This article deals with the housing framework of laws, that is, constitutions. It distinguishes between constitution referring to the de jure, formal, written book of laws and codes that assume supreme authority within any structure, and constitution which defines a body of informal, conditional rules and laws that do not have supreme authority but are abided by, owing to various objective, subjective factors. Constitution reflects the gap between aspiration and actuality, and constitution attracts a higher degree of compliance and implementation. (...) Studies have indeed found a negative relationship between formal rights protection and actual rights observance. The article reveals that rights guarantees are more prone to failure than success as they depend substantially on environmental and institutional conditions. This article emphasizes a symbiosis between judicialization and constitutionalization while a policy question needs to be judicial in nature if the judiciary has to decide on it. (shrink)

The Concept of Law is the most important and original work of legal philosophy written this century. First published in 1961, it is considered the masterpiece of H.L.A. Hart's enormous contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparked wide debate and unprecedented growth in the quantity and quality of scholarship in this area--much of it devoted to attacking or defending Hart's theories. Principal among Hart's critics is renowned lawyer and political philosopher (...) Ronald Dworkin who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It seemed that Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. In this valuable and long-awaited new edition Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. Written with the same clarity and candor for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and powerfully asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact strikingly similar to his own. In a final analysis, Hart's response leaves Dworkin's criticisms considerably weakened and his positions largely in question. Containing Hart's final and powerful response to Dworkin in addition to the revised text of the original Concept of Law, this thought-provoking and persuasively argued volume is essential reading for lawyers and philosophers throughout the world. (shrink)

This article makes three contributions to the literature on constitutional change. First; it reinforces the theoretical foundations of constitutional entrenchment by defining the spectrum of constitutional permanence. Second; it offers an original taxonomy of entrenchment clauses; including preservative; transformational and reconciliatory entrenchment. Third; in concluding that absolute entrenchment undermines the participatory values that give constitutionalism its meaning; it proposes an alternative to entrenchment: the entrenchment simulator. Whereas entrenchment clauses prohibit constitutional amendment; the entrenchment simulator provides a promising alternative that both (...) embraces the expressive function of entrenchment and remains consistent with the promise of constitutionalism. (shrink)

This book was first published in 1984, as the revised edition of a 1979 original. The text is composed of studies in a descending sequence from perfect rationality, through imperfect and problematical rationality, to irrationality. Specifically human rationality is characterized by its capacity to relate strategically to the future, in contrast to the myopic 'gradient climbing' of natural selection. There is trenchant analysis of some of the parallels proposed in this connection between the biological and the social sciences. In the (...) chapter on imperfect rationality the crucial notion is that of 'binding oneself', as Ulysses did before setting out to the Sirens, when weakness of will may prevent us from using our capacity for perfect rationality. The second half of the book deals with rational-actor theory, comparing its logical power and success to rival approaches, and with the varieties of irrationality expressed in contradictory beliefs and desires. (shrink)

Ultimately this book provides a theory of intergenerational justice that is both intellectually robust and practical with wide applicability to law and policy.

Analyzes the nature of international disagreements and conflict resolution in terms of game theory and non-zero-sum games.

Common sense suggests that it is always preferable to have more options than fewer, and better to have more knowledge than less. This provocative book argues that, very often, common sense fails. Sometimes it is simply the case that less is more; people may benefit from being constrained in their options or from being ignorant. The three long essays that constitute this book revise and expand the ideas developed in Jon Elster's classic study Ulysses and the Sirens. It is not (...) simply a new edition of the earlier book, though; many of the issues merely touched on before are explored here in much more detail. Elster shows how seemingly disparate examples which limit freedom of action reveal similar patterns, so much so that he proposes a new field of study: constraint theory. The book is written in Elster's characteristically vivid style and will interest professionals and students in philosophy, political science, psychology, and economics. (shrink)