The Legitimacy of Legal Order: Heller's Legal Theory

1999 ◽  
pp. 161-217
Author(s):  
David Dyzenhaus
Keyword(s):  
Legal Theory ◽  
Legal Order

System Values and Understanding Legal Language

2008 ◽  
Vol 21 (1) ◽  
pp. 29-61 ◽  
Author(s):  
MAKSYMILIAN DEL MAR
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Order ◽  
Legal Language ◽  
International Legal Order ◽  
Institutional Contexts ◽  
International Law Commission ◽  
Fragmentation Of International Law ◽  
Law Commission ◽  
The Ideal

AbstractThis paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence – coherence at the level of abstract terms and phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about ‘the law itself’ and towards an engagement with the responsiveness of legal work performed in international legal institutions.

scholarly journals O pravnom poretku Petra I Petrovića Njegoša

2021 ◽  
Vol 1 (2/2020) ◽  
pp. 62-91
Author(s):  
Matija Stojanović
Keyword(s):  
Legal Theory ◽  
Legal Order ◽  
Critical Examination ◽  
Main Question ◽  
Historical Evidence ◽  
Legal Norms ◽  
Other Regarding ◽  
Original Interpretation ◽  
The 19Th Century ◽  
The Way

A lot has been written about the legal order of Petar I Petrović Njegoš; this question has puzzled legal historians and theoreticians ever since the 19th century, the main question being, whether such an order ever came to be. The problem is not whether any legal norms at the time had been proclaimed, but rather whether these norms, once they were proclaimed, had ever been systematically implemented in a manner that would enable us to state that they formed a legal order. Therefore, this question includes two components – one regarding historical evidence, the other regarding the way this evidence can be valued within legal theory. This work will provide a critical examination of the historical timeline concerning this problem, and the way it has been treated in literature so far – providing the reader with an original interpretation of both.

Legal Continuity

2018 ◽  
Author(s):  
Nimer Sultany
Keyword(s):  
Comparative Study ◽  
Social Theory ◽  
Legal Theory ◽  
Legal Order ◽  
Critical Legal Theory ◽  
The Law ◽  
The Comparative Study ◽  
The Revolution

This chapter critiques the binary dichotomy between the concepts of “continuity” and “rupture” within theoretical conceptualizations of the law. Whereas legal theories such as Kelsen’s emphasize rupture, theories such as Dworkin’s emphasize continuity. These theories fail to account for legal continuity and rupture because the law is neither a gapless system nor a coherent whole. Building on the comparative study of the role of law during revolutions, the chapter shows that a revolution maintains varying levels of legal rupture and continuity with the pre-existing legal order. Building on critical legal theory and social theory, it argues that the relation between revolution and legality cannot be represented systematically because law—whether prior to or after the revolution—is incoherent and thus generates a plurality of voices.

Schmitt, Carl (1888–1985)

2018 ◽  
Author(s):  
David Ludovic Dyzenhaus
Keyword(s):  
Political Philosophy ◽  
Legal Theory ◽  
Public Law ◽  
Legal Order ◽  
Carl Schmitt ◽  
Right Wing ◽  
Liberal State ◽  
Liberal Democratic ◽  
Democratic Constitution

Carl Schmitt was a conservative critic of the Weimar Republic’s liberal-democratic constitution. After Hitler’s rise to power, he allied himself briefly to Nazism, and despite having fallen from favour and having revised his position even before the war, was never able to rehabilitate himself from the Nazi taint. Interned at Nuremberg in 1945, he was never brought to trial, but was banned from teaching thereafter. His critique of liberalism lay in liberalism’s alleged inability to deal with the nature of politics. Schmitt continues to exert a vast influence on German public law, legal theory and political philosophy, as well as on European right-wing thought. His work remains important for liberals and opponents of liberalism for the challenges it poses to the neutrality of the liberal state and its legal order.

Transnational Organization, Transnational Law and the Ambiguity of Interpol in a World Ruled with Law

2017 ◽  
Vol 1 (2-3) ◽  
pp. 65-86 ◽  
Author(s):  
James Sheptycki
Keyword(s):  
Case Studies ◽  
Global Governance ◽  
Legal Theory ◽  
Legal Order ◽  
Intergovernmental Organization ◽  
Transnational Law ◽  
Constituent Element ◽  
Practical Politics ◽  
The Concept Of Law ◽  
Governance Processes

Abstract Using the practical empirical example of the Interpol Organization, the paper explores the relationship between transnational organization and transnational law. Pace Jessup’s pioneering work in 1956, the central questions surrounding the notion of transnational law have involved understanding the use of legal tools in an administrative grey area of global governance across a range of legal institutions. This essay demonstrates how Interpol constituted as itself a formal ‘Intergovernmental Organization’ with its own self-governing structure and explores the use of one of its most powerful legal tools: the Red Notice. As a formally constituted igo with transnational reach and legally subject to its own constituted governance processes, Interpol is an example of what Neil Walker calls ‘constitutionalism beyond the State’. A fortiori, Interpol mobilizes a range of legal tools from transnational public international law and criminal law, as well as those of its own constitutional order, in making up its organization. Following Terence C. Halliday and Gregory Shaffer, and based on this empirical case study, the essay argues that Interpol is an important constituent element in the broader ‘transnational legal order’ of global policing. The challenge for socio-legal scholarship is to reveal how the transnational legal order of which Interpol is a part, is shaped by a variety of actors using different kinds of legal instruments because the institutional patterns thereby established have consequences for future developments. The transnational legal order of global policing is a synecdoche of global governance more generally and the specific case of Interpol provides the basis of some general claims about how to understand the concept of law under transnational conditions. The essay argues that Interpol is but a small constituent element of an evolving global system of rule with law. Rule with law emphasizes that in all practical circumstances legal tools are in the hands of knowing social actors. Understood this way, law is practical politics undertaken by means of legal tools. Interpol is but one element of a vast transnational legal order that has no democratic basis and which needs to be progressively uncovered through piecemeal empirical case studies. Read against the backdrop of broad socio-legal theory, such case studies offer critical insights concerning contemporary transnational legal ordering.

scholarly journals The Conventional Nature of Legal Values

wisdom ◽  
2021 ◽  
Vol 1 (1) ◽  
pp. 98-110
Author(s):  
Alexey KLIMENKO ◽  
Igor MAZUROV
Keyword(s):  
Theoretical Model ◽  
Functional Relationship ◽  
Legal Theory ◽  
Legal Culture ◽  
Legal Order ◽  
Legal Analysis ◽  
Theoretical Understanding ◽  
General Scientific ◽  
New Perspective ◽  
Relationship Of

The article is devoted to the problem of the nature of legal values, the solution of which is of fundamental importance for the construction of legal theories, in one way or another based on the category of “value”. The purpose of this article is to present and substantiate a theoretical model of legal values in the context of a socio-axiological approach to law, involving consideration of the conventional nature of legal values, as well as to characterize the structural and functional relationship of legal values with the legal order and legal culture. When analyzing modern law, the authors use a socio-axiological approach to law, combining sociological and axiological methodology. At the same time, the authors proceed from a materialistic understanding of values. The article also uses general scientific and private scientific research methods. The authors come to the conclusion that law within the framework of modern philosophical and legal analysis from the standpoint of the socio-axiological approach appears as a system of conventional values formed and transformed within the framework of legal discourse. Theoretical understanding of the conventional nature of such values provides an opportunity to consider many aspects of modern legal theory from a new perspective.

scholarly journals What were Jesus and the Pharisees Talking about when they Talked about Law?

2007 ◽  
Vol 23 (1) ◽  
pp. 141-146 ◽  
Author(s):  
David A. Skeel
Keyword(s):  
Legal Theory ◽  
Legal Order ◽  
Legal Rules ◽  
The Past ◽  
American Law ◽  
The Relationship

Jesus' Legal Theory—A Rabbinic Reading opens with a startling claim. The increasing number of legal scholars who have begun exploring the relationship between Christianity and American law in the past several years have neglected to consider the insights of Jesus himself. “[N]otably absent from this literature,” Professor Saiman writes, “is any extensive examination of Jesus, and his views about jurisprudence and legal theory. Despite the overall diversity of his writings, there is little discussion about what Jesus thought about law, lawyers, legal rules and the legal order.” What, the article asks, does Jesus' own legal theory look like?

scholarly journals Súmulas Vinculantes e a Força Normativa: Aspectos Críticos

2014 ◽  
Vol 9 (2) ◽  
Author(s):  
Alice De Siqueira Khouri ◽  
Fernando Horta Tavares
Keyword(s):  
Due Process ◽  
Legal Theory ◽  
Legal Order ◽  
Normative Force ◽  
Legal Context ◽  
Critical Issues ◽  
Due Process Of Law ◽  
Rules And Principles ◽  
Pass Through ◽  
Critical Aspects

SÚMULAS VINCULANTES E FORÇA NORMATIVA: ASPECTOS CRÍTICOS BINDING PRECEDENTS AND NORMATIVE POWER: CRITICAL ISSUES  RESUMO: O presente estudo possui cerne no debate acerca da criação e aplicação das súmulas vinculantes em um contexto jurídico democrático e pretende, a partir das teorias de classificação normativa entre regras e princípios do cenário pós-positivista, alinhavar alguns aspectos críticos acerca de uma possível inconstitucionalidade da força normativa do instituto. Nesta direção, à luz do Direito Constitucional e de conceitos da Teoria do Direito, trazendo ainda o exemplo do enunciado da Súmula Vinculante 13, se pretende aprofundar os estudos conteudísticos da temática sob o viés dos resultados obtidos a partir da ponderação prévia entre normas do ordenamento jurídico brasileiros, levando em conta as particularidades de um caso concreto que não passou pelo crivo do devido processo legislativo o qual, pelas suas particularidades, pode resultar na vinculação de futuros casos pretensamente semelhantes. PALAVRAS-CHAVE: Súmula Vinculante; Inconstitucionalidade; Regras; Princípios; Pós-Positivismo; Ponderação. ABSTRACT: This study has heart in the debate about the creation and application of binding precedents in a democratic legal context and aims, from the theories of normative classification between rules and principles of post-positivist scenario, identify and analyze some critical aspects about possible unconstitutionality of the normative force of the institute. In this direction, in the light of the Constitutional Law and the Legal Theory concepts, also bringing the example of the statement of Binding Precedent 13, it is intended to deepen the content studies of the theme from the perspective of the results obtained from previous balance among norms of the Brazilian legal order, taking into account the particularities of a case that did not pass through the scrutiny of due process of law which, by its characteristics, can result in the binding of future cases allegedly similar. KEYWORDS: Binding Precedent; Unconstitutionality; Rules; Principles; Post Positivism; Balancing Procedure.

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