Pittsburgh Papers on the European Union
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
The Concept of Law Revisited [Book Review of the Concept of Law, Second Edition, by H
Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 1997 The Concept of Law Revisited [Book Review of The Concept of Law, Second Edition, by H. L. A. Hart] Leslie Green Osgoode Hall Law School of York University Source Publication: Michigan Law Review. Volume 94, Number 6 (1996), p. 1687-1757. Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Recommended Citation Green, Leslie. "The Concept of Law Revisited [Book Review of The Concept of Law, Second Edition, by H. L. A. Hart]." Michigan Law Review 94.6 (1996): 1687-1757. This Book Review is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. THE CONCEPT OF LAW REVISITED Leslie Green* THE CONCEPT OF LAW. Second Edition. By H.L.A. Hart. With a Postscript edited by Penelope A. Bulloch and Joseph Raz. Oxford: Clarendon Press. 1994. Pp. xii, 315. $26. Law is a social construction. It is a historically contingent fea- ture of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and en- force the primary rules. -
Prasiddh Prakash Naik Subject-Legal Theory I Topic-Comparative Study Of
NAME- PRASIDDH PRAKASH NAIK SUBJECT-LEGAL THEORY I TOPIC-COMPARATIVE STUDY OF NATURAL LAW AND POSITIVE LAW DATE-01/12/2013 ST CLASS- 1 YEAR LL.M 1 CONTENTS Sr.No Topic Page No. 1. INTRODUCTORY OVERVIEW 3-7 2. BACKGORUND OF NATURAL AND 8-14 POSITIVE LAW 3. MEANING AND CONCEPT OF NATURAL 15-35 AND POSITIVE LAW 4. COMPARATIVE STUDY OF NATURAL AND 36-48 POSITIVE LAW 5. RIVALS OF LEGAL POSITIVISM 49-55 6. CONCLUSION 56 7. BIBLIOGRAPHY AND REFERENCE 57-58 2 CHAPTER I INTRODUCTORY OVERVIEW Jurisprudence: The study of different schools of legal philosophy and how each can affect judicial decision making. Natural Law adherents presuppose that positive law derives its legitimacy from natural law and hold that, to the extent that natural law and positive law differ, natural law must prevail. A system of universal moral and ethical principles that are inherent in human nature and that people can discover by using their natural intelligence (e.g., murder is wrong; parents are responsible for the acts of their minor children).1 Legal Positivists hold that there is no higher law than that created by legitimate governments and that such laws must be obeyed, even if they appear unjust or otherwise at odds with natural law A body of enforceable rules governing relationships among individuals and between individuals and their society.2 Positive Law: The written law of a particular society at a particular point in time (e.g.,the U.S. Constitution, the Texas Securities Act, the Internal Revenue Code, and published judicial decisions). -
The Concept of Law Revisited
Michigan Law Review Volume 94 Issue 6 1996 The Concept of Law Revisited Leslie Green Osgoode Hall Law School, York University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Public Law and Legal Theory Commons Recommended Citation Leslie Green, The Concept of Law Revisited, 94 MICH. L. REV. 1687 (1996). Available at: https://repository.law.umich.edu/mlr/vol94/iss6/15 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. IBE CONCEPT OF LAW REVISITED Leslie Green* THE CONCEPT OF LAW. Second Edition. By H.L.A. Hart. With a Postscript edited by Penelope A. Bulloch and Joseph Raz. Oxford: Clarendon Press. 1994. Pp. xii, 315. $26. Law is a social construction. It is a historically contingent fea ture of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and en force the primary rules. Law may be beneficial, but only in some contexts and always at a price, at the risk of grave injustice; our appropriate attitude to it is therefore one of caution rather than celebration. -
Positivism and the Inseparability of Law and Morals
\\server05\productn\N\NYU\83-4\NYU403.txt unknown Seq: 1 25-SEP-08 12:20 POSITIVISM AND THE INSEPARABILITY OF LAW AND MORALS LESLIE GREEN* H.L.A. Hart made a famous claim that legal positivism somehow involves a “sepa- ration of law and morals.” This Article seeks to clarify and assess this claim, con- tending that Hart’s separability thesis should not be confused with the social thesis, the sources thesis, or a methodological thesis about jurisprudence. In contrast, Hart’s separability thesis denies the existence of any necessary conceptual connec- tions between law and morality. That thesis, however, is false: There are many necessary connections between law and morality, some of them conceptually signif- icant. Among them is an important negative connection: Law is, of its nature, morally fallible and morally risky. Lon Fuller emphasized what he called the “internal morality of law,” the “morality that makes law possible.” This Article argues that Hart’s most important message is that there is also an immorality that law makes possible. Law’s nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism. INTRODUCTION H.L.A. Hart’s Holmes Lecture gave new expression to the old idea that legal systems comprise positive law only, a thesis usually labeled “legal positivism.” Hart did this in two ways. First, he disen- tangled the idea from the independent and distracting projects of the imperative theory of law, the analytic study of legal language, and non-cognitivist moral philosophies. Hart’s second move was to offer a fresh characterization of the thesis. -
Hart, Austin, and the Concept of Legal Sanctions
Hart, Austin, and the Concept of a Legal System: The Primacy of Sanctions In 1961, H. L. A. Hart published The Concept of Law, his most extensive and systematic essay in general jurisprudence.' Hart's book immediately received widespread critical attention.2 Today, The Con- cept of Law is generally regarded as an original and important work. Indeed, this is too cautious a claim: The Concept of Law has become an established classic. The core of Hart's argument is addressed to three related questions: What is a legal rule? What are the points of difference and similarity between law and morality? What is a legal system?3 This Note is concerned with Hart's answer to the last of these three questions, with his attempt, in The Concept of Law, to build up a coherent and satisfying picture of what a municipal 4 legal system is. In the opening chapter of The Concept of Law, Hart states that the purpose of his book is "to advance legal theory by providing an im- proved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences be- tween law, coercion, and morality as types of social phenomena."' Whether Hart's "improved analysis" yields anything as precise and unequivocal as a definition of what a legal system is-indeed, whether such a definition is possible at all-have been much-disputed questions., Hart himself appears to have been somewhat skeptical in this regard. At one point, he even offers several reasons for believing that "nothing 1. -
The Rule of Law in European Jurisprudence
Strasbourg, 29 May 2009 CDL-DEM(2009)006* Study 512/2009 Eng.Only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) THE RULE OF LAW IN EUROPEAN JURISPRUDENCE by Mr Martin LOUGHLIN (Expert, United Kingdom) *This document has been classified restricted on the date of issue. Unless the Venice Commission decides otherwise, it will be declassified a year after its issue according to the rules set up in Resolution CM/Res(2001)6 on access to Council of Europe documents. This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-DEM(2009)006 - 2 - Modern constitutional development is driven by a dynamic between power and liberty: since the powers of government in the modern era are invariably extensive, it is accepted that, if the key political value of liberty is to be maintained, these powers must be confined, channelled and checked. This is the basic purpose underpinning modern written constitutions. Written constitutions exist to maintain a balance between the grant and institutionalization of governmental power and the preservation of the liberties of the individual. For this critical function of modern constitutions to be realized, three basic principles must be accepted. The first is that the constitution must be recognized to be the medium through which all governmental power is to be exercised; this is the principle of constitutional supremacy. The second principle is that the law of the constitution must be acknowledged as the fundamental law of the land. And the third is that, with the acceptance of constitutional law as fundamental law, the judiciary – as interpreters of constitutional law – must be accepted as being the institution that acts as the ultimate guardian of the constitution. -
Major Functions of Law in Modern Society Featured
Case Western Reserve Law Review Volume 23 Issue 2 Article 3 1972 Major Functions of Law in Modern Society Featured David A. Funk Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation David A. Funk, Major Functions of Law in Modern Society Featured, 23 Case W. Rsrv. L. Rev. 257 (1972) Available at: https://scholarlycommons.law.case.edu/caselrev/vol23/iss2/3 This Featured is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 1972] Major Functions of Law in Modern Society* David A. Funk Jurisprudentialwriting has often failed to examine extensively the important question of the purposes or functions of law. The author sug- gests that such an inquiry implies a relationship between law and some "and-in-view." He selects social utility in attaining an ideal modern Western European society in constructing the theoretical framework for his inquiry. He then lists and explicates seven maJor functions of law in¢ this sense and examines their interrelationshipsin preparationfor empiri- cal research. In conclusion he even suggests how existing empirical studies may test the adequacy of this theoretical framework. I. THE METALANGUAGE AND GENERAL CHARACTERISTICS N THE PURSUIT of jurisprudential understanding, legal phi- losophers have more often dealt with what law is and what is good law than the third of the fundamental issues of jurisprudence what law is for.2 This does not mean that the importance of this line of inquiry has been over- looked. -
Professor Dworkin's Views on Legal Positivism
Indiana Law Journal Volume 55 Issue 2 Article 1 Winter 1979 Professor Dworkin's Views on Legal Positivism Genaro R. Carrio Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Jurisprudence Commons, and the Legal History Commons Recommended Citation Carrio, Genaro R. (1979) "Professor Dworkin's Views on Legal Positivism," Indiana Law Journal: Vol. 55 : Iss. 2 , Article 1. Available at: https://www.repository.law.indiana.edu/ilj/vol55/iss2/1 This Lecture is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Vol. 55, No. 2 INDIANA1979-1980 LAW JOURNAL Professor Dworkin's Views on Legal Positivismt GENARO R. CARRI6 * The expression "legal positivism" is intolerably ambiguous. It has been used in the past and is still used to designate a heterogeneous variety of attitudes, theses, conceptions and doctrines, all of which concern in different ways the social phenomenon known as "law." Some of them are incompatible with each other. Others are inter- connected by family ties. That is why in most cases it will not do to try to identify the general trend of ideas of a given jurist by saying that he is a positivist. Furthermore, when someone directs his at- tacks, indiscriminately, against "legal positivism," it may be quite confusing if he fails to state in what sense he is using that expres- sion. -
THREE MODELS of EQUALITY and EUROPEAN ANTI-DISCRIMINATION LAW Olivier De Schutter*
THREE MODELS OF EQUALITY AND EUROPEAN ANTI-DISCRIMINATION LAW Olivier De Schutter* 1. Three Models of Equality Since the European Court of Justice first declared, in the 1976 Defrenne (‘No. 2’) case,1 that the principle of equal pay between men and women for the same work stated in Article 119 of the EEC Treaty should be recognized a direct effect in the relationships between private parties, at a time when the European legislator had just started to implement that provision of the Treaty of Rome,2 European law has made considerable progress in outlawing different forms of discrimination. In order to evaluate both what has been achieved thirty years later and which questions still remain, this article seeks to map the territory of European anti-discrimination law by locating its acquis within a broader theoretical framework. There are of course a number of ways to classify competing understandings of the requirement of equality, in order to identify the different “models” into which the principle of equal treatment may translate at the level of concrete legal rules. In this article, I seek to distinguish three such models, which I believe may serve to highlight the most important dilemmas facing European Law in its treatment of that principle. The three models are defined on the basis of two questions which, I would submit, remain to a large extent open at the current stage of development of European anti-discrimination law. A first question concerns the aim of this body of law. In the implementation of the principle of equal treatment, -
The European Court of Justice and Its Inconsistent Approach to the Doctrine of Direct Effect
14. Resolution CM/ResCMN(2011)8 on the implementation of the Framework Convention for the Protection of National Minorities by Ukraine (Adopted by the Committee of Ministers on 30 March 2011 at the 1110th meeting of the Ministers’ Deputies) [Електрон. ресурс]. – Режим доступу: https://wcd.coe.int/ViewDoc. jsp?id=1769033&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet= EDB021&BackColorLogged=F5D383. 15. Resolution CM/ResCMN(2013)8 on the implementation of the Framework Convention for the Protection of National Minorities by Ukraine (Adopted by the Committee of Ministers on 18 December 2013 at the 1187bis meeting of the Ministers’ Deputies) [Електрон. ресурс]. – Режим доступу: https://wcd.coe.int/ ViewDoc.jsp?id=2143699&Site=CM&BackColorInternet=C3C3C3&BackColo rIntranet=EDB021&BackColorLogged=F5D383#P79_13700. V. Isakova1 THE EUROPEAN COURT OF JUSTICE AND ITS INCONSISTENT APPROACH TO THE DOCTRINE OF DIRECT EFFECT The issue pertaining to the circumstances under which individuals may seek enforcement of EU directives has proven to be one of the most contro- versial areas of EU law [17, p. 328]. This is primarily due to the Court of Justice’s approach to and application of the principles surrounding this practice. This article will critically consider the development and current application of the doctrine of direct effect in a bid to determine whether there is any justification for the Court’s approach to the matter. It will ulti- mately be argued that there is no apparent justification for the Court’s in- consistent and arbitrary application of the doctrine and that this therefore undermines the underlying purpose of the doctrine: to protect individuals from Community law violations. -
Legal Realism & Judicial Decision-Making
ISSN 1392–6195 (print) ISSN 2029–2058 (online) JURISPRUDENCIJA JURISPRUDENCE 2012, 19(4), p. 1361–1382. LEGAL REALISM & JUDICIAL DECISION-MAKING Vitalius Tumonis Mykolas Romeris University, Faculty of Law, Department of International and European Union Law Ateities 20, LT-08303 Vilnius, Lithuania Telephone (+370 5) 2714 669 E-mail: [email protected] Received on 24 September, 2012; accepted on 12 December, 2012 Abstract. The two grand theories of judging – legal realism and legal formalism - have their differences set around the importance of legal rules. For formalists, judging is a rule- bound activity. In its more extreme versions, a judge is seen as an operator of a giant syllogism machine. Legal realists, in contrast, argue that legal rules, at least formal legal rules, do not determine outcomes of cases. Legal realism has been misunderstood almost everywhere outside its birthplace – the United States. Continental legal theory, for one, views legal realism as practical, down-to-earth, hard-nosed school of thought which is opposed to the more “scientific” theories. The purpose of this article is two-fold. First, to show what legal realists really stood for - that contrary to the popular myth, they did not maintain that formal legal rules do not matter at all; that most of them considered legal rules to be important, only many of those rules are informal rules. Second, contrary to the popular understanding in Continental legal theory, legal realism by its nature was not an antiscientific theory of judging - in fact, it was either a first scientific theory of judging or at least its prototype. -
1 the Horizontal Effect of the Charter of Fundamental Rights Of
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UCL Discovery The Horizontal Effect of the Charter of Fundamental Rights of the European Union: Rediscovering the Reasons for Horizontality Eleni Frantziou* Abstract This article analyses the horizontal effect of the Charter of Fundamental Rights of the European Union. Horizontal effect has been an integral part of the Union’s application of fundamental rights, especially in the field of equality. However, the codification of fundamental rights in the Charter raises important questions as to how horizontal effect will continue to apply in the EU, particularly in the aftermath of the Court’s rulings in cases such as Dominguez and AMS. This article argues that the emphasis on prior approaches to horizontal effect in recent rulings fails to address the more profound issues that the horizontal effect of a fundamental rights catalogue raises. Meaningfully engaging with horizontality involves answering directional questions: what role does the Charter play in the Union’s constitutional framework and what can horizontality achieve in respect of EU rights protection? Overall, the article calls for a new approach in the Charter context, in which horizontality can be assessed against a sound theoretical framework, conscious of the role of rights in society rather than their positioning in different types of legislation. I. Introduction Just over five years ago, the Charter of Fundamental Rights of the European Union acquired legally binding force.1 Its provisions include the rights enshrined in the ECHR, a broad set of employment rights, as well as EU citizens’ rights, to mention but a few.