Can There Be a Democratic Jurisprudence
TL;DR: In this article, the authors consider the jurisprudence of law in a modern democracy and explore the meaning and significance for democratic political theory of ideas like the generality of law, the separation of law and morality, the sources thesis, and law's public orientation.
Abstract: General jurisprudence purports to consider law in general. But to break out of the arid abstractions of analytic legal philosophy, it may be worth also giving some jurisprudential consideration to the distinctive features of law in the context of a particular kind of political system. This paper considers the jurisprudence of law in a modern democracy. It explores a suggestion (made by Ronald Dworkin and others) that legal positivism might be a theory particularly apt for a democracy. And it explores the meaning and significance for democratic political theory of ideas like the generality of law, the separation of law and morality, the sources thesis, and law's public orientation. At the very end, the paper also considers Jean-Jacques Rousseau's view that the word "law" should be confined to measures that are applicable to all, made by all, and enacted in the spirit of a general will.
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01 Feb 2013
TL;DR: The tax break is a "tax break" allowed to a taxpayer or group of taxpayers, for example, by way of concession, deduction, deferral or exemption as mentioned in this paper, which can be defined as a tax break allowed by the tax system.
Abstract: A tax expenditure is a 'tax break' allowed to a taxpayer or group of taxpayers, for example, by way of concession, deduction, deferral or exemption. The tax expenditure concept, as it was first identified, was designed to demonstrate the similarity between direct government spending on the one hand and spending through the tax system on the other. The identification of benefits provided through the tax system as tax expenditures allows analysts to consider the fiscal significance of those parts of the tax system which do not contribute to the primary purpose of raising revenue. Although a seemingly simple concept, it has generated a range of complex definitional and practical issues, and this book identifies and critically assesses the controversial aspects of tax expenditure and tax expenditure management.
38 citations
01 Jun 2014
TL;DR: The main aim of as discussed by the authors is to suggest both a diagnosis and a proper practical response to this situation of intractable disagreement about questions that do matter, to show just what is at stake in these old debates.
Abstract: This book offers an advanced introduction to central questions in legal philosophy. What factors determine the content of the law in force? What makes a normative system a legal system? How does law beyond the state differ from domestic law? What kind of moral force does law have? The most important existing views are introduced, but the aim is not to survey the existing literature. Rather, this book introduces the subject by stepping back from the fray to sketch the big picture, to show just what is at stake in these old debates. Legal philosophy has become somewhat arid and inward looking. In part this is because the disagreement between the main camps on the important questions is apparently intractable. The main aim of the book is to suggest both a diagnosis and a proper practical response to this situation of intractable disagreement about questions that do matter.
32 citations
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02 Feb 2018
TL;DR: In this article, a journey through social-scientific and judicial case-making practices is described, focusing on the truths and facts sociologists have produced about legal practices and the challenges that accompany the making of such a case.
Abstract: This book is a testament to a journey through social-scientific and judicial case-making practices. It concentrates, first, on the truths and facts sociologists have produced about legal practices. That is, it is interested in the question of how sociologists have sought to _make their case_ about these judicial practices. It is concerned with the questions of what these social-scientific observers have seen when they cast their eyes on these practices; _how_ they have seen what they have seen, and which _realities_ they have enacted in their approaches.
Second, this book concentrates on the ways judges, clerks, administrative personnel and case files in a Dutch criminal court become instrumental in judicial ways of finding out ‘what really happened’ and ways of qualifying these events legally. As such this book is also an attempt to describe these _judicial ways of case-making_.
Third, it also aims to account for and reflect on the ways this case - the book you are holding in your hands - is made, and an attempt to work through the necessary methodological and conceptual challenges that accompany the making of such a case. Taken together, these questions produce an account of a close encounter with the ingredients of judicial case-making practices - case files, clerks, judges, courtrooms, routines, and procedures - as well as a story about sociology and the Law, knowledge and judgment, more generally.
21 citations
Cites background from "Can There Be a Democratic Jurisprud..."
...While both treat Law essentially not as linked to divine will or natural order, but as a ‘construction’ (Cf. Hunt 2002: 16), who or what is doing the constructing is disputed....
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...That is, the distinction between Law-as-autonomous and Law-as-social-being is rearticulated as a distinction between internal and external points of view (Hunt 2002: 17; Cf. Hart 1994 [1961]), or distinctions between the legal, professional ‘vision’ and that of laypeople....
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...Judgment, in contrast, consists of retaining our normative expectations even when these are breached, when the world disappoints them (Cf. Luhmann 1992)....
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...How is ‘order in the plenum’ (Cf. Garfinkel 2002) achieved?...
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...It is precisely this confusion, the utilitarian Bentham argued, that is corrosive to the very legal order such natural law theories seek to understand and protect (indeed, there is some sense in calling this a normative argument in favour of non-normative legal positivism, Cf. Waldron 1996)....
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Dissertation•
01 Nov 2016
Abstract: In the light of concern about the growing levels of power which the United Nations Security Council has begun to exercise in recent years, this thesis aims to establish the limits of the Council’s powers under law. It does so through a study of the two main elements of the Council’s anti-terrorism programme, approached through the lens of the legal philosophy of Lon Fuller, as adapted to international law by Jutta Brunnée and Stephen Toope. The thesis sets out the two anti-terrorism programmes, “listing” and “legislation”, and analyzes the reaction to them of other actors in the international legal system. It shows that the former phenomenon, listing, still faces considerable resistance, but that Council legislation has generally been accepted over time. In terms of the traditional, positivist account of international law, these responses might suggest that listing is unlawful and that legislation is valid, and that the Council therefore has the capacity to produce new, general legal norms. However, Brunnée and Toope’s legal theory suggests otherwise: that listing has moved closer to compliance with law over time, but that both the substance of the Council’s legislative resolutions and the process by which it adopts them fail to meet the requirements of law.
19 citations
01 Nov 2013
18 citations