Legalism Against Democracy

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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..

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).

Comparative scholarship on judicial review has paid a lot of attention to the causal impact of politics on judicial decision-making. However, the slower-moving, macro-social process through which judicial review influences societal conceptions of the law/politics relation is less well understood. Drawing on the political science literature on institutional change, The Politico-Legal Dynamics of Judicial Review tests a typological theory of the evolution of judicial review regimes - complexes of legitimating ideas about the law/politics relation. The theory posits that such regimes tend to conform to one of four main types - democratic or authoritarian legalism, or democratic or authoritarian instrumentalism. Through case studies of Australia, India, and Zimbabwe and a comparative chapter analyzing ten additional societies, the book then explores how actually-existing judicial review regimes transition between these types. This process of ideational development, Roux concludes, is distinct both from the everyday business of constitutional politics and changes to the formal constitution..

This book is at odds with the presuppositions behind a received view on law as a systematic solution to social problems in the name of justice. It argues that neither do facts in law represent social reality, nor do norms represent a moral ideal. Representationalism as such, in its various legal guises, is put to the test of what is called here `the interception hypothesis'. Although it is derived from the theory of literature (the theory of narrative) and corroborated by several close reading analyses of legal texts (both decisions and statutory rules), this hypothesis aims, in the first part, at providing an alternative model for the structure and the value of legal knowledge. The second part shows how this knowledge is operative in fundamental concepts like democracy, punishment and (contractual) obligation..

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The first months of the Obama administration have led to expectations, both in the United States and abroad, that in the coming years America will increasingly promote the international rule of law—a position that many believe is both ethically necessary and in the nation’s best interests. With The Perils of Global Legalism, Eric A. Posner explains that such views demonstrate a dangerously naive tendency toward legalism—an idealistic belief that law can be effective even in the absence of legitimate institutions of governance. After tracing the historical roots of the concept, Posner carefully lays out the many illusions—such as universalism, sovereign equality, and the possibility of disinterested judgment by politically unaccountable officials—on which the legalistic view is founded. Drawing on such examples as NATO’s invasion of Serbia, attempts to ban the use of land mines, and the free-trade provisions of the WTO, Posner demonstrates throughout that the weaknesses of international law confound legalist ambitions—and that whatever their professed commitments, all nations stand ready to dispense with international agreements when it suits their short- or long-term interests. Provocative and sure to be controversial, The Perils of Global Legalism will serve as a wake-up call for those who view global legalism as a panacea—and a reminder that international relations in a brutal world allow no room for illusions..

Examines recent debates in constitutional theory in light of the work of Alexander Bickel..

Incisively and stylishly written, this book constitutes an open challenge to reconsider the fundamental question of the relationship of law to society..

While human rights have been enjoying unprecedented salience, the concept of the citizen has been significantly challenged. Rising ethical concerns, the calling into question of state sovereignty, and the consolidation of the human rights regime, have all contributed to a shift in focus: from an exclusionary, problematic citizenship to human rights. Human Rights or Citizenship? examines this shift and explores its implications for democracy. In an accessible way, the book explores the arguments within contemporary democratic theory that privilege law and legally codified human rights over citizenship; questioning whether legalism alone could lead us to a better, more equitable politics. Does the prioritisation of law and legally codified human rights risk depoliticisation? Do human rights always contest relations of power and subordination? Addressing these questions, Human Rights or Citizenship? opens a debate about the role of citizenship and human rights in democracy. It will be invaluable reading for anyone interested in democratic politics today..

The Partisan Republic is the first book to unite a top down and bottom up account of constitutional change in the Founding era. The book focuses on the decline of the Founding generation's elitist vision of the Constitution and the rise of a more 'democratic' vision premised on the exclusion of women and non-whites. It incorporates recent scholarship on topics ranging from judicial review to popular constitutionalism to place judicial initiatives like Marbury vs Madison in a broader, socio-legal context. The book recognizes the role of constitutional outsiders as agents in shaping the law, making figures such as the Whiskey Rebels, Judith Sargent Murray, and James Forten part of a cast of characters that has traditionally been limited to white, male elites such as James Madison, Alexander Hamilton, and John Marshall. Finally, it shows how the 'democratic' political party came to supplant the Supreme Court as the nation's pre-eminent constitutional institution..

Provides a comparative analysis of the ideational dimension of judicial review and its potential contribution to democratic governance..

Offering a single, coherent framework of the political, economic, and social phenomena that characterize post-communist regimes, this is the most comprehensive work on the subject to date. Focusing on Central Europe, the post-Soviet countries and China, the study provides a systematic mapping of possible post-communist trajectories. At exploring the structural foundations of post-communist regime development, the work discusses the types of state, with an emphasis on informality and patronalism; the variety of actors in the political, economic, and communal spheres; the ways autocrats neutralize media, elections, etc. The analysis embraces the color revolutions of civil resistance (as in Georgia and in Ukraine) and the defensive mechanisms of democracy and autocracy; the evolution of corruption and the workings of “relational economy”; an analysis of China as “market-exploiting dictatorship”; the sociology of “clientage society”; and the instrumental use of ideology, with an emphasis on populism. Beyond a cataloguing of phenomena—actors, institutions, and dynamics of post-communist democracies, autocracies, and dictatorships—Magyar and Madlovics also conceptualize everything as building blocks to a larger, coherent structure: a new language for post-communist regimes. While being the most definitive book on the topic, the book is nevertheless written in an accessible style suitable for both beginners who wish to understand the logic of post-communism and scholars who are interested in original contributions to comparative regime theory. The book is equipped with QR codes that link to www.postcommunistregimes.com, which contains interactive, 3D supplementary material for teaching..

This book shows how significant a worldwide constitutional framework can be, both analytically and politically, in efforts to achieve a just and lasting peace. The authors are careful to avoid the pitfalls of legalism and moralism that have often afflicted discussion of world governance in the past, and their analyses are rooted directly within contemporary human struggles for peace, justice, prosperity, and environmentally sustainable societies. The authors demonstrate that when these struggles are examined in light of the planet's changing constitutional framework, their origins and future trajectories are more fathomable intellectually. By examining alternative images of world order, these authors uncover an abundance of practical yet bold policy recommendations for addressing and solving global problems. They also demonstrate that implementing desirable policies can indeed become politically feasible. This book is a compendium of new ideas for managing threats to peace, enhancing U. N. peacekeeping, establishing an effective global environmental authority, aiding the faltering global economy, nurturing the growth of democracy both locally and globally, protecting human rights and ethnic diversity, holding governments and intergovernmental organizations accountable to those they govern, and nurturing humanitarian values among all people..

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