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.
Martin Shapiro
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0009
- Subject:
- Political Science, Comparative Politics
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law ...
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The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.Less
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.
Jeffrey M. Shaman
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195334340
- eISBN:
- 9780199868773
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195334340.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book examines the evolution of liberty and equality under state constitutions from both a historical and jurisprudential perspective. The rise of the New Judicial Federalism has allowed many ...
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This book examines the evolution of liberty and equality under state constitutions from both a historical and jurisprudential perspective. The rise of the New Judicial Federalism has allowed many states to rediscover that they are empowered to enact their own constitutions and to interpret them as they see fit, independently of federal constitutional law. As the New Judicial Federalism gained ground, it was found that state constitutional law is an extremely important source of protection for individual rights and liberties. In some areas, the state courts are on the cutting edge of constitutional law and have taken the lead in cultivating an expansive view of civil rights and liberties. Not all states have welcomed the New Judicial Federalism, and this has created a compelling dialogue among the states concerning equality and liberty. The book emphasizes how important state constitutional law is in the protection of the individual rights. Acting under their state constitutions, many state courts across the nation have expanded the rights of equality and liberty beyond those recognized under the Federal Constitution. State courts have taken a strong stand against discrimination and have recognized new fundamental rights. In some states, the courts have expanded abortion rights, while others have pioneered the recognition of same-sex unions or marriage. State courts were the first to recognize a right of intimate association, furnishing an incentive for the U.S. Supreme Court to finally follow suit. All of these matters and more are thoroughly analyzed in this book.Less
This book examines the evolution of liberty and equality under state constitutions from both a historical and jurisprudential perspective. The rise of the New Judicial Federalism has allowed many states to rediscover that they are empowered to enact their own constitutions and to interpret them as they see fit, independently of federal constitutional law. As the New Judicial Federalism gained ground, it was found that state constitutional law is an extremely important source of protection for individual rights and liberties. In some areas, the state courts are on the cutting edge of constitutional law and have taken the lead in cultivating an expansive view of civil rights and liberties. Not all states have welcomed the New Judicial Federalism, and this has created a compelling dialogue among the states concerning equality and liberty. The book emphasizes how important state constitutional law is in the protection of the individual rights. Acting under their state constitutions, many state courts across the nation have expanded the rights of equality and liberty beyond those recognized under the Federal Constitution. State courts have taken a strong stand against discrimination and have recognized new fundamental rights. In some states, the courts have expanded abortion rights, while others have pioneered the recognition of same-sex unions or marriage. State courts were the first to recognize a right of intimate association, furnishing an incentive for the U.S. Supreme Court to finally follow suit. All of these matters and more are thoroughly analyzed in this book.
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/9780691159737.003.0009
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The ...
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This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The original Constitution contained several explicit restrictions on state power. In the early years of the Republic, federal courts actively scrutinized state enactments to ensure they did not violate these expressed prohibitions, especially the Contracts Clause. When it came to legislation not implicating these prohibitions, however, the courts deferred to states in their exercise of their police power. The chapter first considers what the term “privileges or immunities” encompasses before discussing the Supreme Court decision in the so-called Slaughter-House Cases, which set aside the original meaning of the Privileges or Immunities Clause. It then looks at the Due Process Clauses and shows that the due process of law includes judicial review.Less
This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The original Constitution contained several explicit restrictions on state power. In the early years of the Republic, federal courts actively scrutinized state enactments to ensure they did not violate these expressed prohibitions, especially the Contracts Clause. When it came to legislation not implicating these prohibitions, however, the courts deferred to states in their exercise of their police power. The chapter first considers what the term “privileges or immunities” encompasses before discussing the Supreme Court decision in the so-called Slaughter-House Cases, which set aside the original meaning of the Privileges or Immunities Clause. It then looks at the Due Process Clauses and shows that the due process of law includes judicial review.
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.
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.
Jeff Manza, Christopher Uggen, and Angela Behrens
- Published in print:
- 2006
- Published Online:
- May 2012
- ISBN:
- 9780195149326
- eISBN:
- 9780199943975
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195149326.003.0012
- Subject:
- Sociology, Law, Crime and Deviance
This chapter develops a broad historical overview, subjecting race-based theories about the adoption and development of felon disenfranchisement laws to scrutiny. It develops a systematic ...
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This chapter develops a broad historical overview, subjecting race-based theories about the adoption and development of felon disenfranchisement laws to scrutiny. It develops a systematic quantitative analysis that uses detailed information on the social and political makeup of individual states over a long historical period to examine how various factors affect the adoption and extension of state disenfranchisement laws. Why is race a logical culprit in the search to explain the development of felon disenfranchisement laws? In recent years, there has been an explosion of scholarship by social scientists and historians fingering race, and racial politics, as principal sources of the peculiar development of American political and legal culture. This scholarship includes three distinct types of argument: firstly, arguments about the interaction between race and the development of U.S. political institutions; secondly, arguments focusing on the impact of racial attitudes and racism; and thirdly, arguments that stress the nexus between race (and class) in the political economy of the American South.Less
This chapter develops a broad historical overview, subjecting race-based theories about the adoption and development of felon disenfranchisement laws to scrutiny. It develops a systematic quantitative analysis that uses detailed information on the social and political makeup of individual states over a long historical period to examine how various factors affect the adoption and extension of state disenfranchisement laws. Why is race a logical culprit in the search to explain the development of felon disenfranchisement laws? In recent years, there has been an explosion of scholarship by social scientists and historians fingering race, and racial politics, as principal sources of the peculiar development of American political and legal culture. This scholarship includes three distinct types of argument: firstly, arguments about the interaction between race and the development of U.S. political institutions; secondly, arguments focusing on the impact of racial attitudes and racism; and thirdly, arguments that stress the nexus between race (and class) in the political economy of the American South.
Anne van Aaken
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0023
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
International investment law creates an international level of review for (illegal) national regulations and laws and the conduct of administrative entities for foreign investors. It is state ...
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International investment law creates an international level of review for (illegal) national regulations and laws and the conduct of administrative entities for foreign investors. It is state liability law for foreign investors. Whereas in national law, a right holder needs to take all (usual administrative and judicial) steps to have the illegality of an act reviewed (primary remedies), in investment law, the investor often has immediate access to courts without the exhaustion of local remedies and may immediately claim damages (secondary remedies). This difference justifies a functional comparison of national state liability regimes with international investment law. What are the rationales discussed for the different remedies found in national state liability law and in investment law? And do they have a rational justification in general and depending on the case in specific circumstances?Less
International investment law creates an international level of review for (illegal) national regulations and laws and the conduct of administrative entities for foreign investors. It is state liability law for foreign investors. Whereas in national law, a right holder needs to take all (usual administrative and judicial) steps to have the illegality of an act reviewed (primary remedies), in investment law, the investor often has immediate access to courts without the exhaustion of local remedies and may immediately claim damages (secondary remedies). This difference justifies a functional comparison of national state liability regimes with international investment law. What are the rationales discussed for the different remedies found in national state liability law and in investment law? And do they have a rational justification in general and depending on the case in specific circumstances?
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.
Robert F. Williams
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780195343083
- eISBN:
- 9780199866960
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343083.003.0099
- Subject:
- Law, Constitutional and Administrative Law
This introductory chapter surveys the rise in importance of state constitutional law, the evolving recognition of state constitutions by scholars, lawyers, and judges, and the importance of the book ...
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This introductory chapter surveys the rise in importance of state constitutional law, the evolving recognition of state constitutions by scholars, lawyers, and judges, and the importance of the book at this point in time. The objectives of the book are outlined, and its methodology is explained.Less
This introductory chapter surveys the rise in importance of state constitutional law, the evolving recognition of state constitutions by scholars, lawyers, and judges, and the importance of the book at this point in time. The objectives of the book are outlined, and its methodology is explained.
John J. Coughlin
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195372977
- eISBN:
- 9780199871667
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372977.003.0006
- Subject:
- Law, Philosophy of Law
This chapter addresses several specific issues in light of the theories of property discussed in Chapter 4. First, it examines the theological and canonical relationship between the diocese and the ...
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This chapter addresses several specific issues in light of the theories of property discussed in Chapter 4. First, it examines the theological and canonical relationship between the diocese and the parish in terms of the ownership of property. Second, it recounts the 19th-century struggle of the Catholic Church to secure its parish property in accord with the hierarchical structure required by canon law in opposition to the congregational model embraced by many Protestant churches. Third, it discusses the relationship between canon law and state law with regard to ecclesiastical property and in particular the ways in which state law permits the Catholic Church to hold its property in accordance with canon law. Finally, the chapter considers antinomian and legalistic approaches to church property and their impact on the rule of law from the perspective of the secularization of Catholic institutions.Less
This chapter addresses several specific issues in light of the theories of property discussed in Chapter 4. First, it examines the theological and canonical relationship between the diocese and the parish in terms of the ownership of property. Second, it recounts the 19th-century struggle of the Catholic Church to secure its parish property in accord with the hierarchical structure required by canon law in opposition to the congregational model embraced by many Protestant churches. Third, it discusses the relationship between canon law and state law with regard to ecclesiastical property and in particular the ways in which state law permits the Catholic Church to hold its property in accordance with canon law. Finally, the chapter considers antinomian and legalistic approaches to church property and their impact on the rule of law from the perspective of the secularization of Catholic institutions.
Geoffrey Blest
- Published in print:
- 1997
- Published Online:
- October 2011
- ISBN:
- 9780198206996
- eISBN:
- 9780191677427
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198206996.003.0001
- Subject:
- History, Military History
This chapter offers a sketch of the history of the branch of international law from the earliest days until the first half of the present century. It presents evidence about the possibility of law ...
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This chapter offers a sketch of the history of the branch of international law from the earliest days until the first half of the present century. It presents evidence about the possibility of law restraining war. However, this book reveals that the historical record of the law of war does not support this proposition. It suggests that the prima-facie complaint about international law is that it holds together better on paper than in practice, and that States determined to ignore it can do so more or less with impunity. It further suggests that this weakness of the law is a consequence of the fact that international law is first and foremost inter-State law, made by States for their own purposes and advantages, which have not so far been perceived to demand, on occasions when their ‘vital interests’ are dramatically at stake, submission of their independent freedom of action (‘sovereignty’) to effective supranational institutions.Less
This chapter offers a sketch of the history of the branch of international law from the earliest days until the first half of the present century. It presents evidence about the possibility of law restraining war. However, this book reveals that the historical record of the law of war does not support this proposition. It suggests that the prima-facie complaint about international law is that it holds together better on paper than in practice, and that States determined to ignore it can do so more or less with impunity. It further suggests that this weakness of the law is a consequence of the fact that international law is first and foremost inter-State law, made by States for their own purposes and advantages, which have not so far been perceived to demand, on occasions when their ‘vital interests’ are dramatically at stake, submission of their independent freedom of action (‘sovereignty’) to effective supranational institutions.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546114
- eISBN:
- 9780191712203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546114.003.0011
- Subject:
- Law, Public International Law
This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really ...
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This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really accepted in international law as a norm or principle. The immediate impact and primacy of jus cogens over immunities is considered. The chapter covers immunity of States and their officials, and immunity from execution. As a follow-up of this chapter, the articles by this author in 49 German YbIL (2006) and 18 EJIL (2007) should be consulted.Less
This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really accepted in international law as a norm or principle. The immediate impact and primacy of jus cogens over immunities is considered. The chapter covers immunity of States and their officials, and immunity from execution. As a follow-up of this chapter, the articles by this author in 49 German YbIL (2006) and 18 EJIL (2007) should be consulted.
Andrew Koppelman
- Published in print:
- 2006
- Published Online:
- October 2013
- ISBN:
- 9780300113402
- eISBN:
- 9780300135138
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300113402.001.0001
- Subject:
- Political Science, American Politics
Must a state in which gay marriage is not legal recognize such a marriage performed in another state? The Constitution does not require recognition in all cases, but it does forbid states from ...
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Must a state in which gay marriage is not legal recognize such a marriage performed in another state? The Constitution does not require recognition in all cases, but it does forbid states from nullifying family relationships based in other states, or from making themselves havens for people who are trying to escape obligations to their spouses and children. This book offers workable legal solutions to the problems that arise when gay couples cross state borders. Drawing on historical precedents in which states held radically different moral views about marriage (for example, between kin, very young individuals, and interracial couples), the author shows which state laws should govern in specific situations as gay couples travel or move from place to place. Americans are profoundly divided over same-sex marriage, and now that gay civil unions and marriages are legal in some states, the issue has become increasingly urgent.Less
Must a state in which gay marriage is not legal recognize such a marriage performed in another state? The Constitution does not require recognition in all cases, but it does forbid states from nullifying family relationships based in other states, or from making themselves havens for people who are trying to escape obligations to their spouses and children. This book offers workable legal solutions to the problems that arise when gay couples cross state borders. Drawing on historical precedents in which states held radically different moral views about marriage (for example, between kin, very young individuals, and interracial couples), the author shows which state laws should govern in specific situations as gay couples travel or move from place to place. Americans are profoundly divided over same-sex marriage, and now that gay civil unions and marriages are legal in some states, the issue has become increasingly urgent.
Garrett Barden and Tim Murphy
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199592685
- eISBN:
- 9780191595653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592685.003.0001
- Subject:
- Law, Philosophy of Law
The term ‘law’ is usually taken to refer to forms of what is typically called ‘state law’ or ‘positive law’, including constitutional law, enacted legislation, law arising from or associated with the ...
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The term ‘law’ is usually taken to refer to forms of what is typically called ‘state law’ or ‘positive law’, including constitutional law, enacted legislation, law arising from or associated with the courts, and, from many perspectives, elements of international law. This chapter proposes an understanding of ‘law’ as those judgments and choices that in recurrent kinds of circumstances are generally accepted and approved in a particular community. This is referred to as the ‘living law’, the communal law, or the communal moral tradition. The chapter introduces the Roman law definition of justice given in Justinian's Corpus Iuris Civilis — the giving to each what is due — and traces the links between ‘law’ and ‘justice’ in light of these understandings and with particular reference to the thought of Aristotle, St Thomas Aquinas, and Michel Villey. An overview of the book's contents and structure is also included in this chapter.Less
The term ‘law’ is usually taken to refer to forms of what is typically called ‘state law’ or ‘positive law’, including constitutional law, enacted legislation, law arising from or associated with the courts, and, from many perspectives, elements of international law. This chapter proposes an understanding of ‘law’ as those judgments and choices that in recurrent kinds of circumstances are generally accepted and approved in a particular community. This is referred to as the ‘living law’, the communal law, or the communal moral tradition. The chapter introduces the Roman law definition of justice given in Justinian's Corpus Iuris Civilis — the giving to each what is due — and traces the links between ‘law’ and ‘justice’ in light of these understandings and with particular reference to the thought of Aristotle, St Thomas Aquinas, and Michel Villey. An overview of the book's contents and structure is also included in this chapter.
Evelyn Campbell, M.S.W.
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195398496
- eISBN:
- 9780199777402
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195398496.003.0002
- Subject:
- Social Work, Children and Families
This chapter reviews recent policies on truancy data and gives a summary of how each state defines truancy. It also illustrates the importance of school social workers' understanding policies ...
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This chapter reviews recent policies on truancy data and gives a summary of how each state defines truancy. It also illustrates the importance of school social workers' understanding policies regarding truancy and its impact on families. Overall, the definitions for truancy and habitual truancy vary from state to state and sometimes vary within each state (school district to school district). The National Cooperative Education Statistics System National Forum on Education Statistics, Truancy Working Group, decided that it is not possible at this time to have a uniform definition of truancy at the national level. Every school has an attendance policy; however, it may be unclear what is required from the student and parent. School social workers need to help the families in their schools understand the importance of good school attendance and the consequences for truancy. In some states support staff may need to advocate to their elected officials to make state laws on truancy more explicit and more accessible.Less
This chapter reviews recent policies on truancy data and gives a summary of how each state defines truancy. It also illustrates the importance of school social workers' understanding policies regarding truancy and its impact on families. Overall, the definitions for truancy and habitual truancy vary from state to state and sometimes vary within each state (school district to school district). The National Cooperative Education Statistics System National Forum on Education Statistics, Truancy Working Group, decided that it is not possible at this time to have a uniform definition of truancy at the national level. Every school has an attendance policy; however, it may be unclear what is required from the student and parent. School social workers need to help the families in their schools understand the importance of good school attendance and the consequences for truancy. In some states support staff may need to advocate to their elected officials to make state laws on truancy more explicit and more accessible.
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/9780199227952.003.0001
- Subject:
- Law, Philosophy of Law
This introductory chapter situates Kelsen's Pure Theory in the context of contemporary legal positivism. The Pure Theory is typically considered to be a forerunner of purely descriptive legal ...
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This introductory chapter situates Kelsen's Pure Theory in the context of contemporary legal positivism. The Pure Theory is typically considered to be a forerunner of purely descriptive legal positivist approaches. But this classification does not sit well with Kelsenian doctrines and texts that are typically overlooked by legal theorists: the thesis of the identity of law and state, Kelsen's defence of democracy and constitutionalism, and his advocacy of international legality. These parts of Kelsen's oeuvre suggest that the Pure Theory is driven by the normative ambitions of offering a defence of the rule of law, of democracy, of constitutionalism, and of international legalization. These ambitions cohere in the political ideal of a utopia of legality that is to be spelled out in this book.Less
This introductory chapter situates Kelsen's Pure Theory in the context of contemporary legal positivism. The Pure Theory is typically considered to be a forerunner of purely descriptive legal positivist approaches. But this classification does not sit well with Kelsenian doctrines and texts that are typically overlooked by legal theorists: the thesis of the identity of law and state, Kelsen's defence of democracy and constitutionalism, and his advocacy of international legality. These parts of Kelsen's oeuvre suggest that the Pure Theory is driven by the normative ambitions of offering a defence of the rule of law, of democracy, of constitutionalism, and of international legalization. These ambitions cohere in the political ideal of a utopia of legality that is to be spelled out in this book.
DINAH SHELTON
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199207534
- eISBN:
- 9780191708794
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207534.003.0004
- Subject:
- Law, Human Rights and Immigration
Prior to the development of international human rights law, violations of international law were met with responses under the law of state responsibility. This traditional body of law, particularly ...
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Prior to the development of international human rights law, violations of international law were met with responses under the law of state responsibility. This traditional body of law, particularly the part of it that concerns the mistreatment of aliens, contains useful precedents for evaluating the nature and scope of remedies afforded in state practice. Clearly, the law of state responsibility remains applicable to a human rights violation by a state in breach of an international obligation contained in a treaty or customary international law. This chapter reviews the law of state responsibility, in particular the redress afforded for injury to aliens, in order to identify general principles and precedents that may be applicable or useful in addressing human rights violations.Less
Prior to the development of international human rights law, violations of international law were met with responses under the law of state responsibility. This traditional body of law, particularly the part of it that concerns the mistreatment of aliens, contains useful precedents for evaluating the nature and scope of remedies afforded in state practice. Clearly, the law of state responsibility remains applicable to a human rights violation by a state in breach of an international obligation contained in a treaty or customary international law. This chapter reviews the law of state responsibility, in particular the redress afforded for injury to aliens, in order to identify general principles and precedents that may be applicable or useful in addressing human rights violations.
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/9780199227952.003.0003
- Subject:
- Law, Philosophy of Law
Kelsen defends the descriptive adequacy of his thesis of the identity of law and state through the so-called doctrine of normative alternatives, according to which the law equally authorizes ...
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Kelsen defends the descriptive adequacy of his thesis of the identity of law and state through the so-called doctrine of normative alternatives, according to which the law equally authorizes perfectly legal as well as materially illegal acts of state, as long as they are performed by formally competent organs. This chapter argues — by way of an analysis of Kelsen's conceptions of validity, nullity and voidability — that the doctrine of normative alternatives does not undercut the ideal of the rule of law. The doctrine applies only where legal order provides a number of guarantees of legality that protect subjects of the law against arbitrary illegality on the part of the state. It is therefore best understood as an attempt to uphold a normatively fruitful principle of legality, based on the idea that the legitimacy of the state essentially depends on conformity with law, in a complex institutional context.Less
Kelsen defends the descriptive adequacy of his thesis of the identity of law and state through the so-called doctrine of normative alternatives, according to which the law equally authorizes perfectly legal as well as materially illegal acts of state, as long as they are performed by formally competent organs. This chapter argues — by way of an analysis of Kelsen's conceptions of validity, nullity and voidability — that the doctrine of normative alternatives does not undercut the ideal of the rule of law. The doctrine applies only where legal order provides a number of guarantees of legality that protect subjects of the law against arbitrary illegality on the part of the state. It is therefore best understood as an attempt to uphold a normatively fruitful principle of legality, based on the idea that the legitimacy of the state essentially depends on conformity with law, in a complex institutional context.
Norman Doe
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199604005
- eISBN:
- 9780191729331
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199604005.003.0002
- Subject:
- Law, EU Law, Comparative Law
This chapter identifies the sources of law and other regulatory instruments used by States to regulate religion at both the constitutional and the sub-constitutional level as well as the religious ...
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This chapter identifies the sources of law and other regulatory instruments used by States to regulate religion at both the constitutional and the sub-constitutional level as well as the religious subjects which these address. It also identifies the key instruments of international law which deal with religion. The chapter goes on to examine legal definitions of religion in terms of belief and action. It then explores the classical view that there are three models of religion-state relations law at work in Europe: the state-church, the separation, and the cooperation models (through concordats and other agreements). It proposes that the classical understanding is inadequate, and that a far more complex picture emerges from the sub-constitutional level of the legal regulation of religion.Less
This chapter identifies the sources of law and other regulatory instruments used by States to regulate religion at both the constitutional and the sub-constitutional level as well as the religious subjects which these address. It also identifies the key instruments of international law which deal with religion. The chapter goes on to examine legal definitions of religion in terms of belief and action. It then explores the classical view that there are three models of religion-state relations law at work in Europe: the state-church, the separation, and the cooperation models (through concordats and other agreements). It proposes that the classical understanding is inadequate, and that a far more complex picture emerges from the sub-constitutional level of the legal regulation of religion.
