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The Double-Facing Constitution
  • The Double-Facing Constitution
  • Edited by Jacco Bomhoff, David Dyzenhaus, Thomas Poole
  • Coming soon
  • Expected online publication date: January 2020
  • Print publication: 31 January 2020
  • View description
    This collection explores some of the many ways in which constitutional orders engage with, and are shaped by, their exteriors. Constitutional and legal theory often marginalize 'foreign' elements, such as norms originating in other legal systems, the movement of individuals across borders, or the application of domestic law to foreign affairs. In The Double-Facing Constitution, these instances of boundary crossing lie at the heart of an alternative understanding of constitutions as permeable membranes, through which norms can and sometimes must travel. Constitutional orders are facing both inwards and outwards - and the outside world influences their interiors just as much as their internal orders help shape their surroundings. Different essays discuss the theoretical and historical foundations of this view (grounded in Kelsen, Hobbes, Locke, Rousseau and others), and its contemporary relevance for areas as diverse as migration law, the conflict of laws, and foreign relations law.
  • PROCESS AND SUBSTANCE AS ASPECTS OF THE PUBLIC LAW FORM
  • David Dyzenhaus
  • Journal: The Cambridge Law Journal / Volume 74 / Issue 2 / July 2015
  • Published online by Cambridge University Press: 10 June 2015, pp. 284-306
  • Print publication: July 2015
  • View abstract

    I argue that process and substance are two aspects of the public law form and that the form conditions the content of the law. The reduction of a political programme to the explicit terms of a statute involves a conversion of policy into public standards, which produces a kind of legal surplus value. It brings into being a particular type of public standard – one that permits the operation of the principles identified by Lon L. Fuller as the desiderata of the inner morality of law, and which enables individual claims of right based on legal principle to be adjudicated.

Law, Liberty and State
  • Law, Liberty and State
  • Oakeshott, Hayek and Schmitt on the Rule of Law
  • Edited by David Dyzenhaus, Thomas Poole
  • Published online: 05 June 2015
  • Print publication: 28 May 2015
  • View description
    Oakeshott, Hayek and Schmitt are associated with a conservative reaction to the 'progressive' forces of the twentieth century. Each was an acute analyst of the juristic form of the modern state and the relationship of that form to the idea of liberty under a system of public, general law. Hayek had the highest regard for Schmitt's understanding of the rule of law state despite Schmitt's hostility to it, and he owed the distinction he drew in his own work between a purpose-governed form of state and a law-governed form to Oakeshott. However, the three have until now rarely been considered together, something which will be ever more apparent as political theorists, lawyers and theorists of international relations turn to the foundational texts of twentieth-century thought at a time when debate about liberal democratic theory might appear to have run out of steam.
  • Hobbes on the International Rule of Law
  • David Dyzenhaus
  • Journal: Ethics & International Affairs / Volume 28 / Issue 1 / Spring 2014
  • Published online by Cambridge University Press: 19 March 2014, pp. 53-64
  • Print publication: Spring 2014
  • View extract

    Perhaps the most influential passage on the rule of law in international law comes from chapter 13 of Thomas Hobbes's Leviathan. In the course of describing the miserable condition of mankind in the state of nature, Hobbes remarks to readers who might be skeptical that such a state ever existed that they need only look to international relations—the relations between independent states—to observe one:

    But though there had never been any time, wherein particular men were in a condition of warre one against another; yet in all times, Kings, and Persons of Soveraigne authority, because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their Kingdomes; and continuall Spyes upon their neighbours; which is a posture of War.

Hobbes and the Law
  • Hobbes and the Law
  • Edited by David Dyzenhaus, Thomas Poole
  • Published online: 05 October 2012
  • Print publication: 30 August 2012
  • View description
    Hobbes's political thought provokes a perennial fascination. It has become particularly prominent in recent years, with the surge of scholarly interest evidenced by a number of monographs in political theory and philosophy. At the same time, there has been a turn in legal scholarship towards political theory in a way that engages recognisably Hobbesian themes, for example the relationship between security and liberty. However, there is surprisingly little engagement with Hobbes's views on legal theory in general and on certain legal topics, despite the fact that Hobbes devoted whole works to legal inquiry and gave law a prominent role in his works focused on politics. This volume seeks to remedy this gap by providing the first collection of specially commissioned essays devoted to Hobbes and the law.

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