Página 1 dos resultados de 1173 itens digitais encontrados em 0.034 segundos

The concepts and methods of reasoning of the new public law: legitimacy

Harlow, Carol
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em //2010 Português
Relevância na Pesquisa
670.0515%
In the context of rule-making by transnational bodies, this paper explores the concept of legitimacy in the literature of law and political science. The European Union, the most institutionally developed form of transnational governance, with lawmaking structures in place that can be characterised as 'legislative', is throughout taken as paradigm. Section 2 discusses the view that legitimacy is largely a 'new' concept in public law and that lawyers tend to bypass questions of legitimacy with resort to better-known doctrines of sovereignty, primacy, human rights and the rule of law. Section 3 deals with consent, delegation and the 'output legitimacy' of efficiency and expertise, as the basis for legitimating the activities of transnational institutions. Section 4 turns to democracy, representative and popular, arguably the most potent legitimating device in modern times. Section 5 treats the case of the judiciary, responsible for formulating general principle and human rights standards but increasingly facing a multiplicity of national and transnational with complex and overlapping jurisdictions. The paper concludes that the many challenges for legal theorists and practitioners stemming from the rapid growth of norm-producing international bodies are more likely to be resolved by the application of ideas of legal pluralism than through the concept of legitimacy...

Why should it matter that others have more? Poverty, inequality and the potential of international Human Rights Law

Salomon, Margot E.
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em //2010 Português
Relevância na Pesquisa
664.9117%
A concern with ensuring minimum standards of dignity for all and a doctrine based on the need to secure for everyone basic levels of rights have traditionally shaped the way in which international human rights law addresses poverty. Whether this minimalist, non-relational approach befits international law objectives in the area of world poverty begs consideration. This paper offers three justifications as to why global material inequality – and not just poverty – should matter to international human rights law. The paper then situates requirements regarding the improvement of living conditions, a system of equitable distribution in the case of hunger, and in particular obligations of international cooperation within the post-1945 international effort at people-centred development. The contextual consideration of relevant tenets serves to demonstrate that positive international human rights law can be applied beyond efforts at poverty alleviation to accommodate a doctrine of fair global distribution.

Seizing truths: art, politics, law

Stramignoni, Igor
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em //2010 Português
Relevância na Pesquisa
662.7629%
The work of French philosopher Alain Badiou has been described as the most powerful alternative yet conceived in France to the various forms of postmodernism that arose after the collapse of the Marxist project. Art interests Badiou in its own right but also as both that which, in the twentieth century, eclipsed philosophy and as that which today philosophy, increasingly de-sutured from art, must imitate in order to make clear that there are truths after all. Badiou conceives of law, on the other hand, as part and parcel of a specific political machine that must continuously perform certain problematic exclusions if it is to keep the fiction of parliamentary democracy together. So how is the relationship between art and law, between the poet and the city, in Badiou’s oeuvre?

Judicial review at the margins: law, power, and prerogative

Poole, Thomas
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em //2010 Português
Relevância na Pesquisa
666.20836%
This essay on judicial review approaches its subject obliquely. It focuses on a particular site of constitutional abnormality: prerogative power. An analysis of the various iterations, historical and contemporary, between law and prerogative in its specific, rooted setting provides the basis for a more general account of the contemporary nature and role of judicial review, at a time when we appear to be entering a new ‘age of prerogative’ based on the politics of security and fear.

"Globalising sovereignty"? Pettit's neo-republicanism, international law and international institutions

Thomas, Christopher Alexander
Fonte: Faculty of Law, University of Cambridge Publicador: Faculty of Law, University of Cambridge
Tipo: Article; PeerReviewed Formato: application/pdf
Publicado em //2015 Português
Relevância na Pesquisa
669.12625%
This article explores Philip Pettit’s recent attempts to extend his republican theory of justice and legitimacy to the international sphere in accordance with his ideal of “globalised sovereignty”; with a specific focus on his treatment of international law and institutions. It uses the practice of international law and institutions, with examples largely drawn from international economic law, to test the assumptions built into Pettit’s theory. It then considers whether and how some of those assumptions might need to be revised in light of the legal, institutional and practical constraints of the international domain.

“Rule by man” and “rule by law” in early Republican China: contributions to a theoretical debate

Jenco, Leigh K.
Fonte: Cambridge University Press on behalf of the Association for Asian Studies Publicador: Cambridge University Press on behalf of the Association for Asian Studies
Tipo: Article; PeerReviewed Formato: application/pdf
Publicado em //2010 Português
Relevância na Pesquisa
665.6992%
“Rule by man” and “rule by law” are frequently invoked categories in Chinese political discourse past and present, but their theoretical scope and possible interpretation remain highly controversial. Seeking to gain analytical traction on these categories, the author revisits an early Republican debate over whether virtuous men or well-designed institutions were more essential to securing political stability and social transformation in the aftermath of China's 1911 Republican Revolution. Focusing on the work of Liang Qichao, Zhang Shizhao, and their interlocutors, the author shows how “man” and “law” not only play roles in legitimizing one or another form of rule, but also help formulate questions about the interaction between individual effort and institutional influence. Viewed from this theoretical rather than historical angle, the debates become important not only for understanding wider issues in early Republican political discourse, but also for critically interrogating their contemporary variants from Chinese—rather than Western liberal-democratic—perspectives.

Compliance with the law and policing by consent: notes on police and legal legitimacy

Jackson, Jonathan; Bradford, Ben; Hough, Mike; Murray, K. H.
Fonte: Routledge Publicador: Routledge
Tipo: Book Section; NonPeerReviewed Formato: application/pdf
Publicado em /07/2012 Português
Relevância na Pesquisa
667.3935%
This article summarises ‘procedural justice’ approaches to policing, contrasting these to the more politically dominant discourse about policing as crime control. It argues that public trust in policing is needed partly because this may result in public cooperation with justice, but more importantly because public trust in justice builds institutional legitimacy and thus public compliance with the law, and commitment to, the rule of law. We define police legitimacy as obligation to obey and moral alignment. We link police legitimacy to legal legitimacy/cynicism, and both to compliance with the law. Some recent survey findings are presented in support of this perspective.

Hybrid norms in international law

Heyvaert, Veerle
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /01/2009 Português
Relevância na Pesquisa
665.6358%
The paper analyses the emergence of legal provisions in international law that can neither be categorised as hard law or soft law, but contain elements of both. It identifies such provisions as 'hybrid norms.' The paper examines common but differentiated responsibilities (CBDRs) for financial and technical assistance under the Stockholm Convention on Persistent Organic Pollutants, and argues that the implementation of State responsbilities for assistance through a heterarchical implementation network, involving the cooperation between State and transnational actors, hybridises the international legal framework. While hybridisation is a productive response to the challenge of regulating global risks, it also puts pressure on the adoption of enforcement mechanisms and problematises the communicative role of international law. The paper preliminarily maps out three responses to the challenges of hybridisation: a conservative response, a contractual one, and an administrative response.

Rethinking the role of the law of corporate distress in the Twenty-First century

Paterson, Sarah
Fonte: The London School of Economics and Political Science, Department of Law Publicador: The London School of Economics and Political Science, Department of Law
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em //2014 Português
Relevância na Pesquisa
667.0958%
Thomas Jackson famously described the role of all bankruptcy law as reducing the incentive for individual enforcement against the assets of a distressed company. Although scholars have debated other aspects of Jackson’s thesis, most have continued to identify with this as the central tenet of bankruptcy law. This paper proposes a new taxonomy: the law of corporate distress comprised of insolvency law and restructuring law. It argues that Thomas Jackson’s description remains apt for part of that taxonomy but draws a distinction between the constituent parts. It reframes the unifying aim of the law of corporate distress as the facilitation of the reallocation of resource in the economy to best use and draws a distinction between insolvency law’s role in reducing the incentive for individual enforcement and restructuring law’s role in providing a deadlock resolution procedure. Adopting a comparative Anglo-American approach it examines the implications of this distinction for insolvency law and restructuring law in the twenty-first century.

Intel and article 102 TFEU case law: making sense of a perpetual controversy

Ibáñez Colomo, Pablo
Fonte: The London School of Economics and Political Science, Department of Law Publicador: The London School of Economics and Political Science, Department of Law
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em 26/11/2014 Português
Relevância na Pesquisa
669.12625%
In June 2014, the General Court of the EU delivered its judgment in Intel. The debates to which it has given rise in less than six months suggest that the controversy about the legal treatment of exclusive dealing and rebates under Article 102 TFEU is still very much alive. This piece seeks to make sense of the persistence of academic and non-academic discussions around the question. It appears that the real reasons behind the contentious status of the relevant case law are more limited in their nature and scope than commonly assumed. Ongoing disagreements are merely the manifestation of what can be termed a ‘friction’ in the case law. If rulings like Intel (and previous ones like Michelin II and British Airways) are contested, this is so because they are difficult to reconcile with other judgments addressing the same or comparable issues. First, the case law on, respectively, article 101 and 102 TFEU is based on mutually incompatible premises. Secondly, and to the extent that there is no reason to presume that exclusivity and rebate schemes are implemented for anticompetitive purposes and/or to assume that they harm the competitive process, they would be assessed more sensibly under a standard – as ‘margin squeeze’ abuses and selective price cuts already are.

Recasting monism and dualism in European parliamentary law: The Lisbon Treaty in Britain and France

Jancic, Davor
Fonte: University of Belgrade, Institute of Comparative Law and Institute of International Politics and Economics Publicador: University of Belgrade, Institute of Comparative Law and Institute of International Politics and Economics
Tipo: Book Section; PeerReviewed Formato: application/pdf
Publicado em /06/2013 Português
Relevância na Pesquisa
663.9866%
This chapter analyses the relevance of international law concepts of monism and dualism in the legal and political system of the European Union through the lens of national parliaments as inescapable ingredients in giving international law effect in domestic legal orders. We inquire about the reaction of the national parliaments of the United Kingdom and France, as examples of dualist and monist states, to three aspects of the Lisbon Treaty that most affect the European role of national parliaments: the EU’s call for national parliaments to monitor the EU institutions’ adherence to the principle of subsidiarity, the EU’s call for national parliaments to contribute to the good functioning of the Union and the extension of the scope of the codecision procedure. The main argument of this chapter is that although the EU is in many respects a monist constitutional setup that denies significance to the logic of mutual structuring of legal orders espoused in international law, the concepts of monism and dualism retain their explanatory force as regards the manner in which domestic parliaments shape their relations with the European Union.

Between freedom and law: Hannah Arendt on the promise of modern revolution and the burden of ‘the tradition’

Wilkinson, Michael
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em 29/06/2011 Português
Relevância na Pesquisa
663.9866%
What are the juridical implications of Hannah Arendt’s conception of freedom as political rather than personal, based on action in the circumstances of plurality rather than an absence of interference in the context of isolated contemplation? This is not a question of mere philosophical speculation. According to Arendt, the experience of modern revolution, beginning in America and France at the end of the 18th century, marks the appearance of freedom as a worldly, political phenomenon with the potential to change our understanding of the constitutional foundations of authority. And yet this potential is betrayed due to the inability of our juridical imagination to escape two conceptual dead-ends: the image of law as command and the model of constitutionalism as a process of fabrication, both of which, in different ways, suppress our sense of political freedom by expressing constitutional foundations in terms of sovereign ‘absolutes’. In so doing the modern juridical imagination neglects the significance of two older conceptions of law, the Greek nomos and the Roman lex, neither of which depend upon such absolutist foundations. The Roman lex might suggest a way out of this conceptual impasse, by conceiving law as relational, dynamic...

Legal transplants in patent law: why utility is the new industrial applicability

Thambisetty, Sivaramjani
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /04/2008 Português
Relevância na Pesquisa
663.9866%
This paper focuses on the transplantation of the ‘utility standard’ from the US legal system into the industrial applicability criterion of patentability as seen in EPO and UKIPO case law. The Specific, Substantial and Credible standard (SSCS) of utility is growing in prominence as a new gatekeeping criterion in European patent law. This legal transplant lacks explicit statutory basis, is largely driven by a process of mimesis following collaboration between patent offices, and carries the potential to generate collateral damage to a number of neighbouring legal standards in European patent law. The SSCS potentially undermines the ‘technical’ requirement in Europe and highlights a growing conflation between industrial applicability and disclosure requirements. Additionally the SSCS may increase research tool patentability in Europe, a development that exposes potential inadequacies in the institutional arrangements of the receiving legal system. The legal transplant is aided by institutional dynamics that incrementally entrench a policy choice or legal standard, accompanied by little or no discussion on its viability and legitimacy. The significant normative impact of the process of transplantation of the SSCS places the patent office at the centre of legal and policy change – an entity that is arguably not fit for this purpose.

We are teachers of International Law

Craven, Matthew; Simpson, Gerry; Marks, Susan; Wilde, Ralph
Fonte: Cambridge University Press for The Foundation of the Leiden Journal of International Law Publicador: Cambridge University Press for The Foundation of the Leiden Journal of International Law
Tipo: Article; PeerReviewed Formato: application/pdf
Publicado em //2004 Português
Relevância na Pesquisa
667.90266%
In the general debate prior to the onset of war in Iraq, we made public our view, in a letter to the Guardian newspaper, that the war could be justified neither by reference to earlier UN Security Council resolutions nor by way of the doctrine of self-defence. In this article we reflect on some of the anxieties we experienced both before and after that ‘intervention’ in terms of the vision of international law we might unwillingly promote, and in terms of the role we appeared to assume for ourselves, and our professional colleagues, in public debate. Despite our efforts to prevent legal issues from dominating, we came to be viewed as the defenders of an anti-hegemonic legality – resisting the erosion by an opportunistic coalition of the principles of sovereignty, non-intervention, and collective security. We were concerned that this made us appear champions of international law in a way with which none of us was entirely comfortable. On the other hand, in contesting that, we seemed in danger of valorising a politics of expertise that gave international lawyers a privileged position within the debate. We reflect, then, on the consequences, intentional or otherwise, of our intervention, and explore the dilemmas associated with it. The problem with which we finally grapple is whether the relationship between critical scholarship and the techniques associated with it (anti-formalism...

Comparative constitutional law in the courts: reflections on the originalists’ objections

Murkens, Jo Eric Khushal
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /10/2008 Português
Relevância na Pesquisa
666.696%
The controversy surrounding the judicial use of comparative constitutional law is not new. However, the debate has recently been reignited by a number of US Supreme Court justices who have spoken out on the use of non-US law in the Court. Scalia opposes, and Breyer favours, references to ‘foreign law’. Their comments, made both within and outside of the Court, have led to a reaction by scholars. Arguably the debate is US-specific as it resembles the different views regarding constitutional interpretation, namely whether the Constitution’s original, or rather its current, meaning is determinative. Yet the debate also raises broader issues of constitutional theory and politics: formal vs substantive legitimacy, globalisation of the courts, judicial sleight of hand, the cultural foundations of constitutional law, and the citation of non-primary sources of law in litigation. The present article explores these issues. It rejects radical approaches (either against or in favour of comparative constitutional law) and instead argues for a more modest process which both identifies the national specificity of law and grasps the mediating potential of law as a self-reflexive discourse.

In defence of the common law constitution: unwritten rights as fundamental law

Allan, T. R. S.
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /01/2009 Português
Relevância na Pesquisa
665.6358%
Brudner argues that liberal constitutionalism, or the rule of Law, requires the adoption of a written constitution, regulating the respective powers of court and legislature. In his analysis, the common law constitution is associated with a libertarian paradigm that gives way, in part, to an egalitarian one embodied in a sovereign constitutional text. I argue, to the contrary, that the preservation of the rule of Law, including the protection of liberal rights, does not require a codified constitution, but demands only the consistent application of the correct legal principles to particular cases. Statutes must always be interpreted consistently with such principles: their meaning and validity are alike dependent on their compatibility with fundamental constitutional rights. Demands that cannot be acknowledged as legitimate requirements by an independent moral agent cannot qualify as law.

Constitutional exceptionalism and the common law

Poole, Thomas
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /10/2008 Português
Relevância na Pesquisa
664.9117%
This paper examines the notion of exceptionalism, currently pervasive within constitutional discourse. The term ‘exceptionalist’ is used in this context to indicate a measure which deviates from normal constitutional standards and is, by virtue of that deviation, seen as inappropriate or regrettable. The paper avoids a direct focus on the debate about terrorism, concentrating instead on more conceptual matters – and particularly the ‘fit’ between this discourse and the ‘common law constitution’. Part I turns to John Locke and uses his theory of the prerogative as a means of highlighting the difficulty of determining what counts as ‘exceptional’ in this, our ‘age of statutes’. Part II raises concerns about the common law constitutionalists’ theory of emergency powers, articulated most skilfully by Dyzenhaus, and argues that this theory rests on a mistaken understanding of the nature of common law. Part III addresses the issue of extra-constitutionality and common law more generally, taking as its focus the ‘extra-legal measures model’ of emergencies advocated by Gross and Tushnet. On the back of this critical, the paper ends by raising questions about the ‘public role’ of constitutional scholars: have we been too ready...

Between the devil and the deep blue sea: administrative law in an age of rights

Poole, Thomas
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em 30/07/2008 Português
Relevância na Pesquisa
664.9117%
This paper reflects on the impact of the new jurisprudence of rights on administrative law. It does so by examining two approaches: that adopted by the English courts since 1998, and that followed by Australian courts over roughly the same period. The Australian response has been to sideline human rights and foreign developments relating to them. Rules are preferred to principles, and strict textual exegesis is prized above context-sensitive adjudication. The analysis of English developments presents a contrasting picture of courts almost awash on a sea of principles. Pre-existing rules have been partially abandoned or downgraded. Principles have sprung up in their place and courts have opened themselves up to international law and the decisions of foreign courts. The paper argues that we are far from seeing the realisation of a normatively unified 'common law of judicial review' anticipated by some. Normative heterogeneity within a shared but relatively loose juridical framework in part produced by trasnational dialogues is a more likely future for common law jurisdictions.

Utility and rights in common law reasoning: rebalancing private law through constitutionalization

Collins, Hugh
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /09/2007 Português
Relevância na Pesquisa
676.2293%
In the evolution of private law, legal reasoning has always confronted the fundamental problem of reconciling private interests with collective goods. Philosophers analyse this problem of justice in terms of protecting individual rights whilst at the same time maximizing utility or general welfare. The private law of tort, contract, and property rights that emerged in the nineteenth century provided a fortress of protections for individual rights, but the consequences for collective welfare were quickly found wanting. These consequences were addressed by the welfare state, regulation, and the separation of new spheres of private law such as consumer law and labour law from mainstream doctrine. By the second half of the twentieth century, however, these regulatory measures had triggered a marked shift in private law reasoning as a whole, which became more instrumental or policy oriented. It evolved into a hybrid of the old private interest reasoning and modern policy oriented regulatory reasoning. At extreme moments, common law reasoning was almost reduced to a variant of economic reasoning concerned with maximizing wealth. In reaction, what is happening now is the search for ways to rebalance the underlying values of utility and rights. The task is to construct a legal language through which private law can be reoriented in ways which both give full weight to a wide range of individual rights and at the same time serve collective interests. The increasingly popular method for achieving this task involves the constitutionalization of private law. By grounding the principles of private law in the general principles and abstract rights found in constitutions...

When sexual infidelity triggers murder: examining the impact of homicide law reform on judicial attitudes in sentencing

Horder, Jeremy; Fitz-Gibbon, Kate
Fonte: Faculty of Law, University of Cambridge Publicador: Faculty of Law, University of Cambridge
Tipo: Article; PeerReviewed Formato: application/pdf
Publicado em //2015 Português
Relevância na Pesquisa
663.9866%
In October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of “loss of control”, applicable to England, Wales, and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendant's culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the reforms respecting the substantive law by effecting a corresponding change in sentencing practice.