Chapter 3 offers competing models of regulatory compliance. The first emphasizes the civic duty to cooperate in the formation, implementation, and reform of public policy, including regulatory law. The second serves the logic of financial risk management (FRM), where profitability provides the sole lodestar. Comparing the two highlights the ethical challenges inherent in FRM. Exclusively financial orientations to risk management ignore the law’s moral underpinnings, encourage regulatory capture, and undercount the firm’s political obligations. An argument is advanced linking recent compliance scandals to this FRM orientation and an absence of the cooperative balance. The contrasting models developed in this chapter provide an analytical framework used in the remainder of this book.

Chapter 5 examines the reopening of German courts and the first trials for Nazi-era crimes in the postwar. When reopening courts in Hesse, Georg August Zinn gave speeches about how a new type of judge was needed for postwar Germany: Judges had to be attached to democracy and they had to analyze statutes for their adherence to democratic principles rather than solely their formal legality. This was a key part of the reason why postwar Social Democrats embraced judicial review as it could prevent the release of Nazi war criminals. The chapter discusses several cases where courts accepted the continuity of Nazi law and released war criminals. It talks about the case of the murderer of Matthias Erzberger, Heinrich Tillessen. A postwar court accepted a padon passed after 1933. In other cases, courts recognized Nazi labor law or death penalty cases carried out against deserters and resisters at the end of the war as part of the so-called end phase crimes.

This chapter details the methodology and sources used to define and clarify the justiciable normative content of the right to science. Anchored in legal positivism, the analysis applies doctrinal, black-letter interpretation techniques derived from the Vienna Convention on the Law of Treaties (VCLT), complemented by Chapman’s violations approach. While textual, systematic, teleological and historical interpretations under the VCLT provide clarity to treaty provisions, the violations approach illuminates state non-compliance, clarifying actionable dimensions of human rights. Sources considered include primary sources such as treaties, secondary sources such as treaty body pronouncements and judicial decisions and relevant soft law instruments. Collectively, this methodological and source-based framework seeks to articulate the normative boundaries of the right to science.

This chapter sets out the argument for Bingham’s conception of the rule of law. First, it exposes the political roots of the legal positivist ‘thin’ conception of the rule of law. Second, it shows that examples on which the thin conception relies, notably slavery and apartheid South Africa, when properly examined, both support the thick conception and illustrate the important connection between the procedural and the substantive dimensions of the rule of law. That connection raises the issue of the status of international law and it shows, third, how the UK dualist tradition is merely the way that the UK manages its commitment to international law, understood as part of its commitment to the rule of law. Finally, the chapter shows that the common good lawyers’ conception of sovereignty is one of executive, not parliamentary sovereignty.

What is a legal culture, and how do we understand and describe it? Historians have done a good job, over the past century, of describing legal institutions. They have been less successful at understanding legal cultures. Yet the eastern Roman Empire is suffused with attempts to articulate understandings of state power and capacity in the language of law. The current "institutional" approach does very little to explain why law was meaningful to subjects of empire: it merely attempts to explain "how it worked," hypothesizing that decent functioning incentivizes the use of the system. This is problematic: it relies anachronistically on a positivist understanding of law. Instead, law is shown to be implicated in multiple acts of community self-definition, in public rituals, and in popular consciousness. This raises the questions: why did legality play such an important role in the provincial imagination? And with what effects on the state itself?

This chapter critically examines the treatment of concepts of legal personality and representation provided by the great (if lamentably now mostly forgotten) German realist phenomenologist Adolf Reinach. In The A Priori Foundations of the Civil Law (1913), Reinach offers what is meant to be a phenomenological elucidation of the a priori nature (essential formal characteristics) of a wide variety of foundational legal concepts, the latter understood as denoting distinctive modalities of speech act. The primary interest of the chapter lies in the analysis that Reinach provides of concepts of personality and representation. However, one cannot understand what is distinctive in – and distinctively compelling or puzzling about – Reinach’s analysis of these concepts without appreciating what is distinctive about his general methodology of conceptual analysis (i.e., his phenomenological, speech act theoretical understanding of social behavior denoted by legal concepts). Thus, in addition to examining Reinach’s views on persons, legal personhood, and legal representation, the chapter provides a critical introduction to Reinachian conceptual analysis and explains its enduring interest for contemporary private law theory.

A special regime is a subpart of the international legal system. This is why, in international legal discourse, there are several different conceptions of a special regime. For the same reason as lawyers disagree about the proper definition of the concept of international law, not only do they have different conceptions of an international legal system but they also assume different definitions of the concept of a special regime. There are considerable differences among the different conceptions of a special regime. This observation raises questions about their relative utility. Chapter 1 suggests the adoption of the conception that characterizes special regimes as communities of practice – as it helps to manage and control the effect of legal fragmentation compared to other conceptions.

Chapter 3 challenges the tradition in comparative legal studies, which treats Germany exclusively as a representative of the Civil Law family. Through excerpts of leading German legal theorists of the twentieth century, the chapter demonstrates that there has always been resistance to the Civil Law orthodoxy in the German legal culture. This includes a survey of the Free Law Movement (Kantorowicz), the Pure Theory of Law (Kelsen), and the Radbruch Formula (Radbruch). The chapter concludes with a discussion of the Federal Constitutional Court’s Lüth Case, in which the Court announced the Basic Law’s “objective order of values.”

Modern discussions of Epicureanism often use the descriptions “legal positivism” and “natural law theory” without providing clear definitions of what is meant by these terms. This chapter remedies this deficiency by characterizing the Epicurean theory of justice and law from the perspective of contemporary philosophy of law. The first section develops a clear conceptual framework by distinguishing between different theses that characterize a view as leaning more toward legal positivism or natural law theory. The second section then tests Epicurean theory against these theses, concluding that even if the Epicurean account has some legal positivist leanings, it is overall closer to a kind of natural law theory.

The Introduction establishes the topic of the book - the creation of states in international law - as well as the method adopted when investigating that topic. It argues that doctrinal debates over state creation have become deadlocked as a result of the prevailing method of 'legal positivism' and that this approach, which focuses exclusively upon the factual provenance of putative laws, should be abandoned. Advocating a form of 'rational reconstruction', whereby the normative appeal of putative laws must be assessed alongside their provenance within international legal practice, it connects this method of law identification to the earlier 'Grotian tradition' developed by scholars such as Hersch Lauterpacht. To aid readers who might be unfamiliar with the details of international legal reasoning, an extended summary of the legal framework endorsed by the text is then presented, followed by a brief overview of the structure of the argument to follow.