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Foundations of public law
This book offers an account of the formation of the discipline of public law with a view to identifying its essential character, explaining its particular modes of operation, and specifying its unique task. Public law is conceived broadly as a type of law that comes into existence as a consequence of the secularization, rationalization, and positivization of the medieval idea of fundamental law. Formed as a result of the changes that give birth to the modern state, public law establishes the authority and legitimacy of modern governmental ordering. Public law today is a universal phenomenon, but its origins are European. Part I of the book examines the conditions of its formation, showing how much the concept borrowed from the refined debates of medieval jurists. Part II then examines the nature of public law. Drawing on a line of juristic inquiry that developed from the late 16th to the early 19th centuries — extending from Bodin, Althusius, Lipsius, Grotius, Hobbes, Spinoza, Locke, and Pufendorf to the later works of Montesquieu, Rousseau, Kant, Fichte, Smith, and Hegel — it presents an account of public law as a special type of political reason. The remaining three parts unpack the core elements of this concept: state, constitution, and government. By explaining the way that these core elements of state, constitution, and government were shaped respectively by the technological, bourgeois, and disciplinary revolutions of the 16th–19th centuries, public law is revealed to be a subject of considerable ambiguity, complexity, and resilience.
eBook
Proportionality
Having identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.
eBook
Creating the Administrative Constitution
This groundbreaking book is the first to look at administration and administrative law in the earliest days of the American republic. Contrary to conventional understandings, Mashaw demonstrates that from the very beginning Congress delegated vast discretion to administrative officials and armed them with extrajudicial adjudicatory, rulemaking, and enforcement authority. The legislative and administrative practices of the U.S. Constitution's first century created an administrative constitution hardly hinted at in its formal text. Beyond describing a history that has previously gone largely unexamined, this book, in the author's words, will \"demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic.\"
eBook
International law in the long nineteenth century (1776-1914) : from the public law of Europe to global international law?
\"International Law in the Long Nineteenth Century gathers ten studies that reflect the ever-growing variety of themes and approaches that scholars from different disciplines bring to the historiography of international law in the period. Three themes are explored: 'international law and revolutions' which reappraises the revolutionary period as crucial to understanding the dynamics of international order and law in the nineteenth century. In 'law and empire', the traditional subject of nineteenth-century imperialism is tackled from the perspective of both theory and practice. Finally, 'the rise of modern international law', covers less familiar aspects of the formation of modern international law as a self-standing discipline. Contributors are: Camilla Boisen, Raphaël Cahen, James Crawford, Ana Delic, Frederik Dhondt, Andrew Fitzmaurice, Vincent Genin, Viktorija Jakjimovska, Stefan Kroll, Randall Lesaffer, and Inge Van Hulle\"-- Provided by publisher.
Book
Law against the State
This collection of rich, empirically grounded case studies investigates the conditions and consequences of 'juridification' - the use of law by ordinary individuals as a form of protest against 'the state'. Starting from the actual practices of claimants, these case studies address the translation and interpretation of legal norms into local concepts, actions and practices in a way that highlights the social and cultural dynamism and multivocality of communities in their interaction with the law and legal norms. The contributors to this volume challenge the image of homogeneous and primordially norm-bound cultures that has been (unintentionally) perpetuated by some of the more prevalent treatments of law and culture. This volume highlights the heterogeneous geography of law and the ways boundaries between different legal bodies are transcended in struggles for rights. Contributions include case studies from South Africa, Malawi, Sierra Leone, Turkey, India, Papua New Guinea, Suriname, the Marshall Islands and Russia.
eBook
Constitution for a Disunited Nation
This collection is the most comprehensive account of the Fundamental Law and its underlying principles. The objective is to analyze this constitutional transition from the perspectives of comparative constitutional law, legal theory and political philosophy. The authors outline and analyze how the current constitutional changes are altering the basic structure of the Hungarian State. The key concepts of the theoretical inquiry are sociological and normative legitimacy, majoritarian and partnership approach to democracy, procedural and substantive elements of constitutionalism. Changes are also examined in the field of human rights, focusing on the principles of equality, dignity, and civil liberties.
eBook