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This book offers a multidisciplinary account of the 'rule of law' as a central pillar of the classical liberal tradition. The authors analyze the original meaning of this expression as first introduced by British jurist A. V. Dicey, before examining its subsequent elaboration by Leoni, Fuller, Hayek and Oakeshott. Addressing the main philosophical and legal aspects of the rule of law, this volume will appeal to all those engaged in law, political theory, philosophy, economics, business ethics, and public policy.
In a wide-ranging study based on legal history, political theory, and philosophical ideas going all the way back to Plato and Roman law, Robert Clinton challenges current faith in an activist judiciary. Claiming that a human-centered Constitution leads to government by reductive moral theory and illegitimate judicial review, he advocates a return to traditional jurisprudence and a God-centered Constitution grounded in English common law and its precedents.
An account of successive legal theories in England and America against a background of the varieties of natural law in the ancient, medieval and modern worlds. The outcome in Legal Realism provides insight into contemporary issues in law and the judicial process and their relation to moral philosophy. As Levy shows, legal theory has always been inspired by forces outside the law in philosophy and politics. In England the philosophy of Utilitarianism as expounded by Bentham and Austin brought legal positivism into prominence as an alternative to natural law. In the United States the philosophy of pragmatism spearheaded by James and Dewey and shared by Justice Holmes gave the functional turn resulting in the movement of Legal Realism. After sketching the background of varieties of natural law in the ancient, medieval, and modern worlds, Levy presents leading figures and trends in England and the United States. The book is written so as to be intelligible to lawyers, philosophers, and students of cultural history and social science.
In this contribution to the ongoing debate over the origins of constitutionalism and free government, Sandoz brings together a selection of scholars to present a reevaluation of the place of Magna Carta and Ancient Constitution in the tradition of Anglo-American liberty and rule of law.
With the incisiveness and lucid style for which he is renowned, Ronald Dworkin has written a masterful explanation of how the Anglo-American legal system works and on what principles it is grounded. Law’s Empire is a full-length presentation of his theory of law that will be studied and debated—by scholars and theorists, by lawyers and judges, by students and political activists—for years to come. Dworkin begins with the question that is at the heart of the whole legal system: in difficult cases how do (and how should) judges decide what the law is? He shows that judges must decide hard cases by interpreting rather than simply applying past legal decisions, and he produces a general theory of what interpretation is—in literature as well as in law—and of when one interpretation is better than others. Every legal interpretation reflects an underlying theory about the general character of law: Dworkin assesses three such theories. One, which has been very influential, takes the law of a community to be only what the established conventions of that community say it is. Another, currently in vogue, assumes that legal practice is best understood as an instrument of society to achieve its goals. Dworkin argues forcefully and persuasively against both these views: he insists that the most fundamental point of law is not to report consensus or provide efficient means to social goals, but to answer the requirement that a political community act in a coherent and principled manner toward all its members. He discusses, in the light of that view, cases at common law, cases arising under statutes, and great constitutional cases in the Supreme Court, and he systematically demonstrates that his concept of political and legal integrity is the key to Anglo-American legal theory and practice.