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.
Introduction: Legal Change and Political Philosophy (Maciej Chmieliński); Part I. General Theories; Chapter 1. Standards of Law-making as the Parts of Normative Space in the Post-modern Democratic States: The Question of Justification and Legitimacy of Law (Tadeusz Biernat); Chapter 2. Public Reason, Background Culture, and the Justification of Legal Change (Michał Rupniewski); Chapter 3. The Moral, the Political, and the Legal – Changing Patterns of Justification in a World of Legal Pluralization (Eva Weiler); Chapter 4. Human Rights: Desiderata of a Theory of Change (Stephen Riley); Part II. Paradigmatic Political Philosophies of Legal Change; Chapter 5. Legal “Determinism” or/and Legal “Creationism”? Conservative-communitarian versus Contractarian Approaches to Legal Change (Maciej Chmieliński); Chapter 6. Natural Law Ethics and the Issue of Legal Change (Michał Rupniewski); Chapter 7. Natural Law against Natural Rights in the Thought of Alasdair MacIntyre (Kamil Aksiuto); Chapter 8. Kant’s Conception of Legal Change (Eduardo Charpenel); Chapter 9. Economism, Voluntarism, and Materialist Historicism: Three Faces of the Marxist Instrumental Approach to Legal Change. (Maciej Chmieliński); III. Practical Processes; Chapter 10. Petrifying, Disregarding or Reforming Customs: Can Customary Law be Changed in a Liberal Way? (Marc Goetzmann); Chapter 11. 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 (Maria Lewandowicz); Chapter 12. Exogenous Institutional Change as Coercion and The Ideological Neutrality Litmus: the Case of Polish Communism (J. Patrick Higgins); Chapter 13. The Coercive Control Offence: A Case Study on Overcriminalisation (Melissa Hamilton); Chapter 14. Individualism In Times of Crisis – Theorising a Shift away from Classic Liberal Attitudes to Human Rights post 9/11. (Ian Turner); Chapter 15. Is the Principle of Legal Certainty a Human Right? The Legitimacy of the Retroactive Application of Laws (Jan Tryzna); Conclusion: the Philosophy of Legal Change as a Research Method (Michał Rupniewski)