The Rule of Law and the Challenges to Jurisprudence

Table Of Contents

• Cover
• Title
• Copyright
• About the author(s)/editor(s)
• About the book
• This eBook can be cited
• Contents
• Contributors
• Editors
• Introduction
• Part I Re-reading the Classics
• The Relationship of Natural Law and Natural Rights: Organic, Contingent, or Logically Contradictory?
• Introduction: two fundamental questions
• Two diametrically opposed answers
• The conventional story
• The alternative story
• Conclusion
• References
• International Coercion and the Requirement of an International Rule of Law
• Introduction
• Defining the rule of law
• The international vs. the national realm
• An international rule of law
• Back to the basics: The relationship between law and coercive power
• The international rule of law reconsidered
• Conclusion
• References
• Part II Jurisprudential Methodology
• Introduction
• ‘Law’
• The Subject Matter of Jurisprudence
• ‘Nature’
• Conclusion
• References
• Is ‘Naturalised’ Methodology in Legal Theory Helpful?
• Introduction
• The subject of legal theory
• Stages in the construction of analytical legal theory
• Conceptual analysis
• Methodological naturalism
• Concluding remarks: The usefulness of modest methodological naturalism
• References
• Part III Legal Reasoning and Objectivity
• Objectivity as Coherence in Practical Discourse
• Introduction
• Methodology: the bottom-up approach
• ‘Meaning in use’ based on Langacker’s cognitive grammar
• Objectivity of law vs. objectivity in law
• Objectivity as ‘legal argument’
• Conclusion
• References
• Court rulings
• Court of Justice of the European Union
• Poland
• Supreme Court of Poland
• Polish Constitutional Tribunal
• Supreme Administrative Court
• Courts of Appeal
• Voivodship Courts
• Part IV Judiciary, Legitimacy, Democracy
• Within Democracy’s Reach? Revisiting Some Objections to Judge-made Law
• Introduction
• The foundations of the objection
• Providing context and limiting the scope of the objection
• Can judge-made law fit our constitutional design? (Re)interpreting constitutional and political doctrines
• Conclusion
• References
• Cases
• Slovenian Constitutional Court
• A New Trend in the Debate on Justifying Judicial Review: Considering the Benefits of Judicial Reasoning
• Introduction
• A procedural response to the institutional question
• Waldron’s arguments against the judicial mode of moral reasoning
• The benefits of judicial decision-making in constitutional issues
• Conclusion
• References
• Cases
• Hungarian Constitutional Court
• Between Reflexivity and Effectiveness: Dilemmas of the Democratic Legitimacy of Constitutional Justice
• Introduction
• Transformation of the public sphere and the concept of legitimacy
• The difficulties of judicial supremacy: in search for a constitutional judge’s legitimacy
• The deliberative turn in the theory of democracy
• Constitutionalism as good governance: towards output legitimacy and effectiveness
• Reflexivity as the missing link
• Two dimensions of reflexivity
• References
• Part V The Boundaries of Criminal Justice
• Shielding Criminal Justice from Politics
• Introduction
• Direct public involvement as a generator of punitiveness
• The benefits of shielding
• Unexplored consequences
• Conclusion
• References
• Introduction of Criminal Law Powers in Other Legal Procedures: A Convenient Bypass for Obtaining Evidence?
• Introduction
• Border powers
• The inviolability of dwellings and privacy and personality rights in the Constitution of Slovenia
• The Relationship between the State Border Control Act and the Criminal Procedure Act
• Conclusion
• References
• Legislation
• Cases
• Slovenia
• United States
• European Court of Human Rights