Pondering Schmitt's Concept of the Political for International Public Authority: Also a Reflection on Methods, Standards and Disciplinary Settings for Public Law Theory

2016 ◽  
Author(s):  
Armin von Bogdandy
Keyword(s):  
Public Law ◽  
Public Authority ◽  
The Political

10. Negligence: Duty of Care—Public Bodies

2017 ◽  
Author(s):  
Mark Lunney ◽  
Donal Nolan ◽  
Ken Oliphant
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
The Political ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Economic Considerations ◽  
Public Bodies

This chapter focuses on the negligence liability of public authorities. It discusses how negligence actions against public bodies may have both public and private law dimensions. The discussion of the public law dimension focuses on the mechanisms that have been employed in response to concerns about the political nature of some public authority decisions, and the fact that those decisions frequently involve the balancing of social or economic considerations, and the interests of different sections of the public. The discussion of the private law dimension of negligence actions against public bodies considers policy reasons for limiting the liability of public bodies and statutory responsibilities as a source of affirmative common law duties. The chapter concludes with a consideration of proposals for reform of the law in this area.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

The Sound of Constitutional Silence

City, State ◽  
2020 ◽  
pp. 17-50
Author(s):  
Ran Hirschl
Keyword(s):  
Collective Identity ◽  
Constitutional Law ◽  
Political Discourse ◽  
Public Law ◽  
The State ◽  
The Political ◽  
Human Sciences ◽  
Comparative Constitutional Law ◽  
Spatial Governance ◽  
Constitutional Discourse

This chapter examines four introductory dimensions of the political and constitutional discourse around cities. The first is the tremendous interest in cities throughout much of the human sciences as contrasted with the silence of public law in general, and of comparative constitutional law in particular. Next, the chapter takes a look at the dominant statist stance embedded in constitutional law, in particular as it addresses sovereignty and spatial governance of the polity. A brief account of what national constitutions actually say about cities, and more significantly what they do not is then given. Finally, the chapter turns to the tendency in political discourse on collective identity to understand the “local” almost exclusively at the national or regional levels, rather than distinguishing urban interests from those of the state. Taken together, the four angles of city constitutional (non)status examined here highlight the bewildering silence of contemporary constitutional discourse with respect to cities and urbanization, as well as the strong statist outlook embedded in national constitutional orders, effectively rendering the metropolis a constitutionally non-tenable entity.

scholarly journals THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES FOR OMISSIONS

2019 ◽  
Vol 78 (3) ◽  
pp. 545-569
Author(s):  
Tom Cornford
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
Duty Of Care ◽  
Public Authorities ◽  
The Public ◽  
The Common

AbstractIn this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority's public law powers and duties.

Indledende note om demokrati-begrebet

2015 ◽  
pp. 89-92
Author(s):  
Giorgio Agamben ◽  
Nicolai Von Eggers
Keyword(s):  
Public Law ◽  
Political Order ◽  
The Other ◽  
Political Life ◽  
The Political ◽  
Giorgio Agamben ◽  
Administrative Practice ◽  
Political Theories ◽  
The One ◽  
Present Conception

In this text, Giorgio Agamben argues that the concept of democracy attests to a political, ontological amphibology: on the one side, democracy describes a constitution of a political order (and in this sense it belongs to public law); on the other side, democracy is a certain form of administration (in which case it belongs to administrative practice). It is argued that this amphibology can be located in the political theories of Aristotle and Jean-Jacques Rousseau who have been instrumental in forming our present conception of politics. Consequently, we misunderstand the fundamental nature of politics, and any hopes of genuine political life must therefore break with this tradition of Western political philosophy.

Ministerial Responsibility and Impeachment in Prussia 1848–63

1977 ◽  
Vol 10 (1) ◽  
pp. 3-27 ◽  
Author(s):  
Erich Hahn
Keyword(s):  
Nineteenth Century ◽  
Public Law ◽  
Legal Responsibility ◽  
The Political ◽  
Constitutional Government ◽  
Ministerial Responsibility

This opening statement from Robert Mohl's study of ministerial responsibility, published in 1837, summed up an axiom of mid-nineteenth-century German liberalism. However, as Otto Pflanze has shown recently, most German liberals did not demand the political or parliamentary responsibility of ministers. They believed that legal responsibility, or the chambers' right to impeach ministers, would guarantee constitutional government and thereby fulfill their Rechtsstaat ideal, which called for the strict observance of public law.

scholarly journals Looking for democracy in fiduciary government. Historical notes on an unsettled relationship (ca. 1520-1650)

Daímon ◽  
2020 ◽  
pp. 17-32
Author(s):  
David Guerrero
Keyword(s):  
Early Modern ◽  
Natural Law ◽  
State Power ◽  
Public Law ◽  
Political Community ◽  
Popular Sovereignty ◽  
The Political ◽  
Fiduciary Duties ◽  
The Relationship ◽  
Normative Foundations

Una perspectiva reciente sobre los fundamentos normativos del derecho público ha propuesto concebir las relaciones entre ciudadanía y Estado como una “relación fiduciaria”, usando deberes fiduciarios del ámbito iusprivado para justificar limitaciones jurídicas y morales al poder del Estado. La gobernanza fiduciaria también ha sido señalada como una característica distintiva del republicanismo y la soberanía popular, ya que sitúa a la comunidad política como fideicomitente y beneficiaria de cualquier acto administrativo. En este artículo se revisan algunas concepciones protomodernas del gobierno considerando sus justificaciones explícitamente fiduciarias. Concluye con una interpretación fiduciaria del iusnaturalismo Leveller, especialmente necesario para entender (y puede que restaurar) la relación de la gobernanza fiduciaria con la democracia.   A recent perspective on the normative foundations of public law has proposed to conceive citizen-state relationships as a “fiduciary relationship”, using private-law fiduciary duties to justify legal and moral constrains on state power. Fiduciary governance has also been pointed as a distinct feature of republicanism and popular sovereignty, since it places the political community as trustor and beneficiary of any administrative act. This paper reviews some early modern conceptions of government considering their explicit fiduciary justifications. It concludes with a fiduciary account of Leveller natural law, especially needed to understand (and maybe to restore) the relationship between fiduciary governance and democracy.

scholarly journals THE CONCEPT OF GOVERNMENT IN THE EARLY WORKS OF ABU HASAN AL-MAWARDI

2019 ◽  
Vol 15 (2) ◽  
pp. 89-104
Author(s):  
F. Q. TOJIDINOV
Keyword(s):  
Political Theory ◽  
Political Science ◽  
Public Law ◽  
Point Of View ◽  
The Political ◽  
Political Ideas ◽  
National Importance ◽  
Political Conditions ◽  
Relationship Of ◽  
The Relationship

The relationship of politics to religion is a characteristic feature of Islam. The rules of divine law have to be unswervingly respected in all matters related to social, economic and political problems, or at least should not contradict the essence of Islamic principles. But despite this, the political doctrine of Islam — the caliphate, being the main medieval Muslim political thought, still caused many controversies due to the lack of regulations on the nature of power in the Qur’an and Sunnah. Many scholars of the Islamic world, understanding the origins of the problem, tried in every way to write the concept of Islamic political science. Even the existence of political ideas related to the authority in Islam in such Muslim writings on the caliph could not reveal and provide the theory of government from a religious point of view. These works are mostly devoted to the art of power and refl ect the norms of behavior of the ruling authorities and other representatives of the state in order to solve the necessary tasks of national importance. The Islamic experience of the thinkers who wrote these works justifi es the existence of an Islamic element in them. The art of government has been revealed to them since the emergence of Islamic practice in their lives. But there were theories of Islamic political science based on the Koran and the Sunnah. Al-Mawardi is one of the authors of books on Islamic political science. His books became very important for subsequent Muslim thinkers, this importance lies in the fact that the very followers who wrote works on political theory accepted al-Mawardi as an authority on this issue and continue to accept not only for the theory of the caliphate/imamate, but also because of his works related to public law. It is important to note that the work of al-Mawardi is the fi rst work, which presents the theory of the imamate/caliphate, taking into account the political conditions that surrounded him. 

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