Carl Schmitt ranks among the most original and controversial political thinkers of the twentieth century. His incisive criticisms of Enlightenment political thought and liberal political practice remain as shocking and significant today as when they first appeared in Weimar Germany. Unavailable in English until now, Legality and Legitimacy was composed in 1932, in the midst of the crisis that would lead to the collapse of the Weimar Republic and only a matter of months before Schmitt’s collaboration with the Nazis. In this important work, Schmitt questions the political viability of liberal constitutionalism, parliamentary government, and the rule of law. Liberal governments, he argues, cannot respond effectively to challenges by radical groups like the Nazis or Communists. Only a presidential regime subject to few, if any, practical limitations can ensure domestic security in a highly pluralistic society. Legality and Legitimacy is sure to provide a compelling reference point in contemporary debates over the challenges facing constitutional democracies today. In addition to Jeffrey Seitzer’s translation of the 1932 text itself, this volume contains his translation of Schmitt’s 1958 commentary on the work, extensive explanatory notes, and an appendix including selected articles of the Weimar constitution. John P. McCormick’s introduction places Legality and Legitimacy in its historical context, clarifies some of the intricacies of the argument, and ultimately contests Schmitt’s claims regarding the inherent weakness of parliamentarism, constitutionalism, and the rule of law.
This book focuses on the problematic relationship between legality and legitimacy when a nation (or nations) intervene in the work of other nations. Bringing together a wide range of contributors with a broad set of cases that consider when such intervention is legitimate even if it isn't legal--and vice versa--the chapters cover humanitarian intervention, nuclear nonproliferation, military intervention, international criminal tribunals, interventions driven by environmental concerns, and the export of democracy. By focusing on a diverse array of cases, this volume establishes a clear framework for judging the legitimacy of such actions.
By showing how Kelsen's theory of law works alongside his political philosophy, the book shows the Pure Theory to be part of a wider attempt to understand how political power can be legitimately exercised in pluralist societies.
The relationship between law and legitimacy is investigated in this book. The legal theories of three eminent public lawyers of the Weimar era are analyzed and the problems they address of legal and political order in a crisis-ridden modern society remain relevant to contemporary legal debates.
In The Legality and Legitimacy of the Use of Force in Northeast Asia, Brendan Howe and Boris Kondoch offer a comprehensive evaluation of when it is right, from regional perspectives, to use force in international relations.
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.
A leading group of international authorities consider the issues surrounding the legitimation of force.
It has never been more important to understand how international law enables and constrains international politics. By drawing together the legal theory of Lon Fuller and the insights of constructivist international relations scholars, this book articulates a pragmatic view of how international obligation is created and maintained. First, legal norms can only arise in the context of social norms based on shared understandings. Second, internal features of law, or 'criteria of legality', are crucial to law's ability to promote adherence, to inspire 'fidelity'. Third, legal norms are built, maintained or destroyed through a continuing practice of legality. Through case studies of the climate change regime, the anti-torture norm, and the prohibition on the use of force, it is shown that these three elements produce a distinctive legal legitimacy and a sense of commitment among those to whom law is addressed.
Law's Community offers a distinctive analysis of law, identifying political and moral problems that are fundamental to contemporary legal theory. It portrays contemporary law as institutionalized doctrine, emphasizing ways in which legal modes of thought influence wider currents ofunderstanding and belief in contemporary Western societies. Exploring relationships between law and sociology as contrasting and competing fields of knowledge, Law's Community develops ideas from social theory to identify key problems for legal development; in particular, those of restoring moralauthority to law and of elaborating a concept of community that can guide legal regulation. The analysis leads to radical conclusions: among them, that law's functions need reconsideration at the most general level, that a unitary state legal system as portrayed in traditional kinds of legal theorymay no longer be adequate in complex contemporary societies, and that law should be reconceptualized as a diverse but co-ordinated plurality of systems, sites, and forms of regulation.
Focusing both on English criminal, military, and parliamentary trials, and upon national and international trials for war crimes, this book illuminates the diverse forces that have shaped trials during the modern era.
In The Costs of War, Richard Falk brings together some of his recent essays, published and unpublished, examining the impact that the Iraq War has had and will have on international law, human rights, and democracy. A new introduction provides an overview as well as a sense of the current context and reflects on the internal prospects for Iraq and on the logic of an early US military and political withdrawal. Having been revised and updated to take account of the march of events, the essays are organized into the following sections: Part 1 addresses the effects of the American invasion and occupation of Iraq on the current dimensions of world order Part 2 provides a normative inquiry into the larger intentions and consequences of the Iraq War Part 3 considers the more fundamental implications of the Iraq War, especially on our understanding of war as an instrument for the solution of conflict. Falk demonstrates the dysfunctionality of war in relation to either anti-terrorism or the pursuit of a global security system based on military dominance; the historical potential of a realistic Gandhiism as a positive alternative in the setting of global policy in the twenty-first century. The Costs of War will be of interest to students and scholars of political science, media studies, and politics and international relations in general.
This book evaluates American foreign policy actions from the perspective of great power responsibility, with three case studies: Operation Iraqi Freedom, American drone strikes in Pakistan and the post- 9/11 practice of extraordinary rendition. This book argues that the US invasion of Iraq in 2003, American drone attacks in Pakistan and the practice of extraordinary rendition are the examples of irresponsible actions undertaken by the U.S. acting as a great power in international society. Focusing on a major theoretical approach of International Relations, the English School, this book considers the responsibilities of great powers in international society. It points to three obligations of great powers: to act according to the norm of legality, to act according to the norm of legitimacy, and to adhere to the principles of prudence. The author applies the criteria of legality, legitimacy and prudence, to analyse the three foreign policy endeavours of the U.S., and, developing a normative framework, clarifies the implications for future U.S. foreign policy. This book will be of strong interest to students and scholars of international relations, international relations theory, American politics, foreign policy studies, international law, South Asian studies and Middle Eastern studies.
Das Buch beschäftigt sich mit der Entstehung neuer Staaten sowie mit Konflikten um Autonomie und Selbstbestimmung, zu denen es seit Ende des Kalten Krieges gekommen ist. Ausgehend von der Grundthese, dass solche Vorgänge international im Rahmen eines Krisen- und Konfliktmanagements gelenkt werden, untersucht die Arbeit die Steuerung im Bereich des Selbstbestimmungsrechts, der Menschen- und Minderheitenrechte, der Staatenanerkennung, der Aufnahme in internationale Organisationen sowie bei der Regelung der Staatennachfolge.
This work deals with the question of unlawful territorial situations, i.e. territorial regimes that are established and maintained in defiance of international law.The book represents a welcome contribution to an issue of the outmost importance in international affairs at present times. It brings together elaborate theoretical discussion and thorough empirical research. Students of international law, practitioners, and anyone interested in deepening the understanding of the role and relevance of international law to territorial occupation will greatly benefit from this study.
Sovereignty and the sovereign state are often seen as anachronisms; Globalization and Sovereignty challenges this view. Jean L. Cohen analyzes the new sovereignty regime emergent since the 1990s evidenced by the discourses and practice of human rights, humanitarian intervention, transformative occupation, and the UN targeted sanctions regime that blacklists alleged terrorists. Presenting a systematic theory of sovereignty and its transformation in international law and politics, Cohen argues for the continued importance of sovereign equality. She offers a theory of a dualistic world order comprised of an international society of states, and a global political community in which human rights and global governance institutions affect the law, policies, and political culture of sovereign states. She advocates the constitutionalization of these institutions, within the framework of constitutional pluralism. This book will appeal to students of international political theory and law, political scientists, sociologists, legal historians, and theorists of constitutionalism.
There has been intense debate in recent times over the legitimacy or otherwise of international law. This book contains fresh perspectives on these questions, offered at an international and interdisciplinary conference hosted by the Max Planck Institute for Comparative Law and International Law. At issue are questions including, for example, whether international law lacks legitimacy in general and whether international law or a part of it has yielded to the facts of power.
For far too long the discipline of International Relations has failed to engage with the study of genocide. This is despite the fact that genocide holds a direct relationship with the central concepts of international relations: the state, war, power, and security. This bold, innovative and unique book sets out to tackle this by bringing the concept of genocide into the discipline of IR, via the English School, in order to theorise the relationship between genocide, justice, and order. Drawing on a wide-range of primary and secondary interdisciplinary material from International Relations, Genocide Studies, Security Studies, International Law, History, Politics and Political Theory, this book aims to understand genocide within the context of International Relations and the implications that this has on policymaking. Gallagher identifies the obstacles and challenges involved in bringing the study of genocide into IR and uniquely analyses the impact of genocide on the ordering structure of international society.