1. Introduction to law

2017 ◽  
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.

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.

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.

Thesis and antithesis: To check or not to check the Judiciary

2018 ◽  
pp. 157-198
Author(s):  
Cristina E. Parau
Keyword(s):  
Rule Of Law ◽  
Institutional Design ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Theory And Practice ◽  
Critical Examination ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Network Community ◽  
Constitutional Meaning

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.

scholarly journals The Rule of Law in Islam: Between Formalism and Substantivism

ICR Journal ◽  
2016 ◽  
Vol 7 (1) ◽  
pp. 65-80
Author(s):  
Tengku Ahmad Hazri
Keyword(s):  
Rule Of Law ◽  
Legal Positivism ◽  
Moral Ideal ◽  
The Rule Of Law ◽  
Legal Principle ◽  
Law And Morality ◽  
Just Society ◽  
The Individual ◽  
Substantive Law ◽  
Modern Nation State

What has passed as the rule of law in Islam is in fact merely the formal features of legal principle, without considering the substantive basis for law as a moral ideal. This article argues for a more substantive understanding of the rule of law that is sensitive to the shariah’s vision of the good and just society. To this end, the article evaluates the distinction between formal and substantive versions of the rule of law, examining the foundation of that distinction in legal positivism and the notion of the dualism of law and morality. The rule of law in Islam will be seen to by-pass such bifurcation and, by being rooted in the shariah, affirm a harmonious legal continuum between the individual and the state. It will also be shown that the rule of law in Islam is organically connected to the question of pluralism and multiculturalism in the context of the modern nation state. The implication this has for an area of substantive law - namely, human rights - will then be considered.

scholarly journals Reflections on the COVID-19 Restrictions in Belgium and the Rule of Law

2021 ◽  
Vol 30 ◽  
pp. 194-207
Author(s):  
Patrick Praet
Keyword(s):  
Crisis Management ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Executive Power ◽  
Legal Basis ◽  
The Rule Of Law ◽  
Unique Event ◽  
The People ◽  
Law And Morality ◽  
The Government

The paper examines the legality and legitimacy of Belgium’s COVID-19-related restrictions in light of national and international guidelines. Its discussion proceeds from the most vital characteristic of any law-based state: the government being subject to standards of substantive and procedural legality, even during a pandemic. After this, the effect of the crisis on the Belgian Rechtsstaat is examined, with special emphasis on the functioning of the separation of powers and on the unprecedented predominance of the executive power, alongside the legal basis for the latter’s actions. The author concludes that the Belgian measures against the virus’s spread have failed to meet the cumulative requirements of the rule-of-law test. Discussion then turns to the possibly huge ramifications for some wider debates in the field of philosophy of law, both for classic topoi ( such as law and morality or utilitarianism) and for contemporary current debates such as constitutionalism, sovereignty, and juristocracy. In its concluding remarks, the paper raises issues of the unspoken social contract between the people and the state: will the restrictions amid the pandemic go down in history as a singular, unique event or, instead, as a step on the slippery slope toward permanent crisis management in the name of a new sanitary order?

scholarly journals Uniform Application of Laws in the Context of Post-Classical Law

2021 ◽  
Vol 14 (11) ◽  
pp. 1596-1605
Author(s):  
Igor M. Alekseev ◽  
Keyword(s):  
Rule Of Law ◽  
Natural Law ◽  
Legal Theory ◽  
Negative Influence ◽  
Phenomenological Analysis ◽  
Point Of View ◽  
Social Conflicts ◽  
The Rule Of Law ◽  
Positive Law ◽  
Legal Concepts

The article reveals the impotence of classical legal theories to explain the inconsistency of the practice of applying laws. The legal dogma is subjected to the phenomenological analysis. Moreover, its inability to overcome the conventions of pure jurism is shown. From the position of postclassical jurisprudence, the theory of natural law is criticized. The necessity of refusing to contrast natural and positive law is substantiated. The communicative concept of law, its cognitive value and role in ensuring a uniform application of laws are considered. The criticism of integrative legal theories is evaluated from the perspective of the functionality of law in the form of resolving social conflicts. The approach that reduces legal theory to a method of resolving conflicts is called into question. The negative influence of the dichotomy of positive and natural law is argued, both on the uniform application of laws and on the rule of law in general. From the point of view of the functionality of law, the correlation of its material and procedural branches is revealed. As a result, a hypothesis is formulated that the main direction of the development of legal science is the creation of integrative law that can combine various legal concepts, which will allow us to build a rigid legal dogma based on unified methodological foundations and remove contradictions between legal theories in resolving social conflicts

Rule of Law in India

2018 ◽  
Author(s):  
Harish Narasappa
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Rule Of Law ◽  
Theory And Practice ◽  
The Rule Of Law ◽  
Social Challenges ◽  
Application Of Law ◽  
Primary Element ◽  
The Status ◽  
Dispute Resolution Mechanism

Rule of law is the foundation of modern democracies. It envisages, inter alia, participatory lawmaking, just and certain laws, a bouquet of human rights, certainty and equality in the application of law, accountability to law, an impartial and non-arbitrary government, and an accessible and fair dispute resolution mechanism. This work’s primary goal is to understand and explain the obvious dichotomy that exists between theory and practice in India’s rule of law structure. The book discusses the contours of the rule of law in India, the values and aspirations in its evolution, and its meaning as understood by the various institutions, identifying reason as the primary element in the rule of law mechanism. It later examines the institutional, political, and social challenges to the concepts of equality and certainty, through which it evaluates the status of the rule of law in India.

Cardinal Richelieu between Vattel and Machiavelli

2018 ◽  
Author(s):  
Anthony Carty
Keyword(s):  
Seventeenth Century ◽  
International Law ◽  
Rule Of Law ◽  
Natural Law ◽  
Historical Research ◽  
Practical Implementation ◽  
The Rule Of Law ◽  
God's Will ◽  
Legal Thought ◽  
Rule Of Reason

The view that no form of international law existed in seventeenth-century France, and that this time was a part of ‘prehistory’, and thus irrelevant for international legal thought today is challenged. In addition, the traditional claim of Richelieu to be an admirer of Machiavelli and his Ragion di Stato doctrine to the detriment of the aim of concluding treaties and keeping them (as sacred), is refuted by careful historical research. In Richelieu’s thinking, there is a role for law to play but it is law as justice, law in the classical natural law tradition. Those who rule are subject to the rule of law as justice, the rule of God, or the rule of reason. In Richelieu’s world, kings and ministers are rational instruments of the practical implementation of God’s will on earth.

Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain

2021 ◽  
Vol 7 (3) ◽  
pp. 379-398
Author(s):  
David Parra Gómez
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Social Rights ◽  
Institutional Reforms ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
Division Of Powers ◽  
European Democracy ◽  
Aggressive Interference

Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.

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