1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Law's Empire

Legitimacy (or “the right to exercise power”) is now an established concept in criminological analysis, especially in relation to policing. Substantial empirical evidence shows the importance of legitimacy in securing law-abiding behavior and cooperation from citizens. Yet adequate theorization has lagged behind empirical evidence, and there has been a conflation of legitimacy with the cognate concepts of “trust” and of “obligation to obey the law.” By drawing on the work of Beetham (1991) and others (e.g., Bottoms and Tankebe, 2012), this study tests the hypothesis that the contents of the multiple dimensions of police legitimacy comprise procedural fairness, distributive fairness, lawfulness, and effectiveness. The study also investigates the relative influence of legitimacy and feelings of obligation on citizens’ willingness to cooperate with the police. Using data from London, the results substantiate the hypothesized dimensions of police legitimacy. In addition, legitimacy was found to exhibit both a direct influence on cooperation that is independent of obligation and an indirect influence that flows through people's felt obligations to obey the police. Implications for future research are discussed.

Viewing things differently: The dimensions of public perceptions of police legitimacy.

This article examines some basic assumptions about the nature of political institutions, the ways in which practices and rules that comprise institutions are established, sustained, and transformed, and the ways in which those practices and rules are converted into political behavior through the mediation of interpretation and capability. We discuss an institutional approach to political life that emphasizes the endogenous nature and social construction of political institutions, identities, accounts, and capabilities.

Institutional Perspectives on Political Institutions

Abbreviations Preface and acknowledgements Introduction Part I. International Law, Development and Third World Resistance: 1. Writing Third World resistance into international law 2. International law and the development encounter Part II. International Law, Third World Resistance and the Institutionalization of Development: the Invention of the Apparatus: 3. Laying the groundwork: the Mandate system 4. Radicalizing institutions and/or institutionalizing radicalism? UNCTAD and the NIEO debate 5. From resistance to renewal: Bretton Woods institutions and the emergence of the 'new' development agenda 6. Completing a full circle: democracy and the discontent of development Part III. Decolonizing Resistance: Human Rights and the Challenge of Social Movements: 7. Human rights and the Third World: constituting the discourse of resistance 8. Recoding resistance: social movements and the challenge to international law 9. Markets, gender and identity: a case study of the Working Women's Forum as a social movement Part IV. Epilogue References Index.

International Law from Below: Development, Social Movements and Third World Resistance

What makes an argument in a law case good or bad? Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences? These questions are central to the study of jurisprudence, and are thoroughly and critically examined in Legal Reasoning and Legal Theory, now with a new and up-to-date foreword. Its clarity of explanation and argument make this classic legal text readily accessible to lawyers, philosophers, and any general reader interested in legal processes, human reasoning, or practical logic.

Legal Reasoning and Legal Theory

A different view would be that sovereignty and sovereign states, and the inexorable linkage of law with sovereignty and the state, have been but the passing phenomena of a few centuries that their passing is by no means regrettable. This will be the view stated in the present lecture. The order of presentation will be through consideration of some connected points. The first one is to locate sovereignty and the theory of sovereign statehood in the setting of legal theory, showing how developments in European Community law raise difficulties for some standard positions in legal theory. The second point is to proceed into some fresh conceptual analysis of sovereignty and statehood, moving forward from the juristic inheritance. The third is to discuss some consequences of a belief in Sovereign Statehood. The difference between the predominantly legal and the predominantly political conception of sovereignty now appears.

https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1993.tb02851.x

Beyond the Sovereign State

1. The Legal Framework: Institutional Normative Order 2. The State and the Law 3. The Interest of the State and the Rule of Law 4. The United Kingdom: What State? What Constitution? 5. The Benthamite Constitution: Decline and Fall? 6. A Very British Revolution? 7. Juridical Pluralism and the Risk of Constitutional Conflict 8. On Sovereignty and Post-Sovereignty 9. Democracy and Subsidiarity in the European Environment 10. Some Questions of Freedom 11. A Kind of Nationality 12. New Unions for Old

Questioning Sovereignty: Law, State, and Nation in the European Commonwealth

An Institutional Theory of Law

Introduction: the problem of the justification of legal decisions topic theory and its limits towards assessing whether contemporary methodological discussions reveal a need for a theory of rational legal argumentation. Part 1 Reflections on some theories of practical discourse: practical discourse in analytic moral philosophy - naturalism and intuitionism, emotivism, practical discourse as a rule-governed activity including Wittgenstein and Austin, Hare's theory, Toulmin's theory, Baier's theory some interim results Habermas' consensus theory of truth - Habermas' critique of the correspondence theory of truth, combining speech act theory and a theory of truth, distinguishing between action and discourse, the justification of normative statements, the logic of discourse, the ideal speech situation, critical discussion of Habermas' theory the theory of practical deliberation of the Erlangen School - the programme of the constructive method, the presupposed purpose of constructivist ethics, the principles of constructivist ethics, the critical genesis of norms Chaim Perelman's theory of argumentation - the theory of argumentation as a logical theory, argumentation as a function of audience, demonstration and argumentation, the concept of the universal audience, persuading and convincing, Perelman's analysis of the structure of argumentation, the rationality of argumentation. Part 2 Outline of a theory of general rational practical discourse: the problem of the justification of normative statements possible theories of discourse, the justification of rules of discourse the rules and forms of general practice discourse - the rationality rules, rules for allocating the burden of argument, the justification rules, the transition rules the limits of general practical discourse. Part 3 A theory of legal argumentation: legal discourse as a special case of general practical discourse the outline of a theory of legal argumentation - internal justification, external justification legal and general practical discourse.

Neil MacCormick

Papers

Legal Reasoning and Legal Theory

Beyond the Sovereign State

Questioning Sovereignty: Law, State, and Nation in the European Commonwealth

An Institutional Theory of Law

A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification