• Law

The Metaethics of Constitutional Adjudication


Author: Bosko Tripkovic
Publisher: Oxford University Press
ISBN: 0198808089
Category: Law
Page: 272
View: 9753
In this book Bosko Tripkovic develops a theory of value-based arguments in constitutional adjudication. In contrast to the standard question of constitutional theory that asks whether the courts get moral answers wrong, it asks a more fundamental question of whether the courts get the morality itself wrong. Tripkovic argues for an antirealist conception of value -one that does not presuppose the existence of mind-independent moral truths- and accounts for the effect this ought to have on existing value-based arguments made by constitutional courts. The book identifies three dominant types of value-based arguments in comparative constitutional practice: arguments from constitutional identity, common sentiment, and universal reason, and explains why they fail as self-standing approaches to moral judgment. It then suggests that the appropriate moral judgments emerge from the dynamics between practical confidence, which denotes the inescapability of the self and the evaluative attitudes it entails, and reflection, which denotes the process of challenging and questioning these attitudes. The book applies the notions of confidence and reflection to constitutional reasoning and maintains that the moral inquiry of the constitutional court ought to depart from the emotive intuitions of the constitutional community and then challenge these intuitions through reflective exposure to different perspectives in order to better understand and develop the underlying constitutional identity. The book casts new light on common constitutional dilemmas and allows us to envisage new ways of resolving them.

    • Law

The Constitutional State


Author: Nicholas William Barber
Publisher: Oxford University Press
ISBN: 0199585016
Category: Law
Page: 199
View: 1167
The Constitutional State provides an original account of the nature of the state and its constitution. This account casts light on some of the central puzzles faced by writers on constitutions - such as the possibility of states to undertake actions and form intentions, and the moral significance of these actions for the state's citizens.

Unconstitutional Constitutional Amendments

The Limits of Amendment Powers
Author: Yaniv Roznai
Publisher: Oxford University Press
ISBN: 0198768796
Category:
Page: 368
View: 6878
Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism substantively to limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'. Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

    • Law

Constitutional and Political Theory

Selected Writings
Author: Ernst-Wolfgang Böckenförde
Publisher: Oxford University Press
ISBN: 0198714963
Category: Law
Page: 429
View: 6390
Ernst-Wolfgang Bockenforde (b. 1930) is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court (December 1983 - May 1996), Bockenforde has been a major contributor to contemporary debates in legaland political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship rights, and challenges of European integration. Hiswritings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Bockenforde has influenced the way inwhich academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, thelaw on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Bockenforde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on (I) the political theory of the state; (II) constitutional theory; (III)constitutional norms and fundamental rights; and (IV) the relation between state, citizenship, and political autonomy. Each of these four cornerstones of Bockenforde's legal and political thinking features introductions to the articles as well as a running editorial commentary to the work. A secondvolume will follow this collection, focusing on the relation between religion, law, and democracy.

    • Law

The Cosmopolitan Constitution


Author: Alexander Somek
Publisher: OUP Oxford
ISBN: 0191030929
Category: Law
Page: 320
View: 2136
Originally the constitution was expected to express and channel popular sovereignty. It was the work of freedom, springing from and facilitating collective self-determination. After the Second World War this perspective changed: the modern constitution owes its authority not only to collective authorship, it also must commit itself credibly to human rights. Thus people recede into the background, and the national constitution becomes embedded into one or other system of 'peer review' among nations. This is what Alexander Somek argues is the creation of the cosmopolitan constitution. Reconstructing what he considers to be the three stages in the development of constitutionalism, he argues that the cosmopolitan constitution is not a blueprint for the constitution beyond the nation state, let alone a constitution of the international community; rather, it stands for constitutional law reaching out beyond its national bounds. This cosmopolitan constitution has two faces: the first, political, face reflects the changed circumstances of constitutional authority. It conceives itself as constrained by international human rights protection, firmly committed to combating discrimination on the grounds of nationality, and to embracing strategies for managing its interaction with other sites of authority, such as the United Nations. The second, administrative, face of the cosmopolitan constitution reveals the demise of political authority, which has been traditionally vested in representative bodies. Political processes yield to various, and often informal, strategies of policy co-ordination so long as there are no reasons to fear that the elementary civil rights might be severely interfered with. It represents constitutional authority for an administered world.

    • Law

Constitutional Courts and Deliberative Democracy


Author: Conrado Mendes
Publisher: Oxford University Press
ISBN: 0199670455
Category: Law
Page: 249
View: 7464
It is often argued that courts are better suited for impartial deliberation than partisan legislatures, and that this capacity justifies handing them substantial powers of judicial review. This book provides a thorough analysis of those claims, introducing the theory of deliberative capacity and its implications for institutional design.

    • Law

Practitioner's Guide to Maritime Boundary Delimitation


Author: Stephen Fietta,Robin Cleverly
Publisher: Oxford University Press
ISBN: 0199657475
Category: Law
Page: 432
View: 1584
This book provides a user-friendly and practical guide to the modern law of maritime boundary delimitation. The law of maritime boundaries has seen substantial evolution in recent decades. The book provides a comprehensive overview of the law in this field, and its development through theUnited Nations Convention on the Law of the Sea, which set out the framework of the modern law in 1982. The Convention itself has since been substantially built upon and clarified by a series of judicial and arbitral decisions in boundary disputes between sovereign states, which themselves alsobuilt upon earlier case law. The book dissects each of the leading international judgments and awards since the North Sea Continental Shelf Cases in 1969, providing a full analysis of the issues and context in each case, explaining their fundamental importance to shaping the law. The book provides over forty clear technical illustrations prepared by Robin Cleverly, one of the leading technical experts in international dispute resolution, to carefully demonstrate the key issues at stake in this complex area of law. Technological developments in the exploitation of maritimenatural resources (including oil and gas) have provided a significant impetus for recent boundary disputes, as they have made the resources found in remote areas of the ocean and seabed more accessible. However, these resources cannot effectively be exploited at the moment, as hundreds of maritimeboundaries worldwide remain undelimited. The book therefore complements the legal considerations raised with substantial technical input. It also identifies key issues in maritime delimitation which have yet to be resolved, and sets out the possible future direction the law may take in resolvingthem. It will be an unique and valuable resource for lawyers involved in cases involving maritime delimitation, and scholars and students of the law of the sea.

    • Law

The Constitutional Structure of Proportionality


Author: Matthias Klatt,Moritz Meister
Publisher: Oxford University Press on Demand
ISBN: 0199662460
Category: Law
Page: 184
View: 7595
Proportionality is one of the most important principles in constitutional law, relevant throughout the law and in jurisdictions worldwide. Setting out the 'state of the art' in proportionality doctrine, this book combines theoretical reconstruction with case-law examples, defending and developing the dominant model of proportionality.

    • Law

Carl Schmitt's State and Constitutional Theory

A Critical Analysis
Author: Benjamin Schupmann
Publisher: Oxford University Press
ISBN: 0192509322
Category: Law
Page: 232
View: 4915
Can a constitutional democracy commit suicide? Can an illiberal antidemocratic party legitimately obtain power through democratic elections and amend liberalism and democracy out of the constitution entirely? In Weimar Germany, these theoretical questions were both practically and existentially relevant. By 1932, the Nazi and Communist parties combined held a majority of seats in parliament. Neither accepted the legitimacy of liberal democracy. Their only reason for participating democratically was to amend the constitution out of existence. This book analyses Carl Schmitt's state and constitutional theory and shows how it was conceived in response to the Weimar crisis. Right-wing and left-wing political extremists recognized that a path to legal revolution lay in the Weimar constitution's combination of democratic procedures, total neutrality toward political goals, and positive law. Schmitt's writings sought to address the unique problems posed by mass democracy. Schmitt's thought anticipated 'constrained' or 'militant' democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans. Schmitt's state and constitutional theory remains important: the problems he identified continue to exist within liberal democratic states. Schmitt offers democrats today a novel way to understand the legitimacy of liberal democracy and the limits of constitutional change.

    • Law

Constitutional Theory


Author: Carl Schmitt
Publisher: Duke University Press
ISBN: 9780822390589
Category: Law
Page: 488
View: 9329
Carl Schmitt’s magnum opus, Constitutional Theory, was originally published in 1928 and has been in print in German ever since. This volume makes Schmitt’s masterpiece of comparative constitutionalism available to English-language readers for the first time. Schmitt is considered by many to be one of the most original—and, because of his collaboration with the Nazi party, controversial—political thinkers of the twentieth century. In Constitutional Theory, Schmitt provides a highly distinctive and provocative interpretation of the Weimar Constitution. At the center of this interpretation lies his famous argument that the legitimacy of a constitution depends on a sovereign decision of the people. In addition to being subject to long-standing debate among legal and political theorists in Western Europe and the United States, this theory of constitution-making as decision has profoundly influenced constitutional theorists and designers in Asia, Latin America, and Eastern Europe. Constitutional Theory is a significant departure from Schmitt’s more polemical Weimar-era works not just in terms of its moderate tone. Through a comparative history of constitutional government in Europe and the United States, Schmitt develops an understanding of liberal constitutionalism that makes room for a strong, independent state. This edition includes an introduction by Jeffrey Seitzer and Christopher Thornhill outlining the cultural, intellectual, and political contexts in which Schmitt wrote Constitutional Theory; they point out what is distinctive about the work, examine its reception in the postwar era, and consider its larger theoretical ramifications. This volume also contains extensive editorial notes and a translation of the Weimar Constitution.

    • Law

Balancing Constitutional Rights

The Origins and Meanings of Postwar Legal Discourse
Author: Jacco Bomhoff
Publisher: Cambridge University Press
ISBN: 1107044413
Category: Law
Page: 280
View: 1165
A comparative and historical account of the origins and meanings of the discourse of judicial 'balancing' in constitutional rights law.

    • Law

Judging in Good Faith


Author: Steven J. Burton
Publisher: Cambridge University Press
ISBN: 9780521477406
Category: Law
Page: 292
View: 7470
This book is concerned with the ethics of judging in courts of law. Professor Burton analyzes the grounds, content, and force of a judge's legal and moral duties to uphold the law. He defends two primary theses. The first is the good faith thesis, whereby judges are bound in law to uphold the law, even when they have discretion, by acting only on reasons warranted by the conventional law as grounds for judical decisions. The good faith thesis counters the common view that judges are not bound by the law when they exercise discretion. The second is the permissible discretion thesis, whereby, when exercised in good faith, judicial discretion is compatible with the legitimacy of adjudication in a constitutional democracy under the Rule of Law. The permissible discretion thesis counters the view that judges can fulfill their duty to uphold the law only when the law yields determinate results. Together, these two theses provide an original and powerful theory of adjudication in sharp contrast both to conservative theories that would restrict the scope of adjudication unduly, and to leftist critical theories that would liberate judges from the Rule of Law.

    • Law

Italian Constitutional Justice in Global Context


Author: Vittoria Barsotti,Paolo G. Carozza,Marta Cartabia,Andrea Simoncini
Publisher: Oxford University Press
ISBN: 0190214562
Category: Law
Page: 256
View: 7212
Italian Constitutional Justice in Global Context is the first book ever published in English to provide an international examination of the Italian Constitutional Court (ItCC), offering a comprehensive analysis of its principal lines of jurisprudence, historical origins, organization, procedures, and its current engagement with transnational European law. The ItCC represents one of the strongest and most successful examples of constitutional judicial review, and is distinctive in its structure, institutional dimensions, and well-developed jurisprudence. Moreover, the ItCC has developed a distinctive voice among global constitutional actors in its adjudication of a broad range of topics from fundamental rights and liberties to the allocations of governmental power and regionalism. Nevertheless, in global constitutional dialog, the voice of the ItCC has been almost entirely absent due to a relative lack of both English translations of its decisions and of focused scholarly commentary in English. This book describes the "Italian Style" in global constitutional adjudication, and aims to elevate Italian constitutional jurisprudence to an active participant role in global constitutional discourse. The authors have carefully structured the work to allow the ItCC's own voice to emerge. It presents broad syntheses of major areas of the Court's case law, provides excerpts from notable decisions in a narrative and analytical context, addresses the tension between the ItCC and the Court of Cassation, and positions the development, character, and importance of the ItCC's jurisprudence in the larger arc of global judicial dialog.

    • Business & Economics

The Structure of Liberty

Justice and the Rule of Law
Author: Randy E. Barnett
Publisher: Oxford University Press
ISBN: 019870092X
Category: Business & Economics
Page: 400
View: 6919
This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.

    • Philosophy

Legal Pragmatism

Community, Rights, and Democracy
Author: Michael Sullivan
Publisher: Indiana University Press
ISBN: 0253116988
Category: Philosophy
Page: 176
View: 7510
In Legal Pragmatism, Michael Sullivan looks closely at the place of the individual and community in democratic society. After mapping out a brief history of American legal thinking regarding rights, from communitarianism to liberalism, Sullivan gives a rich and nuanced account of how pragmatism worked to resolve conflicts of self-interest and community well-being. Sullivan's view of pragmatism provides a comprehensive framework for understanding democracy, as well as issues such as health care, education, gay marriage, and illegal immigration that will determine its character in the future. Legal Pragmatism is a bold, carefully argued book that presents a unique understanding of contemporary society, law, and politics.

    • Law

The Law of Nations and the United States Constitution


Author: Anthony J. Bellia Jr.,Bradford R. Clark
Publisher: Oxford University Press
ISBN: 0190666781
Category: Law
Page: 224
View: 3913
The Law of Nations and the United States Constitution offers a new lens through which anyone interested in constitutional governance in the United States should analyze the role and status of customary international law in U.S. courts. The book explains that the law of nations has not interacted with the Constitution in any single overarching way. Rather, the Constitution was designed to interact in distinct ways with each of the three traditional branches of the law of nations that existed when it was adopted--namely, the law merchant, the law of state-state relations, and the law maritime. By disaggregating how different parts of the Constitution interacted with different kinds of international law, the book provides an account of historical understandings and judicial precedent that will help judges and scholars more readily identify and resolve the constitutional questions presented by judicial use of customary international law today. Part I describes the three traditional branches of the law of nations and examines their relationship with the Constitution. Part II describes the emergence of modern customary international law in the twentieth century, considers how it differs from the traditional branches of the law of nations, and explains why its role or status in U.S. courts requires an independent, context-specific analysis of its interaction with the Constitution. Part III assesses how both modern and traditional customary international law should be understood to interact with the Constitution today.

    • Philosophy

Reasons as Defaults


Author: John F. Horty
Publisher: OUP USA
ISBN: 0199744076
Category: Philosophy
Page: 256
View: 3145
In this volume, John Horty brings to bear his work in logic to present a framework that allows for answers to key questions about reasons and reasoning, namely: What are reasons, and how do they support actions or conclusions?

    • Philosophy

Good Neighbors

The Democracy of Everyday Life in America
Author: Nancy L. Rosenblum
Publisher: Princeton University Press
ISBN: 1400881315
Category: Philosophy
Page: 312
View: 523
"Love thy neighbor" is an impossible exhortation. Good neighbors greet us on the street and do small favors, but neighbors also startle us with sounds at night and unleash their demons on us, they monitor and reproach us, and betray us to authorities. The moral principles prescribed for friendship, civil society, and democratic public life apply imperfectly to life around home, where we interact day to day without the formal institutions, rules of conduct, and means of enforcement that guide us in other settings. In Good Neighbors, Nancy Rosenblum explores how encounters among neighbors create a democracy of everyday life, which has been with us since the beginning of American history and is expressed in settler, immigrant, and suburban narratives and in novels, poetry, and popular culture. During disasters, like Hurricane Katrina, the democracy of everyday life is a resource for neighbors who improvise rescue and care. Degraded, this framework can give way to betrayal by neighbors, as faced by the Japanese Americans interned during World War II, or to terrible violence such as the lynching of African Americans. Under extreme conditions the barest act of neighborliness is a bulwark against total ethical breakdown. The elements of the democracy of everyday life—reciprocity, speaking out, and "live and let live"—comprise a democratic ideal not reducible to public principles of justice or civic virtue, but it is no less important. The democracy of everyday life, Rosenblum argues, is the deep substrate of democracy in America and can be its saving remnant.

    • Law

The Transformation of Enforcement

European Economic Law in a Global Perspective
Author: Hans W Micklitz,Andrea Wechsler
Publisher: Bloomsbury Publishing
ISBN: 1849468923
Category: Law
Page: 336
View: 4811
This insightful book considers the phenomenon of the transformation of enforcement in European economic law while adopting a distinct global perspective. The editors identify and respond to the need for reflection on transformation processes in the area of enforcement by bringing together the leading international and European scholars in a variety of disciplines to share and compare experiences and learning in different areas of law. Rooted in a wide and regulatory understanding of enforcement, this book showcases the transformation of enforcement with reference to both European economic law (especially transnational commercial law, competition law, intellectual property law, consumer law) and to the current context of significant global economic challenges. Comparative perspectives facilitate the formation of a holistic perspective on enforcement that reaches beyond distinct theoretical accounts, political agendas, regulatory systems, institutional patterns, particular remedies, industry sectors, and stakeholder perspectives. As the first comprehensive and comparative analysis of the enforcement of European economic law that reaches beyond closely confined areas of law, it constitutes a crucial contribution to the theoretical and policy questions of how to design a coherent European enforcement architecture in accordance with essential principles and objectives of the EU economic order This unique study will have broad appeal. By exploring enforcement transformations from a legal and a cross-disciplinary perspective, it will be essential reading for scholars, practitioners and policymakers from different disciplines.

    • Law

The Oxford Handbook of Jurisprudence and Philosophy of Law


Author: Jules Coleman,Scott Shapiro
Publisher: OUP Oxford
ISBN: 9780199270972
Category: Law
Page: 1072
View: 5689
The Oxford Handbook of Jurisprudence and Philosophy of Law brings together specially commissioned essays by twenty-six of the foremost legal theorists currently writing, to provide a state-of-the-art overview of jurisprudential scholarship.