Helge Dedek and Martin Schermaier (McGill University - Faculty of Law and Rheinische Friedrich-Wilhelms-Universität - Institute of Roman Law and Comparative Legal History) have posted German Law (Elgar Encyclopedia of Comparative Law, edited by Jan Smits, Second Edition (Cheltenham: Edward Elgar, 2012), pp. 349-370) on SSRN. Here is the abstract:
This chapter, which forms part of the “Elgar Encyclopedia of Comparative Law” (ch. 30), aims at a short introduction into the main features of Germany’s legal system and legal culture.
Israel is one of the most litigious societies on earth, having the most lawyers per capita of any democracy. Yet, litigation and social change may be perceived as oxymoron. Litigation is a court-centered process that deals essentially with resolution of limited disputes in a narrow legalistic sense, whereas social change is most often the result of large-scale political reform. While litigation is delivered by lawyers, social reforms are generated by social and political organizations. Research has demonstrated that the ability of litigation to bring about socio-legal change is modest, at most, and any such change is usually very limited. Relatively few cases have resulted in changes that extend beyond the immediate specific legal remedy granted therein. Below, I address both the sociopolitical thresholds that may prevent litigation from being helpful to minorities trying to effect change and the legal sociopolitical calculus that should guide their decision whether to use litigation.
Libertarians do not fit into the left-right spectrum very comfortably; by their own account, they transcend it. This brief paper, written for a Chapman Law Review symposium on libertarian legal theory, argues that libertarians should likewise transcend the dichotomy currently dividing constitutional theory. The Left tends to regard the Constitution as adaptable to current needs and defined by judicial authority; the Right tends to search the historical record for the Constitution’s original meaning. Each of those conventional approaches has its own virtues and vices. Combining the best of both — the responsiveness of living constitutionalism and the textual fidelity of originalism — generates a distinctly libertarian theory designed to maximize the consent of the governed and, thus, the justifiability of constitutional authority.
What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality, and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side's answers withstand close scrutiny. In this Article we develop an alternative explanation which is based on the principal-agent model of domestic governance. We pry open the black box of "the state," and examine the complex interaction between the civilian and military apparatuses seething beneath the veil of sovereignty. Our point of departure is that military conflicts raise significant intra-state conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nations' interests are likely to prefer that warfare be regulated by international norms. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that, as a practical matter, international law enhances the ability of states to amass huge armies, because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run it strengthens the state against its enemies.
Legal theorists consider their discipline as an objective endeavour in line with other fields of science. Objectivity in science is generally regarded as a fundamental condition, informing how science should be practised and how truths may be found. Objective scientists venture to uncover empirical truths about the world and ought to eliminate personal biases, prior commitments and emotional involvement. However, legal theorists are inevitably bound up with a given legal culture. Consequently, their scholarly work derives at least in part from this environment and their subtle interaction with it. This book questions critically, in novel ways and from various perspectives, the possibilities of objectivity of legal theory in the twenty-first century. It transpires that legal theory is unavoidably confronted with varying conceptions of law, underlying ideologies, approaches to legal method, argumentation and discourse etc, which limit the possibilities of 'objectivity' in law and in legal reasoning. The authors of this book reveal some of these underlying notions and discuss their consequences for legal theory.
Jaakko Husa is Professor of Legal Culture and Legal Linguistics at the University of Lapland.
Mark Van Hoecke is Research Professor of Legal Theory and Comparative Law at the University of Ghent.
January 2013 278pp Hbk 9781849464413 RSP: £50 / €65 / US $100
If you would like to place an order you can do so through the Hart Publishing website (links below). To receive the discount please mention ref: ‘LTBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.
Tarunabh Khaitan (University of Oxford - Faculty of Law) has posted Prelude to a Theory of Discrimination Law (Deborah Hellman and Sophia Moreau eds, Philosophical Foundations of Discrimination Law, Oxford University Press, 2013) on SSRN. Here is the abstract:
This paper engages with George Rutherglen's pessimistic view of the possibility of theorising about discrimination law. Part I will deal with the claim that discrimination law lacks internal coherence, that there is no common thread running through all the norms that together constitute the body of law we call ‘discrimination law.’ I will show that this it is possible to identify three conditions which are individually necessary and cumulatively sufficient for characterising a norm as a norm of discrimination law.
The second aspect of Rutherglen’s paper, which I will uncover in Part II, is based on an important assumption that the proper role of legal theory is to determine the outcome of adjudication in hard cases. I will show that this assumption — arising from Rutherglen’s commitment to the interpretive jurisprudence of Ronald Dworkin — is the main reason for his pessimistic conclusions regarding theoretical possibilities in discrimination law. I will also show that theorists who do not share this commitment — and perhaps even those who do — need not share Rutherglen’s pessimism.
These two — relatively independent — parts together constitute a prelude to a theory of discrimination law. The findings in Part I, if true, impose important constraints on any theoretical enterprise relating to discrimination law. Part II, on the other hand, highlights the numerous possibilities that lie beyond these minimal constraints.
Donald Earl Childress III (Pepperdine University School of Law) has posted The Role of Ethics in U.S. Private International Law (in The Role of Ethics in International Law (Donald Earl Childress III, ed., Cambridge University Press 2011) on SSRN. Here is the abstract:
This chapter focuses on the role of ethics in United States private international law. The chapter explores the common law ethos of judicial decision making that grounds the U.S. experience with law generally. The resolution of legal disputes in the United States is a part of an ongoing legal and ethical conversation within a community’s law. When courts are asked, however, to examine private international law cases, the chapter argues that the conversation is at risk of breaking down, either because cases stand outside the Anglo-American tradition or because of unique facts that stretch positive and common law decision making beyond the bounds previously encountered in case law. The chapter shows that courts have looked to the conflict-of-law tradition for answers. The chapter proposes that a focus of future private international law scholarship should be to (a) define or refine the criteria for assessing ethical judgment in the multistate transnational context and (b) define the circumstances under which ethics and ethical reasoning can tip the scale in transnational cases, if at all.
The paper explores a claim made by Hermann Ulrich Kantorowicz in a historically signification pamphlet, which may in some respect well have prepared the intellectual ground for the American legal realist movement. The claim is that the legal science is a source of law. It is startling, to say the least, to find this claim articulated in the context of a piece of "sociological" jurisprudence. The paper then contrasts Kantorowicz's claim with the the parallel claim made by the historical school and concludes that the ideas articulated by its members - Georg Friedrich Puchta, in particular - were exceedingly more plausible. In order to understand this, however, it is necessary to conceive of all legal knowledge as a species of self-knowledge. This is the idea that the paper tries to make plausible and, indeed, to defend.
In his article Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, Judge Richard Posner urges his judicial colleagues to be mindful of their limitations - the limitations of his knowledge of the law, the limitations of his knowledge of the case at hand, the limitations of his knowledge of the real-world context of the case, and the limitations (or distortions) of his thinking that result from the biases that all judges bring to judging.
This essay, part of a symposium devoted to Judge Posner's article, seeks both to amplify this insight, in part by suggesting that Judge Posner's analysis and prescriptions are affected by his own limitations. His career experiences, substantial intellect, and ability to write quickly render him unable to appreciate fully the capacities and perspectives of his judicial colleagues and the lawyers who appear before him. This results in him asking lawyers to provide information that they are unable to deliver, or that his judicial colleagues are unwilling (or unable) to put to appropriate use. I further contend that mere exhortation that judges be mindful of their limitations, and that lawyers be mindful of the needs of judges is not enough. The systems and processes of adjudication must be tweaked to account for participants' limitations, and to provide greater incentives for appropriate action.
The essay also explores Judge Posner's treatment of appeals in criminal cases, which reflects acceptance of the widespread assumption that factual guilt is established in these cases. This assumption, I suggest, represents another failure to recognize the limitations of the various actors in the criminal justice system.