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

Essay Institutions and Laws Again It is now several years since Ota Weinberger and I first addressed ourselves to presenting a new "institutional theory of law," starting from within the broad tradition of legal positivism, though each of us from different local schools of thought. At present, I am immersed in work that attempts to present this theory in a fully articulated way. The present Essay is an offshoot from work in progress. Law, I suggest, belongs within the genus "normative order," more particularly to the species "institutional normative order," within which the law of states is one highly important subspecies, but not by any means the only one. I start by briefly characterizing normative order. Normative Order A pervasive feature of human life is its involvement with normative order. The very fact of our speech, our exchange and interchange of vast numbers of linguistically coded messages every day, confronts us with it. Every reference to clocks and watches to tell the time attests to it.' That we so often refer to these in keeping our appointments makes the point yet further, whether appointments are seen as personal promises or as some form of legal engagement in the way of employment or otherwise. Lecturing in a university, holding tutorials, marking examinations, and all else one does in such a role-all this attests to the ubiquity of standards concerning timeliness in carrying out professional responsibilities-and much else besides. There is a right and a wrong way to express one's thoughts, a right and a wrong way to tell the time, a right and a wrong time to present oneself for the performance of most of one's workaday tasks. There is the wrongful character of neglecting an engagement on which another is relying. There are numerous standards of good or obligatory practice one keeps in mind as a teacher. We are often very inarticulate about the precise formulation of norms or standards we nevertheless confidently observe. From time to time, I have tried to think out a rational reconstruction of the norms implicit in our apparently common understandings about the correct use of watches or clocks and have occasionally challenged my students to try the like. We all find it difficult, and different ones of us are inclined to attack the problem in different ways. But our ability to coordinate our activities temporally remains impressive, however bad we might be at actually bringing to articulate expression the norms and standards we implicitly observe. The notorious elusiveness and complexity of the grammars of natural languages makes the point even more forcefully in respect of our marvelous facility for speaking to each other in a mutually intelligible way. In these and many other topics of interest in ordinary social life there are regularities we can discern in conduct seen from what Hart memorably dubbed "the internal point of view."2 We discern these regularities as speakers of the language, as users of clocks and watches, as people who try to keep our appointments, as reasonably conscientious university lecturers, as folk who take our turn in the supermarket queue or at the airport check-in. These regularities seem to be referable to some implicit but possibly quite vague norms or standards that are in large measure shared as standards by an indefinitely large set of human beings in a huge variety of overlapping and interlocking social groups and communities. This is all quite orderly, but the order depends on the dispositions and, to a degree, the efforts of all involved. I suggest a name. The order that depends on reasonably faithful observance of implicit norms or standards such as those involved in the examples mentioned is "normative order."3 A suggestion of how it works might be along these lines: we evidently have an ability to imagine ideal patterns standing behind what people actually do; thus much of what we do is-or includes-attempting to match the action of the moment to the pattern we imagine. …

Institutions and Laws Again

Discretion and Rights

* This is the revised text of a lecture delivered on 18 January 2007 to mark the tercentenary of the fi rst chair of law at the University of Edinburgh, the Regius Chair of Public Law and the Law of Nature and Nations. The writer has held the Regius Chair since 1972. A. INTRODUCTION: QUESTIONS OF WAR AND PEACE B. SOME HASTY HISTORY (1) The Regius Chair – how it came about (2) Ius naturae et gentium (3) Enlightenment and the law of nature (4) Meanwhile in England (5) James Lorimer: the Regius Chair revived (6) The Law Faculty re-formed C. THE LAW OF NATURE AND THE NATURE OF LAW: WHERE NOW? (1) What law, written where? (2) Speech, nature and norms (3) Institutions of law

On Public Law and the Law of Nature and Nations

https://bdjur.stj.jus.br/jspui/bitstream/2011/61728/1/STJ00096285.pdf

Neil MacCormick

Papers

Institutions and Laws Again

Discretion and Rights

On Public Law and the Law of Nature and Nations

Instituciones del derecho

Coercion and Law