Facing the Limits of the Law

by Claes, Erik; Devroe, Wouter; Keirsbilck, Bert

• ISBN13: 9783540798552
• ISBN10: 3540798552
• Format: Hardcover
• Copyright: 2009-04-03
• Publisher: Springer Verlag

Summary

Many legal experts no longer share an unbounded trust in the potential of law to govern society efficiently and responsibly. They often experience the 'limits of the law', as they are confronted with striking inadequacies in their legal toolbox, with inner inconsistencies of the law, with problems of enforcement and obedience, and with undesired side-effects, and so on. The contributors to this book engage in the challenging task of making sense of this experience. Against the background of broader cultural transformations (such as globalisation, new technologies, individualism and cultural diversity), they revisit a wide range of areas of the law and map different types of limits in relation to some basic functions and characteristics of the law. Additionally, they offer a set of strategies to manage justifiably law's limits, such as dedramatising law's limits, conceptual refinement ('constructivism'), striking the right balance between different functions of the law, seeking for complementarity between law and other social practices.

Table of Contents

List of Tables and Figures	p. XVII
The Limits of the Law (Introduction)	p. 1
Introduction	p. 1
Functions and Limits of the Law	p. 4
Characteristics of the Law and Refining the Law's Limits	p. 11
Conclusion	p. 22
Private Law and the Limits of Legal Dogmatics	p. 25
Introduction: A Legal Problem	p. 25
Solutions from Legal Theory	p. 28
Philosophical Foundations	p. 34
Back to Law	p. 39
Conclusion	p. 43
The Limits of the Law of Obligations	p. 45
Introduction: Limits of the Law of Obligations	p. 45
Limits of the Law of Obligations with Regard to Morality	p. 46
The Notion of Obligatio Naturalis in the Law of Obligations	p. 47
Transcending the Boundary between Law and Morality	p. 52
Conclusion	p. 56
Labour Law and the Limits of Dogmatic Legal Thinking	p. 57
Introduction	p. 57
The Origins of Modern Labour Law	p. 59
The Legal Conception of Collective Labour Agreements in Belgium	p. 61
The Legal Status of the CLA vis-à-vis Constitutional Law	p. 64
The Legal Status of the CLA vis-à-vis Economic Law	p. 67
Conclusion	p. 71
The Limits of Consumer Law in Europe	p. 73
Introduction	p. 73
Centralisation and Decentralisation Forces in the Field of Consumer Protection	p. 74
Limits of Open-Textured EC (Consumer) Law in a System of Decentralised Enforcement	p. 78
How to Deal with these Limits?	p. 81
Conclusion	p. 87
The Limits of Legality in the Criminal Law	p. 89
Introduction	p. 89
Legality and its Underlying Values	p. 91
Contemporary Society and the Limits of Legality	p. 93
Legality and the Limits of the Criminal Law	p. 100
How to Respond to the Limits of Legality?	p. 103
Corporate Wrongdoing and the Limits of the Criminal Law	p. 109
Introduction	p. 109
The Normative Limits of the Criminal Law: Identifying Moral Fault in Cases of Corporate Wrong-Doing	p. 113
The Conceptual and Practical Limits of the Criminal Law: A Critical Examination of Corporate Criminal Liability	p. 116
Conclusion	p. 122
Regulating Prison Life: A Case Study of the Inmate Disciplinary System	p. 125
Introduction	p. 125
Prison Discipline: The 'Law in Books'	p. 126
The Social Setting of the Prison	p. 129
Prison Discipline, Discretion and Authority	p. 132
Conclusion: The Disciplinary System as a Regulatory Resource	p. 140
Criminal Law, Victims, and the Limits of Therapeutic Consequentialism	p. 143
Introduction	p. 143
Curing Criminals	p. 145
Birth (and Death) of a Metaphor: Healing Victims	p. 147
Strange Bed-Fellows? Restorative Justice and Capital Punishment	p. 148
Limits of Therapeutic Consequentialism	p. 157
Conclusion	p. 160
Restorative Justice, Freedom, and the Limits of the Law	p. 161
Introduction	p. 161
Delinquency as an Interruption in the Flow of Life	p. 163
The Heteronomous versus the Autonomous Life-Sphere	p. 164
Internalist versus Externalist Ethics	p. 167
Enhancing Personal Freedom and the Limits of the Criminal Law	p. 169
Mediation and Restoring Personal Freedom	p. 170
Conclusion: Seeking Complementarity between Victim-Offender Mediation and the Criminal Law	p. 174
Rebuilding Trust in the Former Yugoslavia: Overcoming the Limits of the Formal Justice System	p. 177
Introduction	p. 177
Trust and the Law	p. 178
In Practice: How Well Can Law Serve Trust?	p. 182
Acknowledgement and Trust: What Does a Restorative Approach Have to Offer?	p. 185
Conclusion	p. 188
Legitimacy in the European Union and the Limits of the Law	p. 189
Introduction	p. 189
The Paradox in European Integration: A Growing Gap between Legal and Social Legitimacy	p. 190
Explaining the Paradoxical Gap: The Normative Legitimacy Deficit	p. 194
How to Deal with these Limits? Bridging the Gap: The EU in Search of Normative Legitimacy	p. 201
Conclusion	p. 204
The Limits of the Law and the Development of the EU	p. 205
Introduction	p. 205
The Development of the EU and Globalisation	p. 207
The Constitutional State and the Limits of Power	p. 212
The Development of the EU and the Limits of the Law	p. 218
Have we Reached the Limits of the Law?	p. 228
Conclusion	p. 234
The Limits of Substantive International Economic Law: In Support of Reasonable Extraterritorial Jurisdiction	p. 237
Introduction	p. 237
Extraterritorial Jurisdiction	p. 238
The Substantivist Approach	p. 239
Substantivism in Practice	p. 240
The Limits of Substantivism	p. 243
Extraterritorial Jurisdiction Revisited	p. 246
Conclusion: Limits in a Communicative Setting	p. 252
When Law Meets Power: The Limits of Public International Law and the Recourse to Military Force	p. 253
Introduction	p. 253
Theories on International Law and Power	p. 254
Factors Inducing Compliance with International Law	p. 259
The Relevance of the Ius ad Bellum	p. 262
Conclusion	p. 272
Is the Rule of Law a Limit on Popular Sovereignty?	p. 273
Introduction	p. 273
The Problem of Boundaries	p. 276
The Rule of Law	p. 278
Border Crossing: From Law to Sovereignty	p. 283
Popular Sovereignty and Normativity	p. 285
Sovereignty and Boundaries	p. 287
The Normativity and Law	p. 291
Symbolisation and Law's Limiting Power	p. 293
Conclusion: The Addressee's Perspective and Substantive Limits on Sovereignty	p. 295
Constitutional Ideals, National Identity, and the Limits of the Law	p. 299
Introduction	p. 299
Dealing with the Past by Ruling One's Own Identity: Freedom of the Press in the Belgian Constitution (1830-31)	p. 300
Dealing with Challengers to Belgian Society: Practising Press Law in 19th Century Belgium	p. 305
Liberty, Identity, and their Mutual Limits: The Discourse on the Freedom of the Press in 19th Century Belgium	p. 307
No More Heroes: The Changes to Freedom of the Press as a Result of an Evolving Perception of World and Mankind	p. 311
Conclusion and Epilogue	p. 312
Privacy Rights as Human Rights: No Limits?	p. 315
Introduction	p. 315
Open Texture and Judicial Interpretation of Article 8 ECHR	p. 316
The Positivist Perspective	p. 321
The Constructivist Perspective	p. 325
A Remedy for the Protective Limits of Privacy Rights as Human Rights?	p. 329
Conclusion	p. 332
The Limits of the International Petition Right for Individuals: A Case Study of the ECtHR	p. 333
Introduction	p. 333
The International Right of Individual Petition	p. 333
Limits of Legal Protection	p. 336
Solutions	p. 345
Conclusion	p. 353
The Limits of Human Rights Law in Human Development	p. 355
Introduction	p. 355
Promising Tales: Innovative Human Rights Approaches to Development	p. 357
Limits of the Law	p. 364
Conclusion	p. 374
Limits of Human Rights Protection from the Perspective of Legal Anthropology	p. 375
Introduction	p. 375
First Illustration: Racism and the Limits of the (Criminal) Law (J. Vrielink).	p. 378
Second Illustration: Worlds Apart Together: The Limits of Human Rights Protection for Indigenous Peoples (E. Desmet)	p. 391
Third Illustration: Confucian Tradition and Socio-Economic Rights Protection in Contemporary China (S. Deklerck)	p. 398
Fourth Illustration: Judaism between Religious Freedom and Gender Equality (J. Kusters)	p. 407
Conclusion: Human Rights Bound to Remain Inadequate?	p. 412
Functions and Limits of Patent Law	p. 415
Introduction	p. 415
Current Trends in Patent Law	p. 416
Objectives and Functions of Patent Law	p. 421
Limits of Patent Law	p. 424
Remedies to Limits in Patent Law	p. 430
Conclusion	p. 441
Technology and the End of Law	p. 443
Introduction	p. 443
The 'Internet of Things'	p. 444
Technological Normativity	p. 451
A Generic Theory of Legal and Technological Normativity?	p. 455
Towards a Generic Theory of Legal and Technological Norms	p. 459
The End of Law?	p. 460
Conclusion	p. 464
Darknets and the Future of Freedom of Expression in the Information Society	p. 465
Introduction	p. 465
Darknets and the Appeal of Unlimited Freedom of Expression	p. 469
Technology, Code and Conflict: How to Get The Darknet Back into the Bottle	p. 476
Conclusion: Can the Turn of the Tide Be Stopped?	p. 485
Facing the Limits of the Law (Conclusion)	p. 487
Introduction	p. 487
Late-Modernity and the Limits of the Law	p. 490
Revisiting the Functions of the Law	p. 499
Revisiting the Characteristics of the Law	p. 501
The Human Condition and Limits of the Law	p. 510
How to Deal Responsibly with the Limits of the Law?	p. 516
List of Contributors	p. 527
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