Part III Regimes and Doctrines, Ch.31 Theorizing International Organizations

2016 ◽  
Author(s):  
Klabbers Jan
Keyword(s):  
Global Health ◽  
International Organizations ◽  
Legal Theory ◽  
Atomic Energy ◽  
Theory And Practice ◽  
History Of ◽  
The Law

This chapter outlines a broad history of the development of thinking about the law of international organizations, with a focus on the legal theory of functionalism, as well as a discussion on the latter’s considerable strengths and weaknesses. Functionalism holds that states create international organizations to do things they are unable or reluctant to do on their own, yet consider inherently useful: organize postal relations, control the uses of atomic energy, regulate global health, etc. The chapter also includes a brief discussion of scholarship regarding international organizations in the broader academic landscape, with the concluding section hinting at a few challenges for both theory and practice.

scholarly journals The Myth of Objectivity: Implicit Racial Bias and the Law (Part 2)

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Willem Hendrik Gravett
Keyword(s):  
South Africa ◽  
Racial Bias ◽  
Legal Theory ◽  
Fundamental Principle ◽  
Human Mind ◽  
Racial Prejudice ◽  
Theory And Practice ◽  
Differential Treatment ◽  
Implicit Racial Bias ◽  
The Law

The centrality of race to our history and the substantial racial inequalities that continue to pervade society ensure that "race" remains an extraordinarily salient and meaningful social category.  Explicit racial prejudice, however, is only part of the problem.  Equally important - and likely more pervasive - is the phenomenon of implicit racial prejudice: the cognitive processes whereby, despite even our best intentions, the human mind automatically classifies information in racial categories and against disfavoured social groups. Empirical research shows convincingly that these biases against socially disfavoured groups are (i) pervasive; (ii) often diverge from consciously reported attitudes and beliefs; and (iii) influence consequential behaviour towards the subjects of these biases. The existence of implicit racial prejudices poses a challenge to legal theory and practice. From the standpoint of a legal system that seeks to forbid differential treatment based upon race or other protected traits, if people are in fact treated differently, and worse, because of their race or other protected trait, then the fundamental principle of anti-discrimination has been violated. It hardly matters that the source of the differential treatment is implicit rather than conscious bias. This article investigates the relevance of this research to the law by means of an empirical account of how implicit racial bias could affect the criminal trial trajectory in the areas of policing, prosecutorial discretion and judicial decision-making.  It is the author's hypothesis that this mostly American research also applies to South Africa. The empirical evidence of implicit biases in every country tested shows that people are systematically implicitly biased in favour of socially privileged groups. Even after 1994 South Africa – similar to the US – continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status. The author argues that the law should normatively take cognizance of this issue.  After all, the mere fact that we may not be aware of, much less consciously intend, race-contingent behaviour does not magically erase the harm. The article concludes by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias.

scholarly journals THEORIES OF VAGUENESS AND THEORIES OF LAW

Legal Theory ◽  
2019 ◽  
Vol 25 (2) ◽  
pp. 132-152
Author(s):  
Alex Silk
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Conventional Meaning ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
Content Determination ◽  
The Law

ABSTRACTIt is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, legal content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law.

Theory and Practice of Regional Integration: The Case of Comecon

1970 ◽  
Vol 24 (4) ◽  
pp. 942-977 ◽  
Author(s):  
Andrzej Korbonski
Keyword(s):  
Comparative Analysis ◽  
International Organizations ◽  
Regional Integration ◽  
Theory And Practice ◽  
Theory Building ◽  
History Of

It is generally recognized that the last decade or so witnessed a proliferation of studies dealing with different aspects of regional integration. While most of them discussed the origin and history of various international organizations, some, especially those of a more recent vintage, ventured into the thicket of theory building in an effort to engage eventually in some kind of comparative analysis.

scholarly journals TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 266-270 ◽  
Author(s):  
Ntina Tzouvala
Keyword(s):  
International Law ◽  
Third World ◽  
Legal Theory ◽  
Use Of Force ◽  
Theory And Practice ◽  
History Of ◽  
Scope Of Application ◽  
Political Commitments ◽  
The Right ◽  
United Nations Charter

Given the long history of violent encounters between the Global North and the Global South, legal arguments concerning the use of force are a fertile ground for testing the virtues and limits of Third World Approaches to International Law (TWAIL) as a theory aspiring to “address the material and ethical concerns of Third World peoples.” This essay examines the usefulness and limits of TWAIL in the context of the “unwilling or unable” doctrine currently promoted by a series of Western scholars and states in order to expand the scope of application of the right to self-defence under Article 51 of the United Nations Charter. Adopting TWAIL’s impulse to historicize, this essay argues that the structure of this doctrine closely replicates the “standard of civilization” that informed international legal theory and practice throughout the nineteenth century. At the same time, widespread resistance to the “unwilling or unable” doctrine indicates that the profound transformation of international law on the use of force after 1945 and the diffusion of sovereignty outside the West put into question certain methodological and political commitments of TWAIL.

scholarly journals Giurisprudenza e responsabilità morale: Il "Buon Giudice" Magnaud = Jurisprudence and moral responsibility: "The Good Judge" Magnaud

2018 ◽  
pp. 85
Author(s):  
Mariella Robertazzi
Keyword(s):  
20Th Century ◽  
Legal Theory ◽  
Theory And Practice ◽  
Legal Certainty ◽  
Legal Cases ◽  
Specific Object ◽  
History Of ◽  
History Of Law ◽  
Good Judge ◽  
Shed Light

RIASSUNTO: Paul Magnaud, magistrato e politico francese operante tra la fine del XIX e gli inizi del XX secolo e divenuto noto con l'appellativo di "bon juge", ci offre l'opportunità di riflettere su un nodo ineliminabile della teoria e della prassi giuridica: il rapporto tra legge ed equitá, tra certezza del diritto ed esigenze di giustizia. Nel saggio vengono ricostruiti i casi principali di cui egli si occupò quando era presidente del Tribunale di Chateâu-Thierry al fine di riportare alla luce un episodio della storia del diritto che può dire ancora molto al dibattito giuridico e politico contemporaneo.ABSTRACT: Paul Magnaud, who was a French politician and magistrate, mainly active between the end of 19thand the beginning of 20th century and known as the “bon juge” provides the opportunity to reflect on an unavoidable issue concerning both legal theory and practice. The specific object of that focuses on the correlation between law and fairness, as well as, legal certainty and need of justice. This essay will retrace the most important legal cases he dealt with, when he was the president of the court of Chateâu-Thierry, in order to shed light on a specific case, pertaining to the annals of the history of law, which can enhance the current judicial and political debate.PAROLE CHIAVE: legge, equità, certezza del diritto, giustizia.KEYWORDS: law, fairness, legal certainty, justice.

scholarly journals The idea of equality as a double-bind of modern civilization

2021 ◽  
Vol 2 (12) ◽  
pp. 27-30
Author(s):  
N. S. OBOTUROVA ◽  
Keyword(s):  
Social Development ◽  
Legal Theory ◽  
Theory And Practice ◽  
Double Bind ◽  
Human Thought ◽  
History Of ◽  
Legal Thinking ◽  
Judicial Protection

Analysis of the evolution of the idea of equality from its classical to its modern interpretations shows that in the history of human thought there have been many delusions, erroneous and false representations based on the understanding of equality not as an idea, direction, but as a really operating inevitable law. The absolutized literal understanding of equality, which is spreading today in the postmodern pluralistic worldview, turns it according to the author into a trap, a double-bind of modern civilization and creates disformative risks. Considering equality from the standpoint of the libertarian-legal type of legal thinking as primarily formal legal, the author analyzes the dialectics of equality and inequality, shows the conceptual, programmatic nature of the idea of equality in modern social development. It is equality in rights as a guaranteed by law and guaranteed by judicial protection the ability to realize in various spheres of life that has conceptual significance for the development of modern legal theory and practice and acts as a stabilizing basis for the development of our civilization.

Ibn Khaldūn Between Legal Theory and Legal Practice

2020 ◽  
Vol 32 (1) ◽  
pp. 27-61
Author(s):  
Mourad Laabdi
Keyword(s):  
Critical Analysis ◽  
Islamic Law ◽  
Legal Theory ◽  
Legal Practice ◽  
Close Attention ◽  
Systematic Analysis ◽  
Ibn Khaldun ◽  
History Of ◽  
The Law ◽  
And Performance

Abstract Modern studies of Ibn Khaldūn (d. 808/1406) have covered several aspects of his thought including historiography, pedagogy, philosophy, economy, urbanism and, most recently, mysticism. However, there remains conspicuously little on the place of the law within his intellectual enterprise despite the fact that the law had played a central role in his career as scholar, teacher, and statesman. This paper reconstructs two expressions of his relationship with the law: his conceptualization of it as a scholar, and his practice of it as a justice administrator. It first examines Ibn Khaldūn’s legal training, writings and performance, with close attention to his role as a Mālikī chief judge in Mamlūk Egypt. Then, it probes his perspective on the development of Islamic law and its institutions through a systematic analysis of his account of fiqh and uṣūl al-fiqh in the Muqaddima. The paper concludes that Ibn Khaldūn’s narrative fulfills two main tendencies: to contribute a critical analysis of the history of Islamic law, and to represent this history in a novel fashion through his theory of society and culture (ʿilm al-ʿumrān).

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