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1
Ladeur, Karl-Heinz. The theory of autopoiesis as an approach to a better understanding of postmodern law: From the hierarchy of norms to the heterarchy of changing patterns of legal inter-relationships. Badia Fiesolana, San Domenica (FI): European University Institute, 1999.
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Dhondt, Frederik. Balance of power and norm hierarchy: Franco-British diplomacy after the Peace of Utrecht. Leiden, The Netherlands: Brill Nijhoff, 2015.
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Craig, Paul, and Gráinne de Búrca. 4. Instruments and the Hierarchy of Norms. Oxford University Press, 2015. http://dx.doi.org/10.1093/he/9780198714927.003.0004.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter examines two related issues: the EU’s legal and non-legal instruments; and the hierarchy of norms. The EU has a number of legal and non-legal instruments that are used to attain Union objectives. The principal legal instruments are regulations, directives, and decisions. The hierarchy of norms refers to the idea that in a legal system there will be a vertical ordering of legal acts, with those in the lower rungs of the hierarchy being subject to legal acts of a higher status. There are currently five principal tiers to the hierarchy of norms in EU law, which are, in descending order: the constituent Treaties and Charter of Rights; general principles of law; legislative acts; delegated acts; and implementing acts. The chapter discusses the meaning of these different tiers.
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de Wet, Erika. Sources and the Hierarchy of International Law. Edited by Samantha Besson and Jean d’Aspremont. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198745365.003.0030.
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This chapter questions whether there is a hierarchy among the sources of international law and whether such a hierarchy is important for resolving norm conflicts stemming from the different sources of international law. It first examines whether the order between the sources listed in Article 38 (1) (c) of the International Court of Justice (ICJ) Statute is an indication of a hierarchy in accordance with the order and form in which the sources are listed or moulded. Thereafter, the chapter examines whether peremptory norms represent a substantive hierarchy. It also questions whether peremptory norms can be categorized in accordance with the sources listed in Article 38 (1) (c), or whether they constitute a separate source in international law. The chapter further engages in a similar analysis of obligations under the United Nations Charter. It concludes that peremptory norms and obligations under the Charter are indicative of a substantive hierarchy in international law.
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Millie, Julian. The Languages of Preaching in the Islamic Public Sphere. Cornell University Press, 2018. http://dx.doi.org/10.7591/cornell/9781501713118.003.0005.
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Chapter Five explores the ways in which the preaching styles analysed in the two preceding chapters are publically evaluated, pointing out the way in which public norms about appropriate communication inform negative judgements of one of them (Al-Jauhari’s). The analytical approach to those norms is made through the subject of language selection (Sundanese versus Indonesian), a variable that expresses listeners’ recognition of a hierarchy of preaching styles.
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Jeutner, Valentin. The Possibility of a Legal Dilemma. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198808374.003.0003.
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The second part validates the stipulative definition of Part I by identifying those norm conflicts which contemporary international law cannot satisfactorily resolve. In doing so, this part answers the second research question—whether legal dilemmas could exist in international law—in the affirmative and demarcates the doctrinal space that legal dilemmas occupy. The argument develops in three sections. The first section identifies the inherent limitations of norm conflict resolution devices. Norm conflict resolution devices deal with a norm conflict by establishing a hierarchy or a compromise between norms. They thereby identify a course of action that avoids impairing either norm unduly. The second section considers the limitation of norm conflict accommodation devices. The third section explains why measures of last resort do not preclude the possibility of the existence of legal dilemmas.
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William A, Schabas. Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.21 Applicable law/Droit applicable. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198739777.003.0026.
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This chapter comments on Article 21 of the Rome Statute of the International Criminal Court. Article 21 is an important innovation since none of the previous statutes of international criminal tribunals has contained a provision dealing with ‘applicable law’. Article 21(1) imposes a hierarchy of sources, with a three-tiered cascade of applicable norms. Article 21(2) contemplates the case law of the Court, but without indicating where it fits within the hierarchy. Article 21(3) does not, strictly speaking, provide a new source. Rather, it makes all of the applicable law in article 21 subject to ‘internationally recognized human rights’.
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Pellet, Alain. Revisiting the Sources of Applicable Law before the ICC. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190272654.003.0013.
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Article 21 of the Rome Statute sets out a complex system of sources of applicable law. In addition to the Statute itself, which contains a relatively detailed list of crimes, Articles 21 includes the Elements of Crimes, a very detailed document which unnecessarily limits the scope of the crimes listed in the Statute and reveals mistrust with regard to the Court, the Rules of Procedure and Evidence, and the case law of the Court, despite the absence of stare decisis. In order to avoid risks of non liquet, Article 21 also refers to other norms and rules of international law. Article 21 establishes a hierarchy between the sources of law it refers to. It combines a formal hierarchy, on top of which lays the Statute, with a substantial hierarchy dominated by ‘internationally recognized human rights’ (Article 21(3)).
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Kammerhofer, Jörg. Sources in Legal-Positivist Theories. Edited by Samantha Besson and Jean d’Aspremont. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198745365.003.0017.
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This chapter demonstrates that the Kelsen–Merkl Stufenbau theory of the hierarchy of norms avoids many of the misconceptions of orthodox scholarship. This theory is the closest there is to a legal common-sense theory of the sources of international law. It is close to the mainstream, but provides a solid theoretical basis. False necessities are here deconstructed: the sources are neither a priori nor external to the law. Applying the Stufenbau theory to international law, the chapter concludes by sketching out the possibilities of ordering the sources of international law. A structural analysis of the international legal order clears the way for level-headed research on this legal order’s daily operations: norm-conflict and its application and interpretation.
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McGowan, Mary Kate. On Covert Exercitives. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198738831.003.0008.
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It is familiar from speech act theory how saying so can make it so. When the C.E.O. declares that no more overtime will be approved, for example, the C.E.O. thereby enacts a new company policy; her words effect an immediate change to the norms and policies operative in that company. Clearly, speech can enact facts about what is permissible and the familiar way for speech to do this is via an exercise of speaker authority. In this essay, though, I argue for a different way that speech enacts permissibility facts. Starting in the kinematics (i.e. the mechanics) of conversation, I first argue that conversational contributions routinely enact norms for the very conversation to which they contribute. I then argue that this phenomenon generalizes in a way that illuminates the crucial role of speech in enacting and perpetuating social hierarchy.
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Choi, Mihwa. Ordering Society through Confucian Rituals. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190459765.003.0004.
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Sima Guang, leader of the faction advocating enhancement of bureaucratic power, authored a Confucian family ritual manual. He believed in the moral reformation of society through the dissemination of Confucian ritual norms and maintained that rituals were the locus in which the hierarchical social order could be manifested according to official rank. He especially objected to lavish burials performed by wealthy people in the belief that such burials implied a social imaginary of the wealthy where status could be improved by material investments in ritual performance. Sima Guang’s conception of ritual testifies to his vision of society or social imaginary in which official ranks are the fundamental basis of social hierarchy.
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Gragl, Paul. The Epistemological Necessity of Legal Monism. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198796268.003.0003.
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This chapter depicts and defends monism in its positivist-epistemological manifestation (as envisaged by the Vienna School of Jurisprudence’s pure theory of law) as the most viable concept to theorize the relationship between different bodies of law. After a short introduction to the (neo-)Kantian sources of Kelsen’s theory, the concept of the Grundnorm and the hierarchy of norms will be discussed in detail. Subsequently, it will be argued why legal monism under the primacy of international law is the only avenue through which the law can be meaningfully cognized and the concept of legal validity be taken seriously. The last part of the chapter is dedicated to a defence of legal monism against two of its staunchest critics, namely H.L.A. Hart and Joseph Raz.
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Pemberton, Sarah X. Prison. Edited by Lisa Disch and Mary Hawkesworth. Oxford University Press, 2015. http://dx.doi.org/10.1093/oxfordhb/9780199328581.013.37.
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This chapter discusses theories of the prison from the 1930s to the present and the contribution of feminist scholarship to understanding power relations in criminal punishment. The central issue in this literature is how imprisonment shapes identities and inequalities, including gender, class, and race. Feminist scholars show that prison regimes impose restrictive gender norms that encourage normative gender expression and disadvantage those who do not comply. The penal system is also shaped by gender stereotypes about crime. Women are often seen as in need of protection from male criminals by the state-legitimated violence of male police and prison guards, which can further subordinate women while reinforcing violent forms of masculinity. Intersectional feminist analysis also demonstrates that prisons uphold class and racial hierarchy, which particularly harms women of color. This literature raises questions about how effectively prison systems protect women, and suggests that prisons may reinforce male dominance.
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Anderson, Elizabeth. The Problem of Equality from a Political Economy Perspective. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198801221.003.0003.
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This paper explores challenges to the creation of an egalitarian society from what we know about different types of human society across human history. All human beings originally lived in hunter-gatherer bands, which, along with tribal societies, are remarkably egalitarian. Inegalitarian social forms—rank societies and social stratification—are rooted in the following causes: (1) despotic tendencies rooted in human psychology; (2) esteem competition; (3) descent group closure and ingroup opportunity hoarding; (4) inegalitarian ideology; and (5) the increasing scale of societies, administration of which requires layers of hierarchically organized bureaucracy. Large-scale social organization can deliver dramatically reduced interpersonal violence and increased prosperity and opportunities. Securing the benefits of scale without oppressive social hierarchy requires the institution of checks and norms against bullies and narcissists, reworking the economy of esteem, ending descent group opportunity hoarding, integrating social groups, promoting egalitarian ideologies, and perfecting democratic practices.
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William E, Butler. International Law in the Russian Legal System. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780198842941.001.0001.
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This addition to the Elements of International Law series explores the role of international law as an integral part of the Russian legal system, with particular reference to the role of international treaties and of generally-recognized principles and norms of international law. Following a discussion of the historical place of treaties in Russian legal history and the sources of the Russian law of treaties, the book strikes new ground in exploring contemporary treaty-making in the Russian Federation by drawing upon sources not believed to have been previously used in Russian or western doctrinal writings. Special attention is devoted to investment protection treaties. The importance of publishing treaties as a condition of their application by Russian courts is explored. For the first time a detailed account is given of the constitutional history of treaty ratification in Russia, the outcome being that present constitutional practice is inconsistent with the drafting history of the relevant constitutional provisions. The volume gives attention to the role of the Russian Supreme Court in developing treaty practice through the issuance of "guiding documents" binding on lower courts, the reaction of the Russian Constitutional Court to judgments of the European Court of Human Rights, and the place of treaties as an integral part of the Russian legal system. Butler further explores the hierarchy of sources of law, together with other facets of Russian arbitral and judicial practice with respect to treaties and other sources of international law. He concludes with a consideration of the 'generally-recognized principles and norms of international law' and their role as part of the Russian system.
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Blythe, Christopher James. Terrible Revolution. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780190080280.001.0001.
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The relationship between Mormons and the United States was marked by anxiety and hostility. Nineteenth-century Latter-day Saints looked forward to apocalyptic events that would unseat corrupt governments across the globe but would particularly decimate the tyrannical government of the United States. Mormons turned to prophecies of divine deliverance by way of plagues, natural disasters, foreign invasions, American Indian raids, slave uprisings, or civil war unleashed on American cities and American people. For the Saints, these violent images promised an end to their oppression. It also promised a national rebirth as part of the millennial Kingdom of God that would vouchsafe the protections of the U.S. Constitution. Blythe examines apocalypticism across the history of the Church of Jesus Christ of Latter-day Saints, particularly as it would take shape in localized and personalized forms in the writings and visions of ordinary Latter-day Saints outside of the church’s leadership. By following the official response of church leaders to lay prophecy, Blythe shows how the hierarchy, committed to a form of separatist nationalism of their own, encouraged apocalypticism during the nineteenth century. Yet, after Utah obtained statehood, as the church sought to accommodate to national norms for religious denominations, leaders sought to lessen the tensions between themselves and American political and cultural powers. As a result, visions of a violent end to the nation became a liability, and leaders began to disavow and regulate these apocalyptic narratives especially as they showed up among the laity.
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Raymond, Mark. Social Practices of Rule-Making in World Politics. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190913113.001.0001.
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Social Practices of Rule-Making in World Politics identifies a class of social practices of rule-making, interpretation, and application, demonstrating the causal importance of these practices (and the procedural rules that constitute and govern them) in explaining outcomes in world politics. The book utilizes rule-oriented and practice-turn constructivist approaches to argue that procedural rules about rule-making, or secondary rules, shape the way that actors present and evaluate proposals for change in the rules and institutions that structure international systems. The book examines four important international security cases: the social construction of great power management after the Napoleonic Wars; the creation of a rule against the use of force, except in cases of self-defense and collective security, enshrined in the Kellogg-Briand Pact; contestation of the international system by al-Qaeda in the period immediately following the 9/11 attacks; and United Nations efforts to establish norms for state conduct in the cyber domain. The book makes several contributions to International Relations theory. It provides insight into how actors know how and when to engage in specific forms of social construction. It extends the application of practice-turn constructivism to processes of making and interpreting rules. It improves upon existing tools to explain change in the rules and institutions of the international system. Finally, it demonstrates the utility of the book’s approach for the study of global governance, the international system, and for emerging efforts to identify forms and sites of authority and hierarchy in world politics.
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Craig, Paul, and Gráinne de Búrca. EU Law. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198856641.001.0001.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The seventh edition of EU Law: Text, Cases, and Materials provides clear analysis of all aspects of European law in the post Lisbon era. This edition looks in detail at the way in which the provisions of the Lisbon Treaty have worked since the Treaty became operational, especially innovations such as the hierarchy of norms, the different types of competence, and the legally binding Charter of Rights. The coming into effect of the new Treaty was overshadowed by the financial crisis, which has occupied a considerable part of the EU’s time since 2009. The EU has also had to cope with the refugee crisis, the pandemic crisis, the rule of law crisis and the Brexit crisis. There has nonetheless been considerable legislative activity in other areas, and the EU courts have given important decisions across the spectrum of EU law. The seventh edition has incorporated the changes in all these areas. The book covers all topics relating to the institutional and constitutional dimensions of the EU. In relation to EU substantive law there is detailed treatment of the four freedoms, the single market, competition, equal treatment, citizenship, state aid, and the area of freedom, security and justice. Brexit is the rationale for the decision to have a separate UK version of the book. There is no difference in the chapters between the two versions, insofar as the explication of the EU law is concerned. The difference resides in the fact that in the UK version there is an extra short section at the end of each chapter explaining how, for example, direct effect, supremacy or free movement are relevant in post-Brexit UK. Law students in the UK need to know this, law students in the EU and elsewhere do not.
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Craig, Paul, and Gráinne de Búrca. EU Law. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198859840.001.0001.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The seventh edition of EU Law: Text, Cases, and Materials provides clear analysis of all aspects of European law in the post Lisbon era. This edition looks in detail at the way in which the provisions of the Lisbon Treaty have worked since the Treaty became operational, especially innovations such as the hierarchy of norms, the different types of competence, and the legally binding Charter of Rights. The coming into effect of the new Treaty was overshadowed by the financial crisis, which has occupied a considerable part of the EU’s time since 2009. The EU has also had to cope with the refugee crisis, the pandemic crisis, the rule of law crisis and the Brexit crisis. There has nonetheless been considerable legislative activity in other areas, and the EU courts have given important decisions across the spectrum of EU law. The seventh edition has incorporated the changes in all these areas. The book covers all topics relating to the institutional and constitutional dimensions of the EU. In relation to EU substantive law there is detailed treatment of the four freedoms, the single market, competition, equal treatment, citizenship, state aid, and the area of freedom, security and justice. Brexit is the rationale for the decision to have a separate UK version of the book. There is no difference in the chapters between the two versions, insofar as the explication of the EU law is concerned. The difference resides in the fact that in the UK version there is an extra short section at the end of each chapter explaining how, for example, direct effect, supremacy or free movement are relevant in post-Brexit UK. Law students in the UK need to know this, law students in the EU and elsewhere do not.
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Singer, Abraham A. Corporate Justice within Efficiency Horizons. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190698348.003.0009.
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This chapter expands on the idea of norm-governed productivity. Because this approach opens the door for a more straightforwardly political assessment of corporate hierarchy, this chapter considers how theories of workplace democracy stack up against this view of corporate efficiency. It argues that radical and participatory democrats are prone to error by essentially doing the mirror image of what the Chicago school does: where Chicago school scholars conflate firms for markets and obscure their cooperative nature, radical democrats often mistake firms for purposive communities and obscure their economic nature. While democratic theorists are right that undefended authority exists within firms and is a problem, they are often in danger of utterly discounting efficiency. It concludes with a more exact enunciation of norm-governed productivity, which emphasizes the manner in which efficiency concerns necessitate a bounded application of noneconomic values.
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SuÁRez, Isabel Carrera. Multicultural and Transnational Novels. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199679775.003.0027.
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This chapter examines the history of multicultural and transnational novels in Canada. Several decades after multiculturalism was established as a political structure and defining feature of the Canadian nation, the term is no longer appropriate to designate all writing outside the former Anglo-Protestant norm without evoking a hierarchy that belies Canadian self-definition, as sanctioned by the Multiculturalism Act of 1988. Canadian literature is therefore multicultural in its national dimension while, individually, authors and novels are Canadian. The term ‘transnational’, by contrast, raises altogether different questions, as it aims to transcend the nationalist project underpinning multiculturalism. The chapter first considers Canadian multicultural novels published during the period 1950–1970, a time of nation-building, before discussing the accelerated pace at which Canadian fiction began to evolve and diversify in the 1980s. It also analyses how the rhetoric of Canadianness changed in the 1980s and 1990s, embracing transnationalism and new intersectional theories of post-national and individual indentity.
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Golub, Mark. Is Racial Equality Unconstitutional? Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190683603.001.0001.
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Discussions of race in American law and politics have been captured by the figure of the color-blind Constitution. Whether embraced as an ideal of constitutional equality or rejected for perpetuating historical injustice, advocates and critics alike view color-blindness as a refusal of racial consciousness rather than its mobilization. And yet, enacting a color-blind rule may be understood in itself to affect a heightened awareness of race. Accordingly, color-blind constitutionalism represents a particular form of racial consciousness rather than an alternative to it. Challenging familiar understandings of race, rights, and the US Constitution, this book explores how current equal protection law renders the pursuit of racial equality constitutionally suspect. Identifying hierarchy rather than equality as an enduring constitutional norm, Is Racial Equality Unconstitutional? reveals the historical reception of racial equality as a violation of white rights. Arguing against both conservative and liberal redemption narratives, within which racial equality is imagined as the perfection of American democracy, the book calls instead for a break from the constitutional order and refounding upon principles of racial democracy.