1,273,219 research outputs found

    The rule of law after globalisation: is myth or reality?

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    The rule of law is unique establishment that had taken place in historical context, as politico-legal edifice of capitalist society. To the extent that any legal system was established in historical context, its form and functioning are cannot be channelled by reflections or professional commitments of lawyers and legal philosophers. The rule of law emerged in certain conditions that we say “classical liberalism”, of power allocation where we diversify political power and legal power in the milieu of political society, enunciated as republic or commonwealth. Contrary to earlier forms of legal order, capitalism was unique that its super structure was articulated according to the pivotal role of legal machinery. There was an actual equilibrium between legal and political domains that they moderately matched with public and private dichotomy. After monopoly capitalism, social setting of liberalism was dramatically incurred some major modifications which were firstly dislocation of liberal individual, incited by monopoly capital and secondly, political achievement of the working classes obtained political equality, as drastic consequence of mass society. Hence, the rule of law altered as depoliticsation of democratised mass society, instead of modus vivendi of liberal individuals, which demarcated the rule of law according to welfare society or sozialrechtsstaat. The neo-liberal globalisation after 1980’s, republican model of political society faded away that it has been transformed by transnational capital where markets, hierarchies, regionalism and communal settings crosscut inner equilibrium between politics and law. Finally, the newborn articulation of power structure undermined necessary basement of the rule of law

    Rule of Law, Legal Development and Economic Growth: Perspectives for Pakistan

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    Rule of Law and strong legal systems are considered a pre-condition for sustained development. Their relative weakness in the under-developed world is considered as the main obstacle to growth. Strengthening Rule of Law and legal systems has, therefore, become a standard advice from the developing community. Pakistan, too, has witnessed a surge in demand for Rule of Law in recent years. Capitalizing on this domestically garnered mandate, this paper reviews the legal obstacles to economic growth in Pakistan. It finds significant impediments for growth and market development due to legal shortcomings in the case of Pakistan.Rule of Law, Legal Development, Economic Growth, Pakistan

    Can Justice and the Rule of Law Be Reconciled?

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    Much of the current debate between activists on the left and the right concerning the legal system can be conceived in purely jurisprudential, as opposed to political, terms. Today, many on the left insist that the decisions made by the legal system conform as closely as possible to some substantive conception of justice that is independent of the legal system itself. They call those who disagree formalists. Many on the right insist that the procedural values of the rule of law -general rule-making, impartially administered among persons and over time-preempt concern for correct outcomes. They call those who disagree result-oriented

    Home Rule in New York: The Need for a Change

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    This article is intended to provide a practical lens into how Home Rule issues unfold in complex matters involving the City, and to suggest how a much-needed Home Rule constitutional amendment could re-shape or, at the very least, clarify Home Rule standards. Section II will provide some historical and legal background on Home Rule; Section III will analyze some of the more well-known Home Rule cases that the Law Department litigated during the Bloomberg Administration; and Section IV will discuss insights gleaned with respect to, and will offer several recommendations for, the future of Home Rule in New York

    Practical nous as the aim of legal education?

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    There has been an implicit assumption that legal education should be about exposition and evaluation, and should reward facility in exposition and theoretical awareness. This theoretically based assumption generates a theory-induced blindness. Specifically, it obscures the dynamic relationship between law and legal practice, despite it being a familiar aspect of the world. The lawyer as rule entrepreneur is lost sight of. One alternative assumption about legal education would be that law is a game like activity; and legal education should be directed towards promoting those qualities that would enhance performance in this game. In this approach to legal education it would be practical nous that would be sought and rewarded, and such qualities as facility in exposition and theoretical awareness would receive recognition merely as qualities that can be ancillary to and elements of practical nous. Doctrinal legal education naturally pulls towards the first theory, and clinical legal education naturally pulls towards the second. We argue for a clearer awareness of the role of rule entrepreneurship in clinical programmes and in legal education generally

    On the Indeterminacy Crisis: Critiquing Critical Dogma

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    Critical legal scholarship challenges the liberal claim that modern western societies are characterized by the rule of law. The liberal conception of the rule of law, critical scholars contend, serves to mystify and legitimate the legal system and thereby obscure the real issues behind individual cases as well as the real nature of the legal system. Frequently, the claim that legal rules are indeterminate is the starting point for such a critique of the rule of law. What I call the indeterminacy thesis goes roughly like this: the existing body of legal doctrines-statutes, administrative regulations, and court decisions-permits a judge to justify any result she desires in any particular case. Put another way, the idea is that a competent adjudicator can square a decision in favor of either side in any given lawsuit with the existing body of legal rules. This article critiques the indeterminacy thesis as it has been developed in critical legal scholarship. Two assumptions related to the indeterminacy thesis are widely held by critical scholars. First, much critical scholarship assumes that the indeterminacy thesis always accurately describes legal phenomena. Second, critical scholarship frequently assumes that the indeterminacy thesis plays an important role in support of a related thesis, the mystification thesis- the claim that legal discourse conceals and reinforces relations of domination. I explore the problematic character of both of these critical claims and suggest that critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite. Finally, I suggest that adherence to a strong view of indeterminacy is actually counterproductive to the program of critical scholarship

    Three Pictures of Contract: Duty, Power and Compound Rule

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    A fundamental divide among theories of contract law is between those that picture contract as a power and those that picture it as a duty. On the power-conferring picture, contracting is a sort of legislative act, in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law puts duties on persons entering into agreements for consideration whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing -- a question that should lie at the center of contract theory. This Article argues that two characteristic features of legal powers are an expectation that actors will satisfy the rule with the purpose of achieving the legal consequences and legal rules designed to facilitate such uses. A law might exhibit these features in either of two ways, which define two types of legal powers. Many power-creating laws employ conditions of legal validity, such as legal formalities, designed to ensure the actor\u27s legal purpose. The presence of such validity conditions is strong evidence that the law\u27s sole function is to create a legal power, and I suggest reserving the term power-conferring for such laws. Other laws anticipate and enable their purposive use without conditioning an act\u27s legal consequences on the actor\u27s legal purpose. The structure of such laws suggests that they function both to create powers and to impose duties. I coin the term compound for laws that satisfy this description, and argue that the contract law we have is a compound rule. The dual function of compound rules provides empirical support for pluralist justifications of contract law. An example of such a theory can be found in Joseph Raz’s comments on the relationship between contract law and voluntary obligations

    Distorting Legal Principles

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    Legal principles enable society to order itself by preserving broadly based expectations. Sometimes, however, parties transact in ways that are so inconsistent with generally accepted principles as to create uncertainty or confusion that undermines the basis for reasoning afforded by the principles. Such a distortion might occur, for example, if a normally mandatory legal rule were unexpectedly treated as a default rule. This article explores the problem of distorting legal principles, initially focusing on rehypothecation, a distortion whose uncertainty and confusion contributed to the downfall of Lehman Brothers and the resulting global financial crisis. But not all distortions are, on balance, harmful; sometimes they represent a positive evolution of law. To this end, the article also seeks to construct a normative framework for determining how government lawmakers, judges, and lawyers should address distortions of legal principles

    Comparative Analysis of Litigation Systems: An Auction-Theoretic Approach

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    A simple auction-theoretic framework is used to examine symmetric litigation environments where the legal ownership of a disputed asset is unknown by the court. The court observes only the quality of the case presented by each party, and awards the asset to the party presenting the best case. Rational litigants influence the quality of their cases by hiring skillful attorneys. This framework permits us to compare the equilibrium legal expenditures that arise under a continuum of legal systems. The British rule, American rule, and some recently proposed legal reforms are special cases of our model.Auctions, contests, litigation, fee-shifting
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