(In)Visible Hand(s)

In this paper, the author discusses the regulatory role of the state and legal norms, in market economy, especially in so-called transition countries. Legal policy, and other questions of the state and free market economy are here closely connected, because the state must ensure with legal norms that economic processes are not interrupted: only the state can establish the legal basis for a market economy. The free market’s invisible hand is acting in questions such as: what is to be produced, how much is to be produced, for whom it is to be produced, how it is to be produced. During the transition period but also in the establishnig EU, the role of legal norms is much more important then it (is) would be expected: problems of transition are more connected with ethics and psychology, then with legislation.Law and economics, legal norms, (de)regulation, State

Global Law as Intercontextuality and as Interlegality

Since the 1990s the effects of globalization on law and legal developments has been a central topic of scholarly debate. To date, the debate is however marked by three substantial deficiencies which this chapter seeks to remedy through a reconceptualization of global law as a law of inter-contextuality expressed through inter-legality and materialized through a particular body of legal norms which can be characterized as connectivity norms. The first deficiency is a historical and empirical one. Both critics as well as advocates of ‘non-state law’ share the assumption that ‘law beyond the state’ and related legal norms have gained in centrality when compared with previous historical times. While global law, including both public and private global governance law as well as regional occurrences such as EU law, has undergone profound transformations since the structural transformations which followed the de-colonialization processes of the mid-twentieth century, we do not have more global law relatively to other types of law today than in previous historical times. The second deficiency is a methodological one. The vast majority of scholarship on global law is either of an analytical nature, drawing on insights from philosophy, or empirically observing the existence of global law and the degree of compliance with global legal norms at a given moment in time. While both approaches bring something to the table they remain static approaches incapable of explaining and evaluating the transformation of global law over time. The third deficiency is a conceptual-theoretical one. In most instances, global law is understood as a unitary law producing singular legal norms with a planetary reach, or, alternatively, a radical pluralist perspective is adopted dismissing the existence of singular global norms. Both of these approaches however misapprehend the structural characteristics, function and societal effects of global law. Instead a third positon between unitary and radical pluralist perspectives can be adopted through an understanding of global law and its related legal norms as a de-centred kind of inter-contextual law characterised by inter-legality

Legal system, repression and human rights in contemporary Spain : some remarks about spanish transition to democracy

As is well known, the 2nd Spanish Republic (1931-1936) was toppled by a military uprising which, after a cruel Civil War, set up an autocratic regime led by General Franco which lasted until his natural death in 1975. According to the contemporary theory of the legal system, a legal order exists on the sole condition that it is efficient in general terms and this was the case for both the Republic and the Dictatorship. In turn, the validity of the legal norms of all legal orders is based on its respective rules of recognition. Thus, neither the existence of the legal order nor the validity of its respective legal norms depends on moral considerations. In this paper, we call this affirmation into question on the base of the fact that the compensatory methods adopted from the Transition to Democracy show an evident concern to repair the damage of taking away a person’s basic rights (life, health, freedom, expression, association etc) although the Spanish Constitution, with its catalogue of fundamental rights was not in force at that time. But these measures would not have much sense if, as Raz says, there was no shared content which is common to all legal systems. Like Nino, we claim that one must discriminate between a democratic legal order and an autocratic one to establish the level of validity of its respective legal norms. Thus it can be assigned a presumption of justice to democratic norms. Finally, we state that the criteria to weigh up the justice or injustice of legal norms, as that of legal orders, takes root in the level of respect they show towards human rights

Legal Principles, Legal Values and Legal Norms: are they the same or different?

Legal principles, legal values, and legal norms are essentially part of the same notion. Often in legal literature, legal principles are considered to be legal norms, general legal norms, legal values etc. In fact, legal principles are just legal norms that different from the latter are legal norms of general application that ignore specific legal facts. They can be considered as basic norms that represent the general consensus on basic society understandings. As such they are also kinds of default rules of behavior. From this perspective, the legal principles are rules of human behavior that used to be considered as just, before the law started being written. Thus, legal values would be considered a more general legal norms vis-à-vis legal principles and legal norms. Nonetheless, the coexistence of these three notions shows the complexity of their correlation and gives us an initial idea on what we will go through in out attempt to perform of comparative analysis between them

LEGAL NORMS WITH IMMEDIATE EFFECT: UNDERSTANDING AND ADMISSIBILITY IN THE STATE OF LAW

The article analyses the understanding on the rights of a legislator to pass legal norms with immediate effect. Although, up to now legal doctrine has viewed inadmissibility of retroactive legal norms more largely, in practice there are a lot more legal norms with immediate effect passed. Therefore the article firstly assesses features according to which legal norms related to past are passed with an immediate effect. Similarly, in light of the general view of case-law and legal doctrine that prima facie consider legal norms with immediate effect admissible and lawful, the article reveals the historical origin and development of this opinion. In addition, as the above assumption on admissibility of the legal norms with immediate effect is not absolute and is exposed to assessment of legitimate expectations of addressees of legal norms, a significant attention has been drawn to methodology of the admissibility assessment. Within the framework of analysis of methodology, the article views both different methods applicable for assessment of public interest and addressees of legal norms in cases of immediate effect as well as various circumstances that might be the basis to acknowledge legal norms with immediate effect as illegitimate

Introduction to the Symposium on the Rationality of Rule-Following

Legal norms are typically divided into standards and rules. Standards are legal norms that enjoin us to do what is reasonable, fair, just, etc. As legal norms, however, the standards are frequently suboptimal. Legal norms in the form of rules are the antidote to the problems of error and failure of coordination caused by legal standards

Direct vs. Indirect Obligations of Corporations Under International Law

International law today addresses the conduct of private corporations in a variety of areas. With very few exceptions, however, international law regulates corporate conduct indirectly--that is, by requiring states to enact and enforce regulations applicable to corporations and other non-state actors. Only a small number of international legal norms--primarily those relating to war crimes, crimes against humanity, and forced labor--apply directly to non-state actors. Scholars have argued forcefully that international law should move in the direction of directly imposing obligations on corporations. These arguments overlook important aspects of the problem. If international legal norms were extended to corporations and backed by effective enforcement mechanisms, states would lose control over compliance with the norms. If not accompanied by an effective enforcement mechanism, the norms would probably be widely disregarded. The first option is likely to be strongly resisted by states; the second option would do little for the interests sought to be protected and would be bad for international law

Technocracy inside the rule of law : challenges in the foundations of legal norms

Technocracy is usually opposed to democracy. Here, another perspective is taken: technocracy is countered with the rule of law. In trying to understand the contemporary dynamics of the rule of law, two main types of legal systems (in a broad sense) have to be distinguished: firstly, the legal norm, studied by the science of law; secondly, the scientific laws (which includes the legalities of the different sciences and communities). They both contain normative prescriptions. But their differ in their subjects‘ source: while legal norms are the will’s expression of the normative authority, technical prescriptions can be derived from scientific laws, which are grounded over the commonly supposed objectivity of the scientific knowledge about reality. They both impose sanctions too, but in the legal norm they refer to what is established by the norm itself, while in the scientific legality they consist in the reward or the punishment derived from the efficacy or inefficacy to reach the end pursued by the action. The way of legitimation also differs: while legal norms have to have followed the formal procedures and must not have contravened any fundamental right, technical norms‘ validity depend on its theoretical foundations or on its efficacy. Nowadays, scientific knowledge has become and important feature in policy-making. Contradictions can arise between these legal systems. These conflicts are specially grave when the recognition or exercise of fundamental rights is instrumentally used, or when they are violated in order to increase the policies‘ efficacy. A political system is technocratic, when, in case of contradiction, the scientific law finally prevails