In Search of the Federal Spirit examines federal theory in the context of the new federal models that have sprung into existence since the end of the Cold War. It utilises the federal spirit as a conceptual lens through which to explore the revival of federalism in the post-Cold War era - especially in the 1990s - and it seeks to place the emergence of these new models in the theoretical context of federal state formation. By examining the approaches of five major contributors to the nature and meaning of federalism - Kenneth Wheare, William Livingston, William Riker, Carl Friedrich, and Daniel Elazar - the book identifies several different expressions of the federal spirit that together constitute its basic political values and principles rooted in liberal democracy. The book explains how and why the federal spirit can survive and prosper only in conditions of liberal democracy which allow these federal values and principles to be freely expressed. In this way the book will connect the five distinctive approaches to understanding federalism and their peculiar interpretation of the federal spirit to the emergence of the new models. This chain of reasoning leads us to look not only at federal state formation based upon formal federal constitutions but also to include the evolution of federal political systems that are an integral part of the post-Cold War revival of federalism. The new federal models are the Russian Federation, Belgium, the European Union, Ethiopia, Bosnia-Herzegovina, Nigeria, Venezuela, and Iraq while Spain, Italy, South Africa, Argentina, and the United Kingdom have each fashioned their own form of federal system in practice. The logic of the argument based upon the federal spirit leads not only to a revisionist framework of analysis to explain the key conditions of future federal state formation but it also prompts a major reconsideration of the conventional conceptual framework of analysis in federalism and the proposal of a new classification of "federal democracies". Confirmation of the firm links between federalism and liberal democracy is further underlined by a detailed examination of the conceptual relationships between civil society, political culture, and liberal democratic constitutionalism. The federal spirit is shown to be multidimensional in its properties and the book concludes with three cases studies of Ethiopia, Bosnia-Herzegovina, and Iraq that establish federalism as essentially a way of thinking - a mindset - about creating political stability in deeply divided societies by creating federations.

Compilation of Early Norwegian Laws."The oldest Norwegian laws, those of Gula and Frosta, go back to a time when the culture of the Middle Ages was still a somewhat novel experience in Northern Europe. Though the copies that have survived seem to date from the twelfth century and later, the codes must, in considerable part, have taken form in the eleventh century, or as early as the first generation of the Christian age. Heathendom had by that time been outlawed, but one seems justified in believing that the cult of strength and valor was for some time yet a force that had to be taken into account; for the principles that governed in the heathen age retained much of their ancient vigor, and the old civilization, rooted, as it was, in the soil itself, was able in large measure to maintain both life and validity." --Foreword, viiLaurence M. Larson 1868-1938] was a Professor of History at the University of Illinois. CONTENTSIntroductionTHE OLDER LAW OF THE GULATHINGThe Church LawThe Merchant LawThe Law of TenancyThe Inheritance LawMiscellaneous ProvisionsThe Law of Personal RightsThe Wergeld SystemThe Law as to TheftThe Redemption of Odal LandThe Law of the Coast DefenseA Later System of WergeldTHE OLDER LAW OF THE FROSTATHINGIntroductionI. The FrostathingII. The Church LawIII. The Church Law-ContinuedIV. The Law of Personal RightsV. Miscellaneous ProvisionsVI. The Wergeld SystemVII. The Law of the Coast DefenseVIII. The Inheritance LawIX. The Inheritance Law-ContinuedX. The Merchant LawXI. The Merchant Law-ContinuedXII. The Redemption of Odal LandXIII. The Law of TenancyXIV. The Law of Tenancy-Concluded. The Law as to TheftXV. The Law as to Theft-ContinuedXVI. Later EnactmentsGlossary BibliographyIndex

The dramatic and penetrating story of the political maneuverings and personalities behind the creation of the office of the president, with ramifications that continue to this day.
For the first time, by focusing closely on the dynamic give-and-take at the Constitutional Convention, Ray Raphael reveals how politics and personalities cobbled together a lasting, but flawed, executive office. Remarkably, the hero of this saga is Gouverneur Morris, a flamboyant, peg-legged delegate who pushed through his agenda with amazing political savvy, and not a little deceit. Without Morris's perseverance, a much weaker American president would be appointed by Congress, serve for seven years, could not be reelected, and have his powers tightly constrained.
Charting the presidency as it evolved during the administrations of Washington, Adams, and Jefferson, Raphael shows how, given the Constitution's broad outlines, the president's powers could easily be augmented but rarely diminished. Today we see the result--an office that has become more sweeping, more powerful, and more inherently partisan than the framers ever intended. And the issues of 1787--whether the Electoral College, the president's war powers, or the extent of executive authority--continue to stir our political debates.

Managing scarcity to serve the public interest is a classic government task. An important way to execute this task is by allocating individual rights that are only available in limited quantities, such as CO2 emission allowances, gambling licences, subsidies, radio frequencies, public contracts and parking permits. Whereas economic and political theory has paid much attention to the allocation of scarce goods and rights, until now a consistent and general legal theory of 'the allocating government' has been missing. This is striking given the fact that limited rights have to be allocated within many sectors and are often of great social significance and financial importance. Decisions on allocation often lead to disputes. This book provides a unique exploration of building blocks for a consistent and general legal theory on the allocation of limited rights by administrative authorities. This book is useful to legislators, administrative authorities, applicants, interested third parties and the courts. The EU-law perspective is an important element in this book, but comparative law and doctrinal approaches are also taken into account. The contributions in this book have been enriched by information from national reports on the allocation of gambling licences, radio frequencies and CO2 emission permits in seven EU Member States: France, Germany, Greece, Italy, the Netherlands, Romania and Spain. (See P. Adriaanse, F. van Ommeren, W. den Ouden and J. Wolswinkel (eds.), Scarcity and the State II. Member State Reports on Gambling Licences, Radio Frequencies and CO2 Emission Permits, Intersentia, Antwerp 2016).

Since the 2003 U.S. led invasion of Iraq, the private military sector has seen the largest growth of profit for decades. As Iraq continues to be the focal point of private military clients, staff and related actors, the recurring issue of legitimacy must be addressed. While many texts focus only on existing or proposed legislation, this book analyses the public perception of private military companies (PMCs) and, of wider significance, how their use by states affects how the general public perceives state legitimacy of monopolizing force. Furthermore, this book provides a timely overview of how the energy sector and PMCs are challenging the established sovereignty of politically fragmented oil states, illustrating how energy firms may become as culpable as states in their partnerships with the private military sector and subsequent political ramifications.

Solimine and Walker provide a comprehensive examination of all the major issues revolving around judicial federalism- the sharing of judicial power between the 50 states and the federal government. They make the case that the existence and operation of this system is healthy for the development of law and the protection of liberty.

This theme is developed through a discussion of the major issues in the literature of judicial federalism: federalism and rights, the parity of the state and federal courts, the civil litigation system, state court interpretations of their own constitutions, and the relationship of ideology to judicial federalism. Recognizing that there are and always have been serious shortcomings in this system, the author points out that these problem areas can be remedied; the start of this remedial process necessitates a respect for the judicial institutions of the state. Solimine and Walker envision the beginning of a dialogue among practitioners, academics, and concerned citizens on how best to improve the current system in order to halt the threats to diversity posed by increasing federal domination of the judicial system.

This book provides a theoretical framework for explaining the choices made by international decision-makers in terms of what constitutes law. It comprehensively analyzes the practice of human rights courts in applying legal instruments outside their competence and proposes that this practice recognizes that different normative instruments coexist in an un-ordered space, and that meaning can be produced by the free interaction of those instruments around a problem. Based on this, the book advances its normative plurality hypothesis, which states that decision-makers must survey the acquis of international law in order to identify all the instruments containing relevant normative information for a particular situation. The set of rules of law applicable to the situation must then be complemented with other instruments containing specific normative information relevant to the situation, resulting in a complete system of norms advancing a common purpose.

Supreme Court interpretations of the Bill of Rights have produced seven constitutional "exclusionary rules." These rules prevent prosecutors from introducing evidence of guilt in criminal trials, making it harder to convict offenders and enabling some criminals to avoid conviction and punishment. The importance of these evidentiary bars cannot be understated. They reflect inevitable tensions between liberty and security.
Constitutional Exclusion, by James J. Tomkovicz contains in-depth analyses of each constitutional doctrine that dictates the suppression of evidence. The text begins with an extensive treatment of the Fourth Amendment exclusionary rule which bars evidence acquired by means of unreasonable searches or seizures. It then addresses three distinct doctrines that suppress confessions---the due process and privilege against compelled self-incrimination bar to coerced confessions, Miranda v. Arizona's Fifth Amendment prophylactic presumption that certain confessions are inadmissible, and the Massiah doctrine's Sixth Amendment right to counsel bar to incriminating admissions. Next, the book explains two prohibitions on eyewitness identification evidence, one rooted in the Sixth Amendment right to counsel and another grounded in the due process guarantee. Finally, the text explores the exclusion of hearsay commanded by the Sixth Amendment Confrontation Clause.
Constitutional Exclusion analyzes the histories of, justifications for, and the legitimacy of these exclusion doctrines. By juxtaposing the rules and highlighting their distinctive characters, the book sheds new light on topics of vital importance to the administration of criminal justice.

Regional integration systems are becoming increasingly important inspired by the most integrated continent, Europe, but taking on various characteristics on different continents. Such systems have become an important feature of global democracy, even preventing unconstitutional taking of power in various countries. This may be thanks to explicit tasks and powers set out in the constitutive documents or it may be something developed ad hoc in response to events, despite the fact that most regional integration systems aim at economic cooperation rather than explicitly at democratisation. However, developments toward further regional integration in most parts of the world mean that the original aims and cooperation mechanisms have tended to expand.This book analyses how regional integration systems all over the world might be able to act as defenders or promoters of democracy, rule of law and the respect for human rights among their members. It also examines whether and to what extent the promotion and protection of rights through a regional integration organisation can have a decisive importance for democratisation of member states: can an organisation become greater than the sum of its parts and push these parts toward something that they may not otherwise, if the organisation did not exist, have achieved?

This book examines in detail both historical and current legal concepts of religious cultural heritage within the context of the European continent. The latter group is primarily based on the variety of sacred cultural elements emanating from the different religious traditions of the peoples of Europe, which are deemed worthy of protection and preservation due to their outstanding value, in terms of their social, cultural and religious significance."" In view of this, the study provides evidence of the European States active involvement with their sacred/cultural treasures, on the basis of the political and legal foundations of neutrality and pluralism.

Furthermore, the book analyzes all relevant international legislative instruments (i.e. the plethora of EU, EC and UNESCO norms), as well as all major European legislative patterns, in light of their significance for the aforementioned aspects of pluralism and neutrality. The interdisciplinary references listed at the end of each chapter provide an additional incentive for further reading on the subject matter.

The most important finding to emerge from the study is that there is a shared legal ethos in Europe that imposes a duty of appropriate care concerning the vast variety of sacred cultural goods and the religious cultural heritage in general, as an invaluable repository of European cultural capital. It also considers the "sui generis" nature of this capital: like any other type of asset, it may deteriorate or fade over time, necessitating investment in its preservation or refurbishment; nevertheless, like no other, this particular capital maintains a distinct cultural value, as it contains an additional characteristic of sacredness expressed in the form of its religious character, the latter being analyzed as a triptych of religious memory, religious aesthetics and religious beliefs."

"This well-written and thoroughly researched book is essential reading for anyone interested or involved in property law or in English legal history. The main text and the footnotes both contain fascinating information. Mark Wonnacott's book throws illuminating shafts of light on the political, economic, social, and religious history of this country, as well as its legal history." --LORD NEUBERGER OF ABBOTSBURY, M.R.Who has not been a landlord or a tenant? It is one of the most common legal relationships between people, and has been since the medieval period. But there is very little academic interest in the law of landlord and tenant. Nobody before has attempted to write its history. This book shows how the rules on each point of importance have developed. Sometimes it demonstrates how a wrong turn has been taken, or an important principle forgotten. But its practical use is to provide the material for understanding the old cases, and to put those cases in their proper context; for it is hard for any lawyer, advising on a doubtful point, to say where exactly we are now, without a thorough understanding of what the law once was and how and when it might have changed. The historical development of the rules about granting leases, their different types, the rents, covenants and conditions which can be attached to them, their alienation and termination, and the forms of action used to enforce them, are all explained in this book.MARK WONNACOTT is a barrister at Maitland Chambers in Lincoln's Inn, London, specialising in property litigation. If it is attached to the ground, he litigates about it, and the dustier corners of land law are his particular favourite. He was counsel for the successful appellant in Berrisford v. Mexfield Housing Co-operative Ltd. 2011] UKSC 52, which revived the rule that a tenancy for an uncertain term is a defeasible lease for life. When not in court or writing law-books, he is collecting or repairing them, or trying to learn Italian, without much success, or appreciating wine, with somewhat more success. His previous publications include Drafting Property Pleadings (EMIS Professional Publishing, 1997) and Possession of Land (Cambridge University Press, 2006).

There are no two neighbouring countries anywhere in the world that are more different than Indonesia and Australia. They differ hugely in religion, language, culture, history, geography, race, economics, worldview and population (Indonesia, 270 million, Australia less than 10 per cent of that). In fact, Indonesia and Australia have almost nothing in common other than the accident of geographic proximity. This makes their relationship turbulent, volatile and often unpredictable. Strangers Next Door? brings together insiders and leading observers to critically assess the state of Australia-Indonesia relations and their future prospects, offering insights into why the relationship is so important for Australia, why it is so often in crisis, and what this means for the future. This book will be of interest to anyone concerned with the Indo-Pacific region, Southeast Asia, Australia and Indonesia, and each country's politics, economy and foreign policy. It contains chapters that will interest specialists but are written in a style accessible to a general audience. The book spans a diverse range of subjects, including political relations and diplomacy, security and defence, the economy and trade, Islam, education, development, the arts, legal cooperation, the media, women, and community ties. Contributors assess the current state of relations in their sphere of expertise, and outline the factors and policies that could shape bilateral ties - and Indonesia's future - over the coming decades. University of Melbourne scholars Tim Lindsey and Dave McRae, both prominent observers and commentators on Indonesia and its relations with Australia, edited the volume, providing a synthesising overview as well as their own thematic chapters.

This provocative exploration of the issues surrounding free speech protection calls into question some important assumptions underlying much of contemporary free speech case law. The author considers the free speech issues associated with matters as diverse as the use of racial epithets, flag burning, obscenity, and speech by public school students, public school teachers, and public employees in general. He argues persuasively that free speech law has become unnecessarily complex and that free speech protection has been extended well beyond the bounds suggested by the various reasons for protecting speech in the first place. These developments, Professor Wright contends, risk an eventual weakening of the public commitment to free speech as a fundamental value.

In a series of chapters--some broadly theoretical in character, others focused on concrete free speech cases--Wright develops his argument that the courts' tendency to gradually expand the scope of protection afforded by the free speech clause dilutes the essential seriousness of the clause and will eventually tend to erode public support for freedom of speech as a fundamental principal. On a more abstract level, Wright demonstrates that, increasingly, the case law of freedom of speech is grounded only in some form of relativist or subjectivist thought. The long-term risk, Wright suggests, is that our adoption of freedom of speech may come to be seen as an arbitrary preference without morally binding character in any traditional sense. Writing for students of constitutional law as well as practicing attorneys involved in free speech cases, this volume is an important counterweight to arguments in support of continual expansion of free speech protection.

The United States Supreme Court is on the verge of overturning Roe v. Wade. When it does, that decision may be as important as the Dred Scott decision a century and a half ago. During the confirmation hearings for Clarence Thomas the focus was on the constitutional right to privacy and abortion. No legal concept has been more controversial and has had such a significant impact on the lives of millions of Americans. This book provides an understandable overview of the Supreme Court decisions concerned with privacy issues such as sex, drugs, abortion, and the right to die. The legal evolution of the constitutional right to privacy is explored with every significant Supreme Court decision explained along the way.

This book begins with an overview of the legal history that has led to the development of a constitutional right to privacy. The relationship between morality and law are presented from the Hittites to the Puritans. The impact of the ideas of philosophers such as Locke, Montesquieu, Rousseau, and Mill are presented along with an overview of the concepts of Natural Law and Natural Rights. The development of the right to privacy in American Common law is presented. The important Supreme Court decisions on privacy are discussed in detail from Griswold to Roe v. Wade.

Plessy v Ferguson (1897) established racial segregation in American constitutional law for over fifty years and its moral and political legacy lives on, despite attempts in the United States to counter its devastating effects during the last half century. Ironically, in the current debate over affirmative action, Justice Harlan's eloquent dissent has been used to justify attacks on government affirmative action programs. In this book, five distinguished philosophers and constitutional theorists, working from very different theoretical positions, take a fresh critical look at the moral and political principles underlying this historic decision and Harlan's dissent. They also explore the nature and extent of law's complicity in perpetuating Plessy's racialist aims. Emerging from their varied but complementary analyses is a deeper and more nuanced understanding of the social injustice of racial segregation in its historic and contemporary forms and of resources of the law to reverse it.

This timely collection examines the record of current and recent justices in fashioning the Constitution and looks at the larger political context in which their work has occurred. The eight essays, written by distinguished scholars of the Supreme Court, review the achievements of current Justices O'Connor and Rehnquist as well as recent justices Douglas, Black, and Harlan. The essay on Justice O'Connor is one of the first overall assessments of her record to appear in print. Editor D. Grier Stephenson, Jr.'s introductory chapter presents an insightful overview of the Supreme Court's role in American government today. Collectively these chapters make a rich contribution to an understanding of constitutional government and render a complex subject both accessible to general readers and interesting to experts. Following editor Stephenson's cogent introduction, Henry AbrahaM's Can Presidents Really Pack the Supreme Court? focuses on the political and intellectual environments within which the Supreme Court functions and on the candidates selected by presidents to sit on the High Bench. In Chapter Three, former solicitor general Rex E. Lee zeroes on a central aspect of, and a key player in, the judicial process. Leadership and the relationships among the justices are the subject of Chapter Four. Harold J. Spaeth's essay on Justice Sandra Day O'Connor emphasizes personality as an element contributing to the Court's decisions. The legacy of Justice William O. Douglas and the impact of the Court's past on its present decisions are both examined by Walter Murphy. Similarly, the next chapter's study of Justice John Marshall Harlan shows the importance of the Constitutional legacy in understanding the Supreme Court. Affirmative Action and the Supreme Court reviews the responses of current members of the Court to one of the most divisive and significant policy questions of our time. The concluding essay surveys Chief Justice Rehnquist and the Future of the Supreme Court. This volume is important reading for students of law, history, and political science.

Ours is an age of growing doubt about constitutional theory and of outright hostility to any theory that defends judicial review. Why should a tiny number of unelected judges be able to validate or invalidate laws on such politically controversial issues as abortion, religion, gender, and sex-or even determine how the president is elected? In this provocative book, a leading constitutional theorist offers an entirely original defense of judicial review. Louis Michael Seidman argues that judicial review is defensible if we set aside common but erroneous assumptions-that constitutional law should be independent from our political commitments and that the role of constitutional law is to settle political disagreement. Seidman develops a theory of "unsettlement." A constitution that unsettles, that destabilizes outcomes produced by the political process, creates no permanent losers nursing deep-seated grievances, he says. An "unsettling" constitution helps to build a community founded on consent by enticing losers into a continuing conversation. The author applies this theory to an array of well-known cases heard by the Supreme Court over the past several decades, including the fall 2000 election decision.