The New Legal Realism and The Realist View of Law

2018 ◽  
Vol 43 (02) ◽  
pp. 528-553 ◽  
Author(s):  
Hanoch Dagan ◽  
Roy Kreitner
Keyword(s):  
Social Science ◽  
Rule Of Law ◽  
Academic Discipline ◽  
Legal Discourse ◽  
Legal Institutions ◽  
Lingua Franca ◽  
Bottom Up ◽  
Legal Realism ◽  
The Rule Of Law ◽  
Realist View

New legal realism (NLR) furthers the legal realist legacy by focusing attention on both the pertinent social science and the craft that typifies legal discourse and legal institutions. NLR's globalized ambitions also highlight the potential of a nonstatist view of law. The realist view of law raises three challenges facing NLR: identifying the “lingua franca” of law as an academic discipline within which NLR insights on translation and synthesis should be situated; conceptualizing NLR's focus on bottom-up investigation, so that it does not defy the rule of law; and recognizing the normative underpinning for NLR's reformist impulse.

scholarly journals Burning the Rechtsstaat: legal institutions and protection of the rule of law

2020 ◽  
Vol 17 (1) ◽  
pp. 105-131
Author(s):  
Christopher A. Hartwell ◽  
Mateusz Urban
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Political Institutions ◽  
Institutional Context ◽  
Economic Outcomes ◽  
Legal Institutions ◽  
Economic Literature ◽  
The Rule Of Law ◽  
The Past

AbstractThe economic literature is clear that transparent and impartial rule of law is crucial for successful economic outcomes. However, how does one guarantee rule of law? This paper uses the idea of ‘self-reinforcing’ institutions to show how political institutions may derail rule of law if associated judicial institutions are not self-reinforcing. We illustrate this using the contrasting examples of Estonia and Poland to frame the importance of institutional context in determining both rule of law and the path of legal institutions. Although starting tabula rasa for a legal system is difficult, it worked well for rule of law in Estonia in the post-communist transition. Alternately, Poland pursued a much more gradualist strategy of reform of formal legal institutions; this approach meant that justice institutions, slow to shed their legacy and connection with the past, were relatively weak and susceptible to attack from more powerful (political) ones. We conclude that legal institutions can protect the rule of law but only if they are in line with political institutions, using their self-reinforcing nature as a shield from political whims of the day.

scholarly journals The Courts in American Public Culture

Daedalus ◽  
2014 ◽  
Vol 143 (3) ◽  
pp. 140-156 ◽  
Author(s):  
Susan S. Silbey
Keyword(s):  
Social Science ◽  
Rule Of Law ◽  
Legal Reasoning ◽  
Public Culture ◽  
Science Literature ◽  
The Rule Of Law ◽  
Institutional Practice ◽  
The Social ◽  
Social Science Literature ◽  
Public Imagination

In American public imagination, courts are powerful but also impotent. They are guardians of citizens' rights but also agents of corporate wealth; simultaneously the least dangerous branch and the ultimate arbiters of fairness and justice. After recounting the social science literature on the mixed reception of courts in American public culture, this essay explains how the contradictory embrace of courts and law by Americans is not a weakness or flaw, nor a mark of confusion or naïveté. Rather, Americans' paradoxical interpretations of courts and judges sustain rather than undermine our legal institutions. These opposing accounts are a source of institutional durability and power because they combine the historical and widespread aspirations for the rule of law with a pragmatic recognition of the limits of institutional practice; these sundry accounts balance an appreciation for the discipline of legal reasoning with desires for responsive, humane judgment.

scholarly journals Preserving the rule of law in the era of artificial intelligence (AI)

2021 ◽  
Author(s):  
Stanley Greenstein
Keyword(s):  
Artificial Intelligence ◽  
Rule Of Law ◽  
Academic Discipline ◽  
Decision Makers ◽  
Human Flourishing ◽  
The Rule Of Law ◽  
Human Decision ◽  
Technological Developments ◽  
Made In ◽  
National Borders

AbstractThe study of law and information technology comes with an inherent contradiction in that while technology develops rapidly and embraces notions such as internationalization and globalization, traditional law, for the most part, can be slow to react to technological developments and is also predominantly confined to national borders. However, the notion of the rule of law defies the phenomenon of law being bound to national borders and enjoys global recognition. However, a serious threat to the rule of law is looming in the form of an assault by technological developments within artificial intelligence (AI). As large strides are made in the academic discipline of AI, this technology is starting to make its way into digital decision-making systems and is in effect replacing human decision-makers. A prime example of this development is the use of AI to assist judges in making judicial decisions. However, in many circumstances this technology is a ‘black box’ due mainly to its complexity but also because it is protected by law. This lack of transparency and the diminished ability to understand the operation of these systems increasingly being used by the structures of governance is challenging traditional notions underpinning the rule of law. This is especially so in relation to concepts especially associated with the rule of law, such as transparency, fairness and explainability. This article examines the technology of AI in relation to the rule of law, highlighting the rule of law as a mechanism for human flourishing. It investigates the extent to which the rule of law is being diminished as AI is becoming entrenched within society and questions the extent to which it can survive in the technocratic society.

Law in the Egyptian Revolt

2011 ◽  
Vol 3 (1-2) ◽  
pp. 181-191 ◽  
Author(s):  
Tamir Moustafa
Keyword(s):  
Rule Of Law ◽  
Legal Reform ◽  
Legal Institutions ◽  
Authoritarian Rule ◽  
Protest Movements ◽  
The Rule Of Law

Among the protest movements sweeping the region in the Arab awakening of 2011, the Egyptian revolt is the movement that is perhaps most defi ned by a struggle over the Constitution and the rule of law more generally. I argue that this intense focus on law and legal institutions is a legacy of the prominent role that law played in maintaining authoritarian rule in Mubarak’s Egypt. Just as law and legal institutions were the principal mechanisms undergirding authoritarian rule, opposition activists know that democracy can only emerge through comprehensive legal reform. Th is article examines the struggle for constitutional power in three periods – before, during, and after the Egyptian revolt of 2011.

scholarly journals Legality as Reason: Dicey, Rand, and the Rule of Law

2011 ◽  
Vol 55 (3) ◽  
pp. 563-586
Author(s):  
Mark D. Walters
Keyword(s):  
Rule Of Law ◽  
Legal Discourse ◽  
Law Students ◽  
The Rule Of Law ◽  
The Relationship

For many law students in Canada, the idea of the rule of law is associated with the names of Professor A.V. Dicey, Justice Ivan Rand, and the case of Roncarelli v. Duplessis. It is common for students to read excerpts from Dicey’s Law of the Constitution on the rule of law, and then to examine how the rule of law is, as Rand stated in Roncarelli, “a fundamental postulate of our constitutional structure.” Indeed, Roncarelli marked a point in time, fifty years ago, at which the academic expression “the rule of law” became a meaningful part of the legal discourse of judges and lawyers in Canada. In this article, the author considers the relationship between the rule of law as an academic or conceptual idea and the rule of law as a practical or doctrinal idea. A distinction is drawn between two traditions of theorizing about the rule of law, which are labelled “legality as order” and “legality as reason”. The author then reconsiders the views of both Dicey and Rand and argues that both advanced the idea of legality as reason. The author concludes that, although Canadian judges now tend to emphasize legality as order, we are better placed to understand the special features of constitutionalism in Canada if we remember that the rule of law has, both conceptually and doctrinally, another dimension—that which is associated with the idea of “legality as reason”.

scholarly journals The idea of democracy as a substantial foundation of the legal order of the modern state

2021 ◽  
Vol 9 (1) ◽  
pp. 11-15
Author(s):  
Kirill Rakov
Keyword(s):  
Rule Of Law ◽  
Legal Discourse ◽  
Legal Order ◽  
Modern State ◽  
Modern Democracy ◽  
The Rule Of Law ◽  
Key Characteristics

The article considers the role of one of the most popular modern political and legal ideas-the idea of democracy in the formation of the rule of law of the modern state. Exploring the genesis of ideas about democracy, the author attempts to determine its meaning and place in the system of ideas that determine the modern political and legal discourse. The author, within the framework of the concept of formal and substantive foundations of the rule of law, defines the idea of democracy as an important substantive foundation of the rule of law of the modern state, describes the key characteristics of modern democracy.

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