Costantino Mortati and the Material Constitution

2020 ◽  
pp. 136-183
Author(s):  
Mariano Croce ◽  
Marco Goldoni
Keyword(s):  
Legal Theory ◽  
Historical Context ◽  
Legal Order ◽  
Material Constitution ◽  
Social Pluralism

Chapter abstract: The aim of this chapter is twofold. It initially illustrates Mortati’s version of legal institutionalism and then explains how his idea of the material constitution addresses the challenge of pluralism. There are three main parts of the chapter. In the first, the historical context of Mortati’s reflections is briefly introduced. The second part is centered on the main tenets of his legal theory. First, his imperative conception of law and the institutionalist version of the legal order are compared not only with Romano and Schmitt, but also with Smend and Heller. Then, the key notion of the material constitution is reconstructed through an analysis of its function, subjects, and fundamental political aims. The last part of the chapter argues that the concept of the material constitution was conceived as a response to social pluralism and elucidates its undergirding integrative logic.

The Dual State

2017 ◽  
Author(s):  
Ernst Fraenkel ◽  
Jens Meierhenrich
Keyword(s):  
National Socialism ◽  
Historical Context ◽  
Legal Order ◽  
London School ◽  
National Socialist ◽  
English Edition ◽  
Judicial Practice ◽  
Parallel Structures ◽  
London School Of Economics ◽  
The Relationship

This text, first published in 1941, provides a comprehensive analysis of the rise and nature of National-Socialism, and is the only such analysis written from within Hitler’s Germany. Its central thesis is that two states co-existed in National-Socialist Germany—hence, Fraenkel’s invention of the concept of the dual state. This was comprised of a normative state (which protected the legal order as expressed in legislation, decisions of the courts, and decisions of administrative bodies) and a prerogative state (governed by the ruling party, and unrestrained by legal guarantees). The relationship and conflict between these states is analyzed through decisions of the German courts and the development of judicial practice. The book is divided into three parts. The first part describes the existing legal order. The second part attempts to show that the parallel structures within Germany radically affected German politics and society. The third part delves into the relationship between the dual Nazi state and German capitalism. It asks whether the rise of the dual state was a consequence of a crisis in capitalism. While this book is primarily a first-hand account and analysis of the dual state’s operation in National-Socialist Germany, it retains its vital relevance for the theory of democracy in the twenty-first century. This republication of the 1941 English edition includes both Fraenkel’s 1974 introduction to the German second edition, never before published in English, and a new introduction by Professor Jens Meierhenrich of the London School of Economics and Political Science that places the book in theoretical and historical context and assesses its lasting legacy.

The State of the Political

2003 ◽  
Author(s):  
Duncan Kelly
Keyword(s):  
Intellectual History ◽  
Legal Theory ◽  
Max Weber ◽  
Political Representation ◽  
Historical Context ◽  
The State ◽  
Carl Schmitt ◽  
Political Criticism ◽  
History Of ◽  
Franz Neumann

This book offers a broad-ranging re-interpretation of the understanding of politics and the state in the writings of three major German thinkers, Max Weber, Carl Schmitt, and Franz Neumann. It rejects the typical separation of these writers on the basis of their allegedly incompatible ideological positions, and suggests instead that once properly located in their historical context, the tendentious character of these interpretative boundaries becomes clear. The book interprets the conceptions of politics and the state in the writings of these three thinkers by means of an investigation of their adaptation and modification of particular German traditions of thinking about the state, or Staatsrechtslehre. Indeed, when the theoretical considerations of this state-legal theory are combined with their contemporary political criticism, a richer and more deeply textured account of the issues that engaged the attention of Weber, Schmitt and Neumann is possible. Thus, the broad range of subjects discussed in this book include parliamentarism and democracy in Germany, academic freedom and political economy, political representation, cultural criticism and patriotism, and the relationship between rationality, law, sovereignty and the constitution. The study attempts to restore a sense of proportion to the discussion of the three authors' writings, focusing on the extensive ideas that they shared rather than insisting on their necessary ideological separation. It is a detailed re-appraisal of a crucial moment in modern intellectual history, and highlights the profound importance of Max Weber, Carl Schmitt and Franz Neumann for the history of European ideas.

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.

Exceptions

2020 ◽  
pp. 150-178
Author(s):  
Iain Scobbie
Keyword(s):  
Legal Theory ◽  
Use Of Force ◽  
Historical Context ◽  
Legal Reasoning ◽  
First World War ◽  
Collective Security ◽  
World War ◽  
The First World War ◽  
First World ◽  
Self Defence

This chapter initially examines philosophical approaches to the international use of force in an historical context before examining the development of the doctrine of collective security as the unifying value of international relations at the end of the First World War and subsequently. States’ right of self-defence is seen as an exception to this doctrine. Drawing on analytical legal theory and theories of legal reasoning, it explores the nature of an exception to a rule. This classification can be difficult to identify as legal propositions can compete rather than exist in a hierarchical rule-exception relationship. The parameters of self-defence as an exception to the doctrine of collective security and the prohibition on the use of force is explored in this light, casting doubt on the validity of contemporary attempts to expand self-defence to justify extra-territorial attacks on non-state actors within states deemed unwilling or unable to curb their hostile activity.

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.

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