From Public Law to State Punishment: A Review of Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law.

This article offers a theoretical and doctrinal solution to a vexing question in public law: how to determine the justifiability of Charter rights-limiting administrative decisions. The jurisprudence suggests three approaches, or modes of reasoning: minimal impairment analysis, ‘interest balancing’, and ‘values-advancing reasoning’. Like Cerberus, the guard dog of Hades, Canadian public law has become three-headed. While scholars and courts argue about which mode of reasoning is categorically best, the culture of justification compels us to ask instead which provides (...) the most compelling explanation for each rights-limiting decision. Just as cutting off one of Cerberus’s heads would diminish his effectiveness as a guard dog, rejecting either of the modes of reasoning would limit decision makers’ capacity to explain their decisions and undermine a culture of justification. The article makes a theoretical case for retaining all three modes of reasoning and sets out a doctrinal approach to determining when each is applicable. (shrink)

The book outlines the historical development of Public Law and the state from ancient times to the modern day, offering an account of relevant events in parallel with a general historical background, establishing and explaining the relationships between political, religious, and economic events.

This article adopts what Frederick Schauer calls a ‘non-essentialist’ approach to understanding the nature of law, which can be contrasted with the widely practised method of ‘conceptual analysis’. Instead of seeking a set of necessary conditions for the existence of law in all possible worlds, non-essentialism reflects upon pervasive features of actual legal systems. The article focuses on constitutional and administrative law and contrasts modern standard accounts of public law with HLA Hart’s highly influential threefold list of ‘necessary’ types (...) of public ‘secondary rules’: rules of recognition, change and adjudication. The argument is that non-essentialist methodology not only yields a rich descriptive account of certain fundamental characteristics of modern legal systems but also provides theoretically significant insights into how law is conceived in many contemporary societies. Because the resulting account is firmly rooted in actual social and legal practices, it provides a more fine-grained and less abstract theory of those practices than is offered by Hart’s approach, based as it is on hypothetical stories about how law ‘might have developed’. (shrink)

The Article explores relationships between contemporary international human rights and democracy. In what respects are they two sides of the same coin, in what respects are they different coins? Do they depend on and complete each other? Can the two be in contradiction? The Article looks at these questions from several perspectives, including their historical connections, the changing definitions and understandings of each, their functional links, their determinacy, and their character as universal phenomena. It also indicates ways in which courts, (...) which have long interpreted and applied human rights, now also reach decisions about constitutional issues by drawing on their conception of democracy. (shrink)

The practice of using courts to foster social change, once confined to the USA, has emerged as a worldwide phenomenon. Foreign practice reflects indigenous forms but faces criticisms similar to that in the USA: that it is ineffective, antidemocratic, and counterproductive. The essay meets these criticisms, first, by recasting US public law litigation as a form of politics that challenges the status quo by forging alliances, changing discursive frames, and disciplining private and public decision making. Looking abroad, the (...) essay emphasizes public law litigation as a meditative institution that facilitates political action and aids in regulatory enforcement where administrative mechanisms are weak or regulation requires ongoing elaboration. Finally, the essay suggests that criticisms of public law litigation tend to neglect three factors: the actual and not assumed comparative advantages of different institutional actors, the role of temporal conditions in affecting social change, and the ubiquity of complex, not dichotomous, relations. (shrink)

The volume ‘Questioning the Foundations of Public Law’ is co-edited by Michael. A Wilkinson and Michael W. Dowdle and its core aim is to engage critically with the magnum opus of Martin Loughlin, ‘...

In an earlier article, it was established that the rules which govern the relations between universities and their students may find their legal source in prescription, royal charter, parliamentary legislation or contract. This article compares judicial review of student rules according to these different sources, whether this review forms part of public law (the review of byelaws, delegated legislation or the expression of other statutory rule‐making powers) or of contract law (as a matter of the fairness of the rules (...) as terms of the student contract or by the inherent qualification of any contractual rule‐making power in a university by reference to reasonableness). Both similarities and differences in these different types of review are identified and their implication in the student context assessed (notably, as to the exclusivity of the visitorial jurisdiction in the case of chartered universities). Finally, it is argued that the compatibility of student rules with students' human rights may be relevant to review in contract law as well as in public law as a result of the very inclusive nature of the grounds of this review. (shrink)

This book tackles the relationship between the common law of judicial review, the written constitution and public international law.

The two standard interpretations of Kant’s view of the relationship between external freedom and public law make one of the terms a means for the production of the other: either public law is justified as a means to external freedom, or external freedom is justified as a means for producing a system of public law. This article defends an alternative, constitutive interpretation: public law is justified because it is partly constitutive of external freedom. The constitutive view (...) requires conceiving of external freedom in a novel, second-personal way, that is, as an irreducibly relational norm. (shrink)

The present religious constitution of the Federal Republic of Germany is the product of protracted historical conflicts and political settlements that began in the sixteenth century. The mediation of these conflicts and settlements and the piecemeal establishment of the constitution was the achievement of imperial public law and diplomacy. Germany’s religious constitution—a secular and relativistic juridical framework protecting a plurality of confessional religions—pre-dated liberalism and democracy, and owes nothing to normative philosophical constructions of individual freedoms and rights, or social (...) justice and moral community. Rather, it was the product of a political compromise between warring confessional blocs, and of the institutions of public law that were the instruments and effects of this compromise. (shrink)

Drawing on recently published correspondence as well as on a survey of Polish and international philosophical activity published in 1937 and details concerning the publisher and bookseller Aleksander Mazzucato, I provide evidence that, contrary to some recent assertions (but in line with older bibliographical entries), Tarski's ‘Der Wahrheitsbegriff in den formalisierten Sprachen’ was not published in journal form until 1936, although preprints, lacking two corrections and a small addendum, were likely available in the late months of 1935.

American public law scholarship views law as a purposive instrument for the achievement of democratic purposes. It has analyzed how this instrument can best be employed within the historical context of the legal institutions and traditions of particular nation-states. Emerging forms of international law, articulated by international tribunals, challenge these fundamental premises of American public law scholarship. Much international law does not reflect the will of an indentifiable demos, and it is articulated through innovative legal institutions that combine (...) the procedures and organizational forms of many distinct states and legal cultures. Attempting to omprehend the sources and limitations of the legitimacy of this kind of international law will force American public law scholarship to re-examine deep and implicit presuppositions, inherited from legal realism, about the inherent normativity of the rule of law. The author speculates about possible effects of this re-examination on the substantive and methodological agenda of American public law scholarship. (shrink)

The ArgumentIn this we explore some of the ways in which a state scientific laboratory (Daresbury SERC) reacted to the rtetoric and forces of the marketpace in the 1980s. We describe laboratory attempts to create what we call “good customers” while converting itself into a “good seller” by developing a particulat set of costing practicting that were closely related to the implementation of a management accounting system. Finally, we consider how Daresbury response to “market forces” influenced scintific and organzational practice, (...) and arsponse that the social technologies of governmentality performed by accountancy — but also by scientific and bureaucratic practice are complex, discursively heterogeneou, and used in context-sensitive ways. This means, or so we suggest, that it is difficult to mount general argunents about “science” and “the market,” and that the use of such large-scale institions impedes impedes analysis. (shrink)

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for (...) legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

"Public reason" is one of the central concepts in modern liberal political theory. As articulated by John Rawls, it presents a way to overcome the difficulties created by intractable differences among citizens' religious and moral beliefs by strictly confining the place of such convictions in the public sphere. Identifying this conception as a key point of conflict, this book presents a debate among contemporary natural law and liberal political theorists on the definition and validity of the idea of (...) public reason. Its distinguished contributors examine the consequences of interpreting public reason more broadly as "right reason," according to natural law theory, versus understanding it in the narrower sense in which Rawls intended. They test public reason by examining its implications for current issues, confronting the questions of abortion and slavery and matters relating to citizenship. This energetic exchange advances our understanding of both Rawls's contribution to political philosophy and the lasting relevance of natural law. It provides new insights into crucial issues facing society today as it points to new ways of thinking about political theory and practice. (shrink)

This paper provides a critical analysis of Martin Loughlin's pure theory of public law as developed in his more recent work. I argue that the pure theory makes a series of errors and rests on a set of assumptions that make it inappropriate to provide the legal framework for any social‐democratic polity. Specifically, the theory concedes too much latitude to the functional needs of the state and organised politics, and pays too little deference to processes of political opinion and (...) will formation in civil society. As such, it only succeeds in establishing law's connection to the public realm, at the cost of effacing its internal relationship to the rule of law and democracy. (shrink)

Robert Post's work in constitutional theory is engaging in an exceptional way: it always forces one to rethink and reconsider the basic tenets of the field. In his article The Challenge of Globalization to American Public Law Scholarship, Post discusses American public law and human rights scholarship in the age of globalization. In this comment, I will make a few remarks on some of the points raised in the article.

Proportionality is a German, and thus continental European, concept in public law that is applied by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The principle specifies that measures adopted by executive authorities should not exceed the limits of what is appropriate and necessary in order to achieve legitimate objectives in the interest of the public. Using a functional comparative approach, this book evaluates the extent to which proportionality (...) has been integrated into the English and Hong Kong judicial systems by comparing case law in these courts with that of the CJEU and the ECtHR. The text also reviews the development of proportionality and presents a topical understanding of why its adoption and application have encountered difficulties, particularly regarding socio-economic rights, in some jurisdictions, such as the United Kingdom and Hong Kong. Written by a scholar with experience from both within the Hong Kong judicial system and from international research, this book is the first all-encompassing reference for legal practitioners worldwide." -- Provided by publisher. (shrink)

ABSTRACTThis article critically considers a state-centred approach to public law that has been epitomised in Martin Loughlin’s claim that the concept of the state is the sine qua non of public law....

The recent research of Helena Rosenblatt, Hilail Gildin, Arthur Meltzer, and John Scott calls for a reconsideration of Rousseau's stance towards and effect on the natural public law tradition. This reconsideration is especially called for given the persuasive evidence and arguments that these scholars marshal to demonstrate the positive contribution of Rousseau to that tradition and to suggest that his pre-Kantian rational law teaching in the Social Contract is rooted in his post-Hobbesian stance towards natural law, especially in the (...) Second Discourse. The work of these scholars builds upon others, especially on Leo Strauss, Victor Gourevitch, Jean Starobinski, Marc Plattner, Roger Masters and John Charvet, as well as Asher Horowitz, R. A. Leigh, Franz Haymann, and Robert Derathe, and completes the full range of alternative answers to our question. Their contributions are an invaluable scaffolding for fully grasping the issue and for proposing theses that could resolve it. Given the great debt owed to these scholars, the present inquiry begins with an overview and general assessment of their opinions on the issue, which is then followed by a close analysis of the relevant texts of Rousseau, especially the “Preface” to the Second Discourse. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Laws of the Roman People: Public Law in the Expansion and Decline of the Roman RepublicDaniel J. GargolaCallie Williamson. The Laws of the Roman People: Public Law in the Expansion and Decline of the Roman Republic. Ann Arbor: University of Michigan Press, 2005. xxviii + 506 pp. 39 tables. 4 maps. Cloth, $75.Laws enacted by citizen assemblies occupy a prominent place in the history of (...) the Roman Republic. In this large book, Williamson aims to examine the culture and practices of lawmaking and to link legislation to Roman expansion over Italy and to the creation of structures of accommodation of sufficient strength to allow the formation of a fairly integrated Italian world. Williamson has set a large task for herself, one that addresses many major themes in Roman history, and she has produced a wide-ranging and complicated argument that should be set out in detail.The book is divided into three broad parts, each made up of three substantial chapters. Part 1 is the core. In the first chapter, Williamson addresses change over time in the frequency of legislative assemblies, the relationship between frequency of lawmaking and periods of crisis, and the functions of public lawmaking. She finds that legislative activity was concentrated in times of crisis, but that the number of laws proposed or enacted in non-crisis years increased markedly from the third to the first centuries and that Roman officeholders proposed laws primarily in instances where the matter was controversial, suggesting that the primary function of lawmaking through popular assemblies was a legitimizing one in just those circumstances where the legitimacy of an action might be questioned.In general, these conclusions are possible and, in some cases, probable, [End Page 469] but they rest on foundations that are not as firm as one would like. Williamson's demonstration centers on a collection of laws and proposed laws from c. 350 to 44 B.C.E., which she has arranged chronologically in twenty-five-year segments that furnish the means to discern changes over time and that, in later chapters, provide the essential temporal structure to integrate lawmaking with a wide range of developments. In appendix B, intended to justify her approach, she acknowledges and dismisses two potential sources of error: the possible use of a statistically invalid sampling procedure and the possible bias introduced by the differing interests of the authors who provide the bulk of the evidence: Cicero, Livy, Cassius Dio, Appian, Plutarch, and Polybius. Yet there is another possibility that Williamson does not consider. Our sources certainly favor some periods over others. Thus, historical accounts become fuller for the Second Punic War and as they approach the first century, just the periods that supposedly exhibit clear signs of an increase in legislative activity. We may know of more laws or proposed laws in periods of war and political conflict than in times of peace, not only because more laws were put forward then but also because such times attracted more interest on the part of historians. Finally, substantial portions of the texts of Livy, Dio Cassius, and Polybius are lost, and the gaps cover much of the third and second centuries. The evidence, then, is extremely uneven over time.One way that Williamson uses the evidence is especially problematic. She notes that three methods of enacting programs or regulations existed simultaneously: magisterial edicts, senatorial decrees, and popular legislation. Since she finds that the kinds of matters addressed in legislation are indistinguishable from the range of issues addressed by the senate, she concludes that, to some extent, it was a matter of choice whether a magistrate went to the senate or to the people for authorization. Thus, when a proposal was moved forward by a law rather than by an edict or senatorial decree, she suggests that the measure was probably controversial and required the legitimizing function of a popular assembly. Unfortunately, our sources often fail to set out clearly just what procedures a magistrate followed. Sometimes, as Williamson notes, a senatorial decree and the proposal of legislation mark successive stages in the legislative process. And certain operations, such as the creation of provincial assignments or promagistracies, could be addressed... (shrink)

The obligation of the legalization of entrepreneurial activity from Article 14 of The Act of July 2, 2004 on the freedom of entrepreneurial activity caused deliberations regarding constitutive or declarative character of the legalization entry and as a result, created a problem with indication of the moment when the public law status of an entrepreneur is acquired. The answer to the question whether Central Register and Information of Entrepreneurial Activity or the register of entrepreneurs of the National Court Register (...) have also the creation function incites many controversies and is subject to discussions, in the process of which two main standpoints were formed. It is also important to note that the resolution of the discussed issue not only holds scientific value, but above all, it has significant importance in practice. Therefore, it is necessary and even essential. Furthermore, it is typical for this issue that concerns related thereto and arguments raised during the discussion have their basis in the legislation in force and in fact, encapsulate the favoured path of its interpretation. (shrink)

The evolution of the present legal system is powered by the contradictory double-structure of a law that is at once is repressive and emancipatory. I take three examples, one from the early stage of the twentieth century’s legal transformations, and two from the present. They all show that the latent emancipatory potential of public law can be activated to challenge repressive function of hegemonic law. The first example is concerned with the challenge of imperial law from within the managerial (...) mindset of the legal system, the second shows that every modern constitutional law “can strike back”. The third one emphasizes the tension between the Kantian constitutional mindset and the managerial mindset that dominates present international law. (shrink)

Neuropsychiatric disorders such as drug addiction, depression and schizophrenia are often centrally implicated in public health challenges. These conditions impact the individuals affected and have widespread implications, contributing to related crises such as opioid epidemic, rising suicide rates and homelessness. Despite their influence, public health interventions frequently emphasise individual responsibility, overlooking the complex interplay of neurobiological and systemic factors that underpin these disorders. Current public health frameworks, such as the Nuffield Council on Bioethics’ intervention ladder, prioritise efforts (...) that encourage individual behaviour change. Paetkau critiques this emphasis on individual responsibility, emphasising the need to consider more systemic factors, such as social determinants of health, as targets of necessary intervention.1 We aim to reinforce Paetkau’s critique of the intervention ladder by introducing three neuropsychiatric case studies, each highlighting the limitations of an individual-based framework in addressing psychopathology-involved public health issues. We argue that conditions like addiction, depression and serious mental illness undermine the emphasis on individual responsibility in public health and policy interventions. To this end, neuroscience demonstrates that effective public health interventions necessitate a shift from the long-standing emphasis on individual responsibility towards more comprehensive, systems-level interventions. Opioid overdose deaths in the USA have sextupled since 1999, with over 100,000 deaths in 2023 alone.2 The opioid crisis has since remained one of the most pressing public …. (shrink)

Um das Recht zu erfassen, bedarf es der Beachtung der Beziehung zwischen Recht und Anarchie. Anarchie kann mit oder ohne Gesetze bestehen, die das Verhalten der Menschen regeln. Das Privatrecht enthält diejenigen Gesetze, die den Zustand der Anarchie von einem gesetzlosen Zustand in einen mit Recht umwandeln können. Diese Gesetze sind die natürlichen Gesetze, die das Mein und Dein, insbesondere die Rechte der Person, das Eigentumsrecht, das Vertragsrecht, das Recht der häuslichen Gesellschaft und die korrespondierenden Verbindlichkeiten bestimmen. Das Problem mit (...) einem Naturzustand, der Privatrecht enthält, ist, wie die Tendenz zum Ausarten in Gesetzlosigkeit und allgemeinen Krieg zum Halten zu bringen ist, weil in einem solchen Zustand kein objektiver Prozeß da ist, in dem Bestimmtheit über die Rechte in dem äußeren Verhalten des Menschen erreicht und erzwungen werden kann. Die Gefahr des privatrechtlichen Naturzustands ist, in die Anarchie ohne rechtliche Gesetze abzugleiten. Die Urteile des Privatrechts enthalten unvermeidliche Abhängigkeit von den subjektiven, wenngleich vernünftigen, Annahmen über die Absichten der Handelnden der gesetzmäßigen Taten und auch unvermeidliche Annahmen über die rechtlichen Absichten der Tatsachen. Aber diesen Urteilen fehlt es an der Bedingung der gewissen und peremtorischen Urteile. Der Grund des öffentlichen Rechts ist es, daß die Bedingungen eines Gerichtshofs, also der Gewißheit und Endgültigkeit der Urteile über das Mein und Dein durch die Kraft eines Beherrschers und die Gesetze eines Gesetzgebers allein eingehalten werden können. Das öffentliche Recht ist besonders nötig, um die Ungewißheit über das Eigentum aufzulösen, und, was im Naturzustand nur provisorische Rechte sind, zu peremtorischen zu machen. Der bürgerliche Zustand ist nicht ein Zustand unter bloß positiven Gesetzen. Die natürlichen Gesetze werden in irgendeiner Art in jedem bürgerlichen Zustand entdeckt. Sie machen das Wesen der verschiedenen Rechte aus. Die Differenz zwischen den beiden Arten von Recht liegt nicht in den Gesetzen, sondern in dem komparativen Vermögen, im Naturzustand und im bürgerlichen Zustand einen Gerichtshof auszumachen und ein allgemein verbindendes Urteil zu erreichen. Diese Differenz hängt ab von der Art, in der die Kraft in den Bestimmungen der Rechte ausgemacht und gebraucht ist, also von dem Vermögen des bürgerlichen Zustands, peremtorische Rechte zu bestimmen und der Auflösung in die gesetzlose Anarchie zu widerstehen. (shrink)

At first sight constitutionalism appears to be a key concept in public law discourse in the United Kingdom. It appears in all the major academic discussions from the rule of law and judicial review to the ‘new constitutional settlement’ and in relation to constitutional culture. And yet attempts to define the scope, meaning and role of constitutionalism remain vague. This article discusses the different fields in which constitutionalism is discussed and the different meanings that are attributed to the concept. (...) It shows that constitutionalism is routinely conflated by public law scholars with other constitutional values and principles, like the rule of law or separation of powers. This article argues that constitutionalism should either be conceived as distinct from those concepts or, failing that, can safely be eliminated from public law discourse. The article concludes by asking whether a nuanced and normative discussion of constitutionalism could have any meaningful application in the United Kingdom constitution. (shrink)

An important feature of some recent jurisprudential writings is the tendency to reject the precept of liberal individualism which affirms the priority of the principles of the "right conduct" over the substantive conceptions of "the good". This rejection, explicit in a recent book by Rogers M. Smith, and implicit in a recent work by Guido Calabresi, leads to strikingly illiberal consequences; hence, this provides indirect confirmation that the priority of the right over the good constitutes the most reliable defense of (...) individual liberty against majoritarian oppression. In Smith, an attempt to replace this priority with the principle of "rational liberty" leads to the disappearance of the guarantees of minority rights against orthodox majorities; in Calabresi, the doctrine of weighing and balancing competing moral principles of "the good" fails to provide an explanation for the strongly held moral intuition that some external preferences have to be disqualified at the outset, before they enter the forum of moral bargaining. (shrink)

The Oxford Handbook of Law and Economics provides a broad overview of numerous current and developing topics in the field of law and economics. With contributions by over one-hundred experts in the field within one work, the volume covers issues ranging from as far as Law and Neuroeconomics to European Union Law and Economics to Feminist Theory and Law and Economics. Its detail and breadth make it an invaluable reference book and contribution to the field.

This paper argues that solicitors are required to lawyer relationally when delivering independent legal advice (ILA) to (predominantly) women set to provide suretyship for their intimate partner’s debts. Case law tells us that women providing suretyship may be entering the transaction under the coercion of their partner. Coerced debt is a form of economic abuse, which in turn is a form of domestic abuse. ILA in this context therefore provides an important intervention to potentially assist victims of abuse before entering (...) (potentially more) debt at the hands of their abuser. To make ILA purposeful, solicitors must prioritise relational values/dynamics such as consultation, care, judgement, and empowerment; the anti-thesis of market-exchange lawyering which is characterised by the values such as objectivity and detachment. Market-exchange lawyering is also associated with ethical apathy as lawyers prioritise their client’s means-ends above all else, therefore failing to consider the broader implications of those ends (in terms of their client’s best interests and/or the public interest). Drawing on interview data with 22 solicitors, it is demonstrated that most interviewees provide tick-box ILA prioritising completion. That is, most interviewees prioritised values of commerce over values of care when acting for women who may be experiencing economic abuse. (shrink)