The Spirit of Israel Law

1974 ◽  
Vol 9 (4) ◽  
pp. 456-462
Author(s):  
Haim H. Cohn
Keyword(s):  
Rule Of Law ◽  
General Trend ◽  
A Priori ◽  
The Self ◽  
The Political ◽  
The Rule Of Law ◽  
Legal Traditions ◽  
Political Motivation ◽  
The Creation ◽  
The Law

It may appear unduly pretentious to speak of the Spirit of the Law of a State which just completed but 25 years of independent legislative and judicial life. States with legislative and judicial records of hundreds of years may find it difficult, and perhaps also rather unprofitable, to delve into speculations of the Spirit behind their laws. In most cases, the general trend and the political motivation of the creation and the administration of law are anyhow known beforehand and well defined a priori—be it the realization of democracy by the rule of law, be it the implementation of socialism or communism, or the self-assertion of a fascist or communist dictatorship. Add to such trends and motivations the national legal traditions which a State inherited and consciously or unconsciously continues to maintain—and you will obtain, for what it may be worth or useful, a fair overall picture of the “Spirit”.of its laws.

scholarly journals Między polityką a prawem. Problem „upolitycznienia” tworzenia prawa

2017 ◽  
Vol 110 ◽  
pp. 115-132
Author(s):  
Tadeusz Biernat
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Political Power ◽  
The Political ◽  
The Rule Of Law ◽  
The Creation ◽  
The Law ◽  
Politics And Law ◽  
Law Making

BETWEEN POLITICS AND LAW. THE PROBLEM OF “POLITICIZATION” THE CREATION OF LAWThe purpose of this article is to analyze the phenomenon of “politicization” of the law making process. Astrong form of politicization is the political instrumentalization of law when the law is treated as the implementation of particular interests of the political power; when is created in violation of the legality of the law-making activities; when it violates the rights of individuals human rights. The weaker but more common form of politicization the creation of law is related to the violation by apolitical authority, legislative body, additional restrictions imposed on it, which are supposed to guarantee ahigh level quality of the law. Three of the most characteristic limitations will be the basis for analyzing the phenomenon of politicization of law making. They are related to: the legitimization of law-making, the democratization of law-making process, and the standards of legislation that are characteristic of lawmaking in ademocratic state under the rule of law. To some extent, these phenomena are interconnected, one can say that they are involved in shaping the pat­tern of the proper legislation by preventing or reducing the politicization of the lawmaking process and its key decisions.

The State and the Rule of Law

1970 ◽  
Vol 2 (1) ◽  
pp. 7-13
Author(s):  
Andrzej Zoll
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
The State ◽  
The Political ◽  
The Rule Of Law ◽  
The Law ◽  
Democratic Principles ◽  
Set Up ◽  
The One ◽  
Real Chance

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure.

The Concept of the Rule-of-Law State in Carl Schmitt’s Verfassungslehre

2014 ◽  
Author(s):  
David Dyzenhaus
Keyword(s):  
Rule Of Law ◽  
Political Power ◽  
The Political ◽  
Constitutional Theory ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
Liberal Tradition ◽  
Oral Argument ◽  
The Law

This chapter focuses on Schmitt’s critique of the rule of law in his Constitutional Theory. Schmitt argues that liberalism, which once tied the rule of law to the protection of individual liberty, has deteriorated into an account in which any valid law is considered legitimate just because it is valid. This critique is driven by Schmitt’s conception of politics, and, as his oral argument in a crucial constitutional case of 1932 illustrates, his position affirms that law cannot be more than a mere instrument of political power and that it can stabilize politics only if the political power is exercised to bring about a substantive homogeneity in the population subject to the law. In conclusion, it is suggested that Schmitt points to genuine weaknesses in the liberal tradition that require an elaboration of a secular conception of authority in which principles of legality play a central role.

Judicial Deference in Foreign Relations

1989 ◽  
Vol 83 (4) ◽  
pp. 805-813 ◽  
Author(s):  
Jonathan I. Charney
Keyword(s):  
United States ◽  
Foreign Policy ◽  
Rule Of Law ◽  
Foreign Relations ◽  
The United States ◽  
Federal Courts ◽  
Policy Implications ◽  
The Political ◽  
The Rule Of Law ◽  
The Law

Disputes with foreign policy implications have often been brought to the federal courts. These cases call attention to the tension between the authority of the political branches to conduct the foreign relations of the United States and the authority of the courts to render judgments according to the law. How this tension is resolved, in turn, bears directly on the commitment of the United States to the rule of law.

Playing Fair

2018 ◽  
Author(s):  
Richard Dagger
Keyword(s):  
Rule Of Law ◽  
Political Order ◽  
Political Obligation ◽  
The Political ◽  
Fair Play ◽  
Fair Share ◽  
The Rule Of Law ◽  
General Obligation ◽  
Cooperative Enterprise ◽  
The Law

Is there a general obligation to obey the laws of a reasonably just polity? Is there any justification for imposing suffering, in the form of punishment, on those who break the law? Political and legal philosophers have long debated these vexing questions, but the debates typically have taken up each question in isolation. Playing Fair, however, treats the two questions as intertwined and provides affirmative answers to both—answers grounded, in both cases, in the principle of fair play. According to this principle, those who are engaged in a mutually beneficial cooperative practice or enterprise have a duty to the cooperating participants to bear a fair share of the burdens of the practice. Applied to the political order, the principle holds that a reasonably just polity is a cooperative enterprise whose members receive benefits from the rule of law only because other members obey the law even when they find obedience burdensome. The members of a reasonably just polity thus have a political obligation, understood as a defeasible moral duty to obey the law, to one another. Those who break the laws fail to fulfill this obligation, and their failure justifies the law-abiding members, acting through the proper authorities, in punishing the lawbreakers. Rather than two separate problems, then, political obligation and punishment are two aspects of the same fundamental concern for sustaining a polity that its members can reasonably regard as a cooperative enterprise under the rule of law.

The Limits of Positivist Legal Ethics: A Brief History, a Critique, and a Return to Foundations

2017 ◽  
Vol 30 (2) ◽  
pp. 443-465 ◽  
Author(s):  
W. Bradley Wendel
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Political Community ◽  
The Political ◽  
Legal Ethics ◽  
The Rule Of Law ◽  
Positive Law ◽  
The Law ◽  
Anglo American

The “positivist turn” in legal ethics has found many scholars in the Anglo-American common-law world relating the duties of lawyers to the rights and duties assigned by the law to their clients. On this view, the role of lawyers should be understood as contributing to the law’s function of resolving conflict and establishing a framework for cooperation in a pluralist society. Critics of positivist legal ethics have suggested that it is impossible for lawyers to avoid resorting to moral considerations when representing clients. These critics claim that the guidance provided by law runs out at critical moments, leaving a lawyer no choice but to fall back on the moral considerations supposedly pre-empted by positive law. In particular they argue that the law cannot determine its own application, and normative questions remain regarding the interpretive attitude lawyers ought to take when representing clients. This paper responds to critics of positivist legal ethics by returning to foundations, specifically the values underpinning the rule of law as a practice of giving reasons based on norms established in the name of the political community.

Citizenship and Socrates in Plato's Crito

2000 ◽  
Vol 62 (3) ◽  
pp. 451-477 ◽  
Author(s):  
Michael J. Rosano
Keyword(s):  
Rule Of Law ◽  
Civic Virtue ◽  
The Self ◽  
Political Obligation ◽  
The Rule Of Law ◽  
Self Sufficiency ◽  
The Law ◽  
The Relationship

Plato's Crito articulates the problem of political obligation by clarifying the paradoxical relation between Socratic philosophy and citizenship embodied in the relationship between Socrates and Crito. Scholars obscure the dialogue either by taking the arguments Socrates gives to the laws of Athens as his own reasons for obeying the law rather than as agents of Crito's edification or by severing Socrates from the laws while misunderstanding Crito's significance to political obligation. Socrates bolsters Crito's commitment to civic virtue and the rule of law while revealing their parameters and the self-sufficiency of Socratic philosophy by implicitly raising the issue of voluntary injustice. The tension between Socratic philosophy and citizenship shows the need to view Socrates' defense of citizenship in the light of his defense of philosophy.

scholarly journals Why Lawyers and Legal Educators Should Care About (Epistemic) Justice

2019 ◽  
Vol 27 (1) ◽  
pp. 5-46
Author(s):  
Melanie Walker
Keyword(s):  
Higher Education ◽  
Rule Of Law ◽  
Legal System ◽  
Human Dignity ◽  
Law School ◽  
The Rule Of Law ◽  
The Public ◽  
Constitutional Order ◽  
Legal Traditions ◽  
The Law

Society shapes the law and the law, we hope, might shape society for the better in turn. Legal traditions and practices therefore surely ought to secure for all citizens the prerequisites of a life worthy of human dignity. In a speech to the Routledge-Modise Law School in Johannesburg in September 2008, Justice Kate O’Regan[1] drew on Antony Kronman’s theory that one of the main characteristics identifying the practice of Law is that it is directly concerned with the public good. Lawyers have a responsibility to foster the legal system and the rule of law; at times, this might require them to suggest new laws or legislation; at other times, it might require them to criticize judgments which may not appear correct; at other times, they may need to protect the rule of law itself.[1] O’Regan, K. ‘Lawyering in Our New Constitutional Order.’ (2009). UCT News Alumni Magazine cited in Walker. M. Higher Education Pedagogies. (2016) Maidenhead: Open University Press & SRHE

The Impersonal Rule of Law

1992 ◽  
Vol 5 (2) ◽  
pp. 299-308 ◽  
Author(s):  
Kenneth Henley
Keyword(s):  
Rule Of Law ◽  
Practical Wisdom ◽  
Political Community ◽  
The Political ◽  
The Rule Of Law ◽  
Legal Rules ◽  
Internal Morality ◽  
Political Ideal ◽  
The Law ◽  
Rules And Standards

The rule or supremacy of law is a political ideal requiring that the authority of the political community be exercised only within the confines of ordained structures, established procedures, and known legal rules and standards, creating reasonable expectations on the part of those subject to the law. Recent accounts of this ideal often include a list of principles or precepts of the rule of law. Lon Fuller’s list has been rightly influential: generality of law, promulgation, non-retroactivity, clarity, consistency of laws, not requiring the impossible, constancy of law through time, and congruence between official action and declared rule; these principles of the ‘internal morality of the law’ can conflict with each other, so that practical wisdom is required in balancing their demands.

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