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This Handbook provides a state-of-the-art survey of the study of the rule of law across law, the humanities, and social sciences, as well as insights into the practice of building the rule of law within and among states. Its 28 chapters are by many of the world's leading scholars of the rule of law, as well as distinguished junior scholars, from a dozen countries and representing a number of academic disciplines. The chapters are ordered to progress, first, from theory to the practice of the rule of law and, second, from the rule of law within, to beyond, the state. They divide into three parts. The first part examines the concept, history, and value of the rule of law. This section considers the importance of political and intellectual history in shaping the concept over the centuries and takes novel philosophical approaches to the connection between the rule of law and other important ideals such as justice, equality, and civil disobedience. The second part transitions from theoretical studies to accounts of practical exercises in building the rule of law. The chapters consider the challenges of rule of law reform, including the use of local intermediaries facilitating interactions between international legal aid organizations and state governments, the challenges of legal translation across vastly different societies, the pathways of knowledge among the powerless about the protective potential of the rule of law, as well as the possible future for artificial intelligence systems in helping to reinforce rule-of-law principles. The third part examines the rule of law from a number of perspectives within particular supranational and national states, such as the European Union, China, Singapore, and South Africa, among others, and concludes by considering the prospects of the rule of law beyond the state, both within and among international institutions such as the United Nations, as well as non-territorial spaces like the world's oceans. This Handbook is aimed at rule of law scholars across law, the humanities, and the social sciences, law and development practitioners, policymakers, and advanced students and researchers who seek a state-of-the-art overview of the history, theory, and practice of the rule of law.

This book offers a radical new understanding of law, beyond the confines of its formalization by the state.The book takes off from the late work of Gilles Deleuze and Michel Foucault, for whom law and its institutions came to be liberated from an ideological perspective that had treated them as sterile instruments for the reproduction of domination. Engaging its continental history, it addresses the concept of law, not merely as a ‘command', but as the result of a much more complex legal operation aimed at dynamically stabilizing the social relations of a community. The book thus sidesteps the usual legal-political focus on those – from Hobbes to Schmitt – who have contributed to the categorical scheme of the modern state, and with it questions of political representation, sovereignty, the rigid distinction between public law and private law, and so on, as it pursues an alternative theoretical trajectory through Ravaisson, Tarde, and Hauriou. Politics, the book maintains, can be no longer be treated simply through the state form. And, relatedly, the law must be seen as a living law: a law that cannot be treated exclusively in formal terms, but must be taken as a grammar capable of articulating a politics of process, relationality, and innovation. Reconceived as such, law can then circumvent the aporias that arise when society is viewed as a private company, and the state seen as the bearer of the only possible means of formalizing its relationships.At the intersection of law and political theory, this book will speak to scholars and others with interests in both these areas, and especially those concerned with the limits of both conventional and critical approaches to law.

This book considers the ways in which the concept of the Rule of Law will need to evolve in order to ensure that the exercise of power by Artificial Intelligence (AI) does not become arbitrary and does not proceed unchecked. It presents the Rule of Law and its impact on the past and the present; it considers what AI is, what it does, and what it might become in future; and it looks at how AI will need to be harnessed to allow power to be exercised more effectively in the future. The book argues that the Rule of Law has for centuries been the concept that protects against the arbitrary exercise of power. However, the exercise of power by AI unchecked by humans strains the concept's ability to provide this protection.

This book is about heroes of law. It provides examples of when judges have exercised courage, moderation, wisdom, and justice rather than blindly following the law. It also discusses the contentious issue of whether a judge has a moral responsibility to defend the rule of law, regardless of what the law actually states. The work presents a collection of thirteen stories about judges who in different settings have stood up against the authorities and public opinion in the defence of the rule of law. An introductory chapter sets the scene with two examples of situations gone wrong when those applying the law have just followed the demands of those in power. The thirteen stories are followed by two theoretical chapters discussing the moral responsibility of the judge. Finally, the book explores the kind of ethical theory required to guide judges in the assessments they must make, and the choices they have to take in order to fulfil their moral responsibilities. It is argued that the classic virtues of courage, moderation, wisdom, and justice are all qualities that can contribute to both sound judgment and reflection. The book thus seeks to nurture a realistic culture and a tradition of cultivating lawyers who defend the rule of law. Against a background where the history of our legal institutions when put to the test, is largely nothing to be proud of, the work seeks to change this by highlighting and reflecting on the exceptions. The book will be illuminating reading for students and academics working in the areas of Jurisprudence, Legal Ethics, and Legal History.

Jurisprudence: Themes and Concepts offers an original introduction to, and critical analysis of, the central themes studied in jurisprudence courses. The book is organised in three parts: Part I sets out the key elements of modern law and their relation to political, economic, and social conditions. Part II presents competing accounts of the nature of legal validity, legality, legal reasoning, and justice. Both parts feature corresponding tutorial questions. Part III contains advanced topics including chapters on legal pluralism, law and disciplinary power, and law and the Anthropocene. Every chapter gives guidance on further reading. This fourth edition has been fully revised and updated to take into account the latest developments in jurisprudential scholarship. Additional material is included in the coverage of social law, colonialism, critical race theory, the challenges of digital technology, and the emergence of new legal subjects. Accessible, interdisciplinary and socially informed, Jurisprudence: Themes and Concepts is essential reading for all students of jurisprudence and legal philosophy.

¿Dependen los derechos humanos de la ley? ¿Cuál es la relación entre ésta y las exigencias de la justicia? La respuesta a lo que es realmente fundamental no está contenida en la «Babel de lenguas» de las constituciones, los códigos o las sentencias. Es preciso tomar en consideración las ideas generales y el pluralismo de los universos culturales, éticos, religiosos y políticos que caracterizan y complican la sociedad actual. «El derecho dúctil» es una propuesta pacífica y democrática. Haciendo un recorrido por la historia europea del Estado de derecho del siglo XIX al Estado constitucional de nuestro tiempo, el libro muestra cómo las normas jurídicas ya no pueden ser ni expresión de intereses de parte ni la formulación de concepciones universales e inmutables que alguien pueda imponer y los demás deban acatar. Los principios de libertad y justicia entran en contacto con los casos reales de la vida y deben guiar la aplicación que de la ley hacen los jueces, cuya función es completamente distinta de la de actuar como simples portavoces de la ley. Diagnóstico sobre el estado actual del Derecho y de su puesto en las sociedades democráticas. El Derecho es concebido como algo plural, carente de rigidez, para superar la concepción legalista y de sistema en que se halla encerrado. La obra constituye una aproximación al fenómeno jurídico desde el denominado «positivismo corregido», capaz de abordar e interpretar las nuevas direcciones de la cultura jurídica.

An essential study of the rule of law by one of the world's leading liberal political and legal philosophers.The meaning and value of the rule of law have been debated since antiquity. For many, the rule of law has become the essence of good government. But Jeremy Waldron takes a different view, arguing that it is but one star in a constellation of ideals that define our political morality, ranking alongside democracy, human rights, economic freedom, and social justice.This timely essay collection, from one of the most respected political philosophers of his generation, is a brief on behalf of thoughtfulness: the intervention of human intelligence in the application of law. Waldron defends thoughtfulness against the claim that it threatens to replace the rule of law with the arbitrary rule of people. To the contrary, he argues, the rule of law requires thoughtfulness: it is impossible to apply a standard such as “reasonableness” on the basis of rules alone, and common legal activities like arguing in court and reasoning from precedents are poorly served by algorithmic logics. This rich compilation also addresses the place of law in protecting human dignity, the relation between rule of law and legislation, and whether vagueness in the law is at odds with law's role in guiding action.Thoughtfulness and the Rule of Law emphasizes the value of procedures rather than the substance or outcome of legal decisions. Challenging the view that predictability and clarity are cardinal virtues, Waldron shows that real-world controversies often are best approached using a relatively thin concept of the rule of law, together with the thoughtfulness that a legal system frames and enables.

This book presents a defence of the value of equality within law which is neither purely formal nor an entirely speculative theory of justice. It does this by combining a theoretical with a doctrinal project.At the theoretical level, it argues that there is a distinct and meaningful conception of equality before the law which can be separated from concerns of distributive justice. It therefore rejects the claim that legal equality is merely formal. Rather, it is grounded in the equal moral status of all legal subjects. The demand that individuals be treated in accordance with the principle of equality before the law, then, requires that they not be treated in ways that would deny their equal moral standing. This principle of moral equality is the fundamental normative basis of the rule of law.This general claim is applied, in the second half of the book, to antidiscrimination law. It is argued here that the wrong of wrongful discrimination consists in implicit or explicit denial of the equal moral status of legal subjects. This is also a core wrong that the common law seeks to remedy via judicial review and is thus intimately tied to legality itself.In the final chapter, these two strands are brought together to defend the idea that law is a public asset which must be directed towards advancing the best interests of those it governs. This kind of equality principle, one which sets the outermost limits of the use of public power, must look beyond individual rights claims. It manifests a fundamental commitment to substantive equality – manifest in a commitment to collective flourishing – without tying it to group-based distributive concerns which arise from distinct social and historical contexts and require the exercise of political authority to choose among a range of plausible options for their resolution.

This book bridges a scholarly divide between empirical and normative theorizing about procedural justice in the context of relations of power between citizens and the state. Empirical research establishes that people's understanding of procedural justice is shaped by relational factors. A central premise of this volume is that this research is significant but needs to be complemented by normative theorizing that draws on relational theories of ethics and justice to explain the moral significance of procedures and make normative sense of people's concerns about relational factors. The chapters in Part 1 provide comprehensive reviews of empirical studies of procedural justice in policing, courts and prisons. Part 2 explores empirical and normative perspectives on procedural justice and legitimacy. Part 3 examines philosophical approaches to procedural justice. Part 4 considers the implications of a relational perspective for the design of procedures in a range of legal contexts. This collection will be of interest to a wide academic readership in philosophy, law, psychology and criminology.

Does the rise of populism, authoritarianism, and nationalism threaten the welfare of the rule of law? Is this fundamental democratic ideal under siege? In this timely and important book, Raymond Wacks examines the philosophical roots of the rule of law and its modern, often contentious, interpretation. He then investigates 16 potential ideological, economic, legal, and institutional dangers to the rule of law. They range from the exercise of judicial and administrative discretion and parliamentary sovereignty, to the growth of globalisation, the'war on terror', and the disquieting power of Big Tech. He also considers the enactment and enforcement in several countries of Draconian measures to curtail the spread of COVID-19, which has generated fears that these emergency powers may outlive the pandemic and become a permanent feature of the legal landscape, thereby impairing the rule of law. Wacks identifies which issues among this extensive array pose genuine risks to the rule of law, and suggests how they might be confronted to ensure its defence and preservation.

En este libro se cuestionan los conceptos de poder constituyente, los derechos humanos, el delito de genocidio de los pueblos indígenas, el constitucionalismo de los Estados de derecho y lo común. Se hace desde miradas y perspectivas que recuperan otros horizontes y otros significados muy diferentes a lo establecido por la cultura jurídica y política oficial. Se rebelan contra posiciones e imaginarios cuyo principal objetivo es establecer e imponer una visión hegemónica y homogénea de lo humano, que en el fondo es excluyente y no incluyente e inculca una cultura dormida, conformista, resignada e indolente en relación a la lucha por la justicia social. El común denominador de todos los trabajos se sintetiza en dos planos: 1) se basan en perspectivas críticas que tienen una fuerte influencia del pensamiento de liberación latinoamericano y del pensamiento de-colonial. Tratan de descentrar el eurocentrismo y el occidentalismo dominante, recuperando tradiciones que luchan por procesos que permitan la emancipación y la liberación incluyente, instituyente y contra-opresiva con las que se posibilite a todo ser humano una vida digna de ser vivida; 2) todos los enfoques apuestan por reivindicar y recuperar la riqueza de lo humano que se expresa en su pluralidad, su diversidad y en un profundo carácter multicultural. La fuente principal es el poder popular del bloque social de los oprimidos. Lo intercultural se estructura sobre el reconocimiento de sociabilidades horizontales que rechazan cualquier tipo de odios y fundamentalismos y que caminan desde experiencias no discriminatorias, abiertas a la alteridad, no coloniales, no excluyentes y articuladas por medio de la fraternidad, la ética colaborativa y los reconocimientos mutuos.

This edited collection considers the work of one of the most important legal philosophers of our time, Professor Gerald J Postema. It includes contributions from expert philosophers of law. The chapters dig deep into important camps of Postema's rich theoretical project including:- the value of the rule of law;- the ideal of integrity in adjudication; - his works on analogical reasoning;- the methodology of jurisprudence; - dialogues with Ronald Dworkin, Joseph Raz, Frederick Schauer and HLA Hart.The collection includes an original article by Professor Postema, in which he develops his conception of the rule of law and replies to some objections to previous works, and an interview in which he provides a fascinating and unique insight into his philosophy of law.

Transfers of rule of law between legal systems have been discussed extensively in academia. Yet, so far, scholarship has predominantly centered around the issue's socio-political dimensions. The volume departs from these common scholarly paths and assesses rule of law transfers as a legal phenomenon. Its analytical perspective assumes that the process of transferring the rule of law does not only concern a legal concept but also holds a legal dimension itself. Against this backdrop, the volume features eight distinct contributions, introducing and applying the said perspective. They approach the topic from diverse angles, covering a wide range of legal fields, including EU law, public international law, international human rights law, international criminal law, international humanitarian law and international economic law – with each contribution succeeding in highlighting the relevance of “the law behind rule of law transfers”.

Critical human interests are affected on a daily basis by appeal to past decisions deemed to be'legally valid'. They include statutes, deportation orders, judgments, mortgage contracts, patents and wills. Through the technique of validity, lawyerly reasoning settles morally pressing matters in a way that largely bypasses moral argument. Legal philosophy has paid considerable attention to validity criteria, but it has neglected to explore validity's point: whether, and if so how, the pervasive technique of validity can contribute to a legal system's ability to realise justice and human rights.This book shows that validity can help a political community to foster justice precisely because validity does not primarily turn on moral considerations. Validity serves to both allocate, and limit, a distinct kind of power, a power that is key to forging valuable forms of enterprise and commitment in pursuit of individual and collective self-direction. By entrusting the capacity to decide to those who, in justice, ought to bear it, validity can enable persons and institutions to rally the resources and opportunities that only large-scale behavioural convergence can afford, thereby weaving a fabric of just relationships within the systemic framework of law.

This collection studies the rise of neutral bodies as a challenge to the constitutional paradigm of the nation state. Administrative entities such as commissions, agencies, councils, authorities or ‘independent agencies'as they are sometimes known, are relatively autonomous from majoritarian democratic control and by their institutional design fall outside the classical triad of powers or branches of government. They may even fall outside the confines of the nation state itself as with the EU Commission.The book is divided into theoretical-historical and empirical parts. Part I approaches the phenomenon through the rigorous normative conceptual lens of constitutionalism and constitutional law, questioning the implications of political neutrality on inherited normative categories, both at national and supranational level. Part II comprises case-studies reflecting the full spectrum of theoretical frameworks and concerns developed and explored by the theory-oriented chapters in the first part. The work explores a wide range of issues including the balance between autonomy, legitimacy and accountability, the taxonomy of agencies, the role and limits of expertise as a paramount justification for independence, ‘agentification'as a result of internationalisation, and ‘agentification'as a reflex and consequence of transnational polity-building within the EU.

In his new book, Lewis D. Sargentich shows how two different kinds of legal argument - rule-based reasoning and reasoning based on principles and policies - share a surprising kinship and serve the same aspiration. He starts with the study of the rule of law in life, a condition of law that serves liberty - here called liberal legality. In pursuit of liberal legality, courts work to uphold people's legal entitlements and to confer evenhanded legal justice. Judges try to achieve the control of reason in law, which is manifest in law's coherence, and to avoid forms of arbitrariness, such as personal moral judgment. Sargentich offers a unified theory of the diverse ways of doing law, and shows that they all arise from the same root, which is a commitment to liberal legality.

In the last half century, the rule of law has increasingly been appealed to as a common global value. The Handbook on the Rule of Law analyses the appeal of this idea, its context, and background through a range of questions about the character, history and global reach of the rule of law, offering readers a definitive understanding of this central global norm.Original contributions from leading academics explore the rule of law conceptually and historically through its associated institutions, as well as examine detailed cases evaluating how the everyday application of the rule of law impacts society as a whole. Exploring a wide range of research on the social, political and economic dimensions of the rule of law, this Handbook clearly illustrates the link between the rule of law and the global political system.This informative Handbook will be key reading for post-graduate students of international relations, global politics, and law, as well as for legal scholars wanting to build upon their knowledge with a wider account of the rule of law. Researchers in areas impacted by the rule of law will also find this volume to be stimulating reading.Contributors include: J. Allison, T. Almeida Cravo, D. Banik, A. Bedner, P. Costa, C. Cutler, D.l. Desai, C. Feinäugle, J. Flood, T. Ginsburg, J. Gutmann, S. Hinderling, D. Howath, T. Kellogg, T. Krever, M. Krygier, A. Loretoni, F. Macaulay, A. Magen, C. May, J. Møller, P. Nicholson, L. Pech, M.M. Prado, M. Rishmawi, C. Schwöbel-Patel, L.B. Tiede, V. Vadi, S. Voigt, C. Walker, A. Wiener, A. Winchester, P. Zumbansen

Il tema della legalità è stato oggetto di studi autorevoli e di innumerevoli occasioni di dibattito. Con l'espressione plurale ‘le legalità'si è voluto fare riferimento al continuo lavorio della scienza giuridica e delle istituzioni, dall'antichità fino all'età contemporanea, sulla definizione di diversi e specifici concetti di legalità anche in ambiti diversi da quello, più studiato, del diritto penale. Negli studi che qui si presentano sono ricostruiti alcuni ‘spaccati'della lunga incubazione del principio di legalità e della sua manifestazione in età moderna. Insieme con quello della certezza del diritto, il principio di legalità costituisce uno degli elementi del DNA della civiltà giuridica occidentale, come civiltà, ce lo ricorda A. Padoa Schioppa, fondata sul ‘libro'del diritto. Claudia Storti, professore ordinario di storia del diritto medievale e moderno presso l'Università degli Studi di Milano, Claudia Storti è stata Presidente della Società di Storia del diritto per il triennio 2013-2016. Le sue ricerche vertono sulla storia del diritto nell'alto medioevo con particolare riguardo al Regno longobardo-italico, sulla storia delle fonti del diritto e delle istituzioni in età medievale, sulla condizione giuridica dello straniero, sul diritto internazionale pubblico e privato tra medioevo e età contemporanea, sulla storia della giustizia e del processo penale tra XIX e XX secolo, sulla storia della schiavitù.

Mainstream historians in recent decades have often treated formal categories and rules as something to be'used'by individuals, as one might use a stick or stone, and the gains of an earlier legal history are often needlessly set aside. Anthropologists, meanwhile, have treated rules as analytic errors and categories as an imposition by outside powers or by analysts, leaving a very thin notion of'practice'as the stuff of social life. Philosophy of an older vintage, as well as the work of scholars such as Charles Taylor, provides fresh approaches when applied imaginatively to cases beyond the traditional ground of modern Europe and North America. Not only are different kinds of rules and categories open to examination, but the very notion of a rule can be explored more deeply. This volume approaches rules and categories as constitutive of action and hence of social life, but also as providing means of criticism and imagination. A general theoretical framework is derived from analytical philosophy, from Wittgenstein to his critics and beyond, and from recent legal thinkers such as Schauer and Waldron. Case-studies are presented from a broad range of periods and regions, from Amazonia via northern Chad, Tibet, and medieval Russia to the scholarly worlds of Roman law, Islam, and Classical India. As the third volume in the Legalism series, this collection draws on common themes that run throughout the first two volumes: Legalism: Anthropology and History and Legalism: Community and Justice, consolidating them in a framework that suggests a new approach to rule-bound systems.

Oakeshott, Hayek and Schmitt are associated with a conservative reaction to the'progressive'forces of the twentieth century. Each was an acute analyst of the juristic form of the modern state and the relationship of that form to the idea of liberty under a system of public, general law. Hayek had the highest regard for Schmitt's understanding of the rule of law state despite Schmitt's hostility to it, and he owed the distinction he drew in his own work between a purpose-governed form of state and a law-governed form to Oakeshott. However, the three have until now rarely been considered together, something which will be ever more apparent as political theorists, lawyers and theorists of international relations turn to the foundational texts of twentieth-century thought at a time when debate about liberal democratic theory might appear to have run out of steam.

This book offers a unique and essential combination of careful self-assessment of the achievements and challenges of international adjudication, in chapters written by scholars who are also members of the most prominent international courts, together with a rigorous and sober external analysis of the promise and limits of promoting the international rule of law through adjudication. The book provides the state of the art contemporary overview of the field and therefore is a must read for scholars, students and practitioners.'- Eyal Benvenisti, University of Cambridge, UK, Tel Aviv University, Israel and New York University, US'This is a timely, fascinating and challenging collection of essays by eminent jurists. The range of courts covered from the International Court of Justice, the International Criminal Court, the European Court of Human Rights to the Appellate Body of the WTO and the Special Tribunal for Lebanon demonstrates the reach of this work as well as the importance and timeliness of the subject-matter. The quality of the authors matches the significance of the topic. The problems as well as the steps forward are well explained. This book should be read.'- Malcolm N. Shaw QC, University of Cambridge and practising barrister at Essex Court Chambers, London, UK'A comprehensive overview, aptly written by eminent specialists of international courts, on a notion at once intriguing and important for international law. Rule of law - a concept of municipal constitutional law, essential for the modern conception of society, and yet such a delicate, but also developing, notion in the sometimes rough jurisprudence of nations.'- Robert Kolb, University of Geneva, SwitzerlandInternational and supranational courts are increasingly central to the development of a transnational rule of law. Except for insiders, the functioning and impact of these courts remain largely unknown. Addressing this gap, this innovative book examines the manner in which and the extent to which international courts and tribunals contribute to the rule of law at the national, regional, and international levels.With unique insights from members of the international judiciary, this authoritative book deals with the fundamental procedural and substantive legal principles, sources, tools of interpretation, and enforcement used by the respective judicial bodies. The rule of law-focused approach offers a unique opportunity for a thorough cross-case analysis of the differences and commonalities in the essential contributions of the respective courts and tribunals to international justice. The book also includes an in-depth theoretical framework and allows for the identification of fundamental principles and commonalities, as well as differences and contrasts between the different judicial bodies.In addition to students, researchers and scholars in international law, this timely and comprehensive study of international courts and their contributions will be an enlightening resource for legal practitioners and those involved with international justice.Contributors include: S. Brammertz, A.A.Cançado Trindade, K. Chan, A.-L. Chané, B. Concolino, P. Couvreur, G. De Baere, A. Follesdal, D. Fransen, P. Gautier, P. Lemmens, K. Lenaerts, P. Van den Bossche, H. Van Houtte, J. Wouters

This project was undertaken not so much as a farewell to the contribution Adama Dieng has selflessly offered to humanity, but mainly as a token of appreciation to his dedication and contribution to the rule of law and human rights, especially in his native continent, Africa. As a high-ranking international civil servant, diplomat, teacher, activist and accomplished jurist, Adama Dieng has inspired, and indeed continues to inspire, a generation of men and women both in Africa and beyond with his unqualified commitment to the advancement of the ideals reflected in the United Nations Charter and the Universal Declaration of Human Rights. Through his work and commitment to the cause of international justice and conflict prevention, he has consistently placed the interests of his fellow men and women, and indeed those of his continent, before his own interests. It is, therefore, in recognition of his efforts that, his fellow jurists, friends and colleagues decided to honour his contribution through a collection of essays on a life dedicated to the advancement of international peace and justice through the rule of law. The contributions gathered here represent, in good measure, the values and beliefs in rule of law and human rights that have characterized Adama's commitment to work towards a better Africa and a better world.

How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of originalism, living constitutionalism, and minimalism - to present a new approach to judicial review. She contends that we cannot assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights.

Der Themenschwerpunkt dieses Bandes des Jahrbuchs ist der Frage nach »Grund und Grenzen der Solidarität in Recht und Ethik – Foundation and Limitation of Solidarity in Law and Ethics« gewidmet. Dieser Fragestellung wird zunächst mit einer Begriffsklärung im Bereich von Ethik und Recht nachgegangen. Danach werden Problemfelder des Solidaritätsbegriffs im Hinblick auf die Staatsverfassung und das gesellschaftliche Zusammenleben näher analysiert. Abgeschlossen wird der diesjährige Band des Jahrbuchs wieder mit einem für unterschiedliche Themenstellungen aus dem »Bereich Recht und Ethik« geöffneten Diskussionsforum.

This volume is a follow-up of the international conference'Courts, Interpretation, the Rule of Law,'which was organized on October 19, 2012, at the Faculty of Law, University of Belgrade. This was an annual conference of the Serbian Association for Legal and Social Philosophy, which operates as the Serbian section of the International Association for Philosophy of Law and Social Philosophy (IVR). At the same time, the conference was convened as part of the ongoing project'Constitutionalism and Rule of Law in the Nation-State Building - The Case of Serbia,'which is funded by the Ministry of Science of the Republic of Serbia. Contents include: The Concept, Rule and Interpretation of Law Ors • Adjudication, Democracy, and the Rule of Law • Legal Hermeneutics and Jurisprudence • Various Aspects of Judicial Reasoning. (Series: Democracy and the Rule of Law - Vol. 2)

This timely volume by distinguished scholar Günter Frankenberg offers a sophisticated analysis and sharp critique of the reactions of nations such as the US, Great Britain and Germany to perceived terrorist threats, organized crime actions and other political emergencies that have occurred in recent years. The author demonstrates how governments have increasingly sacrificed the rule of law and human rights for the benefit of security programs – as evidenced by a rise in extraordinary measures such as surveillance, detention and torture – thus normalizing the state of exception and privileging preemptive, proactive and coercive methods of political engineering. An interdisciplinary and multi-jurisdictional study, this book develops and implements a unique theoretical and conceptual framework for understanding the rise of technical-political rationality and the fall of the rule of law, and submits both to a firm critique. Particularly relevant in light of current controversies, this provocative book will appeal to scholars and students of international and constitutional law, legal theory, political science, and terrorism studies.

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.

For too long, the rule of law has been assumed as opposed to rigorously interrogated. Christopher May's excellent study not only draws attention to this oversight, but also lucidly demonstrates how and why the rule of law rule of law has achieved the status of common sense of global politics. For anyone interested in the legalization of global politics as well as its social, political and ideological consequences, this superb book is essential reading.'- Susanne Soederberg, Queen s University, CanadaThis timely book explores the complexities of the rule of law - a well-used but perhaps less well understood term - to explain why it is so often appealed to in discussions of global politics. Ranging from capacity building and the role of the World Bank to the discourse(s) of lawyers and jurisprudential critiques, it seeks to introduce non-lawyers to the important and complex political economy of the rule of law.In accessible terms, Christopher May argues that we can no longer merely use the idea of the rule of law without question but rather must appreciate its multifaceted and contested character if we are to begin to understand how and why it is now seen as a'good thing'across the political spectrum. He expertly examines the problems encountered by rule of law programes in post-conflict and developing countries, as well as presenting the range of contested meanings of the term. The author also considers the possibility of establishing a pluralistic account of the rule of law and investigates the plausibility of an international rule of law.By building on and extending debates in socio-legal studies about the social role of law, and dealing with issues largely absent from international political economy this book will be of great interest to socio - legal scholars and political economists. It also presents an overarching analysis of the manner in which politics and law interact that will be of great value to political scientists and development economists.Contents: Preface Introduction: The Rule of Law as the Common Sense of Global Politics 1. The Rule of Law as Social Imaginary, A Methodological Interlude: How I Do (Global) Political Economy 2. Defining the Rule of Law, Between Thick and Thin Conceptions 3. The Rule of Law and the Legaliization of Politics 4. Building the Rule of Law With a Political Focus 5. Building the Rule of Law With an Economic Focus 6. Global Constitutionalism. The Rule of Law by Another Name? 7. One Rule of Law or Many? Internal and External Challenges to the Rule of Law 8. Concluding Thoughts Bibliography Index

Der Themenschwerpunkt dieses Bandes des Jahrbuchs für Recht und Ethik lautet: »Das Rechtsstaatsprinzip – The Rule of Law-Principle«. Die Beiträge hierzu geben einen Überblick über die Gemeinsamkeiten und Unterschiede der beiden Prinzipien, die oftmals etwas ungenau bloß als wechselseitige Übersetzungen verstanden werden. Untersuchungen zu den Grundlagen der beiden Prinzipien im vorliegenden Band zeigen, dass sie zwar aufeinander bezogen sind, aber durchaus eine unterschiedliche rechtsgeschichtliche Entwicklung genommen haben und deshalb auch die mit ihnen verbundenen Inhalte differieren können. Darüber hinaus befassen sich mehrere Beiträge mit speziellen Anwendungsproblemen der beiden Prinzipien. Es schließt sich weiterhin ein Abschnitt mit Beiträgen zur Interpretation von Kants Rechts- und Moralphilosophie, insbesondere in seinem Werk Die Metaphysik der Sitten von 1797, an.

This book elaborates and defends the idea of law without the state. Animated by a vision of peaceful, voluntary cooperation as a social ideal and building on a careful account of non-aggression, it features a clear explanation of why the state is illegitimate, dangerous and unnecessary. It proposes an understanding of how law enforcement in a stateless society could be legitimate and what the optimal substance of law without the state might be, suggests ways in which a stateless legal order could foster the growth of a culture of freedom, and situates the project it elaborates in relation to leftist, anti-capitalist and socialist traditions.

In most post-conflict states, a strong level of legal pluralism is the norm, particularly in regions of Africa and Asia where between eighty and ninety per cent of disputes are resolved through non-state legal mechanisms. The international community, in particular the United Nations, persistently drives the re-establishment of the rule of law in war-torn areas where, traditionally, customary law is prevalent. Laura Grenfell traces the international community's evolving understanding of the rule of law in such regions and explores the implications of strong legal pluralism for the rule-of-law enterprise. Using the comparative examples of two unique case studies, South Africa and Timor-Leste, Promoting the Rule of Law in Post-Conflict States provides insight into the relationship between the rule of law and legal pluralism. Alongside these studies, the book offers a comprehensive introduction to the conceptual framework of the rule of law in the context of approaches taken by the international community.

Das Jahrhundert der Aufklärung ist nach Kant das »Jahrhundert Friedrichs«. Er schafft unmittelbar nach seinem Regierungsantritt die Folter ab und mildert die Härten der mittelalterlichen Rechtspflege. Wie schon sein Vater, Friedrich Wilhelm I., modernisiert er die Rechtspflege, wobei er unter dem Einfluss Montesquieus die Unabhängigkeit der Gerichte stärkt und vor ihnen den Gesetzen freien Lauf lassen will, was ihn allerdings nicht hindert, gelegentlich, wie im Falle des Müllers Arnold, von seinen Maximen abzuweichen. Mit dem »Allgemeinen Landrecht für die preußischen Staaten«, dessen Entstehung er ungeduldig vorantreibt, bahnt er Preußen den Weg in den Rechtsstaat. Obwohl das Landrecht erst acht Jahre nach dem Tode des Königs in Kraft trat, bleibt es das »Gesetzbuch Friedrichs des Großen« und wird wegen seiner Verständlichkeit und Volkstümlichkeit auch Preußens weltliche Bibel genannt.

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-configured 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 well as 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.

When property rights and environmental legislation clash, what side should the Rule of Law weigh in on? It is from this point that Jeremy Waldron explores the Rule of Law both from an historical perspective - considering the property theory of John Locke - and from the perspective of modern legal controversies. This critical and direct account of the relation between the Rule of Law and the protection of private property criticizes the view - associated with the'World Bank model'of investor expectations - that a society which fails to protect property rights against legislative restriction is failing to support the Rule of Law. In this book, developed from the 2011 Hamlyn Lectures, Waldron rejects the idea that the Rule of Law privileges property rights over other forms of law and argues instead that the Rule of Law should endorse and applaud the use of legislation to achieve valid social objectives.

Great cases are those judicial decisions around which the common law develops. This book explores eight exemplary cases from the United Kingdom, the United States and Australia that show the law as a living, breathing and down-the-street experience. It explores the social circumstances in which the cases arose and the ordinary people whose stories influenced and shaped the law as well as the characters and institutions (lawyers, judges and courts) that did much of the heavy lifting. By examining the consequences and fallout of these decisions, the book depicts the common law as an experimental, dynamic, messy, productive, tantalizing and bottom-up process, thereby revealing the diverse and uncoordinated attempts by the courts to adapt the law to changing conditions and shifting demands. Great cases are one way to glimpse the workings of the common law as an untidy but stimulating exercise in human judgment and social accomplishment.

This book addresses critical questions about how legal development works in practice. Can law be employed to shape behavior as a form of social engineering, or must social behavior change first, relegating legal change to follow as ratification or reinforcement? And what is legal development's source of legitimacy if not modernization? But by the same token, whose version of modernization will predominate absent a Western monopoly on change? There are now legal development alternatives, especially from Asia, so we need a better way to ask the right questions of different approaches primarily in (non-Western) Asia, Africa, the Islamic world, plus South America. Incoming waves of change like the'Arab spring'lie on the horizon. Meanwhile, debates are sharpening about law's role in economic development versus democracy and governance under the rubric of the rule of law. More than a general survey of law and modernization theory and practice, this work is a timely reference for practitioners of institutional reform, and a thought-provoking interdisciplinary collection of essays in an area of renewed practical and scholarly interest. The contributors are a distinguished international group of scholars and practitioners of law, development, social sciences, and religion with extensive experience in the developing world.

Cosmopolitan Justice and its Discontents pursues a reflection upon the institutional orders designed to ensure respect for the rule of law, human rights, and social justice. The majority of literature on cosmopolitanism tends to be oriented in sociology, political science or philosophy, and is largely positive. This book aims to fill the lacuna with respect to critical and legal perspectives in this field. In particular, it highlights the importance of international economic law and its institutions when evaluating the evolution of cosmopolitan norms. In addition, it provides critical and multidisciplinary perspectives on Cosmopolitan Justice and Sovereignty; Institutions, Civil Society and Accountability; and Social Exclusion, Migration, and Global Markets. This book will be of considerable interest to academics and students concerned with international public and private law, international criminal law, international economic law, human rights, migration, criminology, political science, and philosophy.

First published in 2011. Lawyers and the Rule of Law in an Era of Globalization focuses on the national and transnational processes transforming both the rule of law and the role of lawyers. The book draws on a framework that emphasizes the relationship between the national the international, the strategies of lawyers at various political levels, and the circulation of ideas and people. As such, it considers the'rule of law', not as a normative ideal that has to be accomplished and realized, but rather as a field of action and discourse that emerges through complex relationships among experts, national elites and global institutions. Through detailed empirical work, the contributors all examine the relationship between law, politics and the state, focusing on lawyers and the social capital they possess and deploy, in order to understands the efficacy of the rule of law in different polities. This book will be invaluable for socio-legal scholars, students of the legal profession, as well as those with interests in law and development studies.

This work demonstrates that Power is prior to Rights and introduces a concept of a Power-Responsibility relationship which affects non-legal moral questions such as the treatment of animals.

Leading scholars address the interplay between rule of law and democracy, the most relevant ideals for our present civilisation in the legal and political spheres, at the same time making sense of the different ways in which legal requirements, social commitments, and democratic standards are expected to interweave. Through a reappraisal of the theoretical import of the concepts the contributors provide for a fresh set of inquiries, internal and external, ranging from the State, consolidated and transitional democracies, to interstate, European and global scenarios. Re-orienting the diversity in disciplinary approaches, they converge in tackling disputed empirical and normative questions in-context, and suggest further connections between the rule of law's potential and the transformations of political arenas.Contributors are Monica Ciobanu, Christian Joerges, Poul Kjaer, Friedrich Kratochwil, Leonardo Morlino, Gianluigi Palombella, and Daniela Piana.

Theatre of the Rule of Law presents a sustained critique of global rule of law promotion - an expansive industry at the heart of international development, post-conflict reconstruction and security policy today. While successful in articulating and disseminating an effective global public policy, rule of law promotion has largely failed in its stated objectives of raising countries out of poverty and taming violent conflict. Furthermore, in its execution, this work deviates sharply from'the rule of law'as commonly conceived. To explain this, Stephen Humphreys draws on the history of the rule of law as a concept, examples of legal export during colonial times, and a spectrum of contemporary interventions by development agencies and international organisations. Rule of law promotion is shown to be a kind of theatre, the staging of a morality tale about the good life, intended for edification and emulation, but blind to its own internal contradictions.

Global Perspectives on the Rule of Law is a collection of original research on the rule of law from a panel of leading economists, political scientists, legal scholars, sociologists and historians. The chapters critically analyze the meaning and foundations of the rule of law and its relationship to economic and democratic development, challenging many of the underlying assumptions guiding the burgeoning field of rule of law development. The combination of jurisprudential, quantitative, historical/comparative, and theoretical analyses seeks to chart a new course in scholarship on the rule of law: the volume as a whole takes seriously the role of law in pursuing global justice, while confronting the complexity of instituting the rule of law and delivering its promised benefits.Written for scholars, practitioners, and policy-makers, Global Perspectives on the Rule of Law offers a unique combination of jurisprudential and empirical research that will be provocative and relevant to those who are attempting to understand and advance the rule of law globally. The chapters progress from broad questions regarding current rule of development efforts and the concept of rule of law to more specific issues pertaining to economic and democratic development. Specific countries, such as China, India, and seventeenth century England and the Netherlands, serve as case studies in some chapters, while broad global surveys feature in other chapters. Indeed, this impressive scope of research ushers in the next generation of scholarship in this area.

Offering an anthropological perspective, this volume explores the changing relations between law and governance, examining how changes in the structure of governance affect the relative social significance of law within situations of legal pluralism. The authors argue that there has been a re-regulation rather than a de-regulation, propagated by a plurality of regulative authorities and this re-regulation is accompanied by an increasing ideological dominance of rights talk and juridification of conflict. Drawing on insights into such processes, this volume explores the extent to which law is used both as a constitutive legitimation of governance and as the medium through which governance processes take place. Highlighting some of the paradoxes and the unintended consequences of these regulating processes and the ensuing dynamics, Rules of Law and Laws of Ruling will be a valuable resource for researchers and students working in the areas of legal anthropology and governance.

This collection provides an up-to-date analysis of key country approaches to Militant Democracy. Featuring contributions from some of the key people working in this area, including Mark Tushnet and Helen Irving, each chapter presents a stocktaking of the legal measures to protect the democracy against its enemies within. In addition to providing a description of the country's view of Militant Democracy and the current situation, it also examines the legal and political provisions to defend the democratic structure against attacks. The discussion also presents proposals for the development of the Militant Democracy principle or its alternatives in policy and legal practice. In the final chapter the editor compares the different arrangements and formulates a minimum consensus as to what measures are indispensable to protect a democracy. Highly topical, this book is a valuable resource for students, academics and policy-makers concerned with democratic principles.

Die Idee des Gesetzes ist die der Allgemeinheit. Dieser ideengeschichtliche Befund droht in Vergessenheit zu geraten. Ausdrückliche rechtliche Allgemeinheitsforderungen werden kaum beachtet. Gesetz ist das, was das rechtsetzende Organ als Gesetz erlässt. Dieser formale Gesetzesbegriff beschreibt die Kernkompetenz des Parlaments. Doch läuft er Gefahr, das große Freiheitsversprechen zu vernachlässigen, das von alters her im allgemeinen Gesetz ruht. Gleichheit ist nur vor einem allgemeinen Gesetz möglich. Das allgemeine Gesetz ergänzt den vom Einzelfall bestimmten Grundrechtsschutz. Die Gesetzesallgemeinheit stärkt die Gestaltungskraft der Gesetze und damit die Demokratie. Gregor Kirchhof fragt in einer Zeit, in der anspruchsvolle Rechtsetzungsaufträge zu erfüllen sind, nach der Allgemeinheit des Gesetzes, nach einem notwendigen Garanten der Freiheit, der Gleichheit und der Demokratie.

In this set of interdisciplinary essays leading scholars discuss the future of the Rule of Law, a concept whose meaning and import has become ever more topical and elusive. Historically the term denoted the idea of'government limited by law'. It has also come to be equated, more broadly, with certain goods suggested by the idea of legality as such, including the preservation of human dignity and other individual and social benefits predicated upon or conducive to a rule-based social order. But in both its narrow and broader senses the Rule of Law remains a much contested concept. These essays seek to capture the main areas and levels of controversy by'relocating'the Rule of Law not just at the philosophical level, but also in its main contemporary arenas of application - both national, and increasingly, supranational and international.

In diesem Band werden Überlegungen zum Spannungsverhältnis zwischen Recht und Politik zusammengeführt. Dabei werden Fragen zur rechtsstaatlichen Konstitution von Staatswesen aufgegriffen, die sonst eher am Rande allgemeiner Staatstheorien behandelt werden. Allerdings sollen nicht nur Grenzfragen, sondern immer auch Grundfragen der politischen Ethik zur Sprache kommen. Insbesondere geht es darum, die Reichweite politischer Verantwortlichkeit zu konkretisieren (1. Kapitel), die Gewaltenteilung als Strukturnotwendigkeit des Rechtsstaates zu belegen (2. Kapitel), die starre Dichotomie von Rechtsstaat und Unrechtsstaat infrage zu stellen (3. Kapitel), die Möglichkeiten des Strafrechts bei der »Aufarbeitung« von untergegangenen Unrechtsregimen zu diskutieren (4. Kapitel), die Modalitäten noch akzeptabler Kooperation mit Unrechtsstaaten zu beschreiben (5. Kapitel), die Grenzen des Einsatzes heimlicher Ermittlungsmaßnahmen im Rechtsstaat näher zu bestimmen (6. Kapitel), die Leistungsfähigkeit umfassender Formeln zum Auffinden von Gerechtigkeit zu untersuchen (7. Kapitel), den möglichen Zusammenhang einer Rechtfertigung von Kollateralschäden und Kollektivschuld der betroffenen Staatsbürger zu klären (8. Kapitel) und schließlich die Grenzen eines Folterverbots im Rechtsstaat zu erörtern (9. Kapitel). Soweit dabei auf bereits publizierte Texte zurückgegriffen wurde, sind diese erheblich überarbeitet und ergänzt worden.

Hans Kelsen is commonly considered to be among the founding fathers of modern legal philosophy. Despite Kelsen's prominence as a legal theorist, his political theory has so far been mostly overlooked. This book argues that Kelsen's legal theory, the Pure Theory of Law, needs to be read in the context of Kelsen's political theory. It offers the first comprehensive interpretation of the Pure Theory that makes systematic use of Kelsen's conception of the rule of law, of his theory of democracy, his defense of constitutional review, and his views on international law. Once it is read in the context of Kelsen's political works, Kelsen's analysis of legal normativity provides us with a notion of political legitimacy that is distinct from any comprehensive and contestable theory of justice. It shows how members of pluralist societies can reasonably acknowledge the binding nature of law, even where its content does not fully accord with their own substantive views of the requirements of justice, provided it is created in accordance with an ideal of fair arbitration amongst social groups. This result leads to a fundamental re-evaluation of the Pure Theory of Law. The theory is best understood as an attempt to find a middle ground between natural law and legal positivism. Later positivist legal theorists inspired by Kelsen's work failed to appreciate the political-theoretical context of the Pure Theory and turned to a narrow instrumentalism about the functions of law. The perspective on Kelsen offered in this book aims to reconnect positivist legal thought with normative political theory.

An indispensable book for all those concerned about the lasting success of international peacekeeping missions.

Eigenschaften sind, die ihnen im Vergleich mit anderen Normen der Rechtsordnung zukommen. Drittens werden die Anwendungsbedingungen von Prinzipien und Regeln untersucht. Einerseits soll bewiesen werden, dass die Prinzipien nicht nur Werte explizieren, sondern mittelbar auch bestimmte Arten von Verhalten; andererseits wird der Nachweis erbracht, dass die Einführung von Verhaltensweisen durch Regeln auch Gegenstand der Abwägung sein kann. Vorgeschlagen wird ein Modell der Erklärung der Normarten, das über die Einfügung einer strukturierten Abwägung in den Anwendungsprozess hinaus noch materiale Gerechtigkeitskriterien in die Argumentation aufnimmt. Dies geschieht vermittels der analytischen Rekonstruktion der konkreten Verwendung der normativen Postulate, besonders des Postulats der Zumutbarkeit und der Verhältnismäßigkeit. Während die Rechtslehre tatsächlich im allgemeinen von der Auslegung der Regeln und der Anwendung der Prinzipien ausgeht, wird diese Unterscheidung in der vorliegenden Arbeit kritisiert. Es wird der Versuch unternommen, Abwägungsfähigkeit auch der Regeln nachzuweisen. Während die Rechtslehre behauptet, dass ein Normtext aufgrund einer Entscheidung zwischen sich wechselseitig ausschließenden Optionen entweder eine Regel oder ein Prinzip ist, werden im nachfolgenden Forschungsvorhaben inkludierende Alternativen zwischen den manchmal aus einem einzigen Normtext hervorgebrachten Spezies vertreten. Während sich die Rechtslehre auf die Verhältnismäßigkeit und Zumutbarkeit mal als Prinzipien, mal als Regeln bezieht, kritisiert der Autor diese Konzeptionen und schlägt in Vertiefung einer älteren Arbeit eine neue Kategorie vor.