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Author: Katayoun Baghai
Publisher: Routledge
ISBN: 131705346X
Category : Law
Languages : en
Pages : 219
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Book Description
This book demonstrates the empirical gains and integrative potentials of social systems theory for the sociology of law. Against a backdrop of classical and contemporary sociological debates about law and society, it observes judicial review as an instrument for the self-steering of a functionally differentiated legal system. This allows close investigation of the US Supreme Court’s jurisprudence of rights, both in legal terms and in relation to structural transformations of modern society. The result is a thought-provoking account of conceptual and doctrinal developments concerning racial discrimination, race-based affirmative action, freedom of religion, and prohibition of its establishment, detailing the Court’s response to boundary tensions between functionally differentiated social systems. Preliminary examination of the European Court of Human Rights’ privacy jurisprudence suggests the pertinence of the analytic framework to other rights and jurisdictions. This contribution is particularly timely in the context of increasing appeals to fundamental rights around the world and the growing role of national and international high courts in determining their concrete meanings.
Author: Katayoun Baghai
Publisher: Routledge
ISBN: 131705346X
Category : Law
Languages : en
Pages : 219
Get Book Here
Book Description
This book demonstrates the empirical gains and integrative potentials of social systems theory for the sociology of law. Against a backdrop of classical and contemporary sociological debates about law and society, it observes judicial review as an instrument for the self-steering of a functionally differentiated legal system. This allows close investigation of the US Supreme Court’s jurisprudence of rights, both in legal terms and in relation to structural transformations of modern society. The result is a thought-provoking account of conceptual and doctrinal developments concerning racial discrimination, race-based affirmative action, freedom of religion, and prohibition of its establishment, detailing the Court’s response to boundary tensions between functionally differentiated social systems. Preliminary examination of the European Court of Human Rights’ privacy jurisprudence suggests the pertinence of the analytic framework to other rights and jurisdictions. This contribution is particularly timely in the context of increasing appeals to fundamental rights around the world and the growing role of national and international high courts in determining their concrete meanings.
Author: W. J. Waluchow
Publisher: Cambridge University Press
ISBN: 1139462814
Category : Philosophy
Languages : en
Pages : 7
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Book Description
In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.
Author: Jiří Přibáň
Publisher: Routledge
ISBN: 1317052080
Category : Law
Languages : en
Pages : 284
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Book Description
Sovereignty marks the boundary between politics and law. Highlighting the legal context of politics and the political context of law, it thus contributes to the internal dynamics of both political and legal systems. This book comprehends the persistence of sovereignty as a political and juridical concept in the post-sovereign social condition. The tension and paradoxical relationship between the semantics and structures of sovereignty and post-sovereignty are addressed by using the conceptual framework of the autopoietic social systems theory. Using a number of contemporary European examples, developments and paradoxes, the author examines topics of immense interest and importance relating to the concept of sovereignty in a globalising world. The study argues that the modern question of sovereignty permanently oscillating between de iure authority and de facto power cannot be discarded by theories of supranational and transnational globalized law and politics. Criticising quasi-theological conceptualizations of political sovereignty and its juridical form, the study reformulates the concept of sovereignty and its persistence as part of the self-referential communication of the systems of positive law and politics. The book will be of considerable interest to academics and researchers in political, legal and social theory and philosophy.
Author: Niklas Luhmann
Publisher: Oxford Socio-Legal Studies
ISBN: 9780198262381
Category : Law
Languages : en
Pages : 524
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Book Description
However, unlike conventional legal theory, this volume seeks to provide an answer in terms of a general social theory: a methodology that answers this question in a manner applicable not only to law, but also to all the other complex and highly differentiated systems within modern society, such as politics, the economy, religion, the media, and education. This truly sociological approach offers profound insights into the relationships between law and all of these other social systems.
Author: Richard Nobles
Publisher: Bloomsbury Publishing
ISBN: 1782250123
Category : Law
Languages : en
Pages : 282
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Book Description
This book uses Niklas Luhmann's systems theory to explore how the legal system operates as one of modern society's subsystems. The authors demonstrate how this theory alters our understanding of some of the most important and controversial issues within law: the nature of judicial communication and legal argument; the claim that it can be right to disobey law; the character of legal pluralism and globalisation; time and its construction within law; the significance of the rule of law and human rights and the role of appeals to, and within, law. Systems theory enables the authors to demonstrate how the legal system observes its own operations through its own communications, and how this contrasts with the manner in which law is observed by other systems such as the media and politics. In this context the authors explore the constraints imposed by systems, in particular the legal system, upon the individuals who participate in them.
Author: Gorm Harste
Publisher: Routledge
ISBN: 1317107896
Category : Law
Languages : en
Pages : 378
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Book Description
With contributions from experts in the field of sociology of law, this book provides an overview of current perspectives on socio-legal studies. It focuses particularly on the relationship between law and society described in recent social systems theory as ’structural coupling’. The first part of the book presents a reconstruction of theoretical tendencies in the field of socio-legal studies, characterised by the emergence of a transnational model of legal systems no longer connected to territorial borders and culturally specific aspects of single legal orders. In the following parts of the book, the contributions analyse some concrete cases of interrelation between law and society from an empirical and theoretical perspective.
Author: John Hart Ely
Publisher: Harvard University Press
ISBN: 0674263294
Category : Law
Languages : en
Pages : 281
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Book Description
This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life? Until now legal experts have proposed two basic approaches to the Constitution. The first, “interpretivism,” maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. John Hart Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today. Ely’s proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. “The Constitution,” he writes, “has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone’s interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.” Thus, Ely’s emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism’s rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels—from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.
Author: Joel F. Handler
Publisher:
ISBN:
Category : History
Languages : en
Pages : 280
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Book Description
Author: Richard Nobles
Publisher:
ISBN: 9781472566287
Category : Jurisprudence
Languages : en
Pages : 274
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Book Description
"This book is complementary to our book A sociology of jurisprudence, although it is not necessary for readers to have read that book in order to engage with what we present here."--Preface.
Author: Theunis Roux
Publisher: Cambridge University Press
ISBN: 1108670474
Category : Law
Languages : en
Pages : 389
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Book Description
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 from changes to the formal constitution.
