A note on validity in law and regulatory systems (position paper)

The notion of validity fulfils a crucial role in legal theory. The emerging Web 3.0 opens a new landscape where Semantic Web languages, legal ontologies, and the construction of Normative Multiagent Systems are built up to cover new regulatory needs. Conceptual models for complex regulatory systems shape the characteristic features of rules, norms and principles in different ways. This position paper outlines one of such multilayered governance models, designed for the CAPER platform

Legal practice and its continuity

This thesis has a particular and a general aim. The particular aim is to provide a satisfactory account of constitutional crises. Available accounts tend to either exaggerate the disruptive character of such crises or, conversely, to deny it; the challenge is thus to acknowledge the disruption without blowing it out of proportion. The general aim is to outline a theory of law from which such a satisfactory account would follow. The available accounts oscillate between the two extremes because they are attached to the idea that law is a system of legal norms. I critique this idea—not to reject it, though, but to show that it is only one element in a complete account of law. Instead of viewing legal practice as governed by a system of norms, posited and administered by state institutions, we may view it as a collective practice among the general population, whereby they make sense of each other’s actions in legal terms so as to know how best to navigate their mutual interactions. The legal system does have a place in this latter picture, but this place corresponds to the important yet limited role of the state in wider social practice. Articulating and substantiating this proposal takes up the better part of the thesis, eventually to yield an understanding of legal continuity which translates into a satisfactory account of constitutional crises. The continuity of legal practice is not a direct function of the continued efficacy of some normative system, but depends on whether participants in the practice can make enough legal sense of their interactions to know how to carry on with them. In a constitutional crisis, no such legal sense can be made of at least certain practices of constitutional actors; but many everyday interactions may still make perfectly good legal sense

Between Politics and Morality: Hans Kelsen\u27s Contributions to the Changing Notion of International Criminal Responsibility

The pure theory of law analyzes the legal normative basis of jurisprudence. According to its author, Hans Kelsen (1881-1973), the study of law as a science can only arise once “alien elements” associated with sociology, politics, ethics and psychology are extracted from strict legal cognition. But what happens when the international sphere of law that possesses the special quality of holding state officials accountable for core international crimes requires intrusion by extra-legal sources? Does Kelsen’s structural edifice collapse? Or is it reconstituted? In examining how international criminal responsibility, a test case for Kelsen’s positive law claims derives its legitimacy, this dissertation affirms the moral underpinnings of imputation at the highest level of legal cognition. The central legal concept of imputation as an otherwise “de-personalized” or “de-psychologized” notion of responsibility under national legal conditions is conceptually transformed through analysis of offenses of the magnitude of crimes against humanity and genocide. The capacity for moral agency otherwise rejected as a term of legal cognition under Kelsen’s general theory of law and state, under the conditions of international criminal law are assumed to act on the willing state agent. Through a combination of theoretical and case study analysis, I argue that critics misrepresent Kelsen’s position on international criminal responsibility by conflating it with a political realist or classical legal positivist defense of the immunizing acts of state doctrine, which protects state officials from prosecution by parties other than their own government. The advice Kelsen dispensed to US Supreme Court Justice and Nuremberg Prosecutor Robert H. Jackson in advance of the London International Military Tribunal (IMT) charter conference, demonstrates the most convincing rationale used to date in formulating the modern conception of individual (fault-based) responsibility in international law. While he violates his doctrinal commitment to the separation of law from morality in justifying international prosecution, Kelsen nevertheless establishes a unified description of a sphere of coercion based on the principle non sub homine sed sub lege (“not under man, but under law”). Modified to adapt to judicially adventurous opinions since 1993 with the creation of the International Criminal Tribunal for Yugoslavia (ICTY), Kelsen’s dynamic analysis of responsibility for core international crimes remains under-studied, and hence under-valued. A revisionist account of Kelsen’s major writings on humanitarian law is necessary to promoting a theory of international criminal responsibility inspired by the democratic values of compromise, tolerance and relative peace. Despite his own emphatically contrary claims to purity, Kelsen’s legal philosophy retains an implicit commitment to moral normative values in determining culpability at the highest level of adjudication. His emphasis on the validity of retroactive legal technique, arguably his greatest contribution to the study of international criminal responsibility, defines the theoretical and practical scope of this term’s historically-modified definition

Tracking Global Corporate Citizenship: Some Reflections on ‘Lovesick' Companies

This paper provides an outline of some of the issues I am dealing with in connection to a research project being undertaken on Global Corporate Citizenship (GCC). This research is in its early stages so what is provided here is preliminary and designed to raise rather more issues than it solves. In particular, I am concerned to deal with what it might mean for companies to be described, or to describe themselves, as Global Corporate Citizens. In the general literature on corporate responsibility there is a move away from companies being described, or describing themselves, as Corporately Socially Responsible (CSR) to them re-describing themselves as Global Corporate Citizens (GCC). I want to ask what is involved in this (self)description as ‘citizens'? Can citizenship be applied first to companies and then extended into the global arena in which they operate? When looking at the actual practices of companies that claim to be either simply socially responsible or more recently corporate citizens , there is not much difference between them. Much the same ‘content', as it were, in terms of the claims to what they are doing or should do, adheres under both titles. So is it merely a matter of words? Does it make any difference that on the one had they claim to be socially responsible or on the other to be global citizens? I will argue that this is a very significant change in terminology that is having, and will continue to have, significant affects that need to be analysed and appreciated. To explore these implications, the following analysis situates GCC in a wider framework of the progressive juridicalization and constitutionalization of the international arena more generally.

Judging democratisation: courts as democracy builders in the post-war world

Can courts really build democracy in a state emerging from undemocratic rule? If so, how they do this, and what are their limits in this regard? This thesis seeks to explore the development since 1945 of a global model of democracy-building for post-authoritarian states, which accords a central position to courts. In essence, constitutional courts and regional human rights courts have come to be viewed as integral to the achievement of, or even constitutive of, a functioning democratic state. The roles courts play in supporting a democratisation process are onerous, and differ starkly from the roles of such courts in long-established democracies of the Global North. Courts in the new democracies of the post-war world have been freighted with weighty expectations to ‘deliver’ on the promises of a new democratic order, while navigating their own place within that developing order–or, in the case of regional human rights courts, inserting themselves into the democratisation process from without. At both the domestic and regional levels, from within and without the state, they are somehow expected to ‘judge’ democratisation. They are required to assess what is needed to support the democratisation process at any given point, especially in light of key deficiencies of the newly democratic order, and to judge when the democratisation context requires a different approach than may be appropriate in a mature democracy, such as the US or Ireland. However, the grand claims made for these courts as democracy-builders in existing scholarship have never been subjected to systematic analysis, nor have the overlapping roles of constitutional courts and regional human rights courts been considered in tandem. This thesis addresses a very significant research gap by drawing together a scattered and fragmented scholarship on the roles of courts in new democracies, integrating discussion of regional human rights courts, providing an innovative conceptual framework for how courts at each level act and interact as democracy-builders, and tracing connections between different normative arguments concerning the roles courts should play. As the first attempt at a wholesale exploration of the effectiveness and viability of the existing global court-centric model for democratisation, this thesis examines what we think courts do as democracy-builders, what they actually do, and what they should do. In doing so, it argues for a significant re-evaluation of how we conceive of, and employ, courts as democracy-builders

Sir Hersch Lauterpacht as a prototype of post-war modern international legal thought: analysis of international legalism in the universalisation process of the European law of nations

This thesis explains how Sir Hersch Lauterpacht constructed his international legal theory in the universalisation process of the European law of nations. Introduction presents the general background of the universalisation process of the European law of nations. Chapter 1 discusses the situationality of Lauterpacht, which affected his life as an international lawyer, namely his Jewish background, the influence of Kelsen and the English tradition of international law. Lauterpacht's normative conception of the international community in the inter-war period is explicated in Chapter 2. hi Chapter 3,1 examine how Lauterpacht dealt with legal problems in the outlawry of war from the inter-war period to the end of the Second World War. Chapter 4 holds Lauterpacht's attempts to reconstruct the international community after World War E. Being opposed to political realism, Lauterpacht employed the Grotian Tradition in order to prove the historical value of his idealism. He moulded the function of states into the framework of his normative conception of the international community as civitas maxima with regard to recognition, collective security and the international protection of human rights. I demonstrate how Lauterpacht contributed to the work of the International Law Commission in Chapter 5 from 1952 to 1954. Chapter 6 examined the problems of the responsibility of international judges, namely their neutrality, legal reasoning, and the compatibility of’ automatic' reservation with the ICJ Statute. The conclusion is an appreciation of legalism within the framework of the universalisation of international law in the era of decolonisatio

The Nigerian Legal System through the Lens of H.L.A Hart

This thesis interrogates the existence and nature of Nigerian legal system from the perspective of analytical jurisprudence. It does this by looking at the fundamental requirements needed to prove the existence of a modern municipal legal system as primarily articulated by H.L.A Hart. In his celebrated work The Concept of Law, Hart postulated two minimum conditions necessary and sufficient for the existence of a modern municipal legal system: first, the primary rules of obligation that have been validated by the system’s rules of recognition, must be generally obeyed or followed by ordinary citizens. Secondly, the legal system’s rules of recognition which state the criteria of legal validity and its rules of change, as well as its rules of adjudication must be effectively accepted as common general standards of official behaviour by the public officials of the legal system. The frugality of this account makes it very attractive, and its simplicity enables this study to evaluate the existence of Nigerian legal system with a relatively compact and concise set of tools. At the level of Nigeria legal system, there has been widespread refusal comply with the foundational and authoritative rules of the Nigerian legal system. Also, there has been a problem of multiple conflicting legislations yielding to a parallel legal system. This unavoidably triggers the question of the ontological value of Nigerian legal order as a modern municipal legal system. Invariably, the pertinent question is, has Nigeria got a legal system? This thesis attempts to respond to the above question by examining the conditions necessary and sufficient for a legal order to exist as a complete legal system in a modern enlightenment, and also see whether or not, at present, such minimum requirements have been met by the Nigerian legal order. In achieving this, this study used some selected egregious cases and events to interrogate whether there is the presence of an authoritative rule of recognition in Nigerian legal order and if there is, whether Nigerian officials take the internal point of view towards it. The major findings are that: first, the Constitution, judicial precedents and international laws, all form part of the rules of recognition in Nigeria. Secondly, Nigerian officials deliberately do not take the internal point of view towards the rules of recognition so identified. Therefore, the conclusion of this dissertation is that Nigerian has got a legal order that is not worthy of being called a modern or complete legal system

The end of customary international law? : A purposive analysis of structural indeterminacy

Where CLS, and other critical discourses, seek to “uncover” and “explode” the ideologies and biases of law, to demonstrate its inability to fulfil its promises, the present work is intended to initiate the task of demanding that law, and especially CIL, live up to those very promises. But first, the nature of these promises, and the structure and purpose of law must be examined, analysed, and where necessary contested and decided, or rather, defined. In this regard, the hidden assumptions of legal theory must be uncovered and problematised; the debates over law must be disaggregated, before law itself can be properly determined. Only after these tasks have been completed can the nihilist challenges of NAIL be met. This thesis argues that CIL is best understood as an independent system of rules, against which state conduct may be assessed; rather than as a necessarily authoritative institutional reality. This highlights the distinction between law-creative, and merely legally evaluable, state actions. The theory presented in the final chapter - which is developed from the methodology outlined in the preceding four chapters - acts as a lens through which those actions of states which alter or develop CIL may be distinguished from those actions which ought, merely, to be judged in the light of CIL. This allows us to distinguish legal from illegal state conduct, regardless of the absence or presence of enforcement. This distinction between the legal and the illegal is distinct from, analytically prior to, and more important than, the enforcement of legal commands

On relationships between the logic of law, legal positivism and semiotics of law

The issue of reciprocal relationships between the logic of law, positivistic theory of the logic of law, and legal semiotics is among the most important questions of the modern theoretical jurisprudence. This paper has not attempted to provide any comprehensive account of the modern jurisprudence (and legal logic). Instead, the emphasis has been laid on those aspects of positivist legal theories, logical studies of law and legal semiotics that allow tracing the common points or the differences between these paradigms of legal research. One of the theses of the present work is that, at the comparative methodological level, the limits of legal semiotics and its object of inquiry could only be defined in relation to legal posi tivism and logical studies of law. This paper also argues for a proper position for legal semiotics in between legal positivism and legal logic. The differences between legal positivism, legal logic and legal semiotics are best captured in the issue of referent