Law Commons^™

Trumps, Inversions, Balancing, Presumptions, Institution Prompting, And Interpretive Canons: New Ways For Adjudicating Conflicts Between Legal Norms, Carlos E. Gonzalez

Rutgers Law School (Newark) Faculty Papers

This article begins by reviewing the axiomatic principles that govern courts when dealing with cases in which two legal norms are interpreted as standing in conflict. The article then makes three distinct contributions.

First, the article explicates the central justification behind the use and perpetuation of the extant principles. In briefest terms, the extant principles are best justified as an attempt to resolve cases in which legal rules stand in conflict in a way that enhances or preserves the democratic legitimacy of law. They do this by favoring norms created by entities of relatively strong democratic legitimacy over norms created …

Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus

University of San Diego Public Law and Legal Theory Research Paper Series

“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …