ABSTRACT

Democratic legal systems have recently been subject to rapid and multi-directional processes of change. There are numerous sociological, technological, ideological, or purely political processes which result in law’s amendment and transformation. This book argues that this legal change is best understood from a political philosophy perspective. This can be used as an interpretative device to understand the ongoing processes of change as well as their outcomes such as new laws, judicial interpretations, or constitutional amendments.

The work has three main objectives: to provide deeper understanding of the problems of legal change within the diversity of Western political and legal thought; to examine the development of the processes of change in terms of their normative and prudential acceptability; to interpret actual processes of change with a view to the general theoretical and normative background. The book is divided into three parts: Part I sets the scene and is focused on the general issues important for understanding and evaluating legal change from the perspective of political philosophy; Part II focuses on the spectrum of politico-philosophical justifications present in the political culture of democratic states; Part III offers selected case studies to specify and apply the philosophical ideas in the previous parts.

The book will be a valuable resource for students and scholars of law and jurisprudence, including comparative legal studies and human rights law, political theory, and philosophy.

chapter |14 pages

Introduction

Legal change and political philosophy 1
ByMaciej Chmieliński

part I|60 pages

General theories

chapter 1|14 pages

Standards of law-making as the parts of normative space in the post-modern democratic states

The question of justification and legitimacy of law 1
ByTadeusz Biernat

chapter 2|15 pages

Public reason, background culture, and the justification of legal change 1

ByMichał Rupniewski

chapter 3|13 pages

The moral, the political, and the legal

Changing patterns of justification in a world of legal pluralization
ByEva Weiler

chapter 4|16 pages

Human rights

Desiderata of a theory of change
ByStephen Riley

part II|78 pages

Paradigmatic political philosophies of legal change

chapter 5|19 pages

Legal “determinism” or/and legal “creationism”?

Conservative-communitarian versus contractarian approaches to legal change 1
ByMaciej Chmieliński

chapter 6|13 pages

Natural law ethics and the issue of legal change 1

ByMichał Rupniewski

chapter 8|14 pages

Kant’s conception of legal change

ByEduardo Charpenel

chapter 9|15 pages

Economism, voluntarism, and materialist historicism

Three faces of the Marxist instrumental approach to legal change 1
ByMaciej Chmieliński

part III|107 pages

Practical processes

chapter 10|16 pages

Petrifying, disregarding or reforming customs

Can customary law be changed in a liberal way?
ByMarc Goetzmann

chapter 11|12 pages

The “codification moment”

An attempt to define factors of effective law reform illustrated with the example of the Swiss Civil Code of 10 December 1907 1
ByMaria Lewandowicz

chapter 12|17 pages

Exogenous institutional change as coercion and the ideological neutrality litmus

The case of Polish communism
ByJ. Patrick Higgins

chapter 13|18 pages

The coercive control offence

A case study on overcriminalisation
ByMelissa Hamilton

chapter 14|16 pages

Individualism in times of crisis

Theorising a shift away from classic liberal attitudes to human rights post 9/11
ByIan Turner

chapter 15|16 pages

Is the principle of legal certainty a human right?

The legitimacy of the retroactive application of laws 1
ByJan Tryzna

chapter |10 pages

Conclusion

The philosophy of legal change as a research method
ByMichał Rupniewski