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Constitutionalism versus legalism?

Author : Eugene E. Dais

Publisher : Franz Steiner Verlag

Page : 224 pages

File Size : 38,39 MB

Release : 1991

Category : Law

ISBN : 9783515054867

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Content: Sprache, Recht und Rechtsverbindlichkeit: R. Fukawa: An Analysis of the aeRules of Recognition Statement' u W. Krawietz: What does it mean to follow an aeInstitutionalised Legal Rule'? u N. MacCormick: Citizens' Legal Reasoning and its Importance for Jurisprudence u Y. Morigiwa: Hart's Theories of Language and Law u R.Tuomela: Supervenience, Collective Action, and Kelsen's Organ Theory uRecht und politische Kultur: G. Haney: Recht als Form von Kultur u A. Kojder: Dysfunctionalities of Legal Cultur u A. Lopatka: Law and Religion in Poland u M. Samu: Culture and Law: Legal Culture uWerteordnung als ideologische Basis des Rechtsstaats: R. Dreier: Konstitutionalismus und Legalismus u O. Maenpaa: Unilaterality and Consensualism in the Application of Law u K.-F. Lenz: Zivilprozea und Spiel u M. Pavcnik: Ideologie der Rechtsanwendung versus argumentierte Rechtsentscheidung u J. Uusitalo: Legal Dogmatics, Epistemology, Radical Hermeneutics u Entwicklung der Rechtsordnung und soziale Gerechtigkeit: V. Luizzi: Legal Validity and Justice u H. Rottleuthner: Recht und Technik in entwicklungstheor. Perspektive u S. Panou: Uber die aeGerechtigkeit' des Rechts u A. Squella: Legal Positivism and Democracy in the 20. Century u D. Wyduckel: Konsens und gesellschaftlich-technischer Fortschritt u Soziale Mechanismen der Rechtsanwendung und Rechtsfindung: H. Aoi: Richterliche Rechtsfindung als Pattern-Matching-Prozea uu.a. (Franz Steiner 1991)



Approaching the U.S. Constitution

Author : Kerry L. Hunter

Publisher : Lexington Books

Page : 175 pages

File Size : 13,70 MB

Release : 2014-06-18

Category : Law

ISBN : 0739190830

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By reminding readers that early Supreme Court justices refused to reduce the Constitution to a mere legal document, Approaching the U.S. Constitution provides a definitive response to Reading Law by Antonin Scalia and Bryan Garner. Turning to the vision of Alexander Hamilton found in Federalists No. 78, Hunter argues that rather than seeing the judiciary as America’s legal guardian, Hamilton looked to independent individuals of integrity on the judiciary to be the nation’s collective conscience. For Hamilton, the judiciary’s authority over the legislature does not derive from positive law but is extra-legal by 'design' and is purely moral. By emphasizing the legal expertise of judges alone, individuals such as Justice Scalia mistakenly demand that judges exercise no human ethical judgment whatsoever. Yet the more this happens, the more the “rule of law” is replaced by the rule of lawyers. Legal sophistry becomes the primary currency wherewith society’s ethical and moral questions are resolved. Moreover, the alleged neutrality of legal analysis is deceptive with its claims of judicial modesty. It is not only undemocratic, it is dictatorial and highly elitist. Public debate over questions of fairness is replaced by an exclusive legalistic debate between lawyers over what is legal. The more Scalia and Garner realize their agenda, the more all appeals to what is moral will be effectively removed from political debate. 'Conservatives' lament the 'removing God from the classroom,' by 'liberals,' yet if the advocates of legalism get their way, God will be effectively removed from the polis altogether. The answer to preserving both separation of powers and the American commitment to unalienable human rights is to view the Supreme Court in the same way early founders such as Hamilton did and in the way President Abraham Lincoln urged. The Court’s most important function in exercising the power of judicial review is to serve as the nation’s conscience just as it did in Brown v. Board of Education.



Political Constitutionalism

Author : Richard Bellamy

Publisher : Cambridge University Press

Page : 280 pages

File Size : 10,79 MB

Release : 2007-09-13

Category : Political Science

ISBN : 1139467913

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Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny.



Common Good Constitutionalism

Author : Adrian Vermeule

Publisher : John Wiley & Sons

Page : 171 pages

File Size : 37,63 MB

Release : 2022-02-08

Category : Political Science

ISBN : 1509548882

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Book Description

The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the “living constitutionalism” of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as “a reasoned ordering to the common good.” In this view, law’s purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of “common good constitutionalism.” This erudite and brilliantly original book is a vital intervention in America’s most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.



The Decline of Private Law

Author : Gonçalo de Almeida Ribeiro

Publisher : Bloomsbury Publishing

Page : 320 pages

File Size : 40,32 MB

Release : 2019-05-02

Category : Law

ISBN : 1509907912

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Book Description

This book is a large-scale historical reconstruction of liberal legalism, from its inception in the mid-nineteenth century, the moment in which the jurists forged the alliance between political liberalism and legal expertise embodied in classical private law doctrine, to the contemporary anxiety about the possibility of both a liberal solution to the problem of political justification and of law as a respectable form of expert knowledge. Each stage in the history is a moment of synthesis between a substantive and a methodological idea. The former is the liberal political theory of the period, purporting to provide a solution to the problem of political justification. The latter is a conception of legal method or science, supposedly vindicating the access of the expert to the political choices embodied in the law. Thus, each moment in the history of liberal legalism integrates a political theory with a jurisprudential conception. Although it reaches the unsettling conclusion that liberal legalism has largely failed by its own standards, the book urges us to avoid quietism, scepticism or cynicism, in the hope that a deeper understanding of the fragility of our values and institutions inspires a more thoughtful, broadminded and nurtured citizenship.



Constitutionalism and Democracy

Author : Douglas Greenberg

Publisher : Oxford University Press

Page : 416 pages

File Size : 47,53 MB

Release : 1993-07-08

Category : Law

ISBN : 0195361253

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The political changes which have occurred in the last three years have been phenomenal--the dissolving of the former Soviet Union, the impending union of Western Europe, and the evolution of democracy in Eastern Europe. What changes have occurred in the legal structure of these countries? How have their constitutions been affected by these developments? Stanley Katz, Douglas Greenberg, and other scholars and politicians from numerous countries discuss in this work the experiences of constitutionalism. Previously, little work has been done in this field, but now Constitutionalism and Democracy represents the range and depth for serious constitutional analysis. Discussing concrete issues such as human rights, nationalism, and pluralism, this volume will be essential in understanding the phenomenon of constitutionalism in various parts of the world.



God and Man in the Law

Author : Robert Lowry Clinton

Publisher :

Page : 320 pages

File Size : 16,25 MB

Release : 1997

Category : Law

ISBN :

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In a wide-ranging study based on legal history, political theory, and philosophical ideas going all the way back to Plato and Roman law, Robert Clinton challenges current faith in an activist judiciary. Claiming that a human-centered Constitution leads to government by reductive moral theory and illegitimate judicial review, he advocates a return to traditional jurisprudence and a God-centered Constitution grounded in English common law and its precedents.



Populist Constitutionalism and Illiberal Democracies

Author : Martin Belov

Publisher :

Page : 378 pages

File Size : 29,7 MB

Release : 2021

Category : Democracy

ISBN : 9781839701399

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Book Description

This book is a topical study of populist constitutionalism and illiberal democracies, exploring their roots in constitutional imagination as well as their normative entrenchment and performance in political reality. It provides insightful analysis of republican constitutionalism, focusing on the role of people in radical democracy and revolutionary constitutional reform. Furthermore, the outlook, adequacy and performance of constitutional principles in times of democratic ruptures are assessed. The contributors examine the rise of populist constitutionalism and the main trends that have led to the current, ongoing crises in liberal democracy. The book includes original analyses of populist constitutionalism from the viewpoint of emotions and constitutional imagination, as well as a special chapter devoted to the challenges posed to constitutional democracy by COVID-19. Combining theoretical contributions, comparative typologies and important case studies, the spread of populism and illiberal democracy in Europe is critically explored. Populist Constitutionalism and Illiberal Democracies is a timely contribution to the lively discussion surrounding constitutional law, comparative constitutional law, comparative constitutionalism and political science regarding the rise and spread of illiberal democracies, authoritarian political regimes and revolutionary, radical democratic and populist constitutionalism. With contributions by Martin Belov (University of Sofia 'St. Kliment Ohridski'), Agnieszka Bien-Kacala (Nicolaus Copernicus University in Torun), Paul Blokker (University of Bologna), Monica Bonini (Università degli Studi di Milano-Bicocca), Carlo Alberto Ciaralli (University 'G. d'Annunzio' of Chieti-Pescara), Eoin Daly (National University of Ireland), Gianmario Demuro (University of Cagliari), Tímea Drinóczi (University of Pécs), Wojciech Engelking (University of Warsaw), Angela Di Gregorio (University of Milano), Marcin Kilanowski (Nicolaus Copernicus University in Torun), Zoltán Pozsár-Szentmiklósy (ELTE Eötvös Loránd University), Przemyslaw Tacik (Jagiellonian University of Kraków), Anna Tarnowska (Nicolaus Copernicus University in Torun), Zoltan J. Toth (Károli Gáspár University), Julia Wesolowska (Jagiellonian University of Kraków) and Wojciech Wloch (Nicolaus Copernicus University in Torun).



Encounters with Constitutional Interpretation and Legal Education

Author : James Stellios

Publisher :

Page : 240 pages

File Size : 38,8 MB

Release : 2018-02-19

Category : Constitutional law

ISBN : 9781760021627

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Book Description

What do constitutional interpretation and legal education have in common?For one thing, they share the same tension between theory and practice, between form and substance, between process and outcomes, between constancy and change, and between local and comparative perspectives. Each also has a substratum of fundamental underlying values that demand, but do not always receive, clear articulation.For another thing, they have both been the subject of illuminating examination by Michael Coper over the course of a long and distinguished career.An extraordinary group of authors, including Justice Stephen Gageler, the Hon Michael Kirby and Sir Anthony Mason, come together in this book to celebrate Coper's achievement, and take his various contributions as a jumping off point for their own further scholarly insights.From the gripping story of the revolution that swept away the old law on section 92 of the Constitution, to the endemic conflict in the judicial process between legalism and realism, to the never-ending controversy about the Dismissal, to perceiving the world and organising legal knowledge in new ways through biography and oral history, to the role of educators in shaping the views and values of newcomers to this knowledge, this book contains over a dozen sparkling essays by some of Australia's most renowned and respected lawyers, as well as a substantial reflective commentary by Michael Coper himself.An intellectual feast!



The Principles of Constitutionalism

Author : N. W. Barber

Publisher : Oxford University Press

Page : 417 pages

File Size : 27,21 MB

Release : 2018-07-25

Category : Law

ISBN : 0192535684

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Book Description

In this follow-up volume to the critically acclaimed The Constitutional State, N. W. Barber explores how the principles of constitutionalism structure and influence successful states. Constitutionalism is not exclusively a mechanism to limit state powers. An attractive and satisfying account of constitutionalism, and, by derivation, of the state, can only be reached if the principles of constitutionalism are seen as interlocking parts of a broader doctrine. This holistic study of the relationship between the constitutional state and its central principles - sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society - casts light on long-standing debates over the meaning and implications of constitutionalism. The book provides a concise introduction to constitutionalism and a detailed account of the nature and implications of each of the principles in question. It concludes with an examination of the importance of constitutional principles to the work of judges, legislators, and others involved in the operation and creation of the constitution. The book is essential reading for those seeking a definitive account of constitutionalism and its benefits.