Theory of Law

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Secularization, Legal Indeterminacy, and Habermas's Discourse Theory of Law

Secularization, Legal Indeterminacy, and Habermas's Discourse Theory of Law

In addition, Habermas maintains that “the universalization principle acts like a knife that makes razor-sharp cuts between evaluative statements and strictly normative ones, between the good and the just.” H ABERMAS , M ORAL C ONSCIOUSNESS , supra note 69, at 104. In order for a law to be impartial (i.e., not violate moral norms), Habermas’s postmeta- physical, rational justification of law appears to depend upon the possibility of these razor- sharp cuts. Otherwise, the ethical-political and pragmatic reasons would result in a con- sensus based on strategic or prudential rationality like Hobbes. In that case, the consensus signals not a notion of intersubjective rational validity but a confluence of subjective inter- ests. However, it is unclear how Habermas can justify his distinction between ethical- political and pragmatic reasons and moral reasons because this is itself a claim about the good. “To assert that all good human purposes are in all respects historically specific is it- self a universal evaluation of human purposes . . . . in other words, the assertion is self- refuting.” Franklin I. Gamwell, Metaphysics and the Rationalization of Society, 23 P ROCESS S TUDIES 219, 230 (1994). As a result, Habermas’s discourse theory of law fails to provide an impartial or rational justification for law that supports legal autonomy. For a more detailed critique of Habermas’s discourse of justification, see Modak-Truran, supra note 23, at 477-81.
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General Theory of Law and Development

General Theory of Law and Development

An optimal regulatory design, which increases synergies among LFIs and their overall effectiveness, will strengthen regulatory impact on devel- opment. By contrast, an ineffective regulatory design will lack supportive synergies and even create conflicts among the constituent elements of LFIs. For example, the enactment of a statute empowering the government to expropriate private land without due process and adequate compensation may not produce synergies with the institutions already in place to protect FPPRs and the other laws in the legal system that aim to do the same. This type of conflict may occur when a law is enacted without due considera- tion of applicable legal frameworks and institutional arrangements. In par- ticular, consideration should be given to relevant details such as whether there is any potential inconsistency between the promoted law and the existing legal frameworks and institutions, how legislation should be trans- lated into administrative rule making, and how and where in the legislation government discretion should be lodged. 158
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Law as theory: constitutive thought in the formation of (legal) practice

Law as theory: constitutive thought in the formation of (legal) practice

Without wishing to dissent at all from this constitutive theory, not least because I will end up adopting something like it, there are some rather immediate problems with it. Bluntly, we would plunge into circularity and a certain inconsequence if we purport to constitute something in a relation to that which it constitutes. With the strong or practically determining mode of constitution, the situation involved here cannot be one where law and society relate simply as a matter of marginal or vague influence. If this were all they did, then the distinct integrity of each would be simply affirmed and they would not be constituted relationally. They must, then, be related in a necessary way to the effect that one would be „constitutively‟ different or non- existent without its relation to the other. Yet if law and society are produced in „their‟ relation, what is there to keep them distinct, to keep them as distinct „things‟? Why should they not simply dissipate in the relational soup? To counter this dissipation, we would seem to need a tertium quid or need each thing to be constituted in itself as well as being constituted relationally. More on that delicate combination and the commonality later. All I wish to extract at this stage by way of the specific constitutive theory of law is that law and society seem to be constituted in a relation to each other, a relation that is necessary but indefinite.
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Law Enforcement under Incomplete Law: Theory and Evidence from Financial Market Regulation

Law Enforcement under Incomplete Law: Theory and Evidence from Financial Market Regulation

The 1933/34 securities and exchange legislation vested a regulator with the power to monitor the market and ensure compliance with the law. The core pro- vision of the 1933 Securities and Exchange Act (SA) is that the distribution of any security is not lawful unless it has been registered (Sec. 5) with the SEC and unless it is accompanied by a prospectus that meets the requirements further stipulated in the Act. The registration requirements allow the SEC to review the information and to launch an investigation should there by any evidence of wrong- doing. This is consistent with the spirit of our model: In case the information disclosed by the share issuer does not fulfill the standards set by the SEC, the public issuance will be delayed or even be enjoined. The registration requirement does not amount to a full approval process as stipulated in the model. However, the ability of the SEC to stop the issuance amounts to a denial of approval. In addition, the SEC may institute formal proceedings that result in a refusal or stop order (Sec. 8b, 8d SA). To exercise its power as regulator, the SEC was vested with extensive investigatory powers, which include the power to administer oaths, request the production of books or any other material, and take evidence (Sec. 19b SA). In addition, violators of the law may be held liable in civil and/or crim- inal court. The SEC also exercises substantial lawmaking powers. According to Art. 19 SA, the SEC“shall have authority from time to time to make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this Act, including rules and regulations governing registration statements and prospectuses and defining accounting, technical and trade terms under this Act”. The SEC has made extensive use of its residual lawmaking powers by enacting rules on the scope and form of disclosure.
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A normative theory of international law based on new natural law theory

A normative theory of international law based on new natural law theory

149 The idea of the international common good bears certain parallels to the concepts of public morality and public order which, as mentioned earlier, feature in several international human rights instruments as justifications for limiting the exercise of human rights. 62 In a manner similar to these concepts, the international common good concerns the maintenance of a quality of mutual respect and cooperation between states and a supportive physical global environment, as factors that are important to the possibility of human flourishing. Drawing on Finnis’s observations regarding public morality and public order, it may be further suggested that while the international common good is commonly to the advantage of all states and all persons, it is of particular significance to weaker states in the international community. Given, for example, the substantial variations in the economic and military capacities of states, it is evident that violations of international peace may contribute to a state of affairs in which more powerful states are more likely to achieve their objectives in inter-state relations through means not available to weaker states; the increased vulnerability of weaker states in this regard may impair the ability of these states to achieve their own objectives, with consequent detrimental impacts on the ability of persons within these states to enjoy their human rights. The value of maintaining peace to the international community as a whole, and especially to the less powerful states within this community, provides a compelling justification for limiting the freedom of states through, for example, introducing international rules restricting states’ ability to unilaterally resort to aggression. Thus, promoting and preserving the international common good may be identified as an appropriate principle of justice for international law not only because of its instrumental relationship to the exercise of human rights, but also because of the relevance of this
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International Law and Domestic Political Coalitions: The Grand Theory of Compliance with International Law

International Law and Domestic Political Coalitions: The Grand Theory of Compliance with International Law

This Article proposes a social scientific theory of compliance with international law that focuses attention on the domestic politics underlying a state's decision t[r]

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Classical Electromagnetic Theory Revisiting: The A M  Ampere Law and the Vacuum Field Theory Approach

Classical Electromagnetic Theory Revisiting: The A M Ampere Law and the Vacuum Field Theory Approach

which are that the right hand sides involve ”retarded” time which reflects the ”causality” of the expressions. In other words, the left side of each equation is actually ”caused” by the right side, unlike the normal differential expressions for Maxwell’s equations, where both sides take place simultaneously. In the typical expressions for Maxwell’s equations there is no doubt that both sides are equal to each other, but as Jefimenko notes [82], ”... since each of these equations connects quantities simultaneous in time, none of these equations can represent a causal relation.” The second feature is that the expression for (electric field) E does not depend upon (magnetic field ) B and vice versa. Hence, it is impossible for E and B fields to be ”creating” each other. Charge density and current density are creating them both.” As the Jefimenko’s equations for the electric field E and the magnetic field B directly follow from the classical retarded Lienard-Wiechert potentials, generated by physically real external charge and current distributions, one naturally infers that these potentials also present suitably interpreted physical field entities mutually related to their sources. This way of thinking proved to be, from the physical point of view, very fruitful, having brought about a new vacuum field theory approach [128, 129, 130, 16] to alternative explaining the nature of the fundamental Maxwell equations and related electrodynamic phenomena.
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Law, economics, public interest and the theory of regulatory capture

Law, economics, public interest and the theory of regulatory capture

Following the point that the law and economics postulations can be useful in understanding and "moderating" the influence of economic factors on law and the law-making process, i[r]

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Law and Politics: Montesquieu and the 4 Schools of Legal Theory

Law and Politics: Montesquieu and the 4 Schools of Legal Theory

DOI: 10.4236/oalib.1104092 4 Open Access Library Journal such as determinism and naturalism—Demokritos’ atom theory. The Universe followed its laws and humans were driven by the search for pleasure and the avoid- ance of pain. Only reason could the emotions towards enlightened self-interest seeking. Human life was basically determined just as nature, but the consolation was given by reason, recommending a life in emotional balance of rational in- sight. Law was merely the norms imposed by the local community or govern- ment in place, as with Hobbes and Spinoza. On the other hand, Stoicism had spiritual origins, which made it attractive to later Christian theology. The entire world is a kind of soul, which humans are members of. This soul is a gigantic community of everything, nature and living organisms. To be a member renders every human immunities, i.e. the human rights from sociability. Life consists of reflecting over this universal soul and research harmony by accepting Stoic vir- tues .
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"Common Law Property Theory and Jurisprudence in Canada"

"Common Law Property Theory and Jurisprudence in Canada"

129. Jim Phillips & Phil Girard, “A Certain ‘Mallaise’: Harrison v Carswell, Shopping Centre Picketing, and the Limits of the Postwar Settlement” in Judy Fudge & Eric Tucker, eds, Work on Trial: Canadian Labour Law Struggles (Toronto: Irwin Law for the Osgoode Society for Canadian Legal History, 2010) 249 at 272−73. On this point, see also Phillips & Martin, supra note 87 (the background to Manitoba Fisheries makes it clear that the fish processors were expropriated to protect Aboriginal fishers, yet the Supreme Court of Canada found a way to protect the processors’ property rights).
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Аxiomatic theory and universe of the science administrative law

Аxiomatic theory and universe of the science administrative law

Для нас є важливим і до- статнім те, що ми вважаємо їх істин- ними лише в межах теорії, що нами будується, а якщо вони при цьому ви- являються загальновизнаними, ми мусимо сприймати[r]

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The Control Theory of Perpetration in International Criminal Law

The Control Theory of Perpetration in International Criminal Law

Judge Schomburg concluded with the observation that indirect perpetration was particularly apposite as a theory of international criminal responsibility, as it served [r]

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Law Enforcement and Firm Financing: Theory and Evidence

Law Enforcement and Firm Financing: Theory and Evidence

Our indicators of judicial efficiency vary considerably between districts and over time. Table 1 reports the sample average of the two legal variables for each district. Dispersion is very high. The average length of a trial is 373 days in Granada versus 58 days in Lleida, namely, almost seven times longer. This pattern is confirmed by the second proxy. In Avila, Teruel, or Huesca, the probability of having a long trial is zero, whereas in Madrid it is 47%. The map in Figure 1 illustrates the cross-sectional variability of law enforcement, with judicial districts having deeper shades of gray for increasing enforcement—decreasing average length. A potential reason for the strong cross-sectional variability could be that financial and human resources are allocated according to the number of residents in the district, which is probably not suited to capture the actual demand for justice, because it fails to take account of differences in the frequency of litigation and in the complexity of civil trials. So some districts presumably lack resources, and enforcement there is accordingly inefficient.
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Common Law Property Theory and Jurisprudence in Canada

Common Law Property Theory and Jurisprudence in Canada

129. Jim Phillips & Phil Girard, “A Certain ‘Mallaise’: Harrison v Carswell, Shopping Centre Picketing, and the Limits of the Postwar Settlement” in Judy Fudge & Eric Tucker, eds, Work on Trial: Canadian Labour Law Struggles (Toronto: Irwin Law for the Osgoode Society for Canadian Legal History, 2010) 249 at 272−73. On this point, see also Phillips & Martin, supra note 87 (the background to Manitoba Fisheries makes it clear that the fish processors were expropriated to protect Aboriginal fishers, yet the Supreme Court of Canada found a way to protect the processors’ property rights).
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Global environmental law : context and theory, challenge and promise

Global environmental law : context and theory, challenge and promise

Some areas of international environmental law are arguably more reflective than others of the trends and drivers underlying the emergence of global law scholarship more generally. More than any other area, perhaps, this can be said of the continuously evolving and highly differentiated global regime on climate change mitigation and adaptation, which traverses planes of governance, recruits public and private actors, draws on traditional regulation and enforcement as well as facilitation and flexible market approaches, and encompasses difficult questions of global justice and responsibility. Still, most environmental problems are inherently transboundary and cross- cutting in nature, and require action at all levels and by multiple actors for an effective resolution. It should therefore be no surprise that global environmental law has been one of the earliest thematic areas to see proliferation of global law scholarship, and that trend is likely to continue.
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Towards a Grand Unified Theory of International Economic Law

Towards a Grand Unified Theory of International Economic Law

If the proposition of international economic law as a chaotic system envisioned by the physical sciences can be accepted, then chaos theory may further be thought of as a plausible unifying explanatory model by which the four chief disciplines within international economic law can be understood. At the risk of over-extending another, unrelated scientific concept, chaos may therefore come close to international economic law’s ‘grand unified theory’ linking the discipline’s sub fields of trade, investment, money and development in elegant coherence. 111 Somewhat less expansively, three ancillary conclusions may be drawn from this article. First, scholars of international economic law should question the assumption that near approximations of certainty and predictability are necessary conditions for the legitimacy or functionality of a legal system. The decisive absence of these features can and do foster useful flexibility and adaptability. Second, the political dimension of the global economy cannot be extricated from any study of international economic law or its effects, nor can the importance of natural endowments to economic growth be underestimated. Legal institutions should accordingly be assessed on their capacity to provide just outcomes in each circumstance rather than by reference to long term economic benchmarks. Finally and most generally, there is much to be gained by applying the analytical framework found in unconventional sources of knowledge, such as theoretical constructs of the physical sciences, when exploring social systems such as that of international economic law. It is hoped that this article may offer a glimpse into the potential for further fruitful studies of this nature.
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The Theory Of Prosecutorial Discretion In Federal Law: Origins And Developments

The Theory Of Prosecutorial Discretion In Federal Law: Origins And Developments

Part II reviews the federal law of prosecutorial discretion. Part II.A emphasizes the small number of legal restraints on prosecutorial decisions and the frequency with which prosecutors make discretionary decisions—rather than taking everything to court—in practice. Part II.B describes the common modern justification for broad prosecutorial discretion, the separation of powers doctrine. This Part points to tensions between the Framers’ original notion of separated powers and the modern federal prosecutor’s concentrated discretion. Part II.B also compares applications of the separation of powers doctrine in criminal procedure with administrative law, which does provide for judicial review of executive agencies’ decisions.
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A Consent Theory of Unconscionability: An Empirical Study of Law in Action

A Consent Theory of Unconscionability: An Empirical Study of Law in Action

Korobkin, supra note 6, at 1203 (citing W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 H ARV . L. R EV . 529, 529 (1971)). The policing of standard form contracting has received much scholarly attention. See, e.g., Jeffrey L. Harrison, Class, Personality, Contract, and Unconscionability, 35 W M . & M ARY L. R EV . 445, 489 (1994) (calling for an “expanded notion of unconscionability” to prevent “uneven exchanges”); Michael I. Meyerson, The Reunification of Contract Law: The Objective Theory of Consumer Form Contracts, 47 U. M IAMI L. R EV . 1263, 1299 (1993) (claiming that con- sumers should be bound only to the terms they know and understand); Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 H ARV . L. R EV . 1174 (1983) (arguing that form terms should be presumptively unenforceable); Alex Y. Seita, Uncertainty and Contract Law, 46 U. P ITT . L. R EV . 75, 132 (1984) (proposing that contracts should be gov- erned by default terms some of which may only be overcome when the disadvantaged party has given “intelligent and meaningful approval”); W. David Slawson, The New Meaning of Contract: The Transformation of Contracts Law by Standard Forms, 46 U. P ITT . L. R EV . 21, 23 (1984) (recommending that the reasonable expectations of the parties be enforced). 116. See infra Part IV.D.1-2.
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Law student understandings of critical theory: A phenomenographic study

Law student understandings of critical theory: A phenomenographic study

The aim here is not to attempt to describe and comment on the large and growing body of literature on how to improve legal education (see for example Stuckey 2007). Rather the aim is to outline some possibilities for curriculum development both in terms of delivery and content in relation to critical thinking. It is not the intention here to give the minutiae of implementation but rather to suggest some practical possibilities which can be linked to the findings on students' perceptions. The first, and most obvious, is to create a set of seminars or workshops where the skills of critical thinking and analysis are specifically addressed. While this inevitably appears 'bolt-on' and is dubious in that it may set up the idea of critical thinking as a separate entity, unrelated to anything else in particular, from the student perspective it may appear as a useful, constructive and meaningful activity (some interviewees did comment positively on such an idea). Critical analysis would thereby appear in a sense privileged and prioritised, being given an explicit and articulated place in the Law diet.
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Douglass North’s Theory of Institutions : lessons for law and development

Douglass North’s Theory of Institutions : lessons for law and development

At the time of the Glorious Revolution, England, along with other countries in Europe, faced the characteristic problem of having to secure reliable and steady streams of revenue. Earlier in the century, the fiscal crisis provoked acrimonious political exchanges that eventually led to civil war and to the overthrow and then restoration of the monarchy. The Glorious Revolution brought this period of instability to an end through a redesign of fiscal and governmental institutions. According to North, the institutional settlement of 1688 had the following features: (1) it curtailed royal prerogatives, subordinating them to the common law; (2) it gave Parliament a dominant role in the area of taxation; (3) it created an independent judiciary; and (4), it reaffirmed and strengthened the protection of property rights. 20 Two related factors contributed towards boosting the authority of this settlement. Firstly, the recent removal of the previous monarch, James II, sent a clear message to the serving monarchs, William and Mary, that the social forces represented in Parliament were ruthless and determined to achieve their goals. And secondly, the considerable powers retained by William and Mary provided Parliament with a strong incentive to honour its side of the bargain. England’s success in establishing institutions is apparent when compared with the fate of France and Spain during the same period. While the political settlement of 1688 enabled England to thrive economically and politically, France was unable to do so. The victory of Parliament led to the establishment of the Bank of England and the creation of new financial instruments that reduced the costs of transacting, enhanced the security of property rights and opened the way to a financial revolution. 21 In his General Economic History, Max Weber discusses the politics leading to the establishment of the Bank of England. He notes, with some surprise, that the Bank was established as a private corporation and remarks that this institutional form was more suitable to a republic than a monarchy. 22 Had Weber been aware of North’s interpretation of the political consequences of the Glorious Revolution, he may have come to see that the legal form selected for the
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