David Dyzenhaus - Böcker

This book investigates one of the oldest questions of legal philosophy---the relationship between law and legitimacy. It analyses the legal theories of three eminent public lawyers of the Weimar era, Carl Schmitt, Hans Kelsen, and Hermann Heller. Their theories addressed the problems of legal and political order in a crisis-ridden modern society and so they remain highly relevant to contemporary debates about legal order in the age of pluralism. Schmitt, the philosopher of German fascism, has recently received much attention. Kelsen is well-known as one of the main exponents of the philosophy of legal positivism. Heller is virtually unknown outside Germany. Dyzenhaus exposes the dangers of Schmitt's legal philosophy by situating it in the legal context of constitutional crisis to which he responded. He also points out the severs inadequacies of Kelsen's legal positivism. In a wide-ranging account of the predicaments of contemporary legal and political philosophy, Heller's position is argued to be the most promising of the three.

Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it must address; what problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime. Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions,' challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law. The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics and philosophy.

Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it must address; what problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime. Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions', challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law. The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics, and philosophy.

Hermann Heller was one of the leading public lawyers and legal and political theorists of the Weimar era, whose main interlocutors were two of the giants of twentieth century legal and political thought, Hans Kelsen and Carl Schmitt. In this 1927 work, Hermann Heller addresses the paradox of sovereignty. That is, how the sovereign can be both the highest authority and subject to law. Unlike Kelsen and Schmitt, who seek to dissolve the paradox, Heller sees that the tensions the paradox highlights are an essential part of a society ruled by law.Sovereignty, in the sense of national and popular sovereignty, is often perceived today as being under threat, as power devolves from nation states to international bodies, and important decisions seem increasingly made by elite-dominated institutions. Hermann Heller wrote Sovereignty in 1927 amidst the very similar tensions of the Weimar Republic. In an exploration of history, constitutional and political theory, and international law, Heller speaks clearly to our contemporary concerns, and shows that democrats must defend a legal idea of sovereignty suitable for a pluralistic world.

The idea of a wicked legal system, one whose laws have been made the instrument of a repugnant moral ideology, continues to play an important part in philosophical debates about the nature of law and law's claim to moral authority. It seems to offer support for the argument of legal positivists, who insist on a clear conceptual distinction between legal requirements, deriving from social sources, and moral requirements. Does the existence of wicked legal systems present an insurmountable obstacle to critics of positivism who reject the importance of that distinction?The abstract debates of legal philosophers can seem far removed from the practical application of law in the business of deciding cases. This book argues that theoretical disagreement matters profoundly to the practice of law, and analyses the abstract debates of legal philosophy through a detailed study of judicial interpretations in apartheid South Africa - a model 'wicked legal system'. The case study shows that particular conceptions of law and of the rule of law determined the reasoning both of judges whose decisions supported official policy and of judges whose decisions resisted that policy.The first edition of this book was published in 1991. Since then South Africa has transformed, and the major debates in legal theory have shifted from analysing the concept of law itself to analysing the concept of legality and the value of the rule of law. For this substantially revised new edition, the author addresses the transformation of South Africa since the end of Apartheid, and the shift in focus of legal philosophy. He also examines the emergence of counter-terrorism security laws, and the arguments surrounding their conformity to the rule of law. The book offers an invaluable guide to understanding the abstract debates of legal theory, and their importance in legal practice.

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

This collection of previously published work on security and rights focuses on the appropriate relationship between rights and what we can think of as counterterrorism policy. Such a focus might seem both necessary, because of 9/11, and unfortunate, because there are other causes of insecurity besides terrorism. However, the intensity of the 'war on terror' has created an ongoing surge of scholarship on the relationship between security and human rights that either has indirect implications for debates about security where terrorism is not in issue, or has directly led to an attempt to rethink more generally the idea of security and its relationship to rights.

Since its first publication in 1996, Law and Morality has filled a long-standing need for a contemporary Canadian textbook in the philosophy of law. Now in its third edition, this anthology has been thoroughly revised and updated, and includes new chapters on equality, judicial review, and terrorism and the rule of law.The volume begins with essays that explore general questions about morality and law, surveying the traditional literature on legal positivism and contemporary debates about the connection between law and morality. These essays explore the tensions between law as a protector of individual liberty and as a tool of democratic self-rule, and introduce debates about adjudication and the contribution of feminist approaches to the philosophy of law. New material on the Chinese Canadian head tax case is also featured. The second part of Law and Morality deals with philosophical questions as they apply to contemporary issues. Excerpts from judicial decisions as well as essays by practicing lawyers are included to provide theoretically informed legal analyses of the issues.Striking a balance between practical and more analytic, philosophical approaches, the volume's treatment of the philosophy of law as a branch of political philosophy enables students to understand law in its function as a social institution. Law and Morality has proved to be an essential text in both departments of philosophy and faculties of law and this latest edition brings the debates fully up to date, filling gaps in the previous editions and adding to the array of contemporary issues previously covered.

While antiliberal legal theorist Carl Schmitt has long been considered by Europeans to be one of this century’s most significant political philosophers, recent challenges to the fundamental values of liberal democracies have made Schmitt’s writings an unavoidable subject of debate in North America as well. In an effort to advance our understanding not only of Schmitt but of current problems of liberal democracy, David Dyzenhaus presents translations of classic German essays on Schmitt alongside more recent writings by distinguished political theorists and jurists. Neither a defense of nor an attack on Schmitt, Law as Politics offers the first balanced response to his powerful critique of liberalism.One of the major players in the 1920s debates, an outspoken critic of the Versailles Treaty and the Weimar Constitution, and a member of the Nazi party who provided juridical respectability to Hitler’s policies, Schmitt contended that people are a polity only to the extent that they share common enemies. He saw the liberal notion of a peaceful world of universal citizens as a sheer impossibility and attributed the problems of Weimar to liberalism and its inability to cope with pluralism and political conflict. In the decade since his death, Schmitt’s writings have been taken up by both the right and the left and scholars differ greatly in their evaluation of Schmitt’s ideas. Law as Politics thematically organizes in one volume the varying engagements and confrontations with Schmitt’s work and allows scholars to acknowledge-and therefore be in a better position to negotiate-an important paradox inscribed in the very nature of liberal democracy.Law as Politics will interest political philosophers, legal theorists, historians, and anyone interested in Schmitt’s relevance to current discussions of liberalism.Contributors. Heiner Bielefeldt, Ronald Beiner, Ernst-Wolfgang Bockenforde, Renato Cristi, David Dyzenhaus, Robert Howse, Ellen Kennedy, Dominique Leydet, Ingeborg Maus, John P. McCormick, Reinhard Mehring, Chantal Mouffe, William E. Scheuerman, Jeffrey Seitzer

The Long Arc of Legality breaks the current deadlock in philosophy of law between legal positivism and natural law by showing that any understanding of law as a matter of authority must account for the interaction of enacted law with fundamental principles of legality. This interaction conditions law's content so that officials have the moral resources to answer the legal subject's question, 'But, how can that be law for me?' David Dyzenhaus brings Thomas Hobbes and Hans Kelsen into a dialogue with H. L. A. Hart, showing that philosophy of law must work with the idea of legitimate authority and its basis in the social contract. He argues that the legality of international law and constitutional law are integral to the main tasks of philosophy of law, and that legal theory must attend both to the politics of legal space and to the way in which law provides us with a 'public conscience'.

In the UK, lawyers of the 'Judicial Power Project' - a group largely based at elite universities with close ties to far-right figures in the US and Europe - rail against 'judicial overreach'. In this groundbreaking book, David Dyzenhaus investigates the ideology of this group, contending that their true aim is to establish rule by an illiberal executive under the guise of benefitting the 'common good'. Dyzenhaus makes a powerful argument that this is a fundamentally illiberal ideology with roots in authoritarian thought from the 1930s, one which threatens to take a wrecking ball to the rule of law and democracy. The War against Law offers a fascinating examination of these lawyers' ideas against the backdrop of the 2024 Rwanda Act, which required rendering asylum seekers in the UK to Rwanda. The debates both before and after the Act make concrete profound questions about the nature of the rule of law and its role in a liberal democracy.

Hobbes's political thought provokes a perennial fascination. It has become particularly prominent in recent years, with the surge of scholarly interest evidenced by a number of monographs in political theory and philosophy. At the same time, there has been a turn in legal scholarship towards political theory in a way that engages recognisably Hobbesian themes, for example the relationship between security and liberty. However, there is surprisingly little engagement with Hobbes's views on legal theory in general and on certain legal topics, despite the fact that Hobbes devoted whole works to legal inquiry and gave law a prominent role in his works focused on politics. This volume seeks to remedy this gap by providing the first collection of specially commissioned essays devoted to Hobbes and the law.

Oakeshott, Hayek and Schmitt are associated with a conservative reaction to the 'progressive' forces of the twentieth century. Each was an acute analyst of the juristic form of the modern state and the relationship of that form to the idea of liberty under a system of public, general law. Hayek had the highest regard for Schmitt's understanding of the rule of law state despite Schmitt's hostility to it, and he owed the distinction he drew in his own work between a purpose-governed form of state and a law-governed form to Oakeshott. However, the three have until now rarely been considered together, something which will be ever more apparent as political theorists, lawyers and theorists of international relations turn to the foundational texts of twentieth-century thought at a time when debate about liberal democratic theory might appear to have run out of steam.

Hobbes's political thought provokes a perennial fascination. It has become particularly prominent in recent years, with the surge of scholarly interest evidenced by a number of monographs in political theory and philosophy. At the same time, there has been a turn in legal scholarship towards political theory in a way that engages recognisably Hobbesian themes, for example the relationship between security and liberty. However, there is surprisingly little engagement with Hobbes's views on legal theory in general and on certain legal topics, despite the fact that Hobbes devoted whole works to legal inquiry and gave law a prominent role in his works focused on politics. This volume seeks to remedy this gap by providing the first collection of specially commissioned essays devoted to Hobbes and the law.

Oakeshott, Hayek and Schmitt are associated with a conservative reaction to the 'progressive' forces of the twentieth century. Each was an acute analyst of the juristic form of the modern state and the relationship of that form to the idea of liberty under a system of public, general law. Hayek had the highest regard for Schmitt's understanding of the rule of law state despite Schmitt's hostility to it, and he owed the distinction he drew in his own work between a purpose-governed form of state and a law-governed form to Oakeshott. However, the three have until now rarely been considered together, something which will be ever more apparent as political theorists, lawyers and theorists of international relations turn to the foundational texts of twentieth-century thought at a time when debate about liberal democratic theory might appear to have run out of steam.

This collection explores some of the many ways in which constitutional orders engage with, and are shaped by, their exteriors. Constitutional and legal theory often marginalize 'foreign' elements, such as norms originating in other legal systems, the movement of individuals across borders, or the application of domestic law to foreign affairs. In The Double-Facing Constitution, these instances of boundary crossing lie at the heart of an alternative understanding of constitutions as permeable membranes, through which norms can and sometimes must travel. Constitutional orders are facing both inwards and outwards - and the outside world influences their interiors just as much as their internal orders help shape their surroundings. Different essays discuss the theoretical and historical foundations of this view (grounded in Kelsen, Hobbes, Locke, Rousseau and others), and its contemporary relevance for areas as diverse as migration law, the conflict of laws, and foreign relations law.

This collection explores some of the many ways in which constitutional orders engage with, and are shaped by, their exteriors. Constitutional and legal theory often marginalize 'foreign' elements, such as norms originating in other legal systems, the movement of individuals across borders, or the application of domestic law to foreign affairs. In The Double-Facing Constitution, these instances of boundary crossing lie at the heart of an alternative understanding of constitutions as permeable membranes, through which norms can and sometimes must travel. Constitutional orders are facing both inwards and outwards - and the outside world influences their interiors just as much as their internal orders help shape their surroundings. Different essays discuss the theoretical and historical foundations of this view (grounded in Kelsen, Hobbes, Locke, Rousseau and others), and its contemporary relevance for areas as diverse as migration law, the conflict of laws, and foreign relations law.

The Long Arc of Legality breaks the current deadlock in philosophy of law between legal positivism and natural law by showing that any understanding of law as a matter of authority must account for the interaction of enacted law with fundamental principles of legality. This interaction conditions law's content so that officials have the moral resources to answer the legal subject's question, 'But, how can that be law for me?' David Dyzenhaus brings Thomas Hobbes and Hans Kelsen into a dialogue with H. L. A. Hart, showing that philosophy of law must work with the idea of legitimate authority and its basis in the social contract. He argues that the legality of international law and constitutional law are integral to the main tasks of philosophy of law, and that legal theory must attend both to the politics of legal space and to the way in which law provides us with a 'public conscience'.

With a Foreword by the South African Minister of Water Affairs and Forestry, Kader Asmal. The Truth and Reconciliation Commission (TRC), established in South Africa after the collapse of apartheid, was the bold creation of a people committed to the task of rebuilding of a nation and establishing a society founded upon justice, equality and respect for the rule of law. As part of its historic, cathartic, mission, the TRC held a special hearing, calling to account the lawyers - judges, academics and members of the bar -who had been crucial participants in the apartheid legal order. This book is an account of those hearings, and an attempt to evaluate, in the light of theories of adjudication, the historical role of the judiciary and bar in the apartheid years. This book offers us the spectacle of an entire legal system on trial. The echoes from this process are captured here in a way which will appeal to all readers, lawyers and non-lawyers alike, interested in the relationship between law and justice, as it is exposed during a period of transition to democracy. "...an excellent commentary on a crucial period...a clear, concise and thorough analysis...This book should be required reading for anyone with a concern for the relationship between law and justice..." -Paul Williams (Journal of Modern African Studies) "a sustained reflection on questions of complicity, on the politics of the Rule of Law, and on the relation between law and justice. It presents a forceful case for an 'inner morality' not just of law, but of the citizenry's attitude towards that law". -Scott Veitch (Res Publica) "The Truth and Reconciliation Hearings, as rendered in Professor Dyzenhaus' book, capture the misery and suffering of a nation. Sometimes almost unbearable to read, it is a fascinating account of the human dimensions of law's effect...the book is as much about hope as it is about pain. Judging the Judges, Judging Ourselves is singularly effective in combining a scholarly dissection of legal issues with an underlying, passionate quest for justice. To this reader at least, it was a page-turner" -Vivian Grosswald Curran (Alberta Law Review) "...an excellent book for at least three reasons. First, it is a critically engaged, firsthand account of a unique legal and political event...Second, it develops an extended argument for a challengingly normative conception of the rule of law. And third, the book is well written and a pleasure to read."-Michael Milde (Canadian Journal of Law and Jurisprudence) "Dyzenhaus's sophisticated treatment...may yet serve as a benchmark statement in future debates, whether or not one agrees with its philosophical point of departure." -Aletta J. Norval (Constellations) "As legal fora increasingly lose direct state-related implementation power as a result of globalization and regionalization, judges will need to consider methods that pursue civil and social justice when actual implementation is likely to be imperfect or ineffectual. Judging the Judges, Judging Ourselves is an excellent contribution to considerations of this historical dilemma." -John P. McCormick (New York University Journal of Law and Social Change) "...the author subjects to sustained critical analysis fundamental concepts, such as judicial independence, parliamentary sovereignty and the rule of law, which go to the very heart of the judicial function...This is a splendid book."-The Hon Sir Anthony Mason "Judging the Judges, Judging Ourselves underscores the imperative that, as the idea of equal citizenship takes root in the new South Africa, the links between social justice and procedural morality should be forged rather than assumed." -Christine Sypnowich (Oxford Journal of Legal Studies)

This book tackles the important topic of the relationship between three parts of the public law regime in a common law jurisdiction: the common law of judicial review or the unwritten constitution, the written constitution and public international law. Thematic coherence is ensured by the fact that the papers were presented at a conference in early 2003 and then extensively revised and by a general focus on a path-breaking decision of Canada's Supreme Court (Baker). The book thus contains a highly productive exchange between an international group of scholars on such themes as the rule of law, judicial deference, the separation of powers, the role of human rights in common law reasoning on immigration and security matters, and the nature of legal authority.

Michael Taggart was the Alexander Turner Professor of Law in the University of Auckland, New Zealand until his retirement in 2008. He has worked extensively on public law, in particular administrative law, privatisation and the public/private law divide as well as on legal history. He has visited and taught at the Universities of Melbourne, New South Wales, Toronto, Cambridge, Paris II, Victoria at Wellington, Saskatchewan, Western Ontario, Queen's University at Kingston and Osgoode Hall Law School. This book of essays, dedicated to him by a group of his friends including academic colleagues, practitioners and judges, marks his enormous contribution to the common law.

This collection of essays on the rule of law focuses on the traditional question whether the rule of law is necessarily the rule of moral principles, the question of the legitimacy of law. Essays by lawyers, philosophers, and political theorists illuminate and take forward both that question and debate about issues to do with the reach of the rule of law which complicate its answer. The essays are divided into sections which deal, first, with legal orders where the rule of law is under severe stress, second, with the question of the value of the rule of law as a conceptual problem, and, third, with the question of the limits of legal order. Contributors: Richard Abel, Jody Freeman, Robert Alexy, Neil MacCormick, Kenneth Winston, Andras Sajo, Alon Harel, Anton Fagan, Anthony Sebok, Christine Sypnowich, Allan Hutchinson, Bill Scheuerman, John MacCormick, Julian Rivers, Henry Richardson, David Dyzenhaus.