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Legal Order (legal + order)
Selected AbstractsAcquiring a Community: The Acquis and the Institution of European Legal OrderEUROPEAN LAW JOURNAL, Issue 4 2003Hans Lindahl The emblematic manifestation of this passage, in the framework of the European legal order, is the acquis communautaire: what is the nature of the process that leads from acquired community to acquiring a community? In a first, preparatory, step, it will be argued that determinate conceptions of truth, time and the giving and taking of reason underlie the process of acquiring a European community. These findings are confronted, in a second step, with Antonio Negri's theory of the multitude as a constituent power, which opposes revolutionary self-determination to representation. Deconstructing this massive opposition, this paper explores three ways in which representation is at work in revolutionary self-determination. As will become clear in the course of the debate, instituting (European) community turns on the interval linking and separating law ,and' disorganised civil society. [source] Loosing the Dragon: Charismatic Legal Action and the Construction of the Taiping Legal OrderLAW & SOCIAL INQUIRY, Issue 2 2010Glenn A. Trager This article develops the notion of legal charisma by analyzing the Taiping Rebellion in mid-nineteenth-century China. The concept of legal charisma seeks to capture those normally inchoate aspects of law that transcend its institutionalized incarnations and empower its subjects to act out visions of the universal, often in anarchic and unpredictable ways. The article further suggests that such charismatic legal behavior, in spite of its anarchic qualities, provides an important means through which systems of legal authority revitalize and strengthen their hold over legal subjects. The Taiping Rebellion provides an example of both these facets of legal charisma; the rebellion drew on visions of collective empowerment inherent in a newly articulated legal code to act out a challenge to existing social institutions,even as this same code came to assert an ever-tightening grip on the lives of the Taiping population. [source] Why the Open Method of Coordination Is Bad For You: A Letter to the EUEUROPEAN LAW JOURNAL, Issue 3 2007Vassilis Hatzopoulos Most writers explore the tentative outcomes of the method, since they lack a solid experimental background, against which to assess its actual effectiveness. Lately, however, some empirical studies have come to light. Among them, some fully discredit the OMC as a means of pursuing common policies at the EU level; while others recognise indirect effects, essentially at the national level of policy setting. On the basis of this assumption, i.e. that the OMC has only restricted direct effects in the short term and indirect effects in the medium to long term, the present article first puts forward a series of arguments against the current ,spread' of the OMC, and then offers some proposals on how to neutralise some of the identified shortfalls of the OMC. Despite the title of the article, the final conclusion is not for the demise of the OMC, but rather for its ,communautarisation'. It is put forward that both the application and the effects of the OMC should be more clearly defined and better integrated with the other pre-existing forms of cooperation, in accordance with basic requirements stemming from the Community legal order. [source] Looking for Coherence within the European Community*EUROPEAN LAW JOURNAL, Issue 2 2005Stefano Bertea It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists. [source] From European Integration to European Integrity: Should European Law Speak with Just One Voice?EUROPEAN LAW JOURNAL, Issue 3 2004Samantha Besson According to the European integrity principle, all national and European authorities should make sure their decisions cohere with the past decisions of other European and national authorities that create and implement the law of a complex but single European legal order. Only by doing so, it is argued, can the European political and legal community gain true authority and legitimacy in the eyes of the European citizens to whom all these decisions apply. Although European integrity is primarily a product of European integration, it has gradually become one of the requirements of further integration. The article suggests that the principle of European integrity would help dealing with the growing pressure for common European solutions under conditions of increasing diversity. It places disagreement at the centre of European politics, as both an incentive and a means of integration by way of comparison and self-reflectivity. It constitutes therefore the ideal instrument for a pluralist and flexible further constitutionalisation of the European Union. [source] Acquiring a Community: The Acquis and the Institution of European Legal OrderEUROPEAN LAW JOURNAL, Issue 4 2003Hans Lindahl The emblematic manifestation of this passage, in the framework of the European legal order, is the acquis communautaire: what is the nature of the process that leads from acquired community to acquiring a community? In a first, preparatory, step, it will be argued that determinate conceptions of truth, time and the giving and taking of reason underlie the process of acquiring a European community. These findings are confronted, in a second step, with Antonio Negri's theory of the multitude as a constituent power, which opposes revolutionary self-determination to representation. Deconstructing this massive opposition, this paper explores three ways in which representation is at work in revolutionary self-determination. As will become clear in the course of the debate, instituting (European) community turns on the interval linking and separating law ,and' disorganised civil society. [source] Administrative and Court Reform in Central and Eastern EuropeEUROPEAN LAW JOURNAL, Issue 3 2003Frank Emmert Only relatively recently, it was recognised that successful administrative and court reform would be just as necessary in order to achieve the desired goals, namely that the candidates would eventually be able to take on their obligations as new members of the Union. Unfortunately, it has now become evident that it is easier to write new laws than to get them properly applied in every day practice. This article describes a number of cases to illustrate the problem. It shows that administrators and judges in Central and Eastern Europe have significant difficulties with Western working methods, specifically the application of international norms in the national legal order, due process and procedural safeguards, treatment of precedents, resolution of ambiguities and lacunae in the law, etc., which may in turn result in unjust and sometimes absurd application of laws. These difficulties cannot be resolved merely by organising ever more training courses and other theoretical programmes. The author claims that the majority of efforts promoting administrative and court reform applied so far have rendered only meager results. Therefore, additional and more creative measures have to be designed and implemented and have to be continued for years beyond accession of most of these countries to the EU in 2004. Otherwise, rule of law deserving its name will not materialise in the new Member States. The author concludes by offering some ideas based on many years of experience in the region. [source] Constitutions, Constitutionalism, and the European UnionEUROPEAN LAW JOURNAL, Issue 2 2001Paul Craig The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties. [source] Martial Law and Military Power in the Construction of the South African State: Jan Smuts and the "Solid Guarantee of Force" 1899,1924JOURNAL OF HISTORICAL SOCIOLOGY, Issue 2 2009JONATHAN HYSLOP This paper seeks to provide a new approach to analysing the crucial period of the building of the South African state between the Boer War and 1924. Drawing on the sociology of Michael Mann, it argues that the construction of networks of military power was of central and partly autonomous importance in giving shape to the new state. It goes on to contend that this generated a legal order which was in many ways shaped by practices which derived from martial law. The paper also asserts that these questions of military power and martial law need to be analysed within a framework which does not limit itself to the boundaries of the South African state itself, but is placed within the wider context of the British Empire and the southern African region. A biographical exploration the role of Jan Smuts as the key leader is used to focus the paper's study of this process of state-making. [source] Law, health and the European UnionLEGAL STUDIES, Issue 2 2005Tamara K Hervey How does the European Union (EU) affect health law in its member states.? Having defined ,health law', this article takes a multilevel governance perspective of the EU und its legal order, aid considers, through selected examples, the various modes of governance used by the EU applicable in the health law field. The article presents N spectrum of the different types of effect that the EU has on health law: strong effect from health-specific measures; strong effect from general measures; marginal effect; slow convergence effect; little prospect for effect. [source] Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and conventionLEGAL STUDIES, Issue 3 2002Mark Elliott Although the constitutional reform programme undertaken by the Blair administration is formally consistent with the doctrine of parliamentary sovereignty, it is clear that the human rights and devolution legislation, in particular, significantly alter the political and constitutional environment within which Parliament's legislative powers are exercised. This paper considers whether it is meaningfiul, within this new constitutional setting, to adhere to the traditional notion of sovereignty. It is argued that the disparity between a Parliament whose powers are formally unlimited yet increasingly constrained, in political terms, by norms based on fundamental rights and devolved governance may be accommodated, in the short term, by means of constitutional conventions which trace the constitutionally acceptable limits of legislative action by Parliament. However, following examination of the nature of convention and its relationship with law and constitutional principle, it is argued that the possibility arises, in the long term, that conventional limits upon legislative freedom may ultimately evolve into legal limiis, thus ensuring that the fundamental values embraced by the legal order are acknowledged not merely in pragmatic or conventional terms, but as a matter of constitutional law. [source] A reappraisal of sovereignty in the light of global environmental concernsLEGAL STUDIES, Issue 3 2001Duncan A French The concept of the sovereignty of the nation state is at the very core of our understanding of public international law. Nevertheless, the concept is under constant pressure to adapt to the changing global situation. This is particularly true when sovereignty is examined in the light of environmental concerns. Is the traditional paradigm still relevant in an age when so many transboundary and global environmental issues confront the international legal order? This paper suggests that whilst sovereignty remains a central pillar of international law, it is one that increasingly must be responsive to the needs and concerns of an interdependent international community. It must not be treated as a static, immovable fact, but rather as a flexible tool through which states can more effectively act in an increasingly interdependent global society. [source] 11.,Toward Lasting Peace: Kant on Law, Public Reason, and CultureAMERICAN JOURNAL OF ECONOMICS AND SOCIOLOGY, Issue 1 2009Marc Lucht Kant helps us understand the conditions for peace by reminding us that lasting peace requires both cosmopolitan legal reform and individual moral improvement, including resistance to egoism and the cultivation of cosmopolitan attitudes. The duty to pursue peace includes the duty to promote the rule of domestic and international law and work against its unilateral subversion. The juridical cosmopolitanism of a worldwide league of free peoples enables resistance to the dangers posed by authoritarian regimes and their dangerous willingness to manipulate their subjects and ignore international law. Constraining egoism enables people to overcome the tyranny of their desires and cultivates a sense of affiliation with the larger community of humanity in general, providing the moral foundation needed to support a cosmopolitan legal order. Moral development to a great extent is fostered through the arts and humanities, and a robust cultural life therefore ought to play a central role in the pursuit of global peace. [source] Ethische Konflikte im GesundheitswesenPERSPEKTIVEN DER WIRTSCHAFTSPOLITIK, Issue 2006Hartmut Kliemt Several policy proposals for achieving the aim of supporting the rule of law by minimal means of public health care provision are explored. A system of assigning limited amounts of guaranteed health care that are provided in competitive processes below market clearing prices is suggested. We are seeking for minimum public health care under the constraint of maintaining the legal order rather than solving a maximization problem. [source] Legitimacy for a Supranational European Political Order,Derivative, Regulatory or Deliberative?RATIO JURIS, Issue 1 2002Massimo La Torre This paper discusses some models purported to legitimise a European supranational legal order. In particular, the author focuses on an application of the so-called regulatory model to the complex structure of the European Community and the European Union. First of all, he tackles the very concept of legitimacy, contrasting it with both efficacy and efficiency. Secondly, he summarises the most prominent positions in the long-standing debate on the sources of legitimation for the European Community. Thirdly, in this perspective, he analyses several, sometimes contradictory, notions of the rule of law. His contention is that we can single out five fundamental notions of the rule of law and that some but not all of them are incompatible with or oppose democracy. Finally, the paper addresses the regulatory model as a possible application of the rule of the law to the European supranational order. The conclusion is that the regulatory model should be rejected if it is presented as an alternative to classical democratic thought, though it might be fruitful if reshaped differently and no longer assessed from a functionalist standpoint of deliberation. [source] National Judges, Community Judges: Invitation to a Journey through the Looking-glass,On the Need for Jurisdictions to Rethink the Inter-systemic Relations beyond the Hierarchical PrincipleEUROPEAN LAW JOURNAL, Issue 6 2008Florence Giorgi The historical conflict between the European Court of Justice (ECJ) and the national constitutional courts regarding primacy is a misunderstanding. In going through the looking-glass, we can understand that, on the contrary, the ECJ and the national constitutional courts adopt comparable solutions in their treatment of legal pluralism, and that they see the negation of pluralism as essential for the survival of their own legal orders. Therefore, these judges must be offered a new theoretical context to help them reconcile their role as supreme guardian with the taking into account of the pluralist context. Finally, practical proposals must be made to give judges the instruments and techniques that are capable of reflecting this plural structure. [source] Legal Pluralism and the European UnionEUROPEAN LAW JOURNAL, Issue 3 2006N. W. Barber It claims that a legal system is pluralist when it contains inconsistent rules of recognition that cannot be legally resolved from within the system. The first part of the article sets out the model, demonstrating why it requires a departure from the classical accounts of law advanced by writers such as Hart and Kelsen. The second half applies this model to actual legal orders: first, to Rhodesia during the crisis of 1965, and then to the legal orders of the European Union. It is argued that there are interesting and important points of similarity between the two. [source] The Identity of European Law: Mapping Out the European Legal SpaceEUROPEAN LAW JOURNAL, Issue 2 2000Christopher Harding The main purpose of this discussion is to supply some content to the concept of the ,European legal space' at the turn of the twentieth century. The term ,legal space' is used in preference to ,legal system' or ,systems' in order to convey a sense of the complex, non-hierarchical, overlapping, interlocking and evolutionary character of contemporary European legal phenomena. A number of evident legal orders may be identified within the overall European space: those of the EC, the EU, the EEA, the Council of Europe and the OSCE, although to refer to some of these as ,orders' may be misleading, by implying too much in terms of a centrally determined structure. It is also possible to point to less evident legal ordering, such as the process of norm exportation contained in the Europe Agreements concluded between the EU and individual non-Member States, or the kind of order resulting from transatlantic co-operation in fields such as criminal justice (which also challenges the description of ,European'). In juristic terms, the argument here confronts the primacy traditionally accorded to the sovereign state in the field of law-making, and draws upon two non-juridical models of analysis: that of multi-level governance, as used by political scientists to indicate a shift away from the exclusive authority and legitimacy claimed by sovereign states; and the biological model of catalytic closure, used to indicate evolution through a process of spontaneous reactions within a body. Both models may be usefully employed to probe the dynamics of European legal ordering at the close of the Twentieth Century. [source] Landscapes of the Law: Injury, Remedy, and Social Change in ThailandLAW & SOCIETY REVIEW, Issue 1 2009David M. Engel Sociolegal theorists since Weber have postulated that state law operates by interacting with and responding to nonstate legal orders. This article, examining conceptions of injury and compensation in Thailand, analyzes two ways of mapping law onto the landscape. The first is associated with state law and legal institutions established at the turn of the twentieth century. The state legal system imagines space from the outside in, drawing a boundary line and applying law uniformly throughout the jurisdiction it has enclosed. A second type of mapping, which has been more familiar over the centuries to ordinary Thai people, imagines space from the inside out. Nonstate legal orders are associated with sacred centers and radiate outward, diminishing in intensity and effectiveness with distance. This article, based on extensive interviews with injured persons and other actors and observers in northern Thailand, examines the interconnections between these two ways of imagining the landscape of law. It suggests that recent transformations of Thai society have rendered ineffective the norms and procedures associated with the law of sacred centers. Consequently, state law no longer interacts with or responds to nonstate law and surprisingly plays a diminished role in the lives of ordinary people who suffer injuries. [source] The Heterogeneous State and Legal Pluralism in MozambiqueLAW & SOCIETY REVIEW, Issue 1 2006Boaventura de Sousa Santos This article analyzes some of the most salient features of the state and the legal system in Mozambique. I propose the concept of the heterogeneous state to highlight the breakdown of the modern equation between the unity of the state, on the one hand, and the unity of its legal and administrative operation, on the other. The centrality of legal pluralism is analyzed in light of an empirical research focused on community courts and traditional authorities. I use the concept of legal hybridization with the purpose of showing the porosity of the boundaries of the different legal orders and cultures in Mozambique and the deep cross-fertilizations or cross-contaminations among them. Special attention is given to the multicultural plurality resulting from the interaction between modern law and traditional law, the latter conceived here as an alternative modernity. [source] Legal Autonomy as Political Engagement: The Ladakhi Village in the Wider WorldLAW & SOCIETY REVIEW, Issue 1 2006Fernanda Pirie Local systems of law are constantly forced to adapt to powerful external legal orders. As well as employing tactics of resistance and accommodation, some communities respond by maintaining boundaries around their legal sphere, safeguarding a measure of judicial autonomy. This article examines one such instance, from the Indian Himalayas. It argues that, much more complex than a case of domination and resistance, this autonomy represents a long history of deference and distance toward external forces. The maintenance of legal autonomy ultimately represents community ontology, but it is also a means of engaging with wider forces within the modern world. [source] A-Legality: Postnationalism and the Question of Legal BoundariesTHE MODERN LAW REVIEW, Issue 1 2010Hans Lindahl This paper critically examines the prevailing assumption that legal boundaries are becoming irrelevant in postnationalism. While the boundaries of the nation-state are forfeiting some of their hold on human behaviour, postnational legal orders are simply not legal orders unless they can in some way draw the spatial, temporal, material and subjective boundaries that make it possible to qualify human behaviour as legal or illegal. This implies that reflexively constituted legal orders , whether national or postnational , must be presented as legal unities. To the extent that boundaries are the necessary condition of national and postnational legal orders, and therewith of legal unity, they also spawn the possibility of political plurality, manifested in behaviour that resists the very distinction between legality and illegality, as drawn by an order of positive law: a-legality. Rather than signalling the demise of legal boundaries, postnationalism ushers in a novel way of dealing therewith , and with a-legality. [source] | |||||||||||||