Five Variations of Transformative Law: Beyond Private and Public Interests (original) (raw)
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European Law Open, 2022
In the western context, law has two functions. It upholds normative expectations and it transforms social phenomena. The latter is expressed through the form-giving function of law as law designates particular social phenomena as, for example, economic, political or religious. Inside such overarching categories, further subcategories can moreover be observed. In relation to economic processes, the legal institutions of competition, contract, corporation and property are, for example, classical examples of the form-giving function of law. The dual function of law is briefly illustrated through a genealogy of imaginaries of law distinguishing between four historically dominant types of law: 'Law as purpose'; 'law as a tool'; 'law as an obstacle'; and 'law as reflexivity-initiation'. On this background, ten core dimensions of what might become a new episteme of transformative law are fleshed out with the aim of answering the question to what extent it can act as an alternative to the previous four types of law.
Remarks on the philosophy and politics of public law
Legal Studies, 1998
To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law. In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.
Judges in Utopia The Transformative Role of the Judiciary in European Private Law
European Review of Private Law
This article introduces four contributions to a special issue on ‘judicial law-making in European private law’, which seeks to reconstruct and understand (aspects of) the evolving transformative role of the judiciary in light of the interaction between the national and European level. The paradigmatic examples of climate change litigation and judicial dialogue in consumer mortgage cases show how courts are asked to address sensitive political questions in cases brought by private parties in civil proceedings. A ‘utopian’ (self-)understanding of the judicial task explains and justifies how and to what extent judges may address such societal problems through private law, and at the same time transform private law itself.
The Law of Political Economy: Transformation in the Function of Law. Edited by Poul F. Kjaer
Cambridge University Press, 2020
This book develops the law of political economy as a new field of scholarly enquiry. Bringing together an exceptional group of scholars, it provides a novel conceptual framework for studying the role of law and legal instruments in political economy contexts, with a focus on historical transformations and central challenges in both European and global contexts. Its chapters reconstruct how the law of political economy plays out in diverse but central fields, ranging from competition and consumer protection law to labour and environmental law, giving a comprehensive overview of the central challenges of the law of political economy. It also provides a sophisticated and multifaceted framework for further enquires while outlining the contours of new law of political economy.
The constitutionalization of private law and the political role of the jurist
Academia Letters, 2021
Nowadays, the centrality of constitutional law within the legal sphere is evident. I am not referring to constitutional law as a fundamental (and global) instrument for the protection of the fundamental rights of the individual. Instead, I am referring to constitutional law as a subject, that is, a specific disciplinary sector. In a not-so-distant past, a subject that above all served to know the structure of the State-organization. Progressively, constitutional law has asserted itself as the backbone of all contemporary liberal-democratic legal systems. At the same time, as is well known, it is a phenomenon that still persists and that requires those continuous theoretical refinements that have become necessary due to the very constitutionalization of juridicity. From this perspective, the traditional distinction between civil law and common law remains firm, in a historical key, but it must be critically reconsidered with respect to what we could call the politics of contemporary law, focused on the importance of argumentation oriented to the consequences. Here, then, is the sense of the novelty represented by constitutional law and the reason for its methodological success: today, constitutional law is the foundation of legal argumentation. Constitutional law is the fuel (a fuel that feeds itself, we might say) of legal construction, of that categorical constructivism that has nothing authoritarian about it-in the perspective of the rationalistic constructivism famously criticized by Friedrich Hayek)-, but much liberal. Any issue has a connection to the constitutional level. In the past, this connection was often left somewhat in the shade or even radically denied. On the contrary, today, this connection is emphasized and sometimes taken to its extreme consequences within the perspective (precisely political) of the integral protection (and strengthening) of the individual sphere, which in this sense is projected onto juridicity, transforming it.
2019
Democratic legal systems have recently been subject to rapid and multi-directional processes of change. There are numerous sociological, technological, ideological, or purely political processes which result in law’s amendment and transformation. This book argues that this legal change is best understood from a political philosophy perspective. This can be used as an interpretative device to understand the ongoing processes of change as well as their outcomes such as new laws, judicial interpretations, or constitutional amendments. The work has three main objectives: to provide deeper understanding of the problems of legal change within the diversity of Western political and legal thought; to examine the development of the processes of change in terms of their normative and prudential acceptability; to interpret actual processes of change with a view to the general theoretical and normative background. The book is divided into three parts: Part I sets the scene and is focused on the general issues important for understanding and evaluating legal change from the perspective of political philosophy; Part II focuses on the spectrum of politico-philosophical justifications present in the political culture of democratic states; Part III offers selected case studies to specify and apply the philosophical ideas in the previous parts. The book will be a valuable resource for students and scholars of law and jurisprudence, including comparative legal studies and human rights law, political theory, and philosophy.
International Journal of Criminology and Sociology, 2021
The study investigates the legal nature of the category of "public interest" in private law relations from the standpoint of a systematic scientific approach to law in the countries of post-Soviet society in the modern period. The study states the affiliation of public and private law to the means of achieving the purpose of the law: the recognition of a person, their rights and freedoms as the highest social value of the state. The unsuitability of the theory of the branch belonging to public law has been proved using the universal criterion of separation: the use of the category of "public interest" in the development of the subject and method of the branch in private legal relations. It is concluded that the division of law into private and public is inconsistent in terms of their differentiation of the criterion "method of protecting the rights of their participants", which is activated only after the violation of the latter, while subjective law also exists before the violation, during the existence of regulatory legal relations, and it is the subjective law that forms the affiliation to the relevant industry. During the study, signs of public interest as a legal category were formed. In addition, modern features of public interest as a legal category were outlined from the standpoint of a systematic approach: the general nature of public interests; connectedness with large-scale involvement; recognition by the state and the provision of the law; the possibility of their implementation through measures of state power.