Imperfect Cosmopolis: Studies in the History of International Legal Theory and Cosmopolitan Ideas

2015 ◽  
Vol 20 (7) ◽  
pp. 784-785
Author(s):  
Theodore Christov
Keyword(s):  
Legal Theory ◽  
History Of

Juristische Wahrheit

2021 ◽  
Author(s):  
Falko Maxin
Keyword(s):  
19Th Century ◽  
Legal Theory ◽  
Social Knowledge ◽  
Important Process ◽  
Criminal Jurisdiction ◽  
Procedural Law ◽  
History Of ◽  
Theory Of Evidence ◽  
The 19Th Century

The mechanics of the "legal theory of evidence", which dominated German procedural law until the second half of the 19th century, was intended to render the truth of a circumstance to be proven calculable by means of legal rigour and arithmetic consistency. How can we explain in retrospect its seemingly abrupt replacement by the judge´s "free consideration of evidence" according to his subjective conviction as we know it today? Does this indicate something fundamental having changed in the nature and significance of the judge's knowledge of facts? Did a post-Kantian understanding of truth together with an altered conception of social knowledge play a role in this important process in the history of justice? By using the example of civil and criminal jurisdiction, this study examines these questions in its search for "legal truth" - and in doing so outlines a history of the theory of evidence in the 19th century.

Pre-history of Probability

2017 ◽  
Author(s):  
James Franklin
Keyword(s):  
Legal Theory ◽  
Moral Theology ◽  
Difficult Problem ◽  
Reasonable Doubt ◽  
Games Of Chance ◽  
Uncertain Evidence ◽  
Price Of Risk ◽  
History Of ◽  
Inductive Inferences ◽  
Theory Of Evidence

The history of the evaluation of uncertain evidence before the quantification of probability in 1654 is a mass of examples relevant to current debates. They deal with matters that in general are as unquantified now as ever – the degree to which evidence supports theory, the strength and justification of inductive inferences, the weight of testimony, the combination of pieces of uncertain evidence, the price of risk, the philosophical nature of chance, and the problem of acting in case of doubt. Concepts similar to modern “proof beyond reasonable doubt” were developed especially in the legal theory of evidence. Moral theology discussed “probabilism”, the doctrine that one could follow a probable opinion in ethics even if the opposite was more probable. Philosophers understood the difficult problem of induction. Legal discussion of “aleatory contracts” such as insurance and games of chance developed the framework in which the quantification of probability eventually took place.

Legislation as an Instrument of Islamic Law

2016 ◽  
pp. 550-584
Author(s):  
Leonard Wood
Keyword(s):  
Nineteenth Century ◽  
Islamic Law ◽  
Legal Theory ◽  
Islamic World ◽  
Islamic Legal Theory ◽  
History Of

This article examines legislation as an instrument of Islamic law in the history of the Islamic world and in Islamic legal theory, with particular emphasis on the scholarly analysis of whether Islamic law can be legislated at all, and if so, how. It first reviews the scholarship on legislation in the Islamic world before the mid-nineteenth-century Ottoman reforms (tanzimat)—the “premodern” centuries. It then considers legislation after the mid-nineteenth century—the “modern” centuries—by looking at scholars’ preoccupations with the apparent novelty of modern legislation and its debatable Islamicity. It also discusses empirical dilemmas underlying these preoccupations and competing scholarly approaches to theorizing and studying the proper relationship between legislation and Islam. The article concludes by suggesting four paths forward in the analysis of legislation as an instrument of Islamic law.

PRAVOSUĐE (KRIVIČNO) KAO VID JAVNE SLUŽBE

2021 ◽  
pp. 445-457
Author(s):  
Marija Milojević ◽  
Keyword(s):  
Public Service ◽  
Public Services ◽  
Legal Theory ◽  
Judicial System ◽  
General Interest ◽  
Legal Literature ◽  
History Of ◽  
Services Of General Interest ◽  
Mutual Comparison ◽  
Citizen Service

The author gives an overview of the judicial system through the prism of the French legal theory of public services, according to which the state is a set of public services, namely legislative, administrative and judicial public services. The paper contains a theoretical analysis of the notion of state power and then the notion of public service, services of general interest and French legal theory. Within the concept of public service, the author gives an overview of the history of the emergence of public services. Furthermore, the notion of the judicial system is defined as a type of judicial power and as a type of judicial public service on the other hand for the purpose of their mutual comparison and more detailed analysis. Emphasis is also placed on criminal justice as a part of the judiciary that also provides services of general interest. The aim of the paper is to point out that the judiciary is not only a power, a syntagm that most often appears in the legal literature and practice, but that it also contains elements of public service and represents a kind of "citizen service".

Plena Potestas and Consent in Medieval Assemblies: A Study in Romano-Canonical Procedure and the Rise of Representation, 1150–1325

Traditio ◽  
1943 ◽  
Vol 1 ◽  
pp. 355-408 ◽  
Author(s):  
Gaines Post
Keyword(s):  
Thirteenth Century ◽  
Legal Theory ◽  
Roman Law ◽  
New Approach ◽  
Royal Authority ◽  
Strict Interpretation ◽  
History Of ◽  
Full Power ◽  
The One ◽  
The Right

By the end of the thirteenth century the royal writ of summons to Parliament usually specified that communities send representatives with “full power” to consent to whatever should be ordained by the king in his court and council. This “full power” was the famous plena potestas which was stated in the mandates carried by knights and burgesses to Parliament and by delegates of cities and towns to Cortes and States General, and which is still current in proxies for stockholders' meetings. It has, of course, like almost every word of the terminology in documents relating to representation, challenged interpretation: on the one side is the argument of J. G. Edwards, who confines himself to England, that plena potestas implied an almost political or sovereign consent which limited the royal authority; on the other, the assumption that it was an expression of involuntary consent to the acts and decisions of the royal government. In general, of course, whatever modern scholars have decided as to the right of consent has resulted either from modern conceptions of representation or from a strict interpretation of the terminology in the sources for the history of assemblies. No one has examined plena potestas in the light of the legal theory and procedure of the thirteenth century It is possible that by studying how legists and canonists viewed the meaning of plena potestas—for it, like most of the terminology in the mandate, came from Roman Law—we can find at least a relatively new approach to the problem of medieval consent.

Theories of Power, Poverty, and Law: In Commemoration of the Contributions of Peter Bachrach

2010 ◽  
Vol 43 (01) ◽  
pp. 83-85
Author(s):  
Judith A. Baer
Keyword(s):  
Twentieth Century ◽  
Political Science ◽  
Annual Meeting ◽  
Legal Theory ◽  
Family Members ◽  
The Political ◽  
History Of

A while ago we lost Peter Bachrach, one of the pre-eminent academic figures of the twentieth century. After he died on December 14, 2007, a group of his former students and colleagues gathered at the APSA annual meeting in Boston to celebrate his life and career. The audience included family members, “academic grandchildren,” and admirers of his work. The speakers' themes included power, poverty, activism, legal theory, and equality, and this symposium grew out of the panel. This range and variety of topics indicate the scope and depth of his impact. His 1962APSRarticle, “Two Faces of Power,” co-authored with Morton Baratz, is the most frequently cited article in the history of the political science profession. Although I suspect this distinction would have amused Peter, terms likefaces of power,nondecision, anddeciding not to decideare familiar even to those who don't know Bachrach and Baratz's work on power (Bachrach and Baratz 1962, 1963). These writings taught scholars to listen for what is not said and look for what is not shown. That was a crucial lesson for feminist legal scholars like my classmate and fellow panelist, Elizabeth Schneider, and me.

scholarly journals Fatal attraction: a critique of Carl Schmitt's international political and legal theory

2011 ◽  
Vol 3 (2) ◽  
pp. 179-227 ◽  
Author(s):  
Benno Gerhard Teschke
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Explanatory Power ◽  
Law And Order ◽  
Counter Narrative ◽  
International Theory ◽  
History Of ◽  
History Of International Law ◽  
Intellectual Product ◽  
International Thought

The ongoing Schmitt revival has extended Carl Schmitt's reach over the fields of international legal and political theory. Neo-Schmittians suggest that his international thought provides a new reading of the history of international law and order, which validates the explanatory power of his theoretical premises – the concept of the political, political decisionism, and concrete-order-thinking. Against this background, this article mounts a systematic reappraisal of Schmitt's international thought in a historical perspective. The argument is that his work requires re-contextualization as the intellectual product of an ultra-intense moment in Schmitt's friend/enemy distinction. It inscribed Hitler's ‘spatial revolution’ into a full-scale reinterpretation of Europe's geopolitical history, grounded in land appropriations, which legitimized Nazi Germany's wars of conquest. Consequently, Schmitt's elevation of the early modern nomos as the model for civilized warfare – the ‘golden age’ of international law – against which American legal universalism can be portrayed as degenerated, is conceptually and empirically flawed. Schmitt devised a politically motivated set of theoretical premises to provide a historical counter-narrative against liberal normativism, which generated defective history. The reconstruction of this history reveals the explanatory limits of his theoretical vocabulary – friend/enemy binary, sovereignty-as-exception, nomos/universalism – for past and present analytical purposes. Schmitt's defective analytics and problematic history compromise the standing of his work for purposes of international theory.

The State of the Political

2003 ◽  
Author(s):  
Duncan Kelly
Keyword(s):  
Intellectual History ◽  
Legal Theory ◽  
Max Weber ◽  
Political Representation ◽  
Historical Context ◽  
The State ◽  
Carl Schmitt ◽  
Political Criticism ◽  
History Of ◽  
Franz Neumann

This book offers a broad-ranging re-interpretation of the understanding of politics and the state in the writings of three major German thinkers, Max Weber, Carl Schmitt, and Franz Neumann. It rejects the typical separation of these writers on the basis of their allegedly incompatible ideological positions, and suggests instead that once properly located in their historical context, the tendentious character of these interpretative boundaries becomes clear. The book interprets the conceptions of politics and the state in the writings of these three thinkers by means of an investigation of their adaptation and modification of particular German traditions of thinking about the state, or Staatsrechtslehre. Indeed, when the theoretical considerations of this state-legal theory are combined with their contemporary political criticism, a richer and more deeply textured account of the issues that engaged the attention of Weber, Schmitt and Neumann is possible. Thus, the broad range of subjects discussed in this book include parliamentarism and democracy in Germany, academic freedom and political economy, political representation, cultural criticism and patriotism, and the relationship between rationality, law, sovereignty and the constitution. The study attempts to restore a sense of proportion to the discussion of the three authors' writings, focusing on the extensive ideas that they shared rather than insisting on their necessary ideological separation. It is a detailed re-appraisal of a crucial moment in modern intellectual history, and highlights the profound importance of Max Weber, Carl Schmitt and Franz Neumann for the history of European ideas.

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