1 HOW LAW AND ORDER OPPOSES THE RULE OF LAW Law and order is often
conjoined with the rule of law. The two are conflated in popular culture, such as
when the president in an American television series stresses that in invading a ...
Author: Nick Cheesman
Publisher: Cambridge University Press
A striking new analysis of Myanmar's court system, revealing how the rule of law is 'lexically present but semantically absent'.
We thus show that the argument that mass privatization always leads to a
demand for a wealth-maximizing legal regime ... We show that at high interest
rates, the relative returns to stripping assets and opposing the establishment of
the rule of ...
Author: Karla Ruth Hoff
Publisher: World Bank Publications
"How does the lack of legitimacy of property rights affect the dynamics of the creation of the rule of law? The authors investigate the demand for the rule of law in post-Communist economies after privatization under the assumption that theft is possible, that those who have "stolen" assets cannot be fully protected under a change in the legal regime towards rule of law, and that the number of agents with control rights over assets is large. They show that a demand for broadly beneficial legal reform may not emerge because the expectation of weak legal institutions increases the expected relative return to stripping assets, and strippers may gain from a weak and corrupt state. The outcome can be inefficient even from the narrow perspective of the asset-strippers."
He argues that many scholars' traditional understanding of Aristotle as the source
of the argument opposing the rule of law to the personal rule should concede to
Aristotle's own understanding of the rule of law as issuing from political power's ...
Author: Liesbeth Huppes-Cluysenaer
Publisher: Springer Science & Business Media
The book presents a new focus on the legal philosophical texts of Aristotle, which offers a much richer frame for the understanding of practical thought, legal reasoning and political experience. It allows understanding how human beings interact in a complex world, and how extensive the complexity is which results from humans’ own power of self-construction and autonomy. The Aristotelian approach recognizes the limits of rationality and the inevitable and constitutive contingency in Law. All this offers a helpful instrument to understand the changes globalisation imposes to legal experience today. The contributions in this collection do not merely pay attention to private virtues, but focus primarily on public virtues. They deal with the fact that law is dependent on political power and that a person can never be sure about the facts of a case or about the right way to act. They explore the assumption that a detailed knowledge of Aristotle's epistemology is necessary, because of the direct connection between Enlightened reasoning and legal positivism. They pay attention to the concept of proportionality, which can be seen as a precondition to discuss liberalism.
6.9 Some Thoughts on the Persistent Objector Rule A majority of scholars are
agreed that any state which opposes a rule right from its inception before it
becomes law may not be bound by it.147 Furthermore, a state whose practice is
not in ...
Author: Ernest K. Bankas
Publisher: Springer Science & Business Media
The author shows through a careful analysis of the law that restrictive immunity does not have vox populi in developing countries, and that it lacks usus. He also argues that forum law, i.e. the lex fori is a creature of sovereignty and between equals before the law, only what is understood and acknowledged as law among states must be applied in as much as the international legal system is horizontal.
The tale, however, points the other way, as a rule. Two blankly opposing morals,
the artist's and the tale's. Never trust the artist. Trust the tale.1 – D.H. Lawrence, '
The Spirit of Place' D.H. Lawrence was thoroughly saturated by New ...
Author: Desmond Manderson
"Kangaroo Courts and the Rule of Law -The Legacy of Modernism addresses the legacy of contemporary critiques of language for the concept of the rule of law. Between those who care about the rule of law and those who are interested in contemporary legal theory, there has been a dialogue of the deaf, which cannot continue. Starting from the position that contemporary critiques of linguistic meaning and legal certainty are too important to be dismissed, Desmond Manderson takes up the political and intellectual challenge they pose. Can the rule of law be re-onfigured in light of the critical turn of the past several years in legal theory, rather than being steadfastly opposed to it? Pursuing a reflection upon the relationship between law and the humanities, the book stages an encounter between the influential theoretical work of Jacques Derrida and MIkhail Bakhtin, and D.H. Lawrence's strange and misunderstood novel Kangaroo (1923). At a critical juncture in our intellectual history - the modernist movement at the end of the first world war - and struggling with the same problems we are puzzling over today, Lawrence articulated complex ideas about the nature of justice and the nature of literature. Using Lawrence to clarify Derrida's writings on law, as wellas using Derrida and Bakhtin to clarify Lawrence's experience of literature, Manderson makes a robust case for 'law and literature.' With this framework in mind he outlines a 'post-positivist' conception of the rule of law - in which justice is imperfectly possible, rather than perfectly impossible." -- Publisher's website.
tions of private international law , rules may be prescribed by one legal system
and adjudicated and enforced by another . ... rule in question and the
jurisdictions of the various States which are interested in supporting or opposing
that rule .
Author: Michael Byers
Publisher: Cambridge University Press
This book explains the most foundational aspect of international law in international relations terms.
Robinson,123 which presented the question whether the exclusionary rule
requires the suppression of evidence ... in Court circles as “the Tenth Justice”—
would soon direct its prestige and legal acumen toward efforts opposing the rule.
Author: Tracey Maclin
Publisher: Oxford University Press
The application of the Fourth Amendment's Exclusionary Rule has divided the Justices of the Supreme Court for nearly a century. As the legal remedy for when police violate the Fourth Amendment rights of a person and discover criminal evidence through illegal search and seizure, it is the most frequently litigated constitutional issue in United States courts. Tracey Maclin's The Supreme Court and the Fourth Amendment's Exclusionary Rule traces the rise and fall of the exclusionary rule using insight and behind-the-scenes access into the Court's thinking. Based on original archival research into the private papers of retired Justices, Professor Maclin's analysis clarifies the motivations and thoughts that explain the Court's exclusionary rule jurisprudence. He includes a comprehensive scholarly and objective discussion of the reasoning behind the Court decisions, and demonstrates that like other constitutional doctrines, the exclusionary rule is a political mechanism that expands and contracts as the times and Justices change. Ultimately, this book will help readers understand how constitutional law is constructed by judges with diverse political perspectives.
They contemplate judges engaged in quite different tasks and , as we have seen
, ultimately they lead to opposing results . ... neutral principles of law that can
reconcile the competing claims of church and state in a way that is impartial to
Author: David M. Beatty
Publisher: Oxford University Press, USA
The Ultimate Rule of Law addresses the age-old tension between law and politics by examining whether the personal beliefs of judges come into play in adjudicating on issues of religious freedom, sex discrimination, and social and economic rights. Decisions by the Supreme Courts of India, Japan, Canada, the United States, Ireland, Israel, the Constitutional Courts of Germany, Hungary, South Africa, and the European Court of Human Rights on such controversial issues as government funding of religious schools, abortion, same sex marriages, women in the military, and rights to basic shelter and life saving medical treatment are evaluated and compared. Beatty develops a radical alternative to the conventional view that in deciding these cases judges engage in an essentially interpretative, and thus subjective act, relying ultimately on their personal beliefs and political opinions. His analysis shows that it is possible to apply an impartial and objective method of judicial review, based on the principle of proportionality, which acts as an ultimate rule of law and is fully compatible with the ideals of democracy and popular sovereignty. Controversially, Beatty concludes that although this method of judicial review originated in the United States, American judges generally appear to be far less inclined to this conception of constitutional adjudication than their counterparts in Europe, Africa, and Asia.
... associate with the rule of law; stability, mutual self-restraint, and political
moderation. It may be right to worry, with Mary Ann Glendon, about the extreme
rhetoric often employed by opposing sides on morally charged issues before the
Author: Ian Shapiro
Publisher: NYU Press
From the sprawling remnants of the Soviet empire to the southern tip of Africa, attempts are underway to replace arbitrary political regimes with governments constrained by the rule of law. This ideal which subordinates the wills of individuals, social movements--and even, sometimes, democratically elected majorities--to the requirements of law, is here explored by leading legal and political thinkers. Part I of The Rule of Law examines the interplay of democracy and the rule of law, while Part II focusses on the centuries-old debate about the meaning of the rule of law itself. Part III takes up the constraints that rationality exercises on the rule of law. If the rule of law is desirable partly because it is rational, then departures from that rule might also be desirable in the event that they can be shown to be rational. Part IV concentrates on the limits of the rule of law, considering the tensions between liberalism and the rule of law which exist despite the fact that reasoned commitment to the rule of the law is preeminently a liberal commitment. Contributing to the volume are: Robert A. Burt (Yale University), Steven J. Burton (University of Iowa), William N. Eskridge, Jr. (Georgetown University), John Ferejohn (Stanford University), Richard Flathman (Johns Hopkins University), Gerald F. Gaus (University of Minnesota, Duluth), Jean Hampton (University of Arizona), Russell Hardin (University of Chicago), James Johnson (University of Rochester), Jack Knight (Washington University), Stephen Macedo (Harvard University), David Schmidtz (Yale University), Lawrence B. Solum (Loyola Marymount University), Michael Walzer (Princeton University), Catherine Valcke (University of Toronto), and Michael P. Zuckert (Carleton College).
One of the most compelling question facing those concerned with making
progress towards a global rule of law is how best ... Those who advocate an
opposing perspective, such as international and domestic human rights NGO's,
may submit ...
Author: Spencer Zifcak
Globalisation and the Rule of Law reassesses the idea of the 'rule of law' within the present complex and increasingly internationalized environment. There have been many books studying the phenomenon of globalization and its economic, social or cultural consequences. This book, however, is the first to relate globalization exclusively to law. It examines the impact of globalization upon the rule of law, a fundamental value within liberal democratic sovereign states. The book opens with three chapters discussing the theory of the rule of law and its necessary reconceptualization in a global environment. Then, in three sections considering global trade, security and human rights, it proposes new ways of thinking about global law and its application in new and existing institutions of global governance. Contributors include top-flight academics, politicians and judges, making this book significant and relevant in both jurisprudential theory and political practice.
ac cmg The international rule of law I was working in the United Nations building
that rises by the river at the foot of East ... His support for the UDHR, on behalf of
the smaller nations, helped to endure its passage with no opposing votes and ...
Author: Charles Sampford
The rule of law is widely seen as the cornerstone of any effective polity and increasingly a vital component of the international political system. If the international rule of law were to be strengthened, it would greatly contribute to trade, security, human rights and global cooperation in a range of fields. Yet, in many areas the rule of law seems almost absent in international affairs. This book explores the institutions that support the effectiveness of the rule of law domestically. It focuses on the extent to which similar institutions already exist at international level and analyses the possibility of their further development. The authors speculate on how the international rule of law might be advanced in the future, thereby suggesting potential strategies for strengthening the international rule of law. Adopting an interdisciplinary approach and combining the fields of international relations, politics and law, this book covers a range institutions including: UN Security Council International Court of Justice Human rights machinery Regional human rights International Criminal Court World Trade Organization International Tribunal for the Law of the Sea UN Department of Peacekeeping Operations. It will be of strong interest to students and scholars of international relations, international organisations, global governance, international law, migration law, international peace and security law, applied ethics, political economy, political science and sociology.
Crossing Legal Boundaries in Defence of the State Aniceto Masferrer, Clive
Walker ... On the opposing side, civil liberties groups in the UK sometimes made
inappropriate comparisons between the UK and Nazi Germany and the Soviet
Author: Aniceto Masferrer
Publisher: Edward Elgar Publishing
ŠA deep and thoughtful exploration of counter-terrorism written by leading commentators from around the globe. This book poses critical questions about the definition of terrorism, the role of human rights and the push by many governments for more secu
It can be argued that international law does not exist in a world of power politics
—a statement that is particularly true since ... should discuss the opposing views
on the existence of rules of international law by reference to theoretical literature.
Author: Susan Breau
Publisher: Oxford University Press
Q&A International Law offers a lifeline to students revising for exams. It provides clear guidance from an experienced examiner on how best to tackle exam questions, and gives students the opportunity to practise their exam technique and assess their progress.
In this chapter I shall explore the relationship between legislative supremacy and
the rule of law, revealing the ... in practice, a choice between opposing
constitutional demands, requiring recourse to extraneous, extra-legal moral or
Author: T.R.S. Allan
Publisher: Oxford University Press
The Sovereignty of Law presents Trevor Allan's most recent and fully elaborated defence of common law constitutionalism - an account of the unwritten or non-codified constitution as a complex articulation of legal and moral principles, defining what in the British context are the requirements of the rule of law. The British constitution is conceived as a coherent set of fundamental principles of the rule of law, legislative supremacy, and separation ofpowers. These principles combine to provide an overarching unity of legality, legitimacy, and democracy, reconciling political authority and individual freedom or autonomy. Allan's interpretative approach isapplied to wide range of contemporary issues of public law; his response to critics and commentators seeks to deepen the argument by exploring the theoretical grounds of these current debates and controversies.
The study of transitional law undertaken here exposes the tension in the often
conflicting rule-of-law values and in opposing individual and structural
approaches in the law. The tensions revealed give rise to new mediating forms.
Author: Ruti G. Teitel
Publisher: Oxford University Press
At the century's end, societies all over the world are throwing off the yoke of authoritarian rule and beginning to build democracies. At any such time of radical change, the question arises: should a society punish its ancien regime or let bygones be bygones? Transitional Justice takes this question to a new level with an interdisciplinary approach that challenges the very terms of the contemporary debate. Ruti Teitel explores the recurring dilemma of how regimes should respond to evil rule, arguing against the prevailing view favoring punishment, yet contending that the law nevertheless plays a profound role in periods of radical change. Pursuing a comparative and historical approach, she presents a compelling analysis of constitutional, legislative, and administrative responses to injustice following political upheaval. She proposes a new normative conception of justice--one that is highly politicized--offering glimmerings of the rule of law that, in her view, have become symbols of liberal transition. Its challenge to the prevailing assumptions about transitional periods makes this timely and provocative book essential reading for policymakers and scholars of revolution and new democracies.
... and violent power struggles between opposing domestic political factions
account for 93 percent of the major armed ... One element that assumes far
greater importance in this changed context of war is the development of the rule
of law .
Author: Chester A Crocker
Publisher: US Institute of Peace Press
The definitive volume on the sources of contemporary conflict and the array of possible responses to it.
It is therefore crucial to focus on the conceptual interpenetration of political and
legal visions of state power in this period ... Defenders of constitutional orders
and the rule of law are forever condemned to opposing the vagaries of
Author: David William Bates
Publisher: Columbia University Press
We fear that the growing threat of violent attack has upset the balance between existential concepts of political power, which emphasize security, and traditional notions of constitutional limits meant to protect civil liberties. We worry that constitutional states cannot, during a time of war, terror, and extreme crisis, maintain legality and preserve civil rights and freedoms. David Williams Bates allays these concerns by revisiting the theoretical origins of the modern constitutional state, which, he argues, recognized and made room for tensions among law, war, and the social order. We traditionally associate the Enlightenment with the taming of absolutist sovereign power through the establishment of a legal state based on the rights of individuals. In his critical rereading, Bates shows instead that Enlightenment thinkers conceived of political autonomy in a systematic, theoretical way. Focusing on the nature of foundational violence, war, and existential crises, eighteenth-century thinkers understood law and constitutional order not as constraints on political power but as the logical implication of that primordial force. Returning to the origin stories that informed the beginnings of political community, Bates reclaims the idea of law, warfare, and the social order as intertwining elements subject to complex historical development. Following an analysis of seminal works by seventeenth-century natural-law theorists, Bates reviews the major canonical thinkers of constitutional theory (Locke, Montesquieu, and Rousseau) from the perspective of existential security and sovereign power. Countering Carl Schmitt's influential notion of the autonomy of the political, Bates demonstrates that Enlightenment thinkers understood the autonomous political sphere as a space of law protecting individuals according to their political status, not as mere members of a historically contingent social order.