David Dyzenhaus

Legality and legitimacy : Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar

1: Legality and Legitimacy -- Refractions from Weimar. 2: Friend and Enemy: Schmitt and the Politics of Law. 3: The Pure Theory in Practice: Kelsens Science of Law. 4: The Legitimacy of Legal Order: Hermann Hellers Legal Theory. 5: Lessons from Weimar: The Legitimacy of Legality

Hard cases in wicked legal systems : South African law in the perspective of legal philosophy

Judicial obligation and the rule of law politics and history adjudication and racial segregation adjudication and national security entrenchment and dissent the common law revival the war against law the English experience positivism and the plain fact approach the legitimacy of law appendices - legislation and unreasonableness, the plain fact approach 1970-1990.

Legal Theory in the Collapse of Weimar: Contemporary Lessons?

The Weimar Republic is frequently invoked in political theory as an example when the issue is the appropriate response of liberal democracies to internal, fundamental challenges. I explore that example through the lens of a 1932 court case that tested the legality of the federal governments “coup” against Prussia. In my analysis of the courts judgment and of the arguments of three political and public law theorists, Carl Schmitt, Hans Kelsen, and Hermann Heller, I argue for Hellers democratic vision of the rule of law. In my conclusion, I compare problems in Kelsens position with problems in the recently articulated position of John Rawls in order to suggest what lessons Weimar may have for contemporary political theory.

Survey Article: Justifying the Truth and Reconciliation Commission

Truth commissions have emerged as popular devices for countries which are trying to move from a past of mass human rights violations to a stable and democratic future. South Africas Truth and Reconciliation Commission (TRC) was by no means the first official commission to inquire into and report on a fraught past, yet it has attracted more interest, including philosophical interest, than any of its predecessors.

The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation

Courts throughout the common law world have, for some time, given effect to international legal obligations (especially human rights norms) by way of administrative law doctrines and techniques. When the source of the international obligations constraining executive discretion is a convention ratified by the executive, but not incorporated by parliament into legislation, traditional alarm bells ring. Such ‘backdoor’ incorporation seems to amount to executive usurpation of the legislature’s monopoly of law-making authority, or to judicial usurpation of the same, or to a combination of both. But the charge of executive usurpation is misleading, not least because the executive usually argues to the reviewing court, and sometimes beyond, that ratification without incorporation has no legal consequences. At stake, it seems, is the age-old question of the legitimacy of judges’ divining values or principles that constrain executive authority from any source other than the statute which delegated that authority. The ‘dualism’ involved in considering the spheres of domestic law and international law to be sealed off from one another turns out to be no more than the dualism that the traditional approach postulates between, on the one hand, any set of principles or values that are claimed by judges to be inherent in the common law or the rule of law and, on the other, the authority of the legislature to stipulate expressly when particular principles or values will govern the decisions of its delegates. And, the traditionalist charges, if judges are permitted to chip away at the right of the legislature to declare when its   Oxford University Commonwealth Law Journal 5

Constitutionalism in an old key: Legality and constituent power

I argue that legal and constitutional theory should avoid the idea of constituent power. It is unhelpful in seeking to understand the authority of law and the place of written constitutions in such an understanding. In particular, it results in a deep ambivalence about whether authority is located within or without the legal order. That ambivalence also manifests itself within positivist legal theory, which explains the affinity between theories of constituent power and legal positivist accounts of authority. Legal theory should then focus on the question of laws authority as one entirely internal to legal order, thus making the question of constituent power superfluous.

Rethinking the Process/Substance Distinction: Baker V. Canada

The authors argue that in Baker v. Canada, the Supreme Court of Canada set out a unified theory of judicial review which seeks to rest review on substantive ideals related to fundamental values such as human rights and the best interests of children. The Courts reliance on substantive criteria to guide review places stress on the traditional process/substance distinction under which reviewing courts would generally review procedural matters with some intensity, but would resist reviewing the substance or merits of a decision with the same intensity. The authors argue that the newfound stress on the process/substance distinction is welcome, and to some extent can be mitigated, because the reasons underlying review of procedure equally justify review of cases in which human rights and other fundamental values are at stake.

The Puzzle of Martial Law

Martial law is thought to be not a complete absence of law, nor a special kind of law – a scheme of legal regulation – but, rather, an absence of law prescribed by law under the concept of necessity – a legal black hole, but one created, perhaps even in some sense bounded, by law. A.V. Dicey claimed that martial law in this sense is ‘unknown to the law of England,’ which is ‘unmistakable proof of the permanent supremacy of the law under our constitution.’ This article explores Dicey’s claim against the backdrop of the legal events that followed Governor Edward John Eyre’s proclamation of martial law in reaction to the Jamaica uprising of 1865 and his ruthless suppression of the uprising. It might seem that these events, as well as later experience, show that Dicey was naïvely wrong. But the article argues that a proper understanding of the jurisprudential issues and of that experience support his view.

The Left and the Question of Law

This article examines the work of Martin Loughlin, a prominent public lawyer who works in the left-wing tradition of political and legal theory, often associated with the London School of Economics and Political Science. It argues that tensions in Loughlins work exemplify certain trends within the left, the result of the left having lost faith in its positive political program, one which was supposed to be delivered by Parliament. What remains once this faith is lost is a traditional hostility to liberalism and judicial review in combination with a sense that the realm of politics - the political - is valuable. This combination explains the turn taken by certain left-wing theorists to Carl Schmitts authoritarian understanding of politics and to a kind of romanticism about tradition. Given the risks inherent in this turn, it would be better for the left both to return to its roots in a positive program. This move would require the left to engage properly in the contemporary debate about the normativity of law.

Introduction: Carl Schmitt's Challenge to Liberalism

The collapse of the Weimar Republic (1918-33) haunts political debate these days. Disaffected groups again challenge, with increasing support, the most fundamental values of the liberal democracies. In dealing with the “fact of pluralism” contemporary political philosophy grapples with this challenge. Any attempt to contest conceptions of the good life going against the grain of liberal democratic values invites the charge that liberalism is just one ideology among others, each seeking to enforce upon the whole its own partial idea of the good.