The Concept of Liberal Democratic Law

The Concept of Liberal Democratic Law

Author: Johan Van Der Walt

Publisher: Law and Politics

ISBN: 0367181800

Category: Democracy

Page: 268

View: 373

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This book develops a historical concept of liberal democratic law through readings of the pivotal twentieth century legal theoretical positions articulated in the work of Herbert Hart, Ronald Dworkin, Duncan Kennedy, Rudolf Smend, Hans Kelsen and Carl Schmitt. It assesses the jurisprudential projects and positions of these theorists against the background of a long history of European metaphysics from which the modern concept of liberal democratic law emerged. Two key narratives are central to this history of European political and legal metaphysics. Both concern the historical development of the concept of nomos that emerged in early Greek legal and political thought. The first concerns the history of philosophical reflection on the epistemological and ontological status of legal concepts that runs from Plato to Hobbes (the realist-nominalist debate as it became known later). The second concerns the history of philosophical and political discourses on law, sovereignty and justice that starts with the nomos-physis debate in fifth century Athens and runs through medieval, modern and twentieth century conceptualisations of the relationship between law and power. Methodologically, the reading of the legal theoretical positions of Hart, Dworkin, Kennedy, Smend, Kelsen and Schmitt articulated in this book is presented as a distillation process that extracts the pure elements of liberal democratic law from the metaphysical narratives that not only cradled it, but also smothered and distorted its essential aspirations. Drawing together key insights from across the fields of jurisprudence and philosophy, this book offers an important and original re-articulation of the concept of democratic law.

Law as Politics

Law as Politics

Author: David Dyzenhaus

Publisher: Duke University Press

ISBN: 0822322447

Category: Philosophy

Page: 340

View: 469

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While antiliberal legal theorist Carl Schmitt has long been considered by Europeans to be one of this century's most significant political philosophers, recent challenges to the fundamental values of liberal democracies have made Schmitt's writings an unavoidable subject of debate in North America as well. In an effort to advance our understanding not only of Schmitt but of current problems of liberal democracy, David Dyzenhaus presents translations of classic German essays on Schmitt alongside more recent writings by distinguished political theorists and jurists. Neither a defense of nor an attack on Schmitt, Law as Politics offers the first balanced response to his powerful critique of liberalism. One of the major players in the 1920s debates, an outspoken critic of the Versailles Treaty and the Weimar Constitution, and a member of the Nazi party who provided juridical respectability to Hitler's policies, Schmitt contended that people are a polity only to the extent that they share common enemies. He saw the liberal notion of a peaceful world of universal citizens as a sheer impossibility and attributed the problems of Weimar to liberalism and its inability to cope with pluralism and political conflict. In the decade since his death, Schmitt's writings have been taken up by both the right and the left and scholars differ greatly in their evaluation of Schmitt's ideas. Law as Politics thematically organizes in one volume the varying engagements and confrontations with Schmitt's work and allows scholars to acknowledge—and therefore be in a better position to negotiate—an important paradox inscribed in the very nature of liberal democracy. Law as Politics will interest political philosophers, legal theorists, historians, and anyone interested in Schmitt's relevance to current discussions of liberalism. Contributors. Heiner Bielefeldt, Ronald Beiner, Ernst-Wolfgang Bockenforde, Renato Cristi, David Dyzenhaus, Robert Howse, Ellen Kennedy, Dominique Leydet, Ingeborg Maus, John P. McCormick, Reinhard Mehring, Chantal Mouffe, William E. Scheuerman, Jeffrey Seitzer

The Concept of Liberal Democratic Law

The Concept of Liberal Democratic Law

Author: Johan van Der Walt

Publisher: Routledge

ISBN: 9780429594700

Category: History

Page: 268

View: 935

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This book develops a historical concept of liberal democratic law through readings of the pivotal twentieth century legal theoretical positions articulated in the work of Herbert Hart, Ronald Dworkin, Duncan Kennedy, Rudolf Smend, Hans Kelsen and Carl Schmitt. It assesses the jurisprudential projects and positions of these theorists against the background of a long history of European metaphysics from which the modern concept of liberal democratic law emerged. Two key narratives are central to this history of European political and legal metaphysics. Both concern the historical development of the concept of nomos that emerged in early Greek legal and political thought. The first concerns the history of philosophical reflection on the epistemological and ontological status of legal concepts that runs from Plato to Hobbes (the realist-nominalist debate as it became known later). The second concerns the history of philosophical and political discourses on law, sovereignty and justice that starts with the nomos-physis debate in fifth century Athens and runs through medieval, modern and twentieth century conceptualisations of the relationship between law and power. Methodologically, the reading of the legal theoretical positions of Hart, Dworkin, Kennedy, Smend, Kelsen and Schmitt articulated in this book is presented as a distillation process that extracts the pure elements of liberal democratic law from the metaphysical narratives that not only cradled it, but also smothered and distorted its essential aspirations. Drawing together key insights from across the fields of jurisprudence and philosophy, this book offers an important and original re-articulation of the concept of democratic law.

From Liberal Democracy to Fascism

From Liberal Democracy to Fascism

Author: Peter Caldwell

Publisher: BRILL

ISBN: 9789004473898

Category: History

Page: 172

View: 943

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This book reexamines the crucial debates on law and politics, which rose during the Weimar Republic. The authors show the continued relevance of these debates for the constitutional culture of the Federal Republic, and indeed for liberal democracy in general.

Liberal Democracy, Law and the Citizen Speaker

Liberal Democracy, Law and the Citizen Speaker

Author: Ian Cram

Publisher: Bloomsbury Publishing

ISBN: 9781509945849

Category: Law

Page: 229

View: 545

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This book delivers an original, theoretically informed analysis of the legal regulation of online speech. Rejecting the narrow pluralism of elitist and deliberative accounts of the citizen's role in political discourse, the book defends a participatory account of speech in non-deliberative settings. The latter account of political pluralism best captures the republican democratic aspiration for popular, on-going authorship of the laws and the centrality of freedom to dissent in democratic theory. The legal and policy implications for governments and social media platforms of this inclusive envisioning of public discourse are then elaborated upon. In the digital world, anyone with access to the internet can be a speaker. Speech on public platforms has become democratised. At the same time, aspects of online speech are plainly problematic. Concerns exist about disinformation, 'fake news', 'deep fakes', 'weaponised speech' and 'trolls'. Offensive speech and the polarising effects of robustly expressed political opinion are also troublesome. These assorted downsides of democratised speech are said to undermine the integrity of democratic processes and institutions. Public debate is distorted and coarsened and the electorate are misled. How ought the liberal democratic state respond to these challenges? The discussion is intended to be read by academics and researchers with interests in democratic theory, digital communications and freedom of expression. It offers a stimulating and distinctive contribution to debates about online speech.

Abusive Constitutional Borrowing

Abusive Constitutional Borrowing

Author: Rosalind Dixon

Publisher: Oxford University Press

ISBN: 9780192893765

Category: Authoritarianism

Page: 241

View: 993

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Law is fast globalizing as a field, and many lawyers, judges and political leaders are engaged in a process of comparative borrowing. But this new form of legal globalization has darksides: it is not just a source of inspiration for those seeking to strengthen and improve democratic institutions and policies. It is increasingly an inspiration - and legitimation device - for those seeking to erode democracy by stealth, under the guise of a form of faux liberal democratic cover. Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy outlines this phenomenon, how it succeeds, and what we can do to prevent it. This book address current patterns of democratic retrenchment and explores its multiple variants and technologies, considering the role of legitimating ideologies that help support different modes of abusive constitutionalism. An important contribution to both legal and political scholarship, this book will of interest to all those working in the legal and political disciplines of public law, constitutional theory, political theory, and political science.

Constitutional Justice

Constitutional Justice

Author: Trevor R. S. Allan

Publisher: Oxford University Press on Demand

ISBN: 019926788X

Category: Law

Page: 348

View: 864

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Scope of Judicial Review

European and International Media Law

European and International Media Law

Author: Perry Keller

Publisher: Oxford University Press

ISBN: 9780198268550

Category: Business & Economics

Page: 532

View: 691

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European and International Media Law considers the rapidly changing relationship between the media and the liberal democratic state. It explores key contemporary media issues and captures the extraordinary impact of the liberal media model on European and international law as well as exploring its profound weaknesses.

Liberal Democracy and the Social Acceleration of Time

Liberal Democracy and the Social Acceleration of Time

Author: William E. Scheuerman

Publisher: JHU Press

ISBN: 9780801878855

Category: Political Science

Page: 311

View: 416

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The political and legal institutions of liberal democracy were designed in an era in which information, transactions, travel, and other aspects of social life moved at a much slower pace. The rapid acceleration of social life that characterizes today's world potentially disables these institutions according to Scheuerman (political science, U. of M

A New Introduction to Jurisprudence

A New Introduction to Jurisprudence

Author: Paul Cliteur

Publisher:

ISBN: 0367112345

Category: Jurisprudence

Page: 248

View: 501

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A New Introduction to Jurisprudence takes one of the central problems of law and jurisprudence as its point of departure: what is the law? Adopting an intermediate position between legal positivism and natural law, this book reflects on the concept of 'liberal democracy' or 'constitutional democracy'. In five chapters the book analyses: (i) the idea of higher law, (ii) liberal democracy as a legitimate model for the state, (iii) the separation of church and state or secularism as essential for the democratic state, (iv) the universality of higher law principles, (v) the history of modern political thought. This interdisciplinary approach to jurisprudence is relevant for legal scholars, philosophers, political theorists, public intellectuals, historians, and politicians.

Liberal Democracy 3.0

Liberal Democracy 3.0

Author: Stephen Turner

Publisher: SAGE

ISBN: 9781847876775

Category: Social Science

Page: 168

View: 286

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`This is a very fine text, a powerful piece of work that deserves to be read widely. The analysis is truly panoramic. It ranges across central concerns in the fields of social theory, political theory, and science studies and engages with and/or draws upon the ideas of key classical and contemporary thinkers, including Tocqueville, Weber, Schumpeter, Polyani, Habermas, Foucault, Schmitt and Beck' - Barry Smart, Professor of Sociology, University of Portsmouth What are the political implications of 'expert' knowledge and especially scientific knowledge for liberal democracy? If knowledge is not evenly distributed upon what basis can the philosophy of equal rights be sustained? This important book points to the crisis in knowledge in liberal democracies. This crisis, simply put, is that most citizens cannot understand, much less judge, the claims scientists make. One response is the appointment of public commissions to provide conclusions for policy-makers to act upon. There are also `commissions from below', such as grass roots associations that quiz the limits of expert knowledge and power and make rival knowledge claims. Do these commissions represent a new stage in the development of liberal democracy? Or is it merely a pragmatic device of no political consequence. The central argument of the book is that in a `knowledge society' in which specialized knowledge is increasingly important to politics, more has to be delegated because democratic discussion can't handle it. This limitation in the scope of liberal democracy threatens its fundamental character. The book will be required reading in the fields of social theory, political theory and science studies.