scholarly journals Legal Formalism

2018 ◽  
Author(s):  
Michael Lobban
Keyword(s):  
Common Law ◽  
Constitutional Interpretation ◽  
Specific Approach ◽  
Legal Thought ◽  
Legal Formalism ◽  
Rational Order ◽  
New Generation

This chapter considers the era of ‘legal formalism’, which is usually taken to refer to the period in American legal thought between the 1860s and the 1920s, when a new generation of post-bellum treatise-writers and legal academics sought to discover the underlying principles of common law cases, and put them into a rational order. This period is sometimes also referred to as the era of ‘classical legal thought’. In contemporary jurisprudence, the term ‘formalism’ refers to a specific approach to adjudication and constitutional interpretation, which has its defenders as well as its critics. However, in the era under study, it was neither a term which jurists used to describe themselves, nor one which their critics used to describe them.

Book Review - David A. Strauss' The Living Constitution (2010)

2011 ◽  
Vol 12 (7) ◽  
pp. 1545-1552
Author(s):  
Artour Rostorotski
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Constitutional Change ◽  
Judicial Activism ◽  
Constitutional Interpretation

David Strauss' The Living Constitution addresses the issues of constitutional interpretation and judicial activism in the United States. The book supports the practice of Living Constitutionalism and attempts to demonstrate its advantages over Originalism. It presents general arguments as well as accounts of landmark decisions in order to demonstrate the superiority of Living Constitutionalism. The Living Constitution also argues for common law as the all-but-exclusive method for constitutional change in the modern United States. Overall, the book presents a well-organized and concise case for Living Constitutionalism.

Response: The Politeness of History

2015 ◽  
Vol 40 (01) ◽  
pp. 264-269
Author(s):  
Kunal M. Parker
Keyword(s):  
Common Law ◽  
Historical Knowledge ◽  
Knowledge Practices ◽  
Legal Thought ◽  
The Common ◽  
Democracy In America

In my response to the reviews of my book by Marianne Constable, Shai Lavi, and Renisa Mawani, I situate the argument of Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism within a concern with contemporary forms of historical knowledge. Where contemporary historical knowledge practices subsume their objects of investigation, I adopt the temporality of the object of investigation—namely, the common law—as the structure my book. In different registers, Constable, Lavi, and Mawani urge me to take up more explicitly the foundational questioning about which they care. I welcome their readings. However, given the distinct problematic from which I start, I argue, the book is not in the first instance an argument about the ontology of history or law.

Christian Wolff

2017 ◽  
Author(s):  
Thomas Kleinlein
Keyword(s):  
Political Economy ◽  
International Law ◽  
Natural Law ◽  
Scientific Method ◽  
Systematic Method ◽  
Christian Wolff ◽  
Specific Approach ◽  
Legal Thought ◽  
Original Contribution

This chapter explores Christian Wolff’s systematic method and how it resonated in later scholarship. Wolff considered his systematic method to be his original contribution to the study of international law. Yet, despite the fact that he was a very renowned scholar in his time, this systematic method apparently remained an episode in international legal thought. Three transitions in international legal thought are already discernible, but not explicit, in Wolff’s writings: a process of an autonomization of international law, a shift from natural law to positivism, and a shifting focus from law to political economy. In a paradoxical manner, Wolff’s specific approach to the study of international law and his scientific method contributed to these transitions in international legal thought and, at the same time, hid them behind ambiguity. Arguably, this ambiguity contributes to explaining limited resonance of Wolff’s writings on international law.

scholarly journals INFIDELS IN ENGLISH LEGAL THOUGHT: CONQUEST, COMMERCE AND SLAVERY IN THE COMMON LAW FROM COKE TO MANSFIELD, 1603–1793

2017 ◽  
Vol 16 (02) ◽  
pp. 375-409
Author(s):  
EDWARD CAVANAGH
Keyword(s):  
Intellectual History ◽  
Political Change ◽  
Common Law ◽  
Legal Thought ◽  
Starting Point ◽  
The Common ◽  
Law Reports ◽  
To Receive

English common law reports are dense with ideas. Yet they remain mostly untapped by intellectual historians. This article reveals how intellectual history can engage with law and jurisprudence by following the notion that “infidels” (specifically non-Christian individuals) deserved to receive exceptional treatment within England and across the globe. The starting point is Sir Edward Coke: he suggested that infidels could be conquered and constitutionally nullified, that they could be traded with only at the discretion of the monarch, and he confirmed their incapacity to enjoy full access to the common law. This article uncovers how each of these assertions influenced the development of the imperial constitution in the seventeenth and eighteenth centuries, when it came to war, trade and slavery. Identifying each of the major moves away from Coke's prejudices, this article argues that sometimes common lawyers responded to political change, but at other times anticipated it.

scholarly journals DISTINGUISHING CONSTITUTIONAL AND STATUTORY INTERPRETATION IN JUDICIAL REVIEW CASES: A BLURRED BOUNDARY LINE

2018 ◽  
Vol 18 (2) ◽  
pp. 235
Author(s):  
B Bisariyadi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Boundary Line ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Statutory Interpretation ◽  
Court Practice

The establishment of the Constitutional Court to hold power of reviewing the constitutionality of Laws raises discourse on the distinction between constitutional interpretation and statutory interpretation. In judicial review cases, the separation, either in common law or civil law tradition, between the two interpretations is not clearly distinguished. The Indonesian Constitutional Court, in judicial review decisions, shows that the Court does not only interpret constitutional provision. In a number of decisions, the Court has put more emphasis on the use of statutory interpretation. The essay discusses the Constitutional Court practice in the use of constitutional interpretation and statutory interpretation on judicial review cases.Keywords: Constitutional Court, judicial review, constitutional interpretation, statutory interpretation.

scholarly journals (En)gendering Shoreline Law: Nishnaabeg Relational Politics Along the Trent Severn Waterway

2019 ◽  
Vol 19 (3) ◽  
pp. 16-32
Author(s):  
Madeline Whetung
Keyword(s):  
International Relations ◽  
Common Law ◽  
Lake Ontario ◽  
Multiple Relationships ◽  
Political Systems ◽  
Canal System ◽  
Georgian Bay ◽  
Legal Thought ◽  
Shared Space

This article examines the colonization of Michi Saagiig Nishnaabeg territory by the Trent Severn Waterway. By examining legal bracketing as a process within Canadian common law alongside prevailing Nishnaabeg philosophy and legal thought, I consider how the construction of a canal system connecting Lake Ontario to Georgian Bay disrupted practices integral to Nishnaabeg law. I offer up the concept of shoreline law as a way to understand particular place-based relationships that Mississaugas hold with water and land and other beings with which they share territory. In particular, I show how colonial domination of Nishnaabeg territory resulted in a gendered dispossession of land that continues to have reverberations throughout Nishnaabeg political systems today. Shoreline law offers up a way to rethink international relations by showing the importance of multiple relationships within the shared space of the shoreline.

The Effect of a Finding That Legislation is Unconstitutional: The Approach of the Irish Supreme Court

2007 ◽  
Vol 36 (3) ◽  
pp. 220-230
Author(s):  
Ailbhe O'Neill
Keyword(s):  
Ab Initio ◽  
Supreme Court ◽  
Common Law ◽  
Constitutional Interpretation ◽  
Temporal Effect ◽  
The Supreme Court ◽  
Legal Effect ◽  
Problematic Aspect ◽  
The Way

A number of common law jurisdictions permit the judiciary to strike down legislation which is inconsistent with that legal system's constitution. The Irish Constitution makes specific provision for this in Article 34.3.2°. The power to declare legislation invalid gives rise to a number of interesting questions concerning the temporal effect of such decisions. In Ireland, the courts have consistently adopted an approach whereby incompatible legislation which postdates the 1937 Constitution is deemed to have been void ab initio. Incompatible legislation originally passed by the British Parliament before 1937 is deemed not to have survived in Irish law from the date of the adoption of the Constitution. This gives rise to interesting issues surrounding the effect of past legal determinations which were based on such legislation. This problematic aspect of constitutional interpretation was considered at length by the Irish Supreme Court in the case of A v The Governor of Arbour Hill Prison (the ‘ A case’) in July 2006. This article explains the approach taken by the Irish courts to this aspect of constitutional interpretation and analyses the way in which the problem of legal effect was approached by the Supreme Court in the A case.

scholarly journals MAJOR TRANSFORMATIONS IN CONTEMPORARY LAW AND THE TEACHINGS OF ROBERT ALEXY

2018 ◽  
Vol 3 (3-4) ◽  
pp. 107-123
Author(s):  
Luís Roberto Barroso
Keyword(s):  
Modern Society ◽  
Legal Culture ◽  
Public Law ◽  
Fundamental Rights ◽  
Constitutional Interpretation ◽  
Normative Force ◽  
Legal Formalism ◽  
Hard Cases

The text examines the three major changes of paradigm in contemporary law, seen in parallel to Robert Alexy’s teachings. The author initially presents the phenomena of (i) the overcoming of legal formalism; (ii) the advent of a post-positivist legal culture; and (iii) the rise of public law and the centrality of the Constitution. The author then moves on to identify, in the work of Robert Alexy, the notion of the centrality of fundamental rights and of the Constitution, in contemporary law. The author also tackles the transformations in constitutional interpretation, focusing on (i) the recognition of the normative force of the Constitution; (ii) the expansion of constitutional jurisdiction; and (iii) the development of a new hermeneutics and of the new categories for a constitutional interpretation. Following this line, the notion of hard cases is approached against the background of ambiguity in language, reasonable moral disagreements and tensions in constitutional norms or fundamental rights. Alexy’s theory of principles is then introduced to portray how law should be operated so as to solve relevant conflicts in modern society. Finally, there is an emphasis on the counter-majoritarian and representative roles of the Supreme Federal Tribunal, as well as on Alexy’s writings about how constitutional tribunals carry out the argumentative representation of society. 

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