The Legitimacy of Law: A Response to Critics*

Abstract
In this paper, the author responds to the claim that his critique of legal positivism, based on an account of adjudication in South Ahica, misses its target because it ignores, first, the positivist thesis of judicial discretion and, secondly, the fact that positivism offers no account of judicial obligation. He argues that these theses expose a tension in positivism between its commitments to liberal individualism and to the supremacy of positive law, a tension which can be resolved only by situating positivism in its true context, the Hobbesian argument for the legitimacy of law. Following Dworkin, he advocates the practice-oriented common law tradition, one that makes the legitimacy of law a matter of standards already implicit in law which are best revealed in adjudication.     

The New Wine and the Old Cask. Tolerance, Religion and the Law in Contemporary Europe

The author argues that a correct approach to the question of tolerance cannot ignore the increasing importance of the religious factor on the political, cultural and social scene of the last few years. The common European model of the relationship between the State and religious faiths that may be called the Law possesses some margins of elasticity. These margins of elasticity may be defined as tolerance. A mechanism of selection allows the law to welcome those new requests for liberty that do not undermine the fundamental features of the model.     

Jurilinguistics: Ways Forward Beyond Law,Translation, and Discourse

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - This is the guest editors’ introductory paper to the special issue “Situating...     

Dominions: Law, Literature, and the Right to Death

The 'curious right' attending modernity and revealed in Blanchot's 'Literature And the Right to Death' could be readily reduced to that sovereign right to take life which ultimately subordinates law. Yet, so the argument runs, with that same curious right law surpasses sovereignty. And it does so by way of its similarity to literature. What will uncover that surpassing by law, and by literature, will be a pervasive concern with death as the horizon of the law.     

当代国际法的新发展与价值追求

在人类面临新挑战与国际社会出现新变化的背景下,国际法全球化与碎片化共存的现象明显,国际法的刑事化现象不断增多,国际法与国内法相互渗透、相互影响的趋势更加凸显, 国际法的调整范围不断向非传统安全领域扩展。与此同时,当代国际法所肩负的期望和使命也越来越多。发展、安全、人权等国际法价值目标已经得到了国际社会的普遍认可,国际宪政思潮已经成为国际法学界不能回避的课题,国际社会的民主和法治已成为时代要求,国际社会共同利益的理念已渗透到国际法中。     

The Legal Discourse of the Common Law: A Game of Chess

English law, like any otherspecialized topic, needs a particular languagefor its understanding. The legal discourse ofthe common law gathers a set of theoretical andcustomary mechanisms subject to internal orexternal intrusions into its directions foruse. Two ideas are highlighted: the rigidity ofthe overall regulating structure of the law,and the use of `fuzzy sets' to provideflexibility to legal discourse. This unsteadyor fuzzy discourse production proves thislanguage to be the result of a long and complexhistorical process of socialisation. Theseinteractions of reference and of wordinglegitimate a mode of precise and technicalinstitutional stratification, combining bothconstruction and argumentation.     

联合国改革与现代国际法：挑战、影响和作用

联合国的改革进程涉及诸多国际法问题，它对国家主权平等原则、不干涉内政原则和禁止以武力相威胁或使用武力原则提出了挑战。联合国改革与集体安全制度、《联合国宪章》的修改也密切相关。在联合国的改革进程中，现代国际法将发挥重要作用。同时，联合国改革又将进一步推动现代国际法的发展。     

权利与原则:撩开说话的法律面纱

说话权利的保护程度表征着一个国家的民主、开放和宽容.综观人类在说话方面的权利及其法律原则,我们可以将其归结为:可以说话的权利与事先限制之禁止原则;说真话的权利与真实抗辩原则;说真实谎言的权利与真正的恶意原则;说意见性言论的权利与合理评论原则;不说话的权利与精神自由原则;要求说话的权利与媒体接近原则;用行为说话的权利与背景限制原则.     

Discourse Ethics and the Legitimacy of Law

Abstract. The reconstructive theory of the procedural legitimacy of modern law developed on the basis of the theory of discourse ethics has limited itself solely to the deontological, moral-normative aspects of the validity claims of legal norms and judgments. However, teleological and axiological aspects are also intertwined with legal validity claims and with the procedures in which legal norms and judgments are produced. The discursive-procedural concept of legitimacy seems to require as its support, instead of the theory of discourse ethics, a general theory of practical discourses or, more generally, of rational collective will-formation.     

Natural Law and the Ethics of Discourse

This essay argues that Plato's critical analysis of the ethics of discourse is superior to Habermas', and more generally that Habermas has no sufficient reason to propose or suppose the philosophical superiority of "modernity." The failure of Hume and Kant and much modern philosophy to understand the concept and content of reasons for action underlies Habermas' attempted distinction between ethics and morality, and Rawls' concept of public reason. A proper study of discourse also yields a metaphysics of the person, and thus reinforces the ethics.     

The Voice of the Community in Private Law Discourse

Formalist private lawyers, with their view of law as an autonomous sphere and their emphasis upon allocative rules, tend to approach the issue of the harmonisation of private law in Europe with the following question: are the substantive rights and remedies of private individual actors sufficiently similar within each of the Member States to allow for the unification of autonomous private legal systems. Here the issue is essentially one of terminology. While sceptical voices maintain that formal private law is also a more complex matter of interrelated procedures and practices, many formalists conclude that whilst the terms of rights and remedies may differ slightly throughout Europe, there is sufficient substantive convergence to allow for harmonisation. However, lawyers of a sociological persuasion who see private law as being contingent upon society Ð a process reflexively and recursively facilitating economic activities and responding to social change Ð consider harmonisation to be dependent upon the harmonisation of market practices themselves. This paper, one of the most subtle of sociological contributions, tackles this issue with an innovative eye to the increasing blurring of the distinction between public and private concerns. The voice of Europe is the voice of a political collective and theoretically, under the once sacrosanct paradigm of the public/private divide, should not be heard within the 'individualistic' sphere of private law. However, just as national private law judges are generally responding to social concerns and are seeking to integrate collective voices within a once 'atomised' realm, so too are they taking note of the political voice of Europe: attempting to respond to the desire for integration and harmonisation within their jurisprudence.     

The Concept of Rights in Contemporary Human Rights Discourse

In a variety of disciplines, there exists a consensus that human rights are individual claim rights that all human beings possess simply as a consequence of being human. That consensus seems to me to obscure the real character of the concept and hinder the progress of discussion. I contend that rather than thinking of human rights in the first instance as “claim rights” possessed by individuals, we should regard human rights as higher order norms that articulate standards of legitimacy for sociopolitical and legal institutions.     

Violence in Fascist Criminal Law Discourse: War, Repression and Anti-Democracy

This article constructs a critical historical, political and theoretical analysis of the essence of Fascist criminal law discourse in terms of the violence that shaped and characterised it. The article examines the significance of violence in key declarations about the role and purpose of criminal law by Alfredo Rocco, Fascist Minister of Justice and leading ideologue, in his principal speech on the final draft of the 1930 Italian Penal Code. It is grounded on the premise that criminal law is particularly significant for understanding the relationship between State power and individuals, and so what was distinctive about Fascist thinking in this regard. The article analyses Rocco’s declarations as a discourse in order to highlight their contextual foundations, construction and ideological connections. It argues that the core theme of that discourse is violence, which has three principal dimensions: a close historical and rhetorical connection with war, a focus on repressive and intimidatory force, and a paramount concern with subordinating individuals to State interests. The article then uses this analysis to develop a theoretical reading of the nexus between criminal law and violence in Fascism, in terms of its foundations and reversal of ends and means. The article thus provides an original perspective on Fascism and criminal law, which it argues is important for critical engagement with criminal law discourse in our democracies today.     

Law,the State,and Public Order: Regulating Religion in Contemporary Egypt

A substantial scholarship has studied the extent to which states across the political and geographic spectrums rely on legal, bureaucratic, and judicial institutions to govern religion. However, a deeper inquiry into the mechanisms through which regulation occurs has yet been achieved. This article foregrounds conversion, understood as mobility between social groups in which belief and sincerity may figure but is not reducible to either, to observe these dynamics. Through an analysis of Egyptian jurisprudence on the right to change religion as well as interviews with complainants and litigators, the article challenges widespread assumptions about who and what constitute the regulatory field. It also shows how religious difference is produced in the legal‐bureaucratic encounter. By accounting for institutions that are not typically considered part of the regulatory field nor thought to be bound by the strictures of legal positivism, this article further occasions a rethinking of the public–private distinction within critiques of secularism.