Author: Gary Jacobsohn
Publisher: Edward Elgar Publishing
Release Date: 2018
The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
Author: Daniel Lee
Publisher: Oxford University Press
Release Date: 2016-02-18
Popular sovereignty - the doctrine that the public powers of state originate in a concessive grant of power from 'the people' - is perhaps the cardinal doctrine of modern constitutional theory, placing full constitutional authority in the people at large, rather than in the hands of judges, kings, or a political elite. Although its classic formulation is to be found in the major theoretical treatments of the modern state, such as in the treatises of Hobbes, Locke, and Rousseau, this book explores the intellectual origins of this doctrine and investigates its chief source in late medieval and early modern thought. Long regarded the principal source for modern legal reasoning, Roman law had a profound impact on the major architects of popular sovereignty such as François Hotman, Jean Bodin, and Hugo Grotius. Adopting the juridical language of obligations, property, and personality as well as the model of the Roman constitution, these jurists crafted a uniform theory that located the right of sovereignty in the people at large as the legal owners of state authority. In recovering the origins of popular sovereignty, the book demonstrates the importance of the Roman law as a chief source of modern constitutional thought.
Author: J. Harvie Wilkinson III
Publisher: Oxford University Press
Release Date: 2012-03-09
American constitutional law has undergone a transformation. Issues once left to the people have increasingly become the province of the courts. Subjects as diverse as abortion rights and firearms regulations, health care reform and counterterrorism efforts, not to mention a millennial presidential election, are more and more the domain of judges. What sparked this development? In this engaging volume, Judge J. Harvie Wilkinson argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance. Thinkers as diverse as Justices William Brennan and Antonin Scalia, Professor John Hart Ely, Judges Robert Bork and Richard Posner, have all produced seminal interpretations of our Founding document, but ones that promise to imbue courts with unprecedented powers. While crediting the theorists for the sparkling quality of their thoughts, Judge Wilkinson argues they will slowly erode the role of representative institutions in America and leave our children bereft of democratic liberty. The loser in all the theoretical fireworks is the old and honorable tradition of judicial restraint. The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism. Each of these seemingly disparate theories promises their followers an intellectually respectable route to congenial political outcomes from the bench. Judge Wilkinson calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance, a course that alas may be impossible so long as the cosmic constitutionalists so dominate contemporary legal thought.
Author: Graham Walker
Publisher: Princeton University Press
Release Date: 2014-07-14
Graham Walker boldly recasts the debate over issues like constitutional interpretation and judicial review, and challenges contemporary thinking not only about specifically constitutional questions but also about liberalism, law, justice, and rights. Walker targets the "skeptical" moral nihilism of leading American judges and writers, on both the political left and right, charging that their premises undermine the authority of the Constitution, empty its moral words of any determinate meaning, and make nonsense of ostensibly normative theories. But he is even more worried about those who desire to conduct constitutional government by direct recourse to an authoritative moral truth. Augustine's political ethics, Walker argues, offers a solution--a way to embrace substantive goodness while relativizing its embodiment in politics and law. Walker sees in Augustinian theory an understanding of the rule of law that prevents us from mistaking law for moral truth. Pointing out how the tensions in that theory resonate with the normative ambivalence of America's liberal constitutionalism, he shows that Augustine can provide successful but decidedly nonliberal grounds for the artifices and compromises characteristic of law in a liberal state. Originally published in 1990. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.
Author: Richard A. Posner
Publisher: Harvard University Press
Release Date: 2013-10-07
For Richard Posner, legal formalism and formalist judges--notably Antonin Scalia--present the main obstacles to coping with the dizzying pace of technological advance. Posner calls for legal realism--gathering facts, considering context, and reaching a sensible conclusion that inflicts little collateral damage on other areas of the law.
Author: Duncan Black Macdonald
Publisher: The Lawbook Exchange, Ltd.
Release Date: 2009-12
One of the best general introductions to Islamic law Despite its age this is still one of the best general introductions to Islamic law. It remains a standard work in scholarly bibliographies. Offering both a history and a critical analysis, this book is enriched by a 66-page appendix containing complete translations of primary texts. Macdonald [1863-1943], a professor at the Hartford Seminary, established the field of Islamic studies in the United States in 1893. His efforts led to the creation of what is now the Duncan Black Macdonald Center for the Study of Islam and Christian-Muslim Relations at the Hartford Seminary. Introduction PART I Constitutional Development I. From Death of Muhammad to Rise of Abbasids II. To Rise of Ayyubids III. To Present Situation PART II Development of Jurisprudence I. To Close of Umayyad Period II. To Present Situation PART III Development of Theology I. To Close of Umayyad Period II. To Foundation of Fatamid Khalifate III. To Triumph of Ash'arites in East IV. Al-Ghazzali V. To Ibn Sab'in and End of Muwahhids VI. To Present Situation APPENDICES Illustrative Documents in Translation Selected Bibliography Chronological Table Index
Author: Michael D. Ramsey
Publisher: Harvard University Press
Release Date: 2007
This book describes the constitutional law of foreign affairs derived from the historical understanding of the Constitution's text. Examining recurring foreign affairs controversies such as the power to enter armed conflict and the power to make and break treaties, and showing how the words, structure, and context of the Constitution can resolve pivotal court cases and modern disputes, the author provides a counterpoint to more conventional discussions that tend to downplay the guiding ability of the Constitution.
Author: Benjamin Schupmann
Publisher: Oxford University Press
Release Date: 2017-11-16
Can a constitutional democracy commit suicide? Can an illiberal antidemocratic party legitimately obtain power through democratic elections and amend liberalism and democracy out of the constitution entirely? In Weimar Germany, these theoretical questions were both practically and existentially relevant. By 1932, the Nazi and Communist parties combined held a majority of seats in parliament. Neither accepted the legitimacy of liberal democracy. Their only reason for participating democratically was to amend the constitution out of existence. This book analyses Carl Schmitt's state and constitutional theory and shows how it was conceived in response to the Weimar crisis. Right-wing and left-wing political extremists recognized that a path to legal revolution lay in the Weimar constitution's combination of democratic procedures, total neutrality toward political goals, and positive law. Schmitt's writings sought to address the unique problems posed by mass democracy. Schmitt's thought anticipated 'constrained' or 'militant' democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans. Schmitt's state and constitutional theory remains important: the problems he identified continue to exist within liberal democratic states. Schmitt offers democrats today a novel way to understand the legitimacy of liberal democracy and the limits of constitutional change.
First published in 1965, this work studies the House of Lords and the various proposals for its reform, abolition or limitation of its powers which have been made in the light o f prevailing theories of the nature and characteristics of the English government. The work also contains a history of the theory of mixed government that arose in Tudor England and lasted until well after the Reform Act of 1832. This history both illuminates the position of the House of Lords and also provides perspective for the study of Democracy in the movement for parliamentary reform. One of the book's most original features is an extensive account of Charles I's Answer to the Nineteen Propostions, out of which came the startling new theory of the constitution, known as "mixed monarchy".