicial or quasi-judicial understandings and weighting of children's rights, the balance struck between such rights and parental autonomy, and the role played by international child rights standards and comparative experiences in relation to the prohibition of PPP. The chapter considers how these variations operate in relation to determining whether or not a court will be prepared to find in favour of a prohibition of PPP.
Nicholas J. Wheeler
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199253104
- eISBN:
- 9780191600302
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199253102.003.0009
- Subject:
- Political Science, International Relations and Politics
Shows how the international community learnt particular lessons from the Bosnian conflict that it applied to the crisis in Kosovo. It explores the legality and legitimacy of NATO action in bombing ...
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Shows how the international community learnt particular lessons from the Bosnian conflict that it applied to the crisis in Kosovo. It explores the legality and legitimacy of NATO action in bombing Yugoslavia, focusing on the reaction in the Security Council to NATO's use of force without explicit Security Council authorization.Less
Shows how the international community learnt particular lessons from the Bosnian conflict that it applied to the crisis in Kosovo. It explores the legality and legitimacy of NATO action in bombing Yugoslavia, focusing on the reaction in the Security Council to NATO's use of force without explicit Security Council authorization.
KEITH CULVER and MICHAEL GIUDICE
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195370751
- eISBN:
- 9780199775903
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370751.003.006
- Subject:
- Law, Philosophy of Law
This chapter argues how the problems of continuity and identity, declared unsolved by Raz, are fundamentally altered. The old conceptions of the problems are thoroughly state-, official-, system-, ...
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This chapter argues how the problems of continuity and identity, declared unsolved by Raz, are fundamentally altered. The old conceptions of the problems are thoroughly state-, official-, system-, and hierarchy-based, and as such are of limited value in facing both old and new challenges to explanation of the existence and borders of legality. A new way of understanding these old problems is proposed, re-characterizing them in terms more suited to the goals of general jurisprudence in facing a much broader range of phenomena than before. The chapter also identifies some of the next challenges an inter-institutional view faces.Less
This chapter argues how the problems of continuity and identity, declared unsolved by Raz, are fundamentally altered. The old conceptions of the problems are thoroughly state-, official-, system-, and hierarchy-based, and as such are of limited value in facing both old and new challenges to explanation of the existence and borders of legality. A new way of understanding these old problems is proposed, re-characterizing them in terms more suited to the goals of general jurisprudence in facing a much broader range of phenomena than before. The chapter also identifies some of the next challenges an inter-institutional view faces.
Ian Clark
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780199219193
- eISBN:
- 9780191717734
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199219193.003.0012
- Subject:
- Political Science, International Relations and Politics
This chapter analyzes the relationship between legitimacy and its cognate norms; namely, those of legality, morality, and constitutionality. It criticizes propositions to the effect that a choice can ...
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This chapter analyzes the relationship between legitimacy and its cognate norms; namely, those of legality, morality, and constitutionality. It criticizes propositions to the effect that a choice can be made between legitimacy, on the one hand, and particular norms, on the other. It does so for several reasons. First, legitimacy possesses no independent normative content of its own that would make such a choice meaningful. Second, the notion of legitimacy is always mediated through a composite of other norms, and cannot be ranged against them individually. Third, the tensions that arise are amongst those discrete norms themselves, rather than between each individually and legitimacy.Less
This chapter analyzes the relationship between legitimacy and its cognate norms; namely, those of legality, morality, and constitutionality. It criticizes propositions to the effect that a choice can be made between legitimacy, on the one hand, and particular norms, on the other. It does so for several reasons. First, legitimacy possesses no independent normative content of its own that would make such a choice meaningful. Second, the notion of legitimacy is always mediated through a composite of other norms, and cannot be ranged against them individually. Third, the tensions that arise are amongst those discrete norms themselves, rather than between each individually and legitimacy.
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/9780195387810.003.0000
- Subject:
- Religion, Islam
This introductory chapter begins by describing the core of the book, which is about the emergence of an Islamic diasporic legality among British and American Muslim communities. In a general sense, ...
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This introductory chapter begins by describing the core of the book, which is about the emergence of an Islamic diasporic legality among British and American Muslim communities. In a general sense, this book seeks to explain how the diaspora becomes the social problematic through which we see the interaction of people and the law. The chapter then addresses three main theoretical issues. The first, about an emerging legality, highlights the connection between law and identity, as it analyzes the social relations at the heart of the political and legal debates in and around Muslim communities in the United States and Britain. The second issue is that of the dialogic process of appropriating certain discourses, and it entails the examination of significant moments in the construction of normative claims through law. The third topic is about a growing repertoire of tools used to resist assimilation into a secular-liberal discourse of rights. An overview of the subsequent chapters is presented.Less
This introductory chapter begins by describing the core of the book, which is about the emergence of an Islamic diasporic legality among British and American Muslim communities. In a general sense, this book seeks to explain how the diaspora becomes the social problematic through which we see the interaction of people and the law. The chapter then addresses three main theoretical issues. The first, about an emerging legality, highlights the connection between law and identity, as it analyzes the social relations at the heart of the political and legal debates in and around Muslim communities in the United States and Britain. The second issue is that of the dialogic process of appropriating certain discourses, and it entails the examination of significant moments in the construction of normative claims through law. The third topic is about a growing repertoire of tools used to resist assimilation into a secular-liberal discourse of rights. An overview of the subsequent chapters is presented.
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/9780195387810.003.0006
- Subject:
- Religion, Islam
This epilogue summarizes the insights gleaned from juxtaposing circumstances and discursive projects in the United States and Britain. It reviews how deeply rooted the images of the Muslim Other are ...
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This epilogue summarizes the insights gleaned from juxtaposing circumstances and discursive projects in the United States and Britain. It reviews how deeply rooted the images of the Muslim Other are in the unfamiliar abode, specifically in the institutionalized practices of governance. It highlights how the formulation of a new diasporic legality takes on the internal logic of Anglo-American legal conventions while at the same time resisting them. This argument has one foot planted in each debate: from a Muslim vantage point, over what kinds of space the United States and Britain are; from the dominant American and British vantage point, over the status of their own countries as the nations and pluralist societies they are or may become. The emphasis is on how a language to normalize Muslim presence in the United States and Britain shows the intersection of the processes of globalization with local practices of legal interpretation, and gives us a deeper understanding of the inner struggle to be pluralists under exceptional circumstances.Less
This epilogue summarizes the insights gleaned from juxtaposing circumstances and discursive projects in the United States and Britain. It reviews how deeply rooted the images of the Muslim Other are in the unfamiliar abode, specifically in the institutionalized practices of governance. It highlights how the formulation of a new diasporic legality takes on the internal logic of Anglo-American legal conventions while at the same time resisting them. This argument has one foot planted in each debate: from a Muslim vantage point, over what kinds of space the United States and Britain are; from the dominant American and British vantage point, over the status of their own countries as the nations and pluralist societies they are or may become. The emphasis is on how a language to normalize Muslim presence in the United States and Britain shows the intersection of the processes of globalization with local practices of legal interpretation, and gives us a deeper understanding of the inner struggle to be pluralists under exceptional circumstances.
Guillermo O'Donnell
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199587612
- eISBN:
- 9780191723384
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199587612.003.0007
- Subject:
- Political Science, Comparative Politics, Democratization
This chapter begins by noting that the state offers numerous faces, from the great rituals it enacts to the opaque daily transactions of its multiple bureaucracies. It also stresses that those faces ...
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This chapter begins by noting that the state offers numerous faces, from the great rituals it enacts to the opaque daily transactions of its multiple bureaucracies. It also stresses that those faces of the state vary substantially depending on the social position of those it interacts with, especially in countries marred by deep inequality and extensive poverty. These multiple faces make it difficult to find and reconstruct theoretically the underlying unity of the state, which has led several currents to deny it; the chapter argues that such unity derives from the cascade of legal authorizations that result from the legal system of the state. Furthermore, against what some legal and democratic theories presume, even under democratic regimes, in some countries the state, especially as a legal system, may be absent in sometimes extensive regions (brown areas) and in relation to some social sectors. On a related matter, the chapter discusses some legal aspects of the expansion of capitalism, including the features it has had on countries outside of the Northwest.Less
This chapter begins by noting that the state offers numerous faces, from the great rituals it enacts to the opaque daily transactions of its multiple bureaucracies. It also stresses that those faces of the state vary substantially depending on the social position of those it interacts with, especially in countries marred by deep inequality and extensive poverty. These multiple faces make it difficult to find and reconstruct theoretically the underlying unity of the state, which has led several currents to deny it; the chapter argues that such unity derives from the cascade of legal authorizations that result from the legal system of the state. Furthermore, against what some legal and democratic theories presume, even under democratic regimes, in some countries the state, especially as a legal system, may be absent in sometimes extensive regions (brown areas) and in relation to some social sectors. On a related matter, the chapter discusses some legal aspects of the expansion of capitalism, including the features it has had on countries outside of the Northwest.
Colin Dayan
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691070919
- eISBN:
- 9781400838592
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691070919.003.0006
- Subject:
- Literature, Criticism/Theory
This chapter explains that in the trade-off between dignity and degradation, the rights of humans are pitted against the treatment of animals. Recall earlier discussions of retribution for unnatural ...
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This chapter explains that in the trade-off between dignity and degradation, the rights of humans are pitted against the treatment of animals. Recall earlier discussions of retribution for unnatural deaths in biblical and classical texts—the ox that gores must be stoned—and the medieval trials and executions of animals: the pigs who ate children, the dogs who bit, or the cats who spooked. In the distant past, animals were taken as seriously as humans, given the dignity of trial, even the recognition that comes with sudden agony. Highly unnatural religious fictions gave rise to issues of legality. Punishments ritually communicated to animals the horror of their deed. Treated as if rational beings, they were expected to take responsibility for their crime. However, these legal rituals were granted only to domesticated animals, not to the untamed, such as tigers.Less
This chapter explains that in the trade-off between dignity and degradation, the rights of humans are pitted against the treatment of animals. Recall earlier discussions of retribution for unnatural deaths in biblical and classical texts—the ox that gores must be stoned—and the medieval trials and executions of animals: the pigs who ate children, the dogs who bit, or the cats who spooked. In the distant past, animals were taken as seriously as humans, given the dignity of trial, even the recognition that comes with sudden agony. Highly unnatural religious fictions gave rise to issues of legality. Punishments ritually communicated to animals the horror of their deed. Treated as if rational beings, they were expected to take responsibility for their crime. However, these legal rituals were granted only to domesticated animals, not to the untamed, such as tigers.
Douglas Husak
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585038
- eISBN:
- 9780191723476
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585038.003.0009
- Subject:
- Law, Philosophy of Law
This chapter examines the significance of the principle of legality in the context of the phenomenon of willful ignorance (or blindness). It begins by describing the culpable state of willful ...
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This chapter examines the significance of the principle of legality in the context of the phenomenon of willful ignorance (or blindness). It begins by describing the culpable state of willful ignorance. It contends that some (but not all) willfully ignorant defendants are liable despite their failure to satisfy the mens rea requirement of the statutes for which they are convicted. After considering whether the culpability of such defendants is equal to that of persons who act knowingly, the chapter discusses the limitations of proposed statutory solutions to the problem of willful ignorance. It concludes by defending an approach to this problem that the author contends is preferable to alternatives.Less
This chapter examines the significance of the principle of legality in the context of the phenomenon of willful ignorance (or blindness). It begins by describing the culpable state of willful ignorance. It contends that some (but not all) willfully ignorant defendants are liable despite their failure to satisfy the mens rea requirement of the statutes for which they are convicted. After considering whether the culpability of such defendants is equal to that of persons who act knowingly, the chapter discusses the limitations of proposed statutory solutions to the problem of willful ignorance. It concludes by defending an approach to this problem that the author contends is preferable to alternatives.
KEITH CULVER and MICHAEL GIUDICE
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195370751
- eISBN:
- 9780199775903
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370751.003.002
- Subject:
- Law, Philosophy of Law
This chapter examines Raz's theory of legal system, which explicitly sets out to overcome difficulties in Hart's account regarding the identity and borders of legal systems by introducing new ...
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This chapter examines Raz's theory of legal system, which explicitly sets out to overcome difficulties in Hart's account regarding the identity and borders of legal systems by introducing new explanatory elements. Raz claims that legal systems are unique normative systems since they claim, via the activities of a broad range of norm-applying institutions, to govern comprehensively, supremely, and openly the social life of their subjects. Unlike Hart's, Raz's theory is avowedly state-based and state-restricted, as he says it is not meant to be tested against non-state phenomena of legality. It is argued that there are nonetheless several problems with Raz's theory as a contribution to general jurisprudence. In addition to leaving the problem of indeterminacy unresolved, Raz's theory is unable to explain various types of state legal systems that are comprised of federalist structures as well as shared and distributed governance arrangements.Less
This chapter examines Raz's theory of legal system, which explicitly sets out to overcome difficulties in Hart's account regarding the identity and borders of legal systems by introducing new explanatory elements. Raz claims that legal systems are unique normative systems since they claim, via the activities of a broad range of norm-applying institutions, to govern comprehensively, supremely, and openly the social life of their subjects. Unlike Hart's, Raz's theory is avowedly state-based and state-restricted, as he says it is not meant to be tested against non-state phenomena of legality. It is argued that there are nonetheless several problems with Raz's theory as a contribution to general jurisprudence. In addition to leaving the problem of indeterminacy unresolved, Raz's theory is unable to explain various types of state legal systems that are comprised of federalist structures as well as shared and distributed governance arrangements.
KEITH CULVER and MICHAEL GIUDICE
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195370751
- eISBN:
- 9780199775903
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370751.003.004
- Subject:
- Law, Philosophy of Law
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 ...
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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.Less
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.
Denis J. Galligan and Marina Kurkchiyan (eds)
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780199259366
- eISBN:
- 9780191698606
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199259366.001.0001
- Subject:
- Law, Legal Profession and Ethics
This book is a work in socio-legal studies, examining the functions and effectiveness of law in the countries of the former Soviet Union. As the transition away from communism enters its second ...
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This book is a work in socio-legal studies, examining the functions and effectiveness of law in the countries of the former Soviet Union. As the transition away from communism enters its second decade, the countries involved are confronted by an apparent failure of law. Understanding the newly formed social order in which law is powerless is a challenge to the assumptions of western jurisprudence. The contributors to this book take up that challenge. Using the framework of contemporary theory, ten specialists in different aspects of social science analyse the status of post-communist law from a variety of perspectives. Their emphasis is on the interplay between law and social norms, informal practices, and human values. Their work contributes to several of the wider ongoing debates in socio-legal studies: on the rule of law and its role in maintaining social order; on the interaction between law and social norms, the relation between legitimacy and legality; and on the relative merits of solving problems by informal means such as networking or the use of intermediaries rather than by formal, institutionalised processes. At the same time, the book is intended to meet the needs of those interested not just in law but in the post-communist region. Blending theory with case studies, each contributor focuses on a single sector, such as the political system, worker-management relations, human rights, the machinery by which law is made and implemented, or the cultural and historical background of the societies under consideration. The majority of the chapters draw directly upon the authors' own experience and empirical research.Less
This book is a work in socio-legal studies, examining the functions and effectiveness of law in the countries of the former Soviet Union. As the transition away from communism enters its second decade, the countries involved are confronted by an apparent failure of law. Understanding the newly formed social order in which law is powerless is a challenge to the assumptions of western jurisprudence. The contributors to this book take up that challenge. Using the framework of contemporary theory, ten specialists in different aspects of social science analyse the status of post-communist law from a variety of perspectives. Their emphasis is on the interplay between law and social norms, informal practices, and human values. Their work contributes to several of the wider ongoing debates in socio-legal studies: on the rule of law and its role in maintaining social order; on the interaction between law and social norms, the relation between legitimacy and legality; and on the relative merits of solving problems by informal means such as networking or the use of intermediaries rather than by formal, institutionalised processes. At the same time, the book is intended to meet the needs of those interested not just in law but in the post-communist region. Blending theory with case studies, each contributor focuses on a single sector, such as the political system, worker-management relations, human rights, the machinery by which law is made and implemented, or the cultural and historical background of the societies under consideration. The majority of the chapters draw directly upon the authors' own experience and empirical research.
Douglas Husak
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780195328714
- eISBN:
- 9780199869947
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328714.003.0001
- Subject:
- Philosophy, Moral Philosophy
The size and scope of the criminal law have undergone a remarkable expansion in the past few decades. This expansion has led to unprecedented levels of punishment, much of it unjust. This chapter is ...
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The size and scope of the criminal law have undergone a remarkable expansion in the past few decades. This expansion has led to unprecedented levels of punishment, much of it unjust. This chapter is largely descriptive, showing how too many crimes erode the principle of legality and produce too much punishment—punishment that should not have been imposed at all, or that violates proportionality by being too severe in light of the seriousness of the offense. It offers a novel categorization of the new kinds of crime that have been enacted: ancillary offenses, overlapping statutes, and crimes designed to prevent risk. In many cases, the enforcement of these laws brings about results that any reasonable person will recognize to be unjust. The final section of this chapter describes a specific example in detail—a strict‐liability drug homicide offense—that illustrates my general thesis that too many crimes produce too much punishment.Less
The size and scope of the criminal law have undergone a remarkable expansion in the past few decades. This expansion has led to unprecedented levels of punishment, much of it unjust. This chapter is largely descriptive, showing how too many crimes erode the principle of legality and produce too much punishment—punishment that should not have been imposed at all, or that violates proportionality by being too severe in light of the seriousness of the offense. It offers a novel categorization of the new kinds of crime that have been enacted: ancillary offenses, overlapping statutes, and crimes designed to prevent risk. In many cases, the enforcement of these laws brings about results that any reasonable person will recognize to be unjust. The final section of this chapter describes a specific example in detail—a strict‐liability drug homicide offense—that illustrates my general thesis that too many crimes produce too much punishment.
Benjamin J. Goold
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199265145
- eISBN:
- 9780191699023
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199265145.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book is the first major published work to present a comprehensive assessment of the impact of CCTV on the police in Britain. Drawing extensively upon empirical research, the volume examines how ...
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This book is the first major published work to present a comprehensive assessment of the impact of CCTV on the police in Britain. Drawing extensively upon empirical research, the volume examines how the police in Britain first became involved in public area surveillance, and how they have since attempted to use CCTV technology to prevent, respond to, and investigate crime. In addition, the volume also provides a detailed analysis of the legality of CCTV surveillance in light of recent changes to the Data Protection Act and the incorporation of the European Convention on Human Rights. Challenging many existing accounts of the relationship between the police and new surveillance technologies, the book breaks new ground in policing and surveillance theory, and argues that it is time for a major reassessment of both our understanding of how the police respond to technological change, and of the role played by such technologies in our society.Less
This book is the first major published work to present a comprehensive assessment of the impact of CCTV on the police in Britain. Drawing extensively upon empirical research, the volume examines how the police in Britain first became involved in public area surveillance, and how they have since attempted to use CCTV technology to prevent, respond to, and investigate crime. In addition, the volume also provides a detailed analysis of the legality of CCTV surveillance in light of recent changes to the Data Protection Act and the incorporation of the European Convention on Human Rights. Challenging many existing accounts of the relationship between the police and new surveillance technologies, the book breaks new ground in policing and surveillance theory, and argues that it is time for a major reassessment of both our understanding of how the police respond to technological change, and of the role played by such technologies in our society.
Lars Vinx
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199227952
- eISBN:
- 9780191711077
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199227952.003.0002
- Subject:
- Law, Philosophy of Law
This chapter discusses Kelsen's claim that the Pure Theory of Law is a purely descriptive science of law. This Kelsenian self-understanding turns out to be questionable. Key elements of Kelsen's ...
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This chapter discusses Kelsen's claim that the Pure Theory of Law is a purely descriptive science of law. This Kelsenian self-understanding turns out to be questionable. Key elements of Kelsen's legal science — such as the distinction between subjective and objective legal meaning, the theory of legal order as legal hierarchy, the conception of the basic norm, Kelsen's rejection of anarchism, and his way of drawing the distinction between law and morality — appear unmotivated unless they are understood as elements of an implicit normative political-theoretical project. That project is identified as the aim to develop a legality-based conception of political legitimacy for a pluralistic society and to realize that conception in a utopia of legality.Less
This chapter discusses Kelsen's claim that the Pure Theory of Law is a purely descriptive science of law. This Kelsenian self-understanding turns out to be questionable. Key elements of Kelsen's legal science — such as the distinction between subjective and objective legal meaning, the theory of legal order as legal hierarchy, the conception of the basic norm, Kelsen's rejection of anarchism, and his way of drawing the distinction between law and morality — appear unmotivated unless they are understood as elements of an implicit normative political-theoretical project. That project is identified as the aim to develop a legality-based conception of political legitimacy for a pluralistic society and to realize that conception in a utopia of legality.
