Legality Without The Rule of Law? Scott Shapiro on Wicked Legal Systems

2012 ◽  
Vol 25 (1) ◽  
pp. 183-200
Author(s):  
David Dyzenhaus
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Natural Law ◽  
Legal Order ◽  
Legal Positivism ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Moral Quality ◽  
Legal Positivist

InLegality,Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.

scholarly journals In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar’s ‘Disciplined Democracy’

2018 ◽  
Vol 28 (5) ◽  
pp. 573-599
Author(s):  
Alex Batesmith ◽  
Jake Stevens
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
State Power ◽  
Human Experience ◽  
Legal Systems ◽  
Material Support ◽  
The Rule Of Law ◽  
Alternative Perspective ◽  
The Individual ◽  
Individual Human

This article explores how ‘everyday’ lawyers undertaking routine criminal defence cases navigate an authoritarian legal system. Based on original fieldwork in the ‘disciplined democracy’ of Myanmar, the article examines how hegemonic state power and a functional absence of the rule of law have created a culture of passivity among ordinary practitioners. ‘Everyday’ lawyers are nevertheless able to uphold their clients’ dignity by practical and material support for the individual human experience – and in so doing, subtly resist, evade or disrupt state power. The article draws upon the literature on the sociology of lawyering and resistance, arguing for a multilayered understanding of dignity going beyond lawyers’ contributions to their clients’ legal autonomy. Focusing on dignity provides an alternative perspective to the otherwise often all-consuming rule of law discourse. In authoritarian legal systems, enhancing their clients’ dignity beyond legal autonomy may be the only meaningful contribution that ‘everyday’ lawyers can make.

scholarly journals Developing an Index of the Rule of Law: Sharing the Experience of Hong Kong

2007 ◽  
Vol 2 ◽  
pp. 1-19 ◽  
Author(s):  
Benny Y.T. Tai
Keyword(s):  
Hong Kong ◽  
Rule Of Law ◽  
Legal System ◽  
Downward Trend ◽  
Legal Systems ◽  
Major Aspect ◽  
The Rule Of Law ◽  
Qualitative And Quantitative

AbstractThe Rule of Law is considered a major aspect of modern governance. For every legal system, it is important whether the Rule of Law is attained and how far it has been attained. Though there are various indicators and indexes of the Rule of Law they all have their limitations. This paper reported a study conducted in Hong Kong in 2005, combining qualitative and quantitative methodologies, to assess the level of attainment of the Rule of Law in Hong Kong. It is found that the level of attainment is high but a downward trend is also discovered. A main objective of developing this new methodology in assessing Rule of Law, is that it could be used for tracking the development of the Rule of Law in a particular legal system and facilitating comparison between legal systems.

scholarly journals К вопросу о понятии и сущности правового государства

2021 ◽  
Vol 70 (6) ◽  
pp. 64-67
Author(s):  
И.И. Ларинбаева ◽  
А.Р. Насыров ◽  
Р.А. Иксанов
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Order ◽  
The Rule Of Law ◽  
International Legal Order ◽  
General Principles Of Law ◽  
International Legal System

The article examines the issues of the formation of the rule of law, the influence of general principles of law on this process, as well as the importance of constitutionalism on the development of the concept of the rule of law. It is noted that the model of the rule of law is embedded in the construction of the international legal system. The conclusion is substantiated that the essence of the rule of law is reduced to strengthening the systemic elements and the consistency of constitutional processes and international legal order.

scholarly journals HEALTH EMERGENCY MANAGEMENT. A LEGAL ANALYSIS OF THE ITALIAN EXPERIENCE

2020 ◽  
Vol 2 (2) ◽  
pp. 117-146
Author(s):  
Vicenzo Baldini
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
The State ◽  
Legal Order ◽  
Legal Analysis ◽  
State Of Emergency ◽  
Landing Point ◽  
The Rule Of Law ◽  
Italian Experience ◽  
The One

The state of emergency that is being experienced has generated a sort of dynamic disorder of complex systematic re-elaboration within the framework of the legal system of the state. We appreciate a permanent tension between the rule of law and the discipline of emergency which manages to find a problematic landing point in the prefiguration of the existence of an emergency legal system, based on a different Grundnorm and parallel to the one that sustains the whole establishment of the legal system of the sources of the state legal order

scholarly journals MENJEJAKI AKSES TERHADAP KEADILAN DALAM KONFLIK AGRARIA: STUDI PADA WARGA MORO-MORO REGISTER 45 MESUJI LAMPUNG

2016 ◽  
Vol 4 (2) ◽  
Author(s):  
Oki Hajiansyah Wahab ◽  
Muhammad Ridho
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Legal System ◽  
Analytical Framework ◽  
Access To Justice ◽  
Judicial Decision ◽  
Simple Analysis ◽  
The Rule Of Law ◽  
Justice Process

Abstract: Agrarian conflictare inextricably linked to issues of injustice. There is a view that in equality in the agrarian conflicts can and should be resolved through legal measures, which were touted asthe establishmentand enforcement measures. By elaborating the idea of ​​access to justice within the framework of ROLAX and ROLGOM, as well as approach esthatare reviewed by the Theory access Ribot and Peluso, this paper seeks to study how access to justice can be achieve din agrarian conflicts. Of elaboration that access to justice can be the key to recovery in equalityin agrarian conflicts not only depend on the outcome of judicial decision simposing procedural-formal. The approach used is expected to read the constellation of the struggle for justice more broadly than just law enforcement measures and the establishment of formal, ie starting from the flow of benefits as well as the power relations that underliean access, to the quality of the legal system and achieving justice process based on the rule of law. With the scope of the analytical framework and approach, this paper focuses on the theoretical and conceptual depth. However this paperal so gives an over view and attempta simple analysis of the struggle of the Moro-moro citizens Register 45 Mesuji Lampung as acasestudy of the acquisition of access to justicein agrarian conflicts. Abstrak. Ada pandangan bahwa ketidakadilan dalam konflik agraria dapat diselesaikan melalui langkah yuridis sebagai langkah pembentukan dan penegakan hukum. Dengan mengelaborasi gagasan akses terhadap keadilan dalam kerangka Rolax dan Rolgom, serta pendekatan Teori Akses yang ditelaah oleh Ribot dan Peluso, tulisan ini berupaya untuk mempelajari bagaimana akses terhadap keadilan dapat dicapai dalam konflik agraria. Pendekatan yang digunakan diharapkan mampu membaca konstelasi perjuangan akan keadilan secara lebih luas daripada sekadar langkah pembentukan dan penegakan hukum formal, yaitu mulai dari adanya aliran manfaat serta relasi kekuasaan yang  mendasari sebuah akses, sampai kualitas perangkat dan sistem hukum dari prosesmenggapai keadilan berdasarkan prinsip negara hukum. Tulisan ini berfokus pada pendalaman secara teoritis dan konseptualnya, tetapi tulisan ini juga berusaha memberikan gambaran dan analisis sederhana mengenai perjuangan warga Moro-moro Register 45 Mesuji Lampung DOI: 10.15408/jch.v4i2.3599

Rethinking the Role of Law in Russia

2016 ◽  
Author(s):  
Kathryn Hendley
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Everyday Lives ◽  
Red Tape ◽  
And Behavior ◽  
Attitudes And Behavior

This book has investigated whether the existence of telephone law rendered law irrelevant for Russians in their everyday lives. It has shown that Russians are not as nihilistic as usually assumed, but neither are they free of skepticism when it comes to their legal system. Their attitudes and behavior vary depending on the situation. Their primary reservation about using the courts is not concern over telephone law, but dread of the inevitable red tape and emotional turmoil that accompany litigation. This concluding chapter returns to the theoretical dilemma of how we should conceptualize legal systems like that of Russia in which law can—but does not always—matter. In particular, it considers how a dualistic legal system, in which politicized law exists side by side with law that is enforced and obeyed based on its written terms, should be evaluated in terms of the rule of law. It argues that a rethinking of the very concept of the “rule of law” in Russia is needed.

1. Introduction to law

2020 ◽  
pp. 3-34
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
Rule Of Law ◽  
Natural Law ◽  
Separation Of Powers ◽  
Theory And Practice ◽  
Legal Positivism ◽  
Ethical Theories ◽  
The Rule Of Law ◽  
Legal Studies ◽  
Law And Morality ◽  
Legal Concepts

This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies.

Positively Fabulous: Why It Is Good To Be a Legal Positivist

1997 ◽  
Vol 10 (2) ◽  
pp. 231-248
Author(s):  
James Allan
Keyword(s):  
Legal System ◽  
Natural Law ◽  
Moral Values ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Critical Legal Studies ◽  
Classic Work ◽  
Legal Studies ◽  
Legal Positivist ◽  
The Concept Of Law

‘Legal Positivism’ is a much abused term. It is often pejoratively invoked by those occupying both the natural law and critical legal studies ramparts. The former see it as a school of thought which ignores the role in law of those standards and values which have not been deliberately laid down or unintentionally evolved. Positivism, for them, fails because it is prepared to describe a legal world where moral values play no necessary part and where transcendent values may not exist at all. The latter group of critics, not too dissimilarly, see legal positivism’s doctrines as over-reliant on rules and too inclined to accept that a legal system somehow can generate a logically mandated code of answers.In order to defend positivism it is advisable to start with an enunciation of its core precepts. With all that has been written attacking and supporting positivism though, this can be a contentious matter. So instead I shall defend one particular version of positivism, that of H.L.A. Hart. As Hart’s The Concept of Law, first published in 1961, is at worst one of the handful of great legal philosophy texts written in English this century and at best “the classic work of philosophical jurisprudence”, this preference for concentrating on the tangible and identifiable precepts of Hart over the woolly, elusive and frequently caricatured precepts of something disparagingly termed positivism has much to recommend it.

Access to, and Provision of, Legal Information in the Transition from Communism to Democracy in Estonia

2006 ◽  
Vol 6 (2) ◽  
pp. 113-119
Author(s):  
Julia Laffranque
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Order ◽  
Private Law ◽  
Public And Private ◽  
Legal Information ◽  
The Rule Of Law ◽  
Democratic State ◽  
Penal Law ◽  
The Republic

The Estonian legal system has over the last decade and a half undergone a tremendous change. Quite often we have had to start from almost nothing and to develop our law very fast compared to societies with long lasting traditions of stable and well established democracy where similar reforms have taken hundreds of years instead of ten. The years that have passed since the reestablishment of Estonia's independence are characterised by reforms of the legal system, preparation for them, and finally their implementation. All these activities have stemmed from a single underlying idea - to develop a legal order appropriate to a democratic state based on the rule of law. Reforms in public and private law as well as in penal law were finalised ten years after the entry into force of the Constitution of the Republic of Estonia in 1992.

scholarly journals Will the "Legal Singularity" Hollow Out Law's Normative Core?

2021 ◽  
pp. 97
Author(s):  
Robert Weber
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Weak Form ◽  
Unintended Consequences ◽  
Legal Order ◽  
Strong Form ◽  
Critical Examination ◽  
The Rule Of Law ◽  
Government Power ◽  
Legal Subjects

This Article undertakes a critical examination of the unintended consequences for the legal system if we arrive at the futurist dream of a legal singularity—the moment when predictive, mass-data technologies evolve to create a perfectly predictable, algorithmically-expressed legal system bereft of all legal uncertainty. It argues that although the singularity would surely enhance the efficiency of the legal system in a narrow sense, it would also undermine the rule of law, a bedrock institution of any liberal legal order and a key source of the legal system’s legitimacy. It would do so by dissolving the normative content of the two core pillars of the rule of law: the predictability principle and the universality principle, each of which has traditionally been conceived as a bulwark against arbitrary government power. The futurists heralding the legal singularity privilege a weak-form predictability principle that emphasizes providing notice to legal subjects about the content of laws over a strong-form variant that also emphasizes the prevention of arbitrary governmental action. Hence, an inattentive and hurried embrace of predictive technologies in service of the (only weak-form) predictability principle will likely attenuate the rule of law’s connection to the deeper (strong-form) predictability principle. The legal singularity will also destabilize law’s universality principle, by reconceiving of legal subjects as aggregations of data points rather than as individual members of a polity. In so doing, it will undermine the universality principle’s premise that the differences among legal subjects are outweighed by what we—or, better still, “We the People” who are, as Blackstone put it, the “community in general”—have in common. A cautionary directive emerges from this analysis: that lawyers should avoid an uncritical embrace of predictive technologies in pursuit of a shrunken ideal of predictability that might ultimately require them to throw aside much of the normative ballast that has kept the liberal legal order stable and afloat.

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