Law and the State: a political economy approach (original) (raw)
Related papers
Between Democracy and the Rule of Law
Teka Komisji Prawniczej PAN Oddział w Lublinie [Teka Commission of Legal Sciences Polish Academy of Sciences Branch in Lublin], vol. 9, 84-99, 2016
This article discusses two basic concepts in scientific legal discourse the concept of democracy and the concept of the rule of law. Obviously, both concepts are inextricably linked to the concept of the state of law (legal state). The necessary condition for the rule of law is the existence of the legal order, but it should be emphasised that one may link the idea of the rule of law to either the theory of the separation of powers or the theory of the sovereignty of the people. The authors analy-sis concerns vertical and horizontal relationships between, in particular, the concept of the rule of law and the concept of the state and law. The author also considers the question of the binding force of legal norms. The thesis that the author makes is that, although there is a relationship between these concepts, one should also point out that both democracy without parliamentarianism and parliamen-tarianism without democracy are possible. Likewise, dictatorship does not essentially contradict democracy, which was emphasised especially by Jean- Jacques Rousseau, just like democracy does not necessarily rule out dictatorship.
Law, Democracy, and the Rule of Law
Oxford University Press eBooks, 2020
Law, Democracy, and the Rule of Law Some people believe that law is a set of orders backed by threats, but this raises issues with legal rules that determine when a marriage is valid. Nobody is ordered to marry, there are no threats when you don't. It is just that you cannot get married if you don't follow the rules. The rules do not regulate but constitute a marriage in the legal sense of that term. Others like to think of law as a bran-tub of social norms, but many social norms are not legal norms. Shaking hands may be a social norm, but in principle it is not required by law. Many assume that law is a system of legal rules, but what does this say for the principles that ground these rules and the policies that refine them? If these principles are not law, and these policies not under the rule of law, what are they? Still others may claim that law is simply a subset of moral rules (those with teeth), but that would imply morality in driving either right or left. This chapter will squarely face the question of law's 'mode of existence', by asking what law does-and how. This means checking on the sources of law, the nature of legal reasoning, and the question of the relationship between law, democracy, and the Rule of Law.
Law and Democracy: Contemporary Questions
I acknowledge that there is a debate regarding the identity and role of the constituent people before a Constitution is formed. It is sufficient for the purposes of this chapter to note that there is a theory that the constituent power, which has the authority to create the Constitution, becomes the constituted people upon enactment of the Constitution. This raises difficult questions regarding precisely who was the constituent authority and on what basis, to what extent membership of the constituent authority automatically translates into membership of the constituted people, and how to address changes in the composition of the constituted people over time. See, for example,
The rule of law principle and the effective functioning of democratic institutions
2013
The rule of law is one of the most debated topics in the legal science currently. This concept is dynamic, multidimensional and ever-changing as it varies depending on the political, cultural and historical traditions of each country. Today, the rule of law is a basic principle upon which modern democratic states and international (universal and regional) organizations (institutions) are based worldwide. This paper first analyzes the rule of law concept from a theoretical aspect in terms of effective functioning of democratic institutions by broadening its concept by including the concept of good governance. Then, the quantitative form of the rule of law measured trough the rule of law index is presented. This index leads to the conclusion that in different countries the rule of law is implemented in different ways. At the same time the index serves as a sufficient reliable indicator for the democratic capacities of modern states. The aim of this paper is to present the rule of law ...
THE STATE AND DEMOCRACY, 2020
The paper proposes a discussion on reconsidering the concepts of "state" and "democracy" from the systemic perspectives of dualism: cause and effect. It also encourages a systemic analysis of the state and dynamics of human society from the perspective of compliance with objective laws in the content of legal law, subjective, by its source: the state. Some of the laws of the gregarious biotic — centralism, temptation, and domination — and their differentiated application in the constitution and evolution of states are brought to attention. The author compares the types of states structured on the basis of extreme political, liberal and communist dogmas and the socio-economic effects of transposing political dogmas into legal norms, according to the principle of the dualism of systems. On the same basis, he concludes that all national and international conflict states are caused by the systemic antagonism between democracy and anti-democracy.
Three Conceptions of Law in Democratic Theory
Canadian Journal of Law & Jurisprudence, 2022
Democratic theory tends to proceed on the assumption that law requires democratic legitimation because it is coercive. However, the claim that law requires democratic legitimation is distinct from claims about the nature of law. This paper takes issue with the notion that law is coercive by an exploration of three distinct understandings of the nature of law: the state-based conception of law, law as the rules of institutionalized normative systems, and law as social norms. Drawing on insights from legal and democratic theory, the paper defends the view that the 'law' to which democratic claims apply are the rules of conduct of institutionalized normative systems. Since rules that belong to such systems are found in associations beyond or below the level of the state, the scope of democratic participation is significantly wider than is usually recognized.
Law and the State: a Philosophical Evaluation
2010
Introduction It is generally assumed that man is a socio-political animal, that man and society are mutually inextricable, and that no one can lead the life of the island (like the lonely Robinson Crusoe the ship-wrecked man trapped on an island). Such a world would simply be boring and meaningless. From the moment necessity endeared man to live beyond subsistence and evolve society, the questions have ever re-echoed: What is law? What is the role of law in the state? What are the rights and obligations of the citizens in the state? These rights and obligations vary from the intellectual, political, economic, judicial, to the freedom of expression, property ownership, equity and justice. However, the obligations and rights of the citizenry are actualized or negated according to the nature of law within a particular state. The state is a personified abstraction. It often signifies the laws of the federation or a republic. It is in this sense that the state is said to have a geographi...
The rule of law beyond the state: Failures, promises, and theory
Resorting to the " rule of law " within the traditional environment of international law generates diffi culties, especially when circumstances require us to square the circle by accommodating normative claims with state legal orders, fundamental rights, and democracy. Unsurprisingly, in recent cases brought before supranational courts, such as the European Court of Justice (Kadì and Al Baarakat, for example), or domestic courts, such as the United States Supreme Court (Hamdan, for example), the import and notion of the rule of law have been interpreted in ways that reveal the uncertainty surrounding the concept and the rather idiosyncratic or instrumental uses to which it is put. Through the analysis of such instances, this article proposes a restatement of the rule of law that better explains its use beyond state borders. Then, it shows how the relation between different orders, as a factual matter, does not obey some monist hierarchy and does not even refl ect the logic of the " dualism " of self-contained systems. Given that the autonomy of legal orders is a vital contemporary reality, confrontation between them and with international law appears to be replacing the formal primacy of sources as well as blind or dogmatic closure by content-dependent constitutional assessments. In this connection, a road taken in the European environment shows that communicative pluralism can embark on a practice of giving reasons inherently capable of producing common standards, the rule of law, and thin lines of principle. All of these factors are ingredients that might fi nally evolve further into a rule of recognition for the international legal order.
Law as a rational form of restrictions on government power
Электронный инновационный вестник , 2021
The author analyses the phenomenon ofpublic power in society in the context o f modem democratic transit. A study con ducted on the grounds and forms o f expression o f the legal nature ofpower and the means o f limiting it. Compliance with the requirements o f the legitimacy o f the State and its functions recognized as a condition o f the mle o f law. The institutions o f power function in the context o f specific political regimes, where their interaction with the institutions o f civil society is in cluded in the mechanism o f legal restrictive imperatives.