Authority, justice, and public law: A unified theory

Legal Studies, 1998

To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law. In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.

In S. A. Langvatn, W. Sadurski, & M. Kumm (Eds.), Public Reason and Courts. Cambridge University Press, 2020.

2010

Introduction It is generally assumed that man is a socio-political animal, that man and society are mutually inextricable, and that no one can lead the life of the island (like the lonely Robinson Crusoe the ship-wrecked man trapped on an island). Such a world would simply be boring and meaningless. From the moment necessity endeared man to live beyond subsistence and evolve society, the questions have ever re-echoed: What is law? What is the role of law in the state? What are the rights and obligations of the citizens in the state? These rights and obligations vary from the intellectual, political, economic, judicial, to the freedom of expression, property ownership, equity and justice. However, the obligations and rights of the citizenry are actualized or negated according to the nature of law within a particular state. The state is a personified abstraction. It often signifies the laws of the federation or a republic. It is in this sense that the state is said to have a geographi...

Rechtsgeschichte - Legal History, 2011

Social Science Research Network, 2011

The public interest in the administration of justice requires access to justice for all. But access to justice must be "meaningful" access. Meaningful access requires procedures, processes, and institutional structures that facilitate communication among participants and decision-makers and ensure that judges and other decision-makers have the resources they need to render fully informed and sound decisions. Working from that premise, which is based on a reconceptualization of the objectives and methods of the justice process, the author proposes numerous specific changes in decision-making processes and practices. These changes are required to achieve a standard of decision-making that is consistent with the public interest in the administration of justice within a constitutional framework under the social and political conditions of the early 21 st century. The essay illustrates the application of the principles and methods of "legitecture" to the analysis of problems of institutional design in law. … justice and the just society… is essential to flourishing of men, women and children and to maintaining social stability and security. 1

Relational jurisprudence is an approach to law that situates it in five relational contexts: first, relations between individuals; second, relations between individuals and communities; third, relations between communities; fourth, relations between individuals or communities on the one hand, and institutions on the other; and fifth, relations between institutions. Thus, part of what makes relational jurisprudence distinctive is its object: the study of law in the context of certain relations, including investigating what factors affect and influence the quality of those relations. Relational jurisprudence is also distinctive, however, in its method. One of its methodological commitments is to avoid the dichotomy, without losing the benefits of a distinction, between facts and values. In trying to avoid this dichotomy, the approach identifies and uses devices that have both factual and evaluative dimensions, called here 'factual-evaluative complexes'. These devices are then used to investigate the quality of different relations. One such device is 'vulnerability'. The argument of the paper is that at least some of law can be profitably understood as managing vulnerability, i.e. recognising some vulnerabilities as worthy of protection and others not, or balancing the protection of different vulnerabilities in different relational contexts. Avoiding the dichotomy while retaining the usefulness of the distinction between facts and values in the above-outlined way means that we ought to employ a mix of empirical and normative methodology in the study of law. Abstract The paper aims at answering the question of the relationship between jurisprudence and the way law is interpreted by public administration in the conditions of respecting good administration's requirements. The research is grounded upon previous studies published in the framework of the project "The right to a good administration and its impact on public administration's procedures" (code PN II IDEI 698/2007) financed by the Romanian National Research Council (CNCSIS) and is based on comparative and interdisciplinary approaches of public administration and administrative law. The present research concludes in favor of a special role ensured for the legal norms' interpretation effectuated by justice reported to the ones given by public administration. The implications of such interpretations translates themselves in reducing the number of judicial causes generated by conflicts of juridical interpretation and ensuring a good administration through observance of beneficiaries' legitimate expectations. The research addresses both academics and practitioners in the field of justice and public administration, bringing to their attention a new approach of the relationship between justice and public administration in the process of law implementation.

Review of Central and East European Law, 2012

On 19 April 2011, the Faculty of Law of St. Petersburg State University held a seminar devoted to a discussion of the problems of the 'transplantation' of civil-law institutes and norms to public law. Here below, we offer the reader of the Review of Central and East European Law an encapsulated version of the seminar's highlights. 1

We subsist under the law where we claim our rights and obliged to do something enforced. What is a law? The question would be perplexing in history, and one of crucial themes with many lawyers or legal philosophers. As we know, two most important perspectives had earned a universal and historical forge in academics, to say, the natural law and legal positivism. The concept of natural law deals in its primacy for the humanity and natural order which often can be traded as something inviolable or inalienable. The concept has strands in several aspects; (i) its anchor with the civil democratic revolution around 17 and 18 centuries (ii) its supremacy with the new constitutional states (iii) less quality as a realist law from ambiguities and lack of clear definition. The concept of public policy may be related with the social justice, ethics and administration. It generally pursues a justice and desired state of public or community where the tension and conflict always exist between the ruling class and citizens. Historically, the public policy could be mightier to address the society than law where the benevolent Kings or Sovereigns liked to address both their needs and social justice. They may abrogate, more in endowment and divinity, the laws or social customs. The tension of public power and private interests could be one reason as well as offer a good dualism in understanding the rule of law concept and advent of modern democracy. In this dimension, the King would no longer be divine nor entitled to exercise a plenary power of state rule. Instead, the popular sovereignty in the US democracy or parliamentary one in the UK were to be established to resolve a feudal conflict within the class and society. Lighted to be in vein of influence could arise the two contexts which are a contractarian view and plutocracy desire of the founding fathers. They underlay the mood and philosophical ethos of US revolution. Hence, three concepts as a pillar in private law were sanctified in the very foundation of US constitutional state, sanctity of property right, freedom of contract and due limits for the civil liability. The governmental power should be limited to protect the life and limb of citizens which addressed the Hobbes’ evil, “war against all the rest.” The due process concept was expressed as a fundamental principle of constitution where the human rights are inviolable and inalienable. The separation of powers principle could serve the freedom and wealth of new civil class in the continent, and bicameralism was devised for the check and balance within the federal congress. They see the role of judicial branch is important to preserve their civil interest. Then we can derive some assumptions between the law and public policy. First, a law plays to protect the private interest while the public policy pursues the social justice and mediates the competing interests, “private v. private” and “public v. private.” The civil courts may address a first nature of conflict and the law of takings or regulatory laws may deal with the second aspect. Second, the public or administrative law may shape a legal plane of bureaucracies or public administration, and guarantee the rule of law ideals. It plays as an enabling authority and, on the other, monitors an arbitrariness and unfairness in the bureaucratic government. In this context, the unresponsive and unfathomable bureaucracy in the Kafka’s could be remedied. Third, for the welfare state in the late 19th and 20th century, a law can well be seen as one of authoritative expression of public policy to redress the evils of capitalist states. Some public laws, such as the Sherman Act classically and Lanham Act recently, may act to regulate the monopoly or oligopoly while other laws were enacted to restore the justice between the labor and employers. Through the chapters, the fundamentals of law and public policy will be considered to address their proper status.