Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0013
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the propriety of state laws under what is known as the “police powers” of the states. Unlike the enumerated powers of Congress, the powers of states are unwritten. This makes ...
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This chapter examines the propriety of state laws under what is known as the “police powers” of the states. Unlike the enumerated powers of Congress, the powers of states are unwritten. This makes determining their proper limits one of the most challenging and vexatious issues in constitutional theory. The chapter first considers the need to construe the propriety of state laws before discussing the police power of the states. It shows that these “police powers” are not inconsistent with the rights retained by the people. To the contrary, the protection of individual rights is at the core of a state's police power. A state may also justify its laws by showing that it is merely regulating liberty in a way that protects the rights of others. The chapter also cites the Supreme Court's decision in Lawrence v. Texas, which found the states' exercise of police power to be improper.Less
This chapter examines the propriety of state laws under what is known as the “police powers” of the states. Unlike the enumerated powers of Congress, the powers of states are unwritten. This makes determining their proper limits one of the most challenging and vexatious issues in constitutional theory. The chapter first considers the need to construe the propriety of state laws before discussing the police power of the states. It shows that these “police powers” are not inconsistent with the rights retained by the people. To the contrary, the protection of individual rights is at the core of a state's police power. A state may also justify its laws by showing that it is merely regulating liberty in a way that protects the rights of others. The chapter also cites the Supreme Court's decision in Lawrence v. Texas, which found the states' exercise of police power to be improper.
Brice Dickson
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199571383
- eISBN:
- 9780191721854
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571383.003.0005
- Subject:
- Law, Human Rights and Immigration
This chapter examines the powers of arrest in Northern Ireland, showing how the European Court exercised a fairly ‘light touch’ control over army and police arrest powers under the emergency ...
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This chapter examines the powers of arrest in Northern Ireland, showing how the European Court exercised a fairly ‘light touch’ control over army and police arrest powers under the emergency legislation in force during the troubles. Beyond insisting, in Fox, Campbell and Hartley v United Kingdom, that arrests had to be grounded in reasonable suspicion, not just suspicion, the Court gave more or less carte blanche to arresting officers to act on whatever their superior officers told them to do, provided only that those superior officers were acting on what to them seemed reliable information.Less
This chapter examines the powers of arrest in Northern Ireland, showing how the European Court exercised a fairly ‘light touch’ control over army and police arrest powers under the emergency legislation in force during the troubles. Beyond insisting, in Fox, Campbell and Hartley v United Kingdom, that arrests had to be grounded in reasonable suspicion, not just suspicion, the Court gave more or less carte blanche to arresting officers to act on whatever their superior officers told them to do, provided only that those superior officers were acting on what to them seemed reliable information.
Martin Loughlin
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199256853
- eISBN:
- 9780191594267
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199256853.003.0015
- Subject:
- Law, Public International Law
Although the origins of potentia can be traced to the exercise of the king's prerogatives, its significance in the modern era has been altered out of all recognition. This came about because of a ...
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Although the origins of potentia can be traced to the exercise of the king's prerogatives, its significance in the modern era has been altered out of all recognition. This came about because of a third revolution to have shaped public law: the disciplinary revolution which flowed from the Protestant Reformation. This establishes as the main objective of public law that of establishing a well-ordered commonwealth. The disciplinary revolution supplements the bourgeois revolutionary concern for the structure of government with a concern over its infrastructure and a consequential shift in orientation takes place: from input legitimacy (focusing on right ordering) towards output legitimacy (measured by effectiveness in service provision) — that is, a shift from potestas towards potentia. This chapter examines the origins and nature of the disciplinary revolution and considers its impact on the workings of modern government.Less
Although the origins of potentia can be traced to the exercise of the king's prerogatives, its significance in the modern era has been altered out of all recognition. This came about because of a third revolution to have shaped public law: the disciplinary revolution which flowed from the Protestant Reformation. This establishes as the main objective of public law that of establishing a well-ordered commonwealth. The disciplinary revolution supplements the bourgeois revolutionary concern for the structure of government with a concern over its infrastructure and a consequential shift in orientation takes place: from input legitimacy (focusing on right ordering) towards output legitimacy (measured by effectiveness in service provision) — that is, a shift from potestas towards potentia. This chapter examines the origins and nature of the disciplinary revolution and considers its impact on the workings of modern government.
Stefan Petrow
- Published in print:
- 1994
- Published Online:
- October 2011
- ISBN:
- 9780198201656
- eISBN:
- 9780191674976
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198201656.003.0001
- Subject:
- History, British and Irish Modern History
For Victorians, morality was significant as it was deemed as a necessary part of life in order to hold and keep social stability. Morality in the 19th century was also seen as a protector of family ...
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For Victorians, morality was significant as it was deemed as a necessary part of life in order to hold and keep social stability. Morality in the 19th century was also seen as a protector of family institutions, properties, and social values such as honesty, decency, self-discipline, respect, and diligence. This book examines the role of the Metropolitan Police in enforcing morality through set laws in late-Victorian and Edwardian London. In this book much focus is directed to the legislation of laws that tended to curb habitual criminality, prostitution, drunkenness, and betting. The book also looks into the efforts exerted by moralists to increase the policing powers of the Metropolitan Police and the Home Office bureaucracy; the capacity of the Metropolitan to curb, enforce, and resist these powers based on practical and moral considerations; how policing methods were altered to accumulate more power; and how successful the implementation of these policing morals turned out to be.Less
For Victorians, morality was significant as it was deemed as a necessary part of life in order to hold and keep social stability. Morality in the 19th century was also seen as a protector of family institutions, properties, and social values such as honesty, decency, self-discipline, respect, and diligence. This book examines the role of the Metropolitan Police in enforcing morality through set laws in late-Victorian and Edwardian London. In this book much focus is directed to the legislation of laws that tended to curb habitual criminality, prostitution, drunkenness, and betting. The book also looks into the efforts exerted by moralists to increase the policing powers of the Metropolitan Police and the Home Office bureaucracy; the capacity of the Metropolitan to curb, enforce, and resist these powers based on practical and moral considerations; how policing methods were altered to accumulate more power; and how successful the implementation of these policing morals turned out to be.
Katherine Beckett and Steve Herbert
- Published in print:
- 2009
- Published Online:
- May 2012
- ISBN:
- 9780195395174
- eISBN:
- 9780199943319
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195395174.003.0001
- Subject:
- Sociology, Law, Crime and Deviance
This chapter introduces the concept of banishment. It discusses the return of banishment through the stories of three individuals in Seattle, who supposedly violated the trespass law and drug traffic ...
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This chapter introduces the concept of banishment. It discusses the return of banishment through the stories of three individuals in Seattle, who supposedly violated the trespass law and drug traffic loitering ordinance. It then analyzes the return of banishment, which is widely considered as an archaic legal practice. Another archaic legal practice discussed in this chapter is the revival of police power. The chapter also explains why the study focuses on the rise of banishment in Seattle and provides an outline of the chapters that follow.Less
This chapter introduces the concept of banishment. It discusses the return of banishment through the stories of three individuals in Seattle, who supposedly violated the trespass law and drug traffic loitering ordinance. It then analyzes the return of banishment, which is widely considered as an archaic legal practice. Another archaic legal practice discussed in this chapter is the revival of police power. The chapter also explains why the study focuses on the rise of banishment in Seattle and provides an outline of the chapters that follow.
Robert Gellately
- Published in print:
- 1990
- Published Online:
- October 2011
- ISBN:
- 9780198228691
- eISBN:
- 9780191678806
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198228691.003.0002
- Subject:
- History, European Modern History
The Gestapo or the Secret State Police emerged from a set of complex set of interacting social forces, personalities, and traditions. In early 1933, from one state to another, the tightening of the ...
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The Gestapo or the Secret State Police emerged from a set of complex set of interacting social forces, personalities, and traditions. In early 1933, from one state to another, the tightening of the organization of the police was taking form. This was due to the claims of the dire necessity to assure the existence and safety of the state from battles and threats directed against it. Driven by these aims, the Gestapo vigorously exercised their power and invaded the lives of the citizens. Their powers were unchecked wherein the legal and civil rights were disregarded. They became the foremost enforcer of policy and at times they acted as lawgiver, jury, and executioner. This chapter discusses the emergence of the Gestapo within the German society during the 1930s. In this chapter, the patterns of continuities and discontinuities from the earlier periods are discussed. The limits and possibilities of the new police powers and the expanding spheres of activities are also discussed. The chapter concludes with the nationalization of the political police.Less
The Gestapo or the Secret State Police emerged from a set of complex set of interacting social forces, personalities, and traditions. In early 1933, from one state to another, the tightening of the organization of the police was taking form. This was due to the claims of the dire necessity to assure the existence and safety of the state from battles and threats directed against it. Driven by these aims, the Gestapo vigorously exercised their power and invaded the lives of the citizens. Their powers were unchecked wherein the legal and civil rights were disregarded. They became the foremost enforcer of policy and at times they acted as lawgiver, jury, and executioner. This chapter discusses the emergence of the Gestapo within the German society during the 1930s. In this chapter, the patterns of continuities and discontinuities from the earlier periods are discussed. The limits and possibilities of the new police powers and the expanding spheres of activities are also discussed. The chapter concludes with the nationalization of the political police.
Nancy Woloch
- Published in print:
- 2015
- Published Online:
- October 2017
- ISBN:
- 9780691002590
- eISBN:
- 9781400866366
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691002590.003.0003
- Subject:
- History, American History: 20th Century
This chapter discusses how the courts shaped protective policy from the 1890s to 1907. During this period, state and federal courts began a legal conversation about state protective laws. In court, ...
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This chapter discusses how the courts shaped protective policy from the 1890s to 1907. During this period, state and federal courts began a legal conversation about state protective laws. In court, challengers relied on the due process clause of the Fourteenth Amendment; they embraced freedom of contract and also cited the amendment's equal protection clause. Meanwhile, defenders gave wide latitude to the police power, the state's power to protect the health and welfare of its citizens. Throughout the era, the legal system imposed a discussion of gender. In cases that involved women workers, decisions that upset protective laws defended equal status for women. On the other hand, decision that upheld single-sex laws explored the role of sexual difference, mentioned women's reproductive capacity, and linked hours limits to the good of posterity and the welfare of society. Thereafter, judicial opinion steered states' attorneys—and the reformers who backed protective labor laws—into gender-based strategies.Less
This chapter discusses how the courts shaped protective policy from the 1890s to 1907. During this period, state and federal courts began a legal conversation about state protective laws. In court, challengers relied on the due process clause of the Fourteenth Amendment; they embraced freedom of contract and also cited the amendment's equal protection clause. Meanwhile, defenders gave wide latitude to the police power, the state's power to protect the health and welfare of its citizens. Throughout the era, the legal system imposed a discussion of gender. In cases that involved women workers, decisions that upset protective laws defended equal status for women. On the other hand, decision that upheld single-sex laws explored the role of sexual difference, mentioned women's reproductive capacity, and linked hours limits to the good of posterity and the welfare of society. Thereafter, judicial opinion steered states' attorneys—and the reformers who backed protective labor laws—into gender-based strategies.
Peter Ramsay
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199581061
- eISBN:
- 9780191741005
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199581061.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the ...
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This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the liabilities found in much of the expansive criminal legislation enacted under that government. This book identifies the normative source of the right to security in the idea of vulnerable autonomy. It demonstrates that this idea is axiomatic to political theories that have enjoyed a preponderant influence across the political mainstream, well beyond the ranks of the Labour government. It considers the continuing influence of these normative commitments on the Coalition government's policy. The book explores how the contemporary criminal law's institutionalization of a right to security differs from the law's earlier protection of security interests. It exposes the paradox presented by laws that declare their own lack of authority by threatening punishments that are justified on the assumption that the normal condition of the representative subject of law is one of feeling vulnerable to criminal victimization. The book presents unorthodox criminal law theory in two respects. First, it offers an explanatory political sociology of a contemporary trend in the criminal law's ‘special part’ rather than a philosophical treatment of the law's general principles. Second, rather than applying a pre-existing sociological or philosophical theory to the law, it develops its theoretical explanation from a detailed legal analysis and reconstruction of New Labour's flagship criminal justice policy, the Anti-Social Behaviour Order.Less
This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the liabilities found in much of the expansive criminal legislation enacted under that government. This book identifies the normative source of the right to security in the idea of vulnerable autonomy. It demonstrates that this idea is axiomatic to political theories that have enjoyed a preponderant influence across the political mainstream, well beyond the ranks of the Labour government. It considers the continuing influence of these normative commitments on the Coalition government's policy. The book explores how the contemporary criminal law's institutionalization of a right to security differs from the law's earlier protection of security interests. It exposes the paradox presented by laws that declare their own lack of authority by threatening punishments that are justified on the assumption that the normal condition of the representative subject of law is one of feeling vulnerable to criminal victimization. The book presents unorthodox criminal law theory in two respects. First, it offers an explanatory political sociology of a contemporary trend in the criminal law's ‘special part’ rather than a philosophical treatment of the law's general principles. Second, rather than applying a pre-existing sociological or philosophical theory to the law, it develops its theoretical explanation from a detailed legal analysis and reconstruction of New Labour's flagship criminal justice policy, the Anti-Social Behaviour Order.
Peter Ramsay
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199581061
- eISBN:
- 9780191741005
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199581061.003.0010
- Subject:
- Law, Criminal Law and Criminology
This chapter assesses the penal protection of the right to security in the terms of thee recently published broadly liberal theories of criminal law: Douglas Husak's theory of the limits of ...
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This chapter assesses the penal protection of the right to security in the terms of thee recently published broadly liberal theories of criminal law: Douglas Husak's theory of the limits of criminalization; Markus Dubber's critique of the police power; and Alan Brudner's theory of dialogic community. The enemy criminal law theory of Gunther Jakobs is also briefly considered. The purpose of the assessment is to understand the relationship of the right to security to liberalism. It argues that from the point of view of liberal political theories of criminal law, protection of the right to security is inconsistent with the state's authority understood either as a traditional (and essentially illiberal) patriarchal order or as a modern liberal state.Less
This chapter assesses the penal protection of the right to security in the terms of thee recently published broadly liberal theories of criminal law: Douglas Husak's theory of the limits of criminalization; Markus Dubber's critique of the police power; and Alan Brudner's theory of dialogic community. The enemy criminal law theory of Gunther Jakobs is also briefly considered. The purpose of the assessment is to understand the relationship of the right to security to liberalism. It argues that from the point of view of liberal political theories of criminal law, protection of the right to security is inconsistent with the state's authority understood either as a traditional (and essentially illiberal) patriarchal order or as a modern liberal state.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the ...
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This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.Less
This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.
Stephan W. Schill
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0010
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
This chapter deals with the function, scope, and effect of umbrella clauses in international investment treaties. It proposes to understand the clauses as breaking with customary international law ...
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This chapter deals with the function, scope, and effect of umbrella clauses in international investment treaties. It proposes to understand the clauses as breaking with customary international law and argues that their function consists in stabilizing investor-State relations by opening recourse to dispute settlement by arbitral tribunals for breaches of specific and individual promises made by the State. Umbrella clauses prevent host States from acting opportunistically in reneging on their initial promises whether through acts of a governmental or purely commercial nature. While reinforcing the principle of pacta sunt servanda as a fundamental basis for investor-State cooperation, they do not exclude, however, variations of contracts due to contingencies arising during the life of a contract, nor do they override the State's police power to regulate investor-State contracts in the public interest.Less
This chapter deals with the function, scope, and effect of umbrella clauses in international investment treaties. It proposes to understand the clauses as breaking with customary international law and argues that their function consists in stabilizing investor-State relations by opening recourse to dispute settlement by arbitral tribunals for breaches of specific and individual promises made by the State. Umbrella clauses prevent host States from acting opportunistically in reneging on their initial promises whether through acts of a governmental or purely commercial nature. While reinforcing the principle of pacta sunt servanda as a fundamental basis for investor-State cooperation, they do not exclude, however, variations of contracts due to contingencies arising during the life of a contract, nor do they override the State's police power to regulate investor-State contracts in the public interest.
Stefan Petrow
- Published in print:
- 1994
- Published Online:
- October 2011
- ISBN:
- 9780198201656
- eISBN:
- 9780191674976
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198201656.003.0012
- Subject:
- History, British and Irish Modern History
In the mid-18th century, John Stuart Mill warned of the possible adverse effects of unrestrained police powers on liberty. However, his warning was left unheard. By 1914, the powers of the ...
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In the mid-18th century, John Stuart Mill warned of the possible adverse effects of unrestrained police powers on liberty. However, his warning was left unheard. By 1914, the powers of the Metropolitan Police under the direction of the Home Office flourished and grew. They imposed anarchic restrictions that suppressed society, most of which belonging to the lower strata. The restriction and the cumulative impact of police powers were both a nightmare and a failure. Instead of curbing the immoral and criminal ways of society particularly the lower classes, the oppressive restrictions created a more antagonistic society which led to the exercise of underground crimes which the hands of the Metropolitan Police could hardly penetrate. The failure of the police as well as their enormous power prompted moral reformers to call for prevention and moral instruction rather than punishment as solution to immorality. The drawbacks and setbacks of the role of the police and their oppressive power as well led to a vigilant and watchful society which safeguarded liberty and freedom to which the societies of today are greatly indebted to.Less
In the mid-18th century, John Stuart Mill warned of the possible adverse effects of unrestrained police powers on liberty. However, his warning was left unheard. By 1914, the powers of the Metropolitan Police under the direction of the Home Office flourished and grew. They imposed anarchic restrictions that suppressed society, most of which belonging to the lower strata. The restriction and the cumulative impact of police powers were both a nightmare and a failure. Instead of curbing the immoral and criminal ways of society particularly the lower classes, the oppressive restrictions created a more antagonistic society which led to the exercise of underground crimes which the hands of the Metropolitan Police could hardly penetrate. The failure of the police as well as their enormous power prompted moral reformers to call for prevention and moral instruction rather than punishment as solution to immorality. The drawbacks and setbacks of the role of the police and their oppressive power as well led to a vigilant and watchful society which safeguarded liberty and freedom to which the societies of today are greatly indebted to.
James H. Mills
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199283422
- eISBN:
- 9780191746161
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199283422.003.0008
- Subject:
- History, British and Irish Modern History, Cultural History
This chapter considers the decade or so before 2008 in order to explain some of the features of a period that was one of remarkable activity. By the late 1990s there were more consumers than ever ...
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This chapter considers the decade or so before 2008 in order to explain some of the features of a period that was one of remarkable activity. By the late 1990s there were more consumers than ever before in the UK, and greater numbers of them finding themselves in trouble with the police. In the years immediately after New Labour came to power in 1997 many of these consumers again found their voice. Newspapers and political parties took up their cause and a expert bodies rushed to offer opinions. In 2001 the Home Secretary broke with the policy of his predecessors and reclassified the drug and his successors quickly back-peddled and reversed his decision. The chapter explores these events and argues that they are best understood in the wider context of the history of the period, as the nature of the New Labour administration and the agendas of the police served to frustrate those that sought change to ‘the British compromise’.Less
This chapter considers the decade or so before 2008 in order to explain some of the features of a period that was one of remarkable activity. By the late 1990s there were more consumers than ever before in the UK, and greater numbers of them finding themselves in trouble with the police. In the years immediately after New Labour came to power in 1997 many of these consumers again found their voice. Newspapers and political parties took up their cause and a expert bodies rushed to offer opinions. In 2001 the Home Secretary broke with the policy of his predecessors and reclassified the drug and his successors quickly back-peddled and reversed his decision. The chapter explores these events and argues that they are best understood in the wider context of the history of the period, as the nature of the New Labour administration and the agendas of the police served to frustrate those that sought change to ‘the British compromise’.
Markus D. Dubber and Mariana Valverde
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804759328
- eISBN:
- 9780804779777
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804759328.003.0001
- Subject:
- Law, Criminal Law and Criminology
This introductory chapter begins with a review of the U.S. Supreme Court decision in Kelo v. City of New London—a lowly case about how a small town in Connecticut might improve its waterfront, which ...
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This introductory chapter begins with a review of the U.S. Supreme Court decision in Kelo v. City of New London—a lowly case about how a small town in Connecticut might improve its waterfront, which shook people up across the United States, caused numerous state legislatures to pass new laws restricting eminent domain powers, and even prompted the House of Representatives to enact a resolution disapproving of the decision. This is followed by a discussion of the meaning of police powers. The chapter then sets out the book's purpose, which is to refocus scholarly attention through the lens of police power on the scope and functioning of government in its myriad manifestations, from the family to the prison to the workplace, from the city to the state to the international community. An overview of the subsequent chapters is also presented.Less
This introductory chapter begins with a review of the U.S. Supreme Court decision in Kelo v. City of New London—a lowly case about how a small town in Connecticut might improve its waterfront, which shook people up across the United States, caused numerous state legislatures to pass new laws restricting eminent domain powers, and even prompted the House of Representatives to enact a resolution disapproving of the decision. This is followed by a discussion of the meaning of police powers. The chapter then sets out the book's purpose, which is to refocus scholarly attention through the lens of police power on the scope and functioning of government in its myriad manifestations, from the family to the prison to the workplace, from the city to the state to the international community. An overview of the subsequent chapters is also presented.
David Alan Sklansky
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804759328
- eISBN:
- 9780804779777
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804759328.003.0007
- Subject:
- Law, Criminal Law and Criminology
This chapter explores a different, less obvious, connection between police power and the police. The main thesis is that the police mode of governance has frustrated efforts at American police reform ...
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This chapter explores a different, less obvious, connection between police power and the police. The main thesis is that the police mode of governance has frustrated efforts at American police reform over the past half century, including the criminal procedure revolution, not just by opposing those efforts from the outside but also by compromising them from within. It starts by outlining the straightforward case for giving police officers a larger collective voice in the shaping of their work—a case that borrows heavily from arguments commonly made about other workplaces. It then explores why those arguments are seldom heard in discussions of policing. Part of the explanation turns out to be an accident of history, but another part of the answer is more principled, having to do with a particular understanding of what the rule of law requires of the police. That understanding has paradoxical affinities with what might be called the police theory of state authority—not the working theory of police officers but the theory underlying police power and one which is traceable to the nineteenth-century, Continental understanding of the police.Less
This chapter explores a different, less obvious, connection between police power and the police. The main thesis is that the police mode of governance has frustrated efforts at American police reform over the past half century, including the criminal procedure revolution, not just by opposing those efforts from the outside but also by compromising them from within. It starts by outlining the straightforward case for giving police officers a larger collective voice in the shaping of their work—a case that borrows heavily from arguments commonly made about other workplaces. It then explores why those arguments are seldom heard in discussions of policing. Part of the explanation turns out to be an accident of history, but another part of the answer is more principled, having to do with a particular understanding of what the rule of law requires of the police. That understanding has paradoxical affinities with what might be called the police theory of state authority—not the working theory of police officers but the theory underlying police power and one which is traceable to the nineteenth-century, Continental understanding of the police.
Markus Dirk Dubber
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199269228
- eISBN:
- 9780191710100
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199269228.003.0005
- Subject:
- Law, Criminal Law and Criminology
This chapter focuses on New York criminal law, with occasional references to the Model Penal Code to broaden the scope of the inquiry. It explains that studies in the special part of criminal law are ...
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This chapter focuses on New York criminal law, with occasional references to the Model Penal Code to broaden the scope of the inquiry. It explains that studies in the special part of criminal law are peculiarly parochial. It adds that these studies require careful attention to statutory language and structure. It puts more emphasis on the special part of criminal codes. It also makes a comparative analysis involving legal systems that have not yet resolved the initial question of a science of codification, namely whether to codify.Less
This chapter focuses on New York criminal law, with occasional references to the Model Penal Code to broaden the scope of the inquiry. It explains that studies in the special part of criminal law are peculiarly parochial. It adds that these studies require careful attention to statutory language and structure. It puts more emphasis on the special part of criminal codes. It also makes a comparative analysis involving legal systems that have not yet resolved the initial question of a science of codification, namely whether to codify.
J.E. Vinuales
- Published in print:
- 2014
- Published Online:
- August 2014
- ISBN:
- 9780199685387
- eISBN:
- 9780191765612
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685387.003.0012
- Subject:
- Law, Company and Commercial Law, Public International Law
This chapter examines the notion of sovereignty in foreign investment law. It first sets out the idea that sovereignty is not a single legal concept but, rather, a mosaic of actionable legal concepts ...
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This chapter examines the notion of sovereignty in foreign investment law. It first sets out the idea that sovereignty is not a single legal concept but, rather, a mosaic of actionable legal concepts of varying density and legal nature that seek to express the pre-eminent position of the state as a unit of social organization. This concept is then applied to the analysis of the two actionable expressions of sovereignty frequently invoked in foreign investment disputes: the police powers doctrine and necessity/emergency clauses. Finally, the chapter presents some conclusions on proper place of sovereignty in foreign investment law, and how to achieve it through research into so far neglected areas; a better integration of customary international law; and some recalibration of available concepts in the light of the concepts used in other legal contexts.Less
This chapter examines the notion of sovereignty in foreign investment law. It first sets out the idea that sovereignty is not a single legal concept but, rather, a mosaic of actionable legal concepts of varying density and legal nature that seek to express the pre-eminent position of the state as a unit of social organization. This concept is then applied to the analysis of the two actionable expressions of sovereignty frequently invoked in foreign investment disputes: the police powers doctrine and necessity/emergency clauses. Finally, the chapter presents some conclusions on proper place of sovereignty in foreign investment law, and how to achieve it through research into so far neglected areas; a better integration of customary international law; and some recalibration of available concepts in the light of the concepts used in other legal contexts.
Nicola Lacey
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9780199565955
- eISBN:
- 9780191701948
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565955.003.0008
- Subject:
- Law, Criminal Law and Criminology
This chapter explores two recent contributions to the flourishing debate about the history of criminal justice in modern societies so as to develop some ideas about how it can add to the structured, ...
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This chapter explores two recent contributions to the flourishing debate about the history of criminal justice in modern societies so as to develop some ideas about how it can add to the structured, macro-level understanding which comparative studies also promise. It emphasizes James Q. Whitman's Harsh Justice and Markus Dirk Dubber's The Police Power. In line with this, it proposes that historical studies can usefully complement comparative research, can put questions on the agenda of comparative studies, and can fulfil some of the same explanatory and policy-relevant functions as comparative scholarship. A blend of Whitman's degradation hypothesis and of David Downes' interpretation may usefully be combined with the insights of recent political-economic analysis of comparative institutional advantage. It is argued that additional contributions to the genre of comparative scholarship exemplified by David Downes' Contrasts in Tolerance is important. In addition, the legitimacy of criminology or criminal justice studies as autonomous disciplines must be questioned.Less
This chapter explores two recent contributions to the flourishing debate about the history of criminal justice in modern societies so as to develop some ideas about how it can add to the structured, macro-level understanding which comparative studies also promise. It emphasizes James Q. Whitman's Harsh Justice and Markus Dirk Dubber's The Police Power. In line with this, it proposes that historical studies can usefully complement comparative research, can put questions on the agenda of comparative studies, and can fulfil some of the same explanatory and policy-relevant functions as comparative scholarship. A blend of Whitman's degradation hypothesis and of David Downes' interpretation may usefully be combined with the insights of recent political-economic analysis of comparative institutional advantage. It is argued that additional contributions to the genre of comparative scholarship exemplified by David Downes' Contrasts in Tolerance is important. In addition, the legitimacy of criminology or criminal justice studies as autonomous disciplines must be questioned.
Markus D. Dubber and Mariana Valverde (eds)
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804759328
- eISBN:
- 9780804779777
- Item type:
- book
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804759328.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book advances a broad interdisciplinary and international project to refocus attention on the scope and function of modern governance through the lens of police power in its multiple ...
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This book advances a broad interdisciplinary and international project to refocus attention on the scope and function of modern governance through the lens of police power in its multiple manifestations—from the family to the police station and the prison, and from municipal government to state sovereignty and global security—and techniques—surveillance, control, and licensing, as well as ordinances, regulations, and administrative, constitutional, and criminal law. In the contributions to this volume, police power emerges as a rich and flexible concept that offers a broader functional context to explain the operation of governmental institutions. The chapters reveal connections across the history of government, across systems of government within a particular state, and comparatively, across different states and levels of government. The comprehensive scope and boundless ambition of police power, the very characteristics that rest uneasily with traditional conceptions of the liberal state, make it a useful platform for interdisciplinary and international inquiries into fundamental questions of government and law.Less
This book advances a broad interdisciplinary and international project to refocus attention on the scope and function of modern governance through the lens of police power in its multiple manifestations—from the family to the police station and the prison, and from municipal government to state sovereignty and global security—and techniques—surveillance, control, and licensing, as well as ordinances, regulations, and administrative, constitutional, and criminal law. In the contributions to this volume, police power emerges as a rich and flexible concept that offers a broader functional context to explain the operation of governmental institutions. The chapters reveal connections across the history of government, across systems of government within a particular state, and comparatively, across different states and levels of government. The comprehensive scope and boundless ambition of police power, the very characteristics that rest uneasily with traditional conceptions of the liberal state, make it a useful platform for interdisciplinary and international inquiries into fundamental questions of government and law.
ALAN BRUDNER
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199225798
- eISBN:
- 9780191706516
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199225798.003.0003
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses the civil rights generated by the constitution of liberty. It identifies the libertarian reason for shielding the fundamental civil freedoms against legal regulation; and it ...
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This chapter discusses the civil rights generated by the constitution of liberty. It identifies the libertarian reason for shielding the fundamental civil freedoms against legal regulation; and it assesses the grounds for the libertarian claim that this reason precludes regulation in all cases short of imminent constitutional crisis. It argues that libertarianism's reason for protecting the freedom of religion and civil speech against legal regulation is sound but that its reason for regarding this protection as virtually absolute is not. The chapter criticizes the libertarian police power as being rooted in a conception of public reason that is blind to constitutional goods capable of overriding property rights; and it illustrates this problem with the case of Lochner v. New York.Less
This chapter discusses the civil rights generated by the constitution of liberty. It identifies the libertarian reason for shielding the fundamental civil freedoms against legal regulation; and it assesses the grounds for the libertarian claim that this reason precludes regulation in all cases short of imminent constitutional crisis. It argues that libertarianism's reason for protecting the freedom of religion and civil speech against legal regulation is sound but that its reason for regarding this protection as virtually absolute is not. The chapter criticizes the libertarian police power as being rooted in a conception of public reason that is blind to constitutional goods capable of overriding property rights; and it illustrates this problem with the case of Lochner v. New York.
